Delhi District Court
State vs Anshul on 7 February, 2025
IN THE COURT OF ADDL. SESSIONS JUDGE-03, (CENTRAL): TIS
HAZARI COURTS, DELHI
PRESIDED BY: SH. SANJAY SHARMA-II, DHJS
SC No. : 27514/2016
FIR No. : 423/2015
Under Section : 302/201 IPC
PS : Prasad Nagar
CNR No. : DLCT01-000943-2015
State Versus (1) Anshul
S/o Sh. Subhash Kumar
R/o 16/918, H-Block, Gali No. 5
Pyare Lal Road, Bapa Nagar
Karol Bagh, New Delhi
(2) Rohan
S/o Sh. Subhash Kumar
R/o 16/918, H-Block, Gali No. 5
Pyare Lal Road, Bapa Nagar
Karol Bagh, New Delhi
(3) Yogesh @ Takkal
S/o Late Subhash
R/o 16/1004, H-Block, Gali No 5
Pyare Lal Road, Bapa Nagar
Karol Bagh, New Delhi
Date of Institution : 26.10.2015
Date of Arguments : 20.12.2024
Date of Judgment : 07.02.2025
JUDGMENT
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 1 of 65 CASE OF THE PROSECUTION:
1. On 17.06.2015 at about 11.15 p.m., the accused persons, in furtherance of their common intention, committed murder of Mr. Harvinder Singh (In short 'the deceased') in the street in front of H. No. 16/934, H-Block, Gali No. 5, Pyare Lal Road, Bapa Nagar, Karol Bagh, New Delhi, within jurisdiction of PS Prasad Nagar. Thus, the State prosecuted the accused persons for committing offence punishable under Section 302/34 of 'The Indian Penal Code, 1860' (In short 'IPC''). PCR CALLS:
2. On 18.06.2015 at 00:05:58 hrs., PW-11 HC Hans Kumar, Channel Operator, Extn. No. 112, Central Police Control Room (CPCR) received a call regarding a 'heavy quarrel' at H-16/934, Block-H, Bapa Nagar, Karol Bagh from Mobile No. 9911676846, vide PCR Form Ex.PW11/A. He transmitted the said call to Central District.
3. On 18.06.2015 at 12.06 a.m., PW-17 HC Brij Mohan, Duty Officer, PS Prasad Nagar received a message from Central District Control Room (CDCR), through wireless, that 'H. No. 16/934, H-Block, Jyada jhagra phone No. 9911676846'.
He reduced the said call into writing, vide DD No. 2A Ex.PW17/A and sent it to PW-23 SI Brijpal Singh, through PW-19 Ct. Ravinder Tomar, for appropriate action.
4. On 18.06.2015 at 12.08 a.m., PW-17 HC Brij Mohan received another call that 'H. No. 16/965, Gali No. 5, Bapa Nagar, chaku maar diya phone No. 9268171590 '. He reduced the said call into writing, vide DD No. 3A Ex.PW17/B and sent it to PW-23 SI Brijpal Singh, through PW-19 Ct. Ravinder Tomar, for appropriate action.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 2 of 65
5. On 18.06.2015 at about 12.11 a.m., PW-21 ASI Ram Charan, In-Charge, PCR Van, OSCAR-47 reached at the place of incident.
6. On 18.06.2015 at 12.28 a.m., PW-17 HC Brij Mohan received a message from Central District Control Room, through wireless, that '16/934, Bapa Nagar, caller ke husband ko chaku maar diya hain phone No. 9911180179'. He reduced the said call into writing, vide DD No. 7A Ex.PW17/C and handed it over to PW-26 Insp. Ramesh Lamba for appropriate action. STATUS OF THE PLACE OF INCIDENT:
7. On receipt of DD No. 2A Ex.PW17/A, PW-23 SI Brijpal Singh alongwith PW-18 Ct. Suresh Kumar and PW-19 Ct. Ravinder Tomar reached at kiosk of Dipankar Anand in front of H. No. 16/934-H, Pyare Lal Road, Bapa Nagar where he found a heavy crowd. There was blood scattered over a long distance in the street. On enquiry, he came to know that brothers of the injured Harvinder had taken him to LHMC Hospital. PW-14 Ct. Manoj and Ct. Sandeep, Beat Staff, were already present there. He left PW-14 Ct. Manoj, PW-18 Ct. Suresh Kumar and Ct. Sandeep to guard the place of incident. He alongwith PW-19 Ct. Ravinder Tomar proceeded to LHMC Hospital.
8. PW-21 ASI Ram Charan, In-Charge, PCR Van sent a report to Control Room that 'Call is true. Harvinder S/o Lekhraj, Age about 28/29 Yrs R/o as same as above ko mohalle ke jankar ladke Rohan aur Anshul S/o Billa ne chaku maar bhag gaye inko pehle hi mohalle wale kisi hospital le gaye hai = SI Brijpal mauke par hai O-96 bhi mauke par hai 18/06/2015 00:35:39 O-96 ki call', vide PCR Form Ex.PW11/A. FIR No. 423/2015 State vs. Anshul & Ors. Page No. 3 of 65 MLC OF THE DECEASED:
9. On 18.06.2015 at 00.55 a.m., Vijay (brother of the deceased) admitted the deceased in LHMC Hospital. PW-9 Dr. Prem Kishore, Casualty Medical Officer (CMO) declared the deceased as 'brought dead', vide MLC Ex.PW9/A. COLLECTION OF MLC AND INSPECTION OF DEAD BODY:
10. PW-23 SI Brijpal Singh alongwith PW-19 Ct. Ravinder Tomar reached at LHMC Hospital. He collected MLC of the deceased Ex.PW9/A.
11. On inspection of the dead body, PW-23 SI Brijpal Singh found that the dead body was smeared with blood. There were deep wounds on thighs near private parts.
12. PW-23 SI Brijpal Singh met PW-2 Narender Singh in LHMC Hospital and recorded his statement Ex.PW2/A. STATEMENT OF PW-2 NARENDER SINGH:
13. Statement of PW-2 Narender Singh Ex.PW2/A is translated, as under:
"Statement of Mr. Narender Singh S/o Sh. Lekhraj R/o H. No. 16/934, H-Block, Gali No. 5, Pyare Lal Road, Bapa Nagar, Karol Bagh, Delhi. Age 25 years. Ph. No. 9911676846.
Stated that I am residing alongwith my family at the aforesaid address. I was doing photography work on order from my house. Today, on 17/18.06.2015 at about 11.15 p.m., I came out from my house for a walk after having dinner. I was drinking Limca while standing near a food kiosk of Dipankar which is in front of my house. In the meantime, Rohan, a resident of our mohalla, came there. There is a tea- stall of Rishipal adjacent to kiosk of Dipankar. There was a tarpaulin on the said kiosk supported by a bamboo. Rohan removed the said bamboo. On this act, Dipankar asked Rohan as to why he had removed the said bamboo.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 4 of 65 Rohan asked Dipankar to address him properly and while stating so, Rohan had slapped on face of Dipankar. After slapping, Rohan went away. After sometime, he again returned and started quarreling with Dipankar. I intervened. On my intervention, Rohan returned while threatening that we should stay there and he would be bringing his associates. After few minutes, Rohan brought his elder brother, namely, Anshul and a bad element of the area, namely, Yogesh @ Takkal there and all three of them started quarreling with us. In the meantime, my elder brother, namely, Harvinder Singh reached there to intervene between us. On this, Rohan and his elder brother, namely, Anshul stated that 'maar sale ko aur khatam kar de'. Just after stating so, Anshul taken out a knife and Takkal had also taken out a sharp edged weapon and both of them inflicted a life endangering blow upon my brother Harvinder and Rohan also assisted them and stated that ' maar sale ko'. Thereafter, all three of them started running in the street after stabbing knife. I, my brother, namely, Harvinder and Dipankar chased them in order to apprehend them. However, my brother fell down in the street after some distance and there was heavy bleeding from his legs. I and Dipankar stopped near him. I and my brother, namely, Vijay brought my brother, namely, Harvinder to outside the street on Pyare Lal Road on a motorcycle belonging to my neighbor, namely, Sunny and my brother, namely, Vijay had taken Harvinder in an auto boarded there. I also followed them on my motorcycle and reached Lady Hardinge Hospital where doctors declared my brother dead. Rohan, his brother, namely, Anshul and his associate, namely, Yogesh @ Takkal intentionally caused death of my brother, namely, Harvinder Singh with the intention to cause his death. Legal action be taken against them."
ENDORSEMENT FOR REGISTRATION OF FIR:
14. On the basis of statement of PW-2 Narender Singh, status of the place of incident, MLC and inspection of the dead body, PW-23 SI Brijpal Singh made endorsement Ex.PW23/A for registration of FIR under Section 302/34 IPC and 25/29 Arms Act. On 18.06.2015 at 02.30 a.m., he handed it over to PW-19 Ct. Ravinder Tomar for being taken to PS Prasad Nagar.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 5 of 65 REGISTRATION OF FIR:
15. On 18.06.2015 at about 02.50 a.m., PW-16 ASI Rajinder Singh, Duty Officer, PS Prasad Nagar registered FIR No. 423/2015 under Section 302/34 IPC Ex.PW16/A and assigned further investigation of the case to PW-26 Insp. Ramesh Lamba, SHO, PS Prasad Nagar. He sent copies of FIR to Ld. Area MM and Senior Officers of Police, through PW-13 Ct. Jalandar, Special Messenger.
INSPECTION OF THE SCENE OF CRIME BY CRIME TEAM:
16. On 18.06.2015 at about 02.00 a.m. to 03.45 a.m., PW-15 SI Rahul, In-charge, Crime Team, New Delhi District inspected the place of incident and prepared Scene of Crime (SOC) report Ex.PW15/A.
17. PW-12 Ct. Surender, Photographer, Mobile Crime Team, New Delhi District taken 22 photographs of the place of incident Ex.PW12/A-1 to Ex.PW12/A-22 and negatives thereof are Ex.PW12/B-1 to Ex.PW12/B-22.
PREPARATION OF UNSCALED SITE PLAN:
18. During investigation, PW-26 Insp. Ramesh Lamba prepared unscaled site plan of the place of incident Ex.PW2/B at the instance of PW-2 Narender Singh.
SPOT SEIZURES:
19. PW-26 Insp. Ramesh Lamba seized blood stained concrete, one blood stained slipper of left foot, one blood stained slipper of right foot, blood on cotton from two places and converted them into separate parcels Mark 'A' to 'E' and sealed the said parcels with his seal having impression 'RCL' and seized them, vide seizure memo Ex.PW2/C. FIR No. 423/2015 State vs. Anshul & Ors. Page No. 6 of 65 APPREHENSION / ARREST OF THE ACCUSED ANSHUL AND ROHAN:
20. In the morning of 18.06.2015, PW-26 Insp. Ramesh Lamba alongwith PW-25 SI Baljinder Singh and other police officials apprehended the accused Anshul and Rohan on the basis of a source information near Khalsa College, Ganga Mandir Marg while the accused Anshul was driving a motorcycle bearing registration No. DL 6S AR 1670 and the accused Rohan was sitting on pillion seat. He seized the said motorcycle with key, vide seizure memo Ex.PW25/A.
21. On 18.06.2015 at 07.00 a.m., PW-26 Insp. Ramesh Lamba arrested the accused Anshul, vide arrest memo Ex.PW25/B and conducted his personal search, vide personal search memo Ex.PW25/D. He interrogated him and recorded his disclosure statement Ex.PW25/F.
22. On 18.06.2015 at 07.35 a.m., PW-26 Insp. Ramesh Lamba arrested the accused Rohan, vide arrest memo Ex.PW25/C and conducted his personal search, vide personal search memo Ex.PW25/E. He interrogated him and recorded his disclosure statement Ex.PW25/G. He prepared his age memo Ex.PW26/A. He seized blood stained clothes which the accused Anshul and Rohan were wearing at the time of apprehension, vide seizure memos Ex.PW25/H and Ex.PW25/I respectively. MEDICAL EXAMINATION OF ANSHUL AND ROHAN:
23. On 18.06.2015 at 10.15 a.m., Dr. Soumik Ghosh, SR, Casualty Medical Officer examined the accused Rohan and Anshul with 'alleged history of assault, ? self-inflicted (caused) ', vide MLCs Ex.CW1/B and Ex.CW1/C respectively. The nature of injuries was opined as 'simple'.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 7 of 65
SEIZURE OF BLOOD STAINED CLOTHES FROM
NARENDER SINGH, VIJENDER @ VIJAY AND DIPANKAR ANAND:
24. PW-26 Insp. Ramesh Lamba seized blood stained clothes from PW-2 Narender Singh, PW-4 Vijender Singh @ Vijay and PW-5 Dipankar Anand, vide seizure memos Ex.PW25/J, Ex.PW4/A and Ex.PW5/A respectively. SEIZURE OF MOTORCYCLE FROM PW-1 SUNNY KUMAR:
25. PW-26 Insp. Ramesh Lamba seized motorcycle bearing registration No. DL 6S AR 4091 with its RC from PW-1 Sunny Kumar, vide seizure memo Ex.PW1/A. POST-MORTEM:
26. On 18.06.2015 at 03.30 p.m., PW-10 Dr. Rahul Band, Senior Resident, Department of Forensic Medicines, Lady Hardinge Medical College, Delhi conducted post-mortem on body of the deceased. He observed an external injury, as under:
"1. Stab wound of size 3 x 0.5 x 12 cm, wedge shaped, oriented horizontally, present over anterio- medial aspect of upper part of right thigh, 12 cm below right pubic tubercle and 71 cm above heel. Margins and edges of wound are clean cut, medial end is acute, lateral end is less acute and contuse. On dissection, tract of wound is directed posterio laterally and inwards, cutting through and through under lines of soft tissues, femoral vessels and muscles upto femur bone. Tract and surrounding tissues contains clotted blood."
27. PW-10 Dr. Rahul Band observed 'one cut mark of size 2.5 x 1 cm present on anterio-medial aspect of upper part of right limb oriented horizontally, situated 6 cm below lower end of zip and 2.5 cm lateral to medial stitching ' on blue jeans on dead body of the deceased.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 8 of 65
28. PW-10 Dr. Rahul Band given opinion that cause of death of the deceased was 'hemorrhagic shock consequent upon vascular damage as a result of stab injury to thigh produced by single edged sharp and pointed weapon' and external injury No. 1 was 'ante-mortem' and 'fresh' and it was 'sufficient to cause death in ordinary course of nature'.
29. PW-10 Dr. Rahul Band prepared post-mortem report Ex.PW10/A and he handed over two sealed parcels containing blood stained clothes of the deceased and blood sample of the deceased alongwith sample seal to PW-18 Ct. Suresh Kumar who handed them over to PW-23 SI Brijpal Singh which he seized, vide seizure memo Ex.PW18/A. FURTHER INVESTIGATION:
30. During investigation, PW-26 Insp. Ramesh Lamba obtained police custody of the accused Anshul and Rohan. However, he could not recover 'weapon of offence' and arrest the accused Yogesh @ Takkal. He recorded statement of the witnesses under Section 161 Cr.P.C.
ARREST OF THE ACCUSED YOGESH @ TAKKAL:
31. On 27.06.2015, the accused Yogesh @ Takkal surrendered before Ms. Shilpi Jain, Ld. MM, Tis Hazari Courts, Delhi.
32. On 27.06.2015 at 12.50 p.m., PW-26 Insp. Ramesh Lamba, after seeking permission of the Jurisdictional Magistrate, arrested the accused Yogesh @ Takkal, vide arrest memo Ex.PW25/K and conducted his personal search, vide personal search memo Ex.PW25/L. He interrogated him and recorded his disclosure statement Ex.PW25/M. He obtained two days police custody of the accused Yogesh @ Takkal.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 9 of 65 RECOVERY OF CHOPPER AND BLOOD STAINED CLOTHES OF THE ACCUSED YOGESH @ TAKKAL:
33. On 27.06.2015, PW-26 Insp. Ramesh Lamba further interrogated the accused Yogesh @ Takkal in police station, during police remand, and recorded his disclosure statement Ex.PW25/Q. Pursuant to disclosure statement Ex.PW25/Q, the accused Yogesh @ Takkal led PW-26 Insp. Ramesh Lamba to a small room on 1st Floor of H. No. 16/1004, H Block, Pyare Lal Road, Bapa Nagar, Karol Bagh, Delhi and got recovered a chopper from slab of the said room concealed under a wooden ply. He prepared a sketch of the said chopper ( garsa) Ex.PW25/N. He kept the said chopper ( garsa) in a parcel and sealed it with seal having impression 'RCL' and seized it, vide seizure memo Ex.PW25/O. He seized blood stained clothes of the accused Yogesh @ Takkal from a wooden sofa kept in the said room. He kept the said clothes of the accused Yogesh @ Takkal in a cloth parcel and sealed it with seal having impression 'RCL' and seized it, vide seizure memo Ex.PW25/P. However, he could not recover the knife.
VIOLATION OF EXTERNMENT ORDER:
34. The accused Yogesh @ Takkal was externed beyond the limits of NCT of Delhi for a period of two years, vide externment order dated 20.02.2014 under Section 47 of ' Delhi Police Act, 1978' issued by Dr. Ashok Malik, Addl. DCP, Central District, Delhi Ex.PW26/B. In that regard, PW-26 Insp. Ramesh Lamba filed a kalandra under Section 53/116 of 'Delhi Police Act, 1978' Ex.PW26/C and arrested him, vide arrest memo Ex.PW25/R. FIR No. 423/2015 State vs. Anshul & Ors. Page No. 10 of 65 STATEMENT OF PW-2 NARENDER SINGH UNDER SECTION 164 CR.P.C.:
35. On 02.07.2015, PW-8 Mr. Priyank Nayak, Ld. MM recorded statement of PW-2 Narender Singh under Section 164 Cr.P.C. Ex.PW2/D, as under:
"Harvinder Singh was my elder brother. In the night of 17.06.2015, I came out from my house. The incident is of night around 11.15 p.m. At the said time, my neighbor Rohan came. A quarrel had taken place between Rohan and Dipankar (neighbor). Thereafter, Rohan went away from there. Thereafter, Rohan again came and he slapped Dipankar. On being objected by me, Rohan threatened me. On seeing this, my elder brother, namely, Harvinder came down. Rohan had also went away from there and he came with Anshul and Yogesh @ Takkal. Yogesh was carrying a sharp edged weapon in his hand and Anshul was carrying a knife in his hand. Rohan caught hand of my brother, namely, Harvinder and Anshul stabbed a knife on thigh of Harvinder. Yogesh said that 'maar de saale ko'. Yogesh had tried to kill Harvinder with sharp edged weapon. Thereafter, Rohan, Anshul and Yogesh (all three of them) started running. My brother chased them.
However, he fell down due to bleeding. Thereafter, I and Vijender Singh had taken Harvinder to hospital where Doctor declared him brought dead."
STATEMENT OF PW-5 DIPANKAR ANAND UNDER SECTION 164 CR.P.C.:
36. On 02.07.2015, PW-8 Mr. Priyank Nayak, Ld. MM recorded statement of PW-5 Dipankar Anand under Section 164 Cr.P.C. Ex.PW8/B, as under:
"I am engaged in the business of catering. On 17.06.2015, I was standing with Narender Singh. There Rohan started disturbing the nearby tea-stall. On being objected by me, he started scuffling with me. Thereafter, Rohan went away from there. After some time, he again came and again started quarreling with me. Narender intervened. Then he threatened him also. Then Rohan went away from there and came with Anshul and Yogesh @ Takkal.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 11 of 65 Anshul and Yogesh had weapons in their hands. By that time, Harvinder had also reached there. Rohan caught Harvinder and Anshul attacked him with a weapon. Yogesh and Rohan were stating in loud voice that 'maar de jaan se' and 'khel khatam kar de iska'. I do not know that Yogesh had attacked Harvinder or not. Then Anshul, Rohan and Yogesh ran away. I alongwith Narender and Harvinder ran after them. Harvinder fell down and we had taken him to hospital where doctor declared Harvinder as brought dead. The entire incident had taken place in front of house of Harvinder and near my shop. The entire incident had taken place in the night after 11.00 p.m. I supply food to factories."
FURTHER INVESTIGATION:
37. During investigation, PW-26 Insp. Ramesh Lamba recorded statement of the witnesses under Section 161 Cr.P.C. He instructed PW-23 SI Brijpal Singh to deposit case property with FSL for forensic examination. He collected FSL reports. He got the place of incident inspected and prepared scaled site plan of the place of incident Ex.PW27/A. He collected Call Detail Records (CDR) qua mobile Nos. 9999097866, 7838808042 and 9911676846 from Vodafone Mobile Services Ltd. CHARGE-SHEET:
38. On completion of investigation, PW-26 Insp. Ramesh Lamba charge-sheeted the accused persons for committing offence under Section 302/34 IPC.
COMMITTAL PROCEEDINGS:
39. Vide order dated 03.09.2015, Jurisdictional Magistrate committed the case to the Court of Sessions. THE CHARGE:
40. Vide orders dated 02.12.2015, the accused persons were charged for committing offence punishable under Section 302/34 IPC to which they pleaded not guilty and claimed trial.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 12 of 65 THE PROSECUTION EVIDENCE:
41. The prosecution examined 27 witnesses, as under:
The witnesses Description of the witnesses PW-1 Sunny Kumar Immediate neighbor of the deceased PW-2 Narender Singh The complainant / brother of the deceased PW-3 Santoshi Lal, LDC, He brought vehicle particulars qua motorcycle RTA, Sarai Kale Khan No. DL 6S AR 4091 and DL 6S AR 1670 PW-4 Vijender Singh Brother of the deceased PW-5 Dipankar Anand Owner of food kiosk near the place of incident PW-6 Rishipal Owner of tea-stall near the place of incident PW-7 Smt. Harjinder Kaur Wife of the deceased / caller PW-8 Sh. Priyank Nayak Recorded statements of Dipankar Anand and Narender Singh under Section 164 Cr.P.C.
PW-9 Dr. Prem Kishore Declared the deceased 'brought dead' PW-10 Dr. Rahul Band Conducted post-mortem PW-11 HC Hans Kumar Channel Operator, Extn. No. 112, CPCR PW-12 Ct. Surender Photographer, Mobile Crime Team PW-13 Ct. Jalandar Special Messenger PW-14 Ct. Manoj Guarded the scene of crime PW-15 SI Rahul In-Charge, Mobile Crime Team, New Delhi
PW-16 ASI Rajender Singh Duty Officer, PS Prasad Nagar PW-17 HC Brij Mohan DD Writer, PS Prasad Nagar PW-18 Ct. Suresh Kumar Guarded the dead body of the deceased PW-19 Ct. Ravinder Tomar Taken rukka to PS Prasad Nagar PW-20 Israr Babu, Nodal Brought Call Detail Records of mobile Nos. Officer, Vodafone 9999097866, 7838808042 and 9911676846 PW-21 ASI Ram Charan In-Charge, PCR Van, OSCAR-47 PW-22 ASI Bhuwan Chand MHC (M), PS Prasad Nagar PW-23 SI Brijpal Singh 1st Investigating Officer PW-24 Dr. Garima Senior Forensic Examiner, Biology Division, Chaudhary RFSL, Chanakyapuri, New Delhi PW-25 SI Baljinder Singh Arrest witness qua the accused persons PW-26 SI Ramesh Lamba 2nd Investigating Officer PW-27 Insp Mahesh Kumar Prepared scaled site plan of the place of incident FIR No. 423/2015 State vs. Anshul & Ors. Page No. 13 of 65 LIST OF PROSECUTION DOCUMENTS:
42. The prosecution relied on the documents, as under:
Exhibit Description of the documents
Ex.PW1/A Seizure memo of motorcycle No. DL 6S AR 4091 and its
registration certificate
Ex.PW1/B Photocopy of RC of motorcycle No. DL 6S AR 4091
Ex.PW2/A Statement of Narender Singh
Ex.PW2/B Unscaled site plan of the place of incident
Ex.PW2/C Seizure memo of seizures from the place of incident
Ex.PW2/D Statement under Section 164 Cr.P.C. of Narender Singh
Ex.PW3/A Vehicle particulars qua motorcycle No. DL 6S AR 4091
Ex.PW3/B Vehicle particulars qua motorcycle No. DL 6S AR 1670
Ex.PW4/A Seizure memo of clothes of PW-4 Vijender Singh
Ex.PW5/A Seizure memo of clothes of PW-5 Dipankar Anand
Ex.PW8/A Application for recording of statements under Section 164
Cr.P.C. of Dipankar Anand and Narender Singh Ex.PW8/B Statement under Section 164 Cr.P.C. of Dipankar Anand Ex.PW9/A MLC No. 41850 dated 18.06.2015 at 12.55 a.m. Ex.PW10/A Post-mortem report Ex.PW11/A PCR Form Ex.PW12/A1 Photographs of the place of incident to Ex.PW12/A22 Ex.PW12/B1 Negatives of the photographs to Ex.PW12/B22 Ex.PW15/A Scene of Crime (SOC) Report Ex.PW16/A FIR No. 423/15 under Section 302/34 IPC PS Prasad Nagar Ex.PW17/A DD No. 2A dated 18.06.2015 at 12.06 a.m. Ex.PW17/B DD No. 3A dated 18.06.2015 at 12.08 a.m. Ex.PW17/C DD No. 7A dated 18.06.2015 at 12.28 a.m. Ex.PW18/A Seizure memo of blood stained clothes of the deceased Ex.PW20/A Call Detail Record (CDR) of mobile No. 9999097866 for the period from 10.06.2015 to 18.06.2015 Ex.PW20/B Customer Application Form qua mobile No. 9999097866 Ex.PW20/C Certificate under Section 65B of 'The Indian Evidence Act' Ex.PW20/D Call Detail Record (CDR) of mobile No. 7838808042 for the period from 10.06.2015 to 18.06.2015 FIR No. 423/2015 State vs. Anshul & Ors. Page No. 14 of 65 Ex.PW20/E Customer Application Form qua mobile No. 7838808042 Ex.PW20/F Certificate under Section 65B of 'The Indian Evidence Act' Ex.PW20/G Call Detail Record (CDR) of mobile No. 9911676846 for the period from 17.06.2015 to 18.06.2015 Ex.PW20/H Customer Application Form qua mobile No. 9911676846 Ex.PW20/J Certificate under Section 65B of 'The Indian Evidence Act' Ex.PW22/A Entry at Sl. 361 in Reg. No. 19 dated 18.06.2015 Ex.PW22/B Entry at Sl. 382 in Reg. No. 19 dated 27.06.2015 Ex.PW22/C RC No. 62/21/15 dated 13.07.2015 Ex.PW22/D Acknowledgement dated 13.07.2015 issued by FSL Ex.PW23/A Endorsement for registration of FIR Ex.PW23/B Inquest papers Ex.PW24/A FSL (Biology) Report Ex.PW24/B FSL (Allele Data) Report Ex.PW25/A Seizure memo of motorcycle No. DL 6S AR 1670 Ex.PW25/B Arrest memo of the accused Anshul Ex.PW25/C Arrest memo of the accused Rohan Ex.PW25/D Personal search memo of the accused Anshul Ex.PW25/E Personal search memo of the accused Rohan Ex.PW25/F Disclosure statement of the accused Anshul Ex.PW25/G Disclosure statement of the accused Rohan Ex.PW25/H Seizure memo of clothes of the accused Anshul Ex.PW25/I Seizure memo of clothes of the accused Rohan Ex.PW25/J Seizure memo of clothes of PW-2 Narender Singh Ex.PW25/K Arrest memo of the accused Yogesh @ Takkal Ex.PW25/L Personal search memo of the accused Yogesh @ Takkal Ex.PW25/M Disclosure statement of the accused Yogesh @ Takkal Ex.PW25/N Sketch of chopper (garsa) Ex.PW25/O Seizure memo of chopper (garsa) Ex.PW25/P Seizure memo of blood stained clothes of the accused Yogesh @ Takkal Ex.PW25/Q Supplementary disclosure statement of the accused Yogesh @ Takkal Ex.PW26/A Age memo of the accused Rohan Ex.PW26/B Externment order dated 20.02.2014 Ex.PW26/C Kalandra, vide DD No. 25A dated 28.06.2015 Ex.PW27/A Scaled site plan of the place of incident FIR No. 423/2015 State vs. Anshul & Ors. Page No. 15 of 65 Ex.PX1 Blood stained earth control Ex.PX2 Blood stained left slipper Ex.PX3 Blood stained right slipper Ex.PX4 Cotton gauze Ex.PX5 Blood on gauze Ex.PX1 White colour vest and grey sport short seized from PW-4 and Vijender Singh Ex.PX2 Ex.P1 Sky blue half sleeve T-shirt seized from Dipankar Anand Ex.PY1 Clothes of the accused Anshul Ex.PY2 Clothes of the accused Rohan Ex.PY3 Clothes of PW-2 Narender Singh Ex.PY4 Clothes of the accused Yogesh @ Takkal EXAMINATION OF THE ACCUSED PERSONS:
43. Incriminating circumstances appearing in evidence were explained to the accused persons, under section 313 Cr.P.C. They denied each and every circumstance appearing in evidence against them. They pleaded false implication and innocence. PLEA OF DEFENCE:
44. The plea of the accused Anshul and Rohan is that they were not present at the place of incident. They stated that statement of PW-2 Narender Singh is fabricated. They stated that police registered false case against them. They stated that scene of crime (SOC) report is false and fabricated report. They stated that photographs are manipulated and manufactured.
45. The accused Anshul and Rohan stated that all witnesses deposed at the instance of IO. They stated that they were called to police station where they were detained for two hours and thereafter, they were falsely implicated in this case. They stated that motorcycle of their father was brought from their house to police station and implicated in this case.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 16 of 65
46. The accused Anshul and Rohan stated that they were arrested in police station by IO. They stated that they were forced to sign blank papers in police station by IO. They stated that doctor has given post-mortem report and opinion regarding injuries at the instance of IO. They stated that parcels have been tampered by investigating agency. They stated that PW-2 Narender Singh and PW-5 Dipankar Anand are planted witnesses. They stated that FSL report is false and fabricated and it was prepared at the instance of IO. They stated that scaled site plan is not correct and it was prepared at the instance of IO. They stated that no clothes were recovered from them. They stated that the prosecution witnesses are interested witnesses and they deposed at the instance of Investigating Officer. They denied any connection with this case.
47. The plea of the accused Yogesh @ Takkal is that he was not present at the place of incident. He stated that photographs are false. He stated that doctor has given post- mortem report and opinion regarding injuries at the instance of IO. He stated that parcels have been tampered by investigating agency. He stated that he surrendered before Ms. Shilpi Jain, Ld. MM and he was falsely implicated in this case. He stated that no chopper was recovered at his instance. He stated that all the prosecution witnesses are interested witnesses and they have deposed at the instance of Investigating Officer of this case.
48. The plea of the accused Yogesh @ Takkal is, as under:
"Question 141: Do you want to say anything else? Ans. I am innocent. I was falsely implicated in this case. I was not present in Delhi as I was externed from the limits of Territory of Delhi since long. I was residing in Agra, U.P. with my paternal aunt (bua).
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 17 of 65 I only used to come Delhi to attend pending criminal cases and after attending the said cases, I used to leave Delhi immediately for Agra. Investigating Officer pressurized my mother to ask me to surrender in the police station in the above said case and when she refused, she was tortured, humiliated and insulted. My mother informed me about the said agony and trauma and therefore, I surrendered before Ld. MM in Tis Hazari Courts, Delhi having jurisdiction over PS Prasad Nagar. When I surrendered before the said Court, IO took my remand from the said Court and took me to the police station and prepared false and frivolous documents and involved me in this case. Previously, this IO involved me being SHO, PS Prasad Nagar in other criminal cases also and got declared me as ' Bad Character' (BC). IO involved me in such heinous crime so that I should not come out from jail. IO had let out Yogesh S/o Sh. Ashok Kumar, who was the actual culprit of this case and involved me, in his place. The complainant, namely, Narinder Singh had lodged a written additional statement to PS Prasad Nagar on 19.06.2015 against the accused, namely, Yogesh but IO withheld the said statement from Court and did not investigate the case properly. I did not commit any offence. I was falsely implicated by IO in this case."
ADDITIONAL PROSECUTION EVIDENCE:
49. CW-1 Dr. Amrit Kumar Gupta, Senior Resident, General Surgery, A & E Department, LHMC Hospital, Delhi examined to prove MLC No. 41907 dated 18.06.2015 prepared at 10.15 a.m. qua the accused Rohan Ex.CW1/B and MLC No. 41908 dated 18.06.2015 prepared at 10.20 a.m. qua the accused Anshul Ex.CW1/C. ADDITIONAL EXAMINATION UNDER SECTION 313 CR.P.C.:
50. In their examination under Section 313 Cr.P.C., the accused Rohan and Anshul stated that they were examined, vide MLCs Ex.CW1/B and Ex.CW1/C respectively. However, they denied that they had any injury at that time.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 18 of 65 APPEARANCE:
51. I have heard arguments of Mr. Amit Dabas, Ld. Addl. PP for the State and Mr. Vineet Jain, Ld. Counsel for the accused Anshul and Rohan, and Mr. H.K. Aneja, Ld. Counsel for the accused Yogesh @ Takkal and examined the evidence, oral and documentary, and perused written arguments filed by Ld. Counsel for the accused Anshul and Rohan. CONTENTIONS OF THE PROSECUTION:
52. Ld. Addl. PP for the State contended that the prosecution has adduced credible evidence to prove the charges against the accused persons beyond reasonable doubt. He contended that PW-2 Narender Singh and PW-5 Dipankar Anand are reliable witnesses. He contended that PW-2 Narender Singh and PW-5 Dipankar Anand are natural witnesses. He contended that PW-2 Narender Singh cannot be considered as an interested witness on account of his relationship with the deceased. He contended that PW-2 Narender Singh and PW-5 Dipankar Anand had no enmity with the accused persons. He contended that PW-2 Narender Singh and PW-5 Dipankar Anand had no reason to falsely implicate the accused persons. He contended that evidence of PW-2 Narender Singh is corroborated by statement Ex.PW2/A. He contended that FIR was registered promptly within 1½ hour from the time of death of the deceased and within 2½ hours from the time of the incident. He contended that evidence of PW-2 Narender Singh is corroborated by FIR Ex.PW16/A. He contended that PW-5 Dipankar Anand witnessed the incident. He contended that PW-5 Dipankar Anand materially corroborated the evidence of PW-2 Narender Singh.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 19 of 65
53. Ld. Addl. PP for the State contended that evidence of PW-2 Narender Singh and PW-5 Dipankar Anand is corroborated by DDs Ex.PW17/A to Ex.PW17/C, spot seizures, scene of crime (SOC) report Ex.PW15/A, photographs of the place of incident Ex.PW1/A-1 to Ex.PW1/A-22 and FSL reports Ex.PW24/A and Ex.PW24/B respectively. He contended that there is no material contradiction, inconsistency or discrepancy in the statement of PW-2 Narender Singh and PW-5 Dipankar Anand. He contended that PW-1 Sunny Kumar, PW-4 Vijender Singh and PW-7 Harjinder Kaur also corroborated evidence of PW-2 Narender Singh and PW-5 Dipankar Anand regarding the incident, place of incident, nature of injury sustained by the deceased and presence of PW-2 Narender Singh at the place of incident. He contended that post-mortem report Ex.PW10/A proved that injury sustained by the deceased was sufficient to cause death in ordinary course of nature. He contended that 'femoral vessel' is a large blood vessel and it is a vital part and any damage to the said vessel can cause death. He contended that the deceased was declared brought dead at 12.55 a.m. on 18.06.2015. He contended that the accused Rohan came alongwith the accused Anshul and Yogesh @ Takkal. He contended that the accused Anshul and Yogesh @ Takkal were armed with a knife and a sharp edged weapon. He contended that the accused Rohan and Anshul stated that ' maar saale ko aur khatam kar de'. He contended that thereafter, the accused Anshul and Yogesh @ Takkal stabbed the deceased. He contended that the accused persons caused death of the deceased in furtherance of their common intention.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 20 of 65
54. Ld. Addl. PP for the State contended that non-
recovery of weapon of offence is not significant in view of post- mortem report and evidence of PW-2 Narender Singh and PW-5 Dipankar Anand. He contended that non-examination of maternal aunt of PW-5 Dipankar Anand is inconsequential. He contended that during investigation, it did not reveal that she had witnessed the incident. He contended that in any case, there is sufficient, credible, reliable and trustworthy evidence to prove the charge. He contended that the prosecution proved the charge under Section 302/34 IPC beyond reasonable doubt. CONTENTIONS OF THE DEFENCE:
55. Mr. Vineet Jain, Ld. Counsel for the accused Anshul and Rohan contended that the accused Anshul and Rohan were falsely implicated in this case. He contended that the accused Anshul and Rohan did not cause any injury to the deceased. He contended that DD No. 2A dated 18.06.2015 at 12.06 a.m. Ex.PW17/A was relating to 'heavy quarrel' and DD No. 3A dated 18.06.2015 at 12.08 a.m. Ex.PW17/B was relating to 'stabbing' and DD No. 7A dated 18.06.2015 at 12.28 a.m. Ex.PW17/C was relating to 'stabbing of husband of caller'. He contended that the case of the prosecution is that the said DD entries are relating to the same incident. However, the place of incident in DD No. 3A Ex.PW17/B is at H. No. 16/965, Gali No. 5, Bapa Nagar whereas DD No. 2A Ex.PW17/A and DD No. 7A Ex.PW17/C are relating to incident at H. No. 16/934, H-Block, Bapa Nagar. He contended that the prosecution has not been able to establish the place of incident.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 21 of 65
56. Mr. Vineet Jain, Ld. Counsel contended that PW-26 Insp. Ramesh Lamba immediately reached at the place of incident and came to know the name of the assailants. However, he did not record statement of any public person in that regard.
He contended that PW-26 Insp. Ramesh Lamba reached at LHMC Hospital and he was present when the deceased was declared 'brought dead'. However, he did not record statement of eye witness and PW-23 SI Brijpal Singh recorded statement of PW-2 Narender Singh Ex.PW2/A. He contended that it shows that PW-26 Insp. Ramesh Lamba was not present at the time of recording of statement of PW-2 Narender Singh in hospital. He contended that there is no uniformity in sequence of events / statements of PW-2 Narender Singh under Section 161 Cr.P.C., Section 164 Cr.P.C. and evidence before this Court. He contended that evidence of PW-2 Narender Singh is repleted with contradictions and discrepancies. He contended that PW-2 Narender Singh deposed different versions in his statements regarding sequence of events and manner of commission of offence as well as role attributed to the accused persons. In that regard, he referred evidence of PW-2 Narender Singh and statement under Section 164 Cr.P.C. He contended that PW-2 Narender Singh did not attribute any role to the accused Rohan, in his statement Ex.PW2/A and evidence before this Court. However, in his statement under Section 164 Cr.P.C., he stated that Rohan caught hold of hands of the deceased. He contended that PW-2 Narender Singh did not state any injury on any specific part of body of the deceased. However, in his statement under Section 164 Cr.P.C., he stated that the accused Anshul stabbed on thigh of the deceased.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 22 of 65
57. Mr. Vineet Jain, Ld. Counsel contended that PW-5 Dipankar Anand is also not a reliable witness. He contended that PW-5 Dipankar Anand presented different versions of the incident in his statements under Section 161 Cr.P.C. and 164 Cr.P.C. He contended that PW-5 Dipankar Anand has not attributed any role to the accused Rohan. He contended that PW-5 Dipankar Anand deposed that he did not know that the accused Yogesh @ Takkal attacked the deceased or not. He contended that PW-5 Dipankar Anand stated that he moved from the place of incident after seeing the accused persons. He contended that PW-5 Dipankar Anand was not present at the time of incident. He contended that PW-5 Dipankar Anand stated that PW-2 Narender Singh and PW-4 Vijender Singh had taken the deceased on his motorcycle whereas PW-2 Narender Singh stated that his neighbor Manish was driving the motorcycle. He contended that PW-4 Vijender Singh, PW-6 Rishipal and PW-7 Harjinder Kaur did not witness the incident and their evidence is 'hearsay evidence'. He contended that no weapon of offence was recovered from the possession or at the instance of the accused persons. He contended that the manner of arrest of the accused Anshul and Rohan is doubtful. He contended that the prosecution has not examined any member of the raiding team. He contended that the prosecution has not examined owner of the motorcycle allegedly recovered from the accused Anshul and Rohan. He contended that it does not stand to reason that the accused persons would wear the blood stained clothes after the incident. He contended that there is no blood trail in the site plan of the place of incident. He contended that the site plan does not show the place where the deceased had fallen due to injury.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 23 of 65
58. Mr. Vineet Jain, Ld. Counsel contended that the prosecution has not proved any motive. He contended that evidence of PW-26 Insp. Ramesh Lamba is full of contradictions and discrepancies. He contended that PW-15 SI Rahul, In- Charge, Crime Team stated that they reached at the place of incident at about 01.30 a.m. on 18.06.2015 whereas FIR was registered at 02.50 a.m. on 18.06.2015. He contended that the prosecution has failed to prove its case beyond reasonable doubt. He contended that the case of the prosecution is full of contradictions and discrepancies and such evidence does not inspire credibility. In that regard, he relied upon judgments, as under:
(i) State of U.P. vs. Kapil Deo Singh, 1999 Cr.LJ 2594 (SC);
(ii) Shingara Singh vs. State of Haryana, AIR 2004 (SC) 124;
(iii) Mahabir Singh vs. State of Haryana, AIR 2001 (SC) 2503;
(iv) Anil Shamrao Supe vs. State of Maharashtra , 2013 Cr.LJ 2223 (SC) and
(v) Krishne Gowda vs. State of Karnataka, Cr. App.
No. 635/2006 (SC).
59. Mr. H.K. Aneja, Ld. Counsel for the accused Yogesh @ Takkal contended that the accused Yogesh @ Takkal was falsely implicated in this case. He contended that there is an issue of identity of the person involved in the offence. He contended that there is one person, namely, Yogesh Kumar S/o Sh. Ashok Kumar, a resident of H. No. 16/986, Bapa Nagar, New Delhi. He contended that PW-2 Narender Singh admitted that the said Yogesh Kumar was present at the time of incident. In that regard, he referred cross-examination of PW-2 Narender Singh.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 24 of 65
60. Mr. H.K. Aneja, Ld. Counsel contended that PW-7 Harjinder Kaur admitted, in her cross-examination, that she had damaged house of Yogesh Kumar S/o Sh. Ashok Kumar on the next day of incident. On the contrary, PW-2 Narender Singh stated that no incident of stone pelting had taken place at house of Yogesh Kumar S/o Sh. Ashok Kumar. In this regard, he referred cross-examination of PW-26 Insp. Ramesh Lamba that PW-2 Narender Singh had filed a complaint, vide Dy. No. 31B, on 19.06.2015 with PS Prasad Nagar, wherein he suspected involvement of Yogesh Kumar S/o Sh. Ashok Kumar R/o H. No. 16/986, Bapa Nagar, Delhi. However, he has not filed the said complaint alongwith the charge-sheet. He contended that PW-26 Insp. Ramesh Lamba did not conduct any investigation regarding the said complaint. He contended that the said Yogesh Kumar S/o Sh. Ashok Kumar also filed an application for anticipatory bail, vide Bail Application No. 4499/2015 titled as ' State vs. Yogesh Kumar S/o Sh. Ashok Kumar R/o H. No. 16/986, Bapa Nagar', whereby Ld. Session Court dismissed the said application, vide order dated 23.06.2015. However, Hon'ble High Court, vide order dated 24.07.2015 in Bail Application No. 1293/2015 titled as 'Yogesh vs. The State', released him on anticipatory bail. He contended that the accused Yogesh @ Takkal was implicated in this case on account of his antecedents. He contended that Investigating Officer has not stated anything regarding the said Yogesh Kumar in challan. He contended that statement of PW-2 Narender Singh under Section 164 Cr.P.C. was recorded on 02.07.2015 so as to strengthen the case of the prosecution regarding involvement of the accused Yogesh @ Takkal.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 25 of 65
61. Mr. H.K. Aneja, Ld. Counsel referred statement of PW-5 Dipankar Anand under Section 164 Cr.P.C. that he did not know as to whether the accused Yogesh @ Takkal attacked Harvinder or not. However, in his evidence, he stated that the accused Anshul and Yogesh @ Takkal assaulted Harvinder with knife and stabbed him. He contended that there are material contradictions in the evidence of PW-2 Narender Singh and PW-5 Dipankar Anand regarding sequence of events, role of the accused persons in exhortations and stabbing. He contended that there are major contradictions on the aspect of persons who had taken the deceased to LHMC Hospital. He contended that the prosecution has not examined Smt. Raj Dulari, maternal aunt of PW-5 Dipankar Anand. He contended that the prosecution has also not examined Sheetal, niece of PW-6 Rishipal, who had informed him regarding the incident. He contended that there is no consistency regarding the place of incident. He contended that statement of PW-7 Harjinder Kaur was recorded under Section 161 Cr.P.C. on 13.07.2015. He contended that there is no recovery of any weapon of offence from the accused Yogesh @ Takkal. He contended that PW-26 Insp. Ramesh Lamba planted a chopper upon the accused Yogesh @ Takkal. However, FSL reported that it was not containing blood of the deceased. He contended that the evidence of the prosecution is contaminated with contradictions, inconsistencies, improvements, exaggerations and discrepancies on each and every aspect of the case. He contended that PW-26 Insp. Ramesh Lamba has not conducted the investigation fairly. He contended that the prosecution has failed to produce credible evidence to prove charge under Section 302/34 IPC against the accused Yogesh @ Takkal.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 26 of 65 POINTS FOR DETERMINATION:
(a) Whether the death of the deceased was a culpable homicide?
62. On 18.06.2015 at 00.55 a.m., PW-9 Dr. Prem Kishore, CMO, LHMC declared Mr. Harvinder Singh @ Vicky as 'brought dead', vide MLC Ex.PW9/A.
63. According to post-mortem report Ex.PW10/A, the deceased had 'one cut mark measuring 2.5 x 1 cm on anterio- medial aspect of upper part of right limb on the jeans of the deceased', as under:
"3. Blue jeans of brand, 'Diesel Industry', soaked with blood, brown colour belt of 'Levis' present in situ. One cut mark of size 2.5 x 1 cm present on anterio-medial aspect of upper part of right limb oriented horizontally, situated 6 cm below lower end of zip and 2.5 cm lateral to medial stitching."
64. In this regard, PW-10 Dr. Rahul Band, Autopsy Surgeon stated, in his cross-examination, as under:
".....The body was wearing clothes. I had mentioned the same in postmortem report at point X. I had observed the cut mark on the jeans pants of the deceased which was corresponding to the injury. (Vol. This fact is mentioned in my report). The injury was wedge shaped by a single edged weapon."
65. Therefore, it is evident that the deceased had sustained injury on his right thigh with a sharp edged weapon.
66. According to post-mortem report Ex.PW10/A, the nature of injury sustained by the deceased is, as under:
"1. Stab wound of size 3 x 0.5 x 12 cm, wedge shaped, oriented horizontally, present over anterio- medial aspect of upper part of right thigh, 12 cm below right pubic tubercle and 71 cm above heel. Margins and edges of wound are clean cut, medial end is acute, lateral end is less acute and contuse. On dissection, tract of wound is directed posterio laterally and inwards, cutting through and through under lines of soft tissues, femoral vessels and muscles upto femur bone. Tract and surrounding tissues contains clotted blood."
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 27 of 65
67. The cause of death of the deceased, as mentioned in the post-mortem report Ex.PW10/A, is as under:
"hemorrhagic shock consequent upon vascular damage as a result of stab injury to thigh produced by single edged sharp and pointed weapon".
68. The said injury was 'ante-mortem' and 'fresh' and it was 'sufficient to cause death in ordinary course of nature'.
69. Therefore, the death of the deceased was a ' culpable homicide'.
(b) Whether the accused persons committed culpable homicide?
70. In order to prove that the accused persons committed culpable homicide, the case of the prosecution is structured over the edifice of evidence of PW-2 Narender Singh and PW-5 Dipankar Anand besides other corroborating evidence.
71. Therefore, the case of the prosecution is founded on account of the incident deposed by eye witnesses, namely, PW-2 Narender Singh and PW-5 Dipankar Anand.
APPRECIATION OF EVIDENCE:
72. In order to appreciate evidence of an eye witness, the Court must determine the following issues:
(a) Whether the witness was present at the place of incident;
(b) Whether the witness had seen the incident;
(c) Whether the witness has given truthful and complete account of the incident;
(d) Whether evidence of the witness is afflicted with material contradictions, inconsistencies, exaggerations, improvements, omissions and unnatural conduct; and
(e) Whether evidence of such witness is incompatible or rendered doubtful by other prosecution evidence, defence evidence or other circumstances of the case?"
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 28 of 65
73. In Balu Sudam Khalde and Another vs. State of Maharashtra, 2023 SCC OnLine SC 355, Hon'ble Supreme Court of India held, as under:
"25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 29 of 65 V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 30 of 65 XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
74. In Munna Lal vs. State of Uttar Pradesh, 2023 SCC OnLine SC 80, Hon'ble Apex Court held, as under:
"28.....Needless to observe, such principles have evolved over the years and crystallized into 'settled principles of law'. These are:
(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction.
(b). Generally speaking, oral testimony may be classified into three categories, viz.:
(i) Wholly reliable;
(ii) Wholly unreliable;
(iii) Neither wholly reliable nor wholly unreliable.
The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s). However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance."
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 31 of 65
75. Principal considerations of assessment of evidence of an eye-witness are delineated in Shahaja @ Shahajan Ismail Mohd. Shaikh vs. State of Maharashtra, 2022 SCC OnLine SC 883, Hon'ble Supreme Court of India, as under:
"28. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
76. In criminal cases the Court cannot proceed to consider the evidence of the prosecution witnesses in a mechanical way. The broad features of the prosecution cases, the probabilities and the normal course of human conduct of a prudent person are some of the factors which are always kept in mind while evaluating the merit of the case. While appreciating the intrinsic worth of evidence, the Court must satisfy itself as to whether the evidence of the witness, if read in its entirety, has a ring of truth. The Court must weigh the evidence on record and must not give undue premium to the evidence which could have been brought on record.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 32 of 65
77. PW-2 Narender Singh is brother of the deceased. He is the complainant. The case FIR was registered on his statement Ex.PW2/A. He is examined as a witness to the incident. He deposed, as under:
"I am residing on the above said address and used to work of photography. On the night intervening 17/18.06.2015 at about 11.15 pm, I came out from my house after taking meal. I was standing near the dhaba of Dipankar opposite my house and was taking Limca. In the meantime, one boy namely Rohan the resident of our mohalla came there. There is a tea stall of Rishipal. Said Rohan removed the log of the tripal of said tea stall of Rishipal. Depankar objected as to why he (Rohan) had removed the log of the tripal of Rishipal. Rohan told Deepankar to behave properly and he gave a slap on the face of Deepankar and went away from the spot. After some time, he returned to the spot and again started quarreling with Deepankar and I intervened in the quarrel. Due to my intervention, Rohan threatened me and went away from there. After few minutes, Rohan along with his brother Anshul and one Yogesh @ Takkal (BC of the area), all present in the court (correctly identified) came there and they started quarreling with me. My elder brother Harvinder came down to intervene in the quarrel on which Rohan and his brother exhorted the quarrel by saying "mar sale ko, aur khatam kar de". Anshul took out a knife and Takkal also took out some sharp object and both of them assaulted on my brother Harvinder and Rohan helped them in assault by saying "mar saale ko". Thereafter, they ran away from the spot after stabbing my brother with knife.
My brother Harvinder and Deepankar ran behind them to apprehend the assailants but my brother fell down due to heavy bleeding. Thereafter, I and my brother Vijay took Harvinder on the motorcycle of Sunny and after reaching Pyare Lal road we took a TSR and Vijay took Harvinder to Lady Harding Hospital. I also went to the hospital by my motorcycle. In the hospital, doctors declared the Harvinder dead. Police recorded my statement in the hospital which is Ex.PW2/A bearing my signature at point 'A' and 'A1'.
During investigation, I along with IO and other police officials went to the spot and IO prepared site plan at my instance which is Ex.PW2/B bearing my signature at point A. FIR No. 423/2015 State vs. Anshul & Ors. Page No. 33 of 65 IO seized blood stained concrete from the spot, slippers (hawai chappal) of Harvinder, blood stains were lifted from the spot by the police and same were converted into sealed parcel by sealing the same with the seal of RCL and seized them vide seizure memo Ex.PW2/C bearing my signature at point 'A' and 'A1'."
78. It would be appropriate to refer cross-examination of PW-2 Narender Singh, as under:
"My statement was recorded on the night intervening 17/18.06.2015 in Lady Hardinge Hospital by police. In my presence, the statement of any other person was not recorded. I had taken Limca at about 10:30 p.m. from my shop which was in our house on the ground floor. I was standing alongwith bottle of Limca at the shop of Deepankar. The distance between my house and the hotel of Deepankar is of 5 steps. At that time, Deepankar was sitting alone on his hotel. His maternal aunt was inside the hotel. At that time, the hotel was being run on a wooden platform outside the house as house was broken at that time. My house and the house of Deepankar is not just opposite. There was a gali adjacent to the house of Deepankar and there was tea vendor on the other side of gali. I know accused Rohan previously. I had no grudge against accused Rohan prior to this incident. There may be a quarrel between Harvinder and accused Rohan but I am not aware about them. I and my family members had no enmity or grudge against other accused namely Anshul and Yogesh @ Takkal. The tea vendor used to close his tea shop at about 6:00 p.m. / 7:00 p.m. and at that time, he was at his home. The tea shop was constructed with the help of wall of some booth of old chungi. The width of the gali is between 8 - 10 feet. At that time, public persons were not present at the spot. Deepankar was sitting in his hotel and I was standing there with Limca. The tea stall is visible from the hotel of Deepankar. Deepankar had instructed from the hotel to place the bamboo with the tripal when accused Rohan had removed the bamboo. Police had prepared site plan at my instance. I do not know whether IO had shown the location of tea stall in the site plan but I had told him about the tea stall. IO had prepared the site plan at my instance. I did not see the site plan properly though I had signed the same. I do not remember as to how many papers were signed by me on that day. I also do not know the nature of those documents now.).
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 34 of 65 During investigation, police got my statement recorded before Ld. MM. My both the statements recorded by the police as well as Ld. MM are correct. I had told police also that Rohan caught hold of hands of my brother Harvinder and Anshul gave a knife blow on the thigh of my brother Harvinder as recorded in my statement Ex.PW2/D. I might have not disclosed this fact to police at the recording of my statement u/s 161 of Cr.P.C. due to being hopeless. It is wrong to suggest that my entire statement in the condition of hopelessness or that police had recorded my said statement of his own or that I had stated nothing before police against any of the accused. My brother Harvinder had sustained only one injury i.e. in his thigh by knife. No recovery of any weapon was affected in my presence. It is wrong to suggest that I have wrongly stated in my statement before Ld. MM that Rohan caught hold of hands of my brother and Anshul gave a knife blow on the thigh of Harvinder and Yogesh @ Takkal exhorted to kill (by saying Marde Saale Ko). It is wrong to suggest that my statements are different on different forums. It is wrong to suggest that I was not present at the spot or that no such incident had ever taken place in my presence or that I was not the witness of any such incident.
My brother did not come out of the house when quarrel was going on. Harvinder had seen through window of the house and he came down. My father and the wife of Harvinder were inside the house. None of my family members except Harvinder and me had come from the house. There is no balcony in our house. One Sunny was sitting at some distance away from the spot. No resident of gali was present at the spot at the time of incident. My mother is not eye witness of this case. The house of Sunny is adjacent to my house. I did not intervene the quarrel. I was standing and moved few steps behind as accused persons were coming running. No photo of Dhabha was taken by police in my presence. Some altercation had taken place with the accused persons and me when I intervened in the quarrel between accused persons and Deepankar. I had told this fact to the police. My clothes were stained with blood and I had given them to police.
My brother Harvinder ran upto fourth turn after receiving stab injury and then he fell down. I do not know whether police had shown the place where brother fell down in the site plan, however, I had shown that place to police.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 35 of 65 I did not see the site plan properly so I am not aware whether IO had shown that place in the site plan. Vol. I am not aware about the procedure of preparation of site plan being layman. It is wrong to suggest that I was made to sign on a blank paper by the IO, hence, I am not aware of the sketch or the details of site plan. My neighbour Manish was driving the motorcycle of Sunny on which my brother Harvinder was taken to the road from where TSR was taken. The statement of Manish was not recorded in my presence. So far as I remember, Manish was driving the motorcycle and Harvinder was made to sit in the middle and behind him Sunny was sitting. I do not know whether the clothes of Manish and Sunny were stained with blood. My brother Bijender was also present. Again said, Sunny was driving the motorcycle, my brother Havinder was made to sit in between and Bijender was sitting behind Harvinder. It is wrong to suggest that I did not bring Harvinder on the motorcycle as I was not present at the spot. Vol. I had gone on my motorcycle behind them. I am sure that Vijender was sitting in the three wheeler alongwith my brother Harvinder but I am not sure about Sunny as I could not see him from the side in which Vijender was sitting in the TSR. I came to know that the three wheeler was stationed on the road. Harvinder was made to sit in the TSR. Public persons had gathered at that time. The TSR was stationed at the turn of Pyarelal gali and main road. I cannot tell the distance between my house and the place where TSR was stationed. The blood had fallen at that place also. I do not remember whether police lifted the blood from there or not. I do not remember whether blood was lifted from the seat of motorcycle or not. I was wearing sando baniyan and a trouser. The clothes of Bijender was seized by police but I do not know about the clothes of Manish and Sunny. I remained in the hospital for whole night but I cannot tell the exact time till when I remained there. From the hospital, I came to the spot and shown the spot to the police. Deepankar had also come to the hospital on his motorcycle. Deepankar had assisted in shifting of Harvinder and his blood stains clothes were taken by the police. I called alternative clothes from my house while handing over our blood stain clothes to the police. It was morning but I cannot tell the time of handing over of clothes. I do not remember if the statement of Deepankar was recorded by police or not.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 36 of 65 It is wrong to suggest that I was not present at the spot or that drinking Limca or that no incident had taken place between Deepankar and the accused persons. It is wrong to suggest that I did not accompany the injured to the hospital. It is wrong to suggest that police had made me a witness for the sake of building up a case. It is wrong to suggest that no exhibits had been collected in my presence or police had not initiated any proceedings in my presence. It is wrong to suggest that since being real brother of the deceased, I have deposed at the behest of police and family members. It is wrong to suggest that I am deposing falsely.
XXXX by Sh. C.L. Sharma, Ld. Counsel for accused Yogesh @ Takkal.
I know one Yogesh Kumar S/o Ashok Kumar who resides at House No. 16/986, Bapa Nagar, Karol Bagh, New Delhi. I did not see this person at the time of incident of murder. However, I had seen him in the starting when verbal altercations were going on. Accused Rohan and said Yogesh Kumar S/o Ashok Kumar were initially present when hot conversation regarding falling of bamboo of tripal was going on. No quarrel of Yogesh Kumar S/o Ashok Kumar took place. The quarrel / hot conversation had taken place between Rohan and Deepankar. I do not remember how many my statements were recorded by police between the period of incident and recording of my statement before Ld. MM. I have received a message at my home to come for recording of my statement before Ld. MM at Tis Hazari Court. No incident of pelting stones had taken place at the house of Yogesh S/o Ashok Kumar on the next day. I do not remember the full name of police officer who recorded my statement.
It is wrong to suggest that I had given my statement u/s 164 of Cr.P.C. at the instance of police or that I was tutored by police before giving statement. It is wrong to suggest that I am not the eye witness of this case or that Yogesh @ Takkal was not involved in this case or that some other Yogesh S/o Ashok Kumar was culprit of this case. It is wrong to suggest that I named Yogesh @ Takkal in my statements at the instance of police as police wanted to falsely implicate him in a murder case. It is wrong to suggest that I had not named any of the accused in my statement or that police had mentioned their names own his own. It is wrong to suggest that I am deposing falsely."
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 37 of 65
79. PW-2 Narender Singh is brother of the deceased. The incident in question had taken place near his house. His presence at the place of incident is natural. He had no enmity with the accused persons. He had no reason to falsely implicate the accused persons. He cannot be termed as 'interested witness'. He would not derive any advantage from false implication of the accused persons. In his evidence, he described the entire incident and role of the accused persons. There is no reason to doubt his testimony. Moreover, there is no inherent contradiction, inconsistency or omissions which can render him unworthy of credit. The inconsistencies, contradictions or improvements, as highlighted by the defence, would be considered in the later part of this judgment. However, the said inconsistencies, contradictions or improvements are not material as affecting the core of the prosecution case.
80. Vide DD No. 2A Ex.PW17/A recorded at 00.06 a.m. on 18.06.2015, the incident of 'heavy quarrel' was reported at H. No. 16/934, H-Block, Bapa Nagar, Karol Bagh, New Delhi, vide PCR Form Ex.PW11/A. Immediately thereafter, incident of stabbing H. No. 16/965, Gali No. 5, Bapa Nagar was recorded, vide DD No. 3A Ex.PW17/B at 00.08 a.m. on 18.06.2015. After sometime, DD No. 7A Ex.PW17/C regarding stabbing of husband of the caller was recorded at 00.28 a.m. on 18.06.2015. Therefore, DD No. 2A and other DDs proved that an incident of stabbing had taken place near H. No. 16/934, H-Block, Bapa Nagar, Gali No. 5, Karol Bagh, New Delhi.
81. The deceased was declared 'brought dead' at 00.55 hrs. on 18.06.2015 at LHMC Hospital, vide MLC Ex.PW9/A. FIR No. 423/2015 State vs. Anshul & Ors. Page No. 38 of 65
82. PW-23 SI Brijpal Singh recorded statement of PW-2 Narender Singh in LHMC Hospital and prepared rukka Ex.PW23/A and sent PW-19 Ct. Ravinder Tomar alongwith rukka to police station for registration of FIR at 02.30 a.m. on 18.06.2015. PW-16 ASI Rajender Singh recorded case FIR under Section 302/34 IPC at 02.50 a.m. on 18.06.2015 Ex.PW16/A. Therefore, the case FIR was registered within 2 hrs. from the time the deceased was declared 'brought dead'.
83. The statement Ex.PW2/A of PW-2 Narender Singh was recorded at the earliest opportunity and consequently, the case FIR Ex.PW16/A was recorded promptly. There was no scope for any embellishment or fabrication.
84. The evidence of PW-2 Narender Singh is corroborated by his statement Ex.PW2/A and FIR Ex.PW16/A, which is reproduced, as under:
"I am residing alongwith my family at the aforesaid address. I was doing photography work on order from my house. Today, on 17/18.06.2015 at about 11.15 p.m., I came out from my house for a walk after having dinner. I was drinking Limca while standing near a food kiosk of Dipankar which is in front of my house. In the meantime, Rohan, a resident of our mohalla, came there. There is a tea-stall of Rishipal adjacent to kiosk of Dipankar. There was a tarpaulin on the said kiosk supported by a bamboo. Rohan removed the said bamboo. On this act, Dipankar asked Rohan as to why he had removed the said bamboo. Rohan asked Dipankar to address him properly and while stating so, Rohan had slapped on face of Dipankar. After slapping, Rohan went away. After sometime, he again returned and started quarreling with Dipankar. I intervened. On my intervention, Rohan returned while threatening that we should stay there and he would be bringing his associates. After few minutes, Rohan brought his elder brother, namely, Anshul and a bad element of the area, namely, Yogesh @ Takkal there and all three of them started quarreling with us.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 39 of 65 In the meantime, my elder brother, namely, Harvinder Singh reached there to intervene between us. On this, Rohan and his elder brother, namely, Anshul stated that 'maar sale ko aur khatam kar de'. Just after stating so, Anshul taken out a knife and Takkal had also taken out a sharp edged weapon and both of them inflicted a life endangering blow upon my brother Harvinder and Rohan also assisted them and stated that 'maar sale ko'. Thereafter, all three of them started running in the street after stabbing knife. I, my brother, namely, Harvinder and Dipankar chased them in order to apprehend them. However, my brother fell down in the street after some distance and there was heavy bleeding from his legs. I and Dipankar stopped near him. I and my brother, namely, Vijay brought my brother, namely, Harvinder to outside the street on Pyare Lal Road on a motorcycle belonging to my neighbor, namely, Sunny and my brother, namely, Vijay had taken Harvinder in an auto boarded there. I also followed them on my motorcycle and reached Lady Hardinge Hospital where doctors declared my brother dead. Rohan, his brother, namely, Anshul and his associate, namely, Yogesh @ Takkal intentionally caused death of my brother, namely, Harvinder Singh with the intention to cause his death. Legal action be taken against them."
85. PW-5 Dipankar Anand witnessed the incident. He deposed, as under:
"I am residing on the above said address and I used to run a vegetable stall outside the house of my maternal uncle at 16/430, I Block at gali no 5, Bapa Nagar. On 17.06.2015 at about 11.15 pm, I was present at my stall and my neighbourer Narender Singh was talking to me. The younger brother of Narender Singh namely Harinder Singh was standing in the gali at some distance. First of all accused Rohan the resident of my mohalla came there and he caused the poll of tripal of the tea stall of my maternal uncle Sh. Rishipal fallen. I objected the same on which accused Rohan started abusing me and some hot conversation took place between me and accused Rohan. Accused Rohan gave a slap to me and he went away from there. After some time, he again came to the spot and quarreled with me and again abused me and scuffled. Narender also objected and accused Rohan went away from there by threatening us.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 40 of 65 After some time, accused Rohan along with accused Anshul and Yogesh @ Takkal all present in the court came there and accused Anshul and Yogesh @ Takkal were having knife in their hands and they started quarreling with Narender. Seeing the quarrel, Harvinder also came there on which accused Rohan and Anshul exhorted by saying "mar sale ko aur khatam kar do" and thereafter accused Anshul and Yogesh @ Takkal assaulted on Harvinder with knife and stabbed him. Accused Rohan assisted accused Anshul and Yogesh. After stabbing Harvinder, all three accused persons ran away in the gali. I, Harvinder and Narender followed them but after few steps, Harvinder fell down in the gali. He was bleeding from his legs. I made to sit Harvinder on the motorcycle with the help of Vijender and after reaching Pyare Lal Road, we hired a TSR and shifted Harvinder to Lady Harding Hospital. In the hospital, Harvinder was declared brought dead. SHO had also come in the hospital. My statement was recorded. On the next day, I handed over my blood stained clothes i.e., one caprie and one T-shirt to the IO which he seized vide seizure memo Ex.PW5/A bearing my signature at point A. The post-mortem of the dead body of Harvinder was also got conducted. All the accused persons are present in the court (correctly identified)."
86. In his cross-examination, he stated, as under:
"I have studied upto 10th standard. I can read and write Hindi. Police had recorded my statement once. Police had recorded my statement on the next day of the incident at police station. I had not gone through my statement, which was recorded in the police station. I used to work at the dhaba of my uncle (Mama). This dhaba / eating place was being run in the house which was in a dilapidated house and it was not authorized dhaba at that time. The place of incident is in a straight gali. The residential house on the other side of the gali have a slight curve but it is more or less in a straight line. There is a gali in between the place of incident and purani chungi. The place of incident is 16/430, Gali No. 5, near purani chungi. At the time of incident, besides me, my mami and one Narender were present. House of Narender is at a distance of 10 / 20 paces. The place where the stick of tirpal had fallen down is at a distance of 10 paces from the shop.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 41 of 65 I do not know who is Ballo and whether she / he was residing at 16/370 I. It is wrong to suggest that since there was a fault in the meter at 16/370 I and there was no light in the area. I never had any fight, grudge and enmity with Rohan. The accused Rohan and 2-3 more boys were seating at the place of incident i.e. dhaba and they were eating and having liquor for the last 10 / 15 minutes of the incident. The poll of the tripal has fallen down and I asked the accused Rohan to pick up the same. I have not stated to the police that the accused Rohan was having liquor alongwith his 2-3 accomplice. In my presence, the police did not come to the place of incident as I had taken the injured / deceased to hospital. I do not remember whether the police had called me at any point of time to show the place of incident. I do not know at whose instance the site plan was prepared by the police. In my presence, the police did not conduct any investigation / proceedings as I had taken the injured / deceased to hospital and since the injured had died at the hospital, therefore the shop / dhaba was not opened for one week. The gali is around 15 ft. wide. The area is mixed area i.e. commercial and residential. At the time of incident, it was not crowded but some public persons were there but I cannot tell the number of person, present there. When the accused Rohan had slapped me initially my mami Raj Dulari had come to rescue me. In my presence, Mami was not examined by the police. My mami is not a witness in this case. Rohan again came back to the place where the stick of the tirpal had fallen down after 5 / 10 minutes with 1-2 more persons. The accused Rohan again started mishandling my bike parked there. When I objected to this the accused again scuffled with me. Narender objected to the scuffle done by the accused Rohan, due to the intervention of Narender, the accused had left the spot with his accomplice after extending threat to me. It is wrong to suggest that when the accused Rohan came for the third time, I was inside the dhaba / shop. (Vol. I was standing in front of the dhaba.) When the accused Rohan came for the third time, he had a knife in his hand and he was accompanied by Anshul and Yogesh @ Takkal. In the meantime, deceased Harender was coming downstairs from his house. Again said, after hearing the noise, deceased Harender had already come from his house and he was standing in front of his house.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 42 of 65 The accused persons Rohan, Anshul and Yogesh @ Takkal came running as I have already seen the accused coming towards me, I had moved from there and the accused had stabbed the deceased Harender. The accused had run away from the spot after stabbing Harender. I along with Vijay, Narender and Harender followed the accused persons but since Harender was bleeding badly therefore, he had fallen down.
Initially we brought Harender to his house from the place where he had fallen down. Thereafter, Harender was taken on bike by Vijay and Narender to the main road. I followed the injured on my bike from the place of incident to hospital. Police might have come at the hospital. I do not remember whether anybody was examined by the police in my presence at hospital. In my presence, no investigation was conducted by the police except recording of my statement. It is wrong to suggest that I was not present at the spot at the time of incident. It is wrong to suggest that I was inducted as a witness in this case since I was running a dhaba without licence. It is wrong to suggest that I am deposing falsely at the instance of family members of deceased and police."
87. Therefore, PW-5 Dipankar Anand is a material witness. The incident in question had taken place in front of his dhaba. The incident was a fall out of the hot conversation between PW-5 Dipankar Anand and the accused Rohan on the point of removal of pole of tripal of tea shop of PW-6 Rishipal. He materially corroborated PW-2 Narender Singh. He had no reason to falsely implicate the accused persons. The discrepancies / contradictions / inconsistencies, highlighted in his evidence, would be considered at later part of this judgment.
88. PW-6 Rishipal is the tea vendor. He categorically deposed that on 18.06.2015 at about 01.00 a.m. - 01.15 a.m., he received a call from his niece, namely, Sheetal regarding the incident and he reached at his shop where pole of tripal of his tea-stall was lying on the ground and tripal was hanging.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 43 of 65
89. PW-6 Rishipal deposed, as under:
"I am residing on the above said address and running a tea stall near the Dhaba of my maternal nephew Deepankar. On the night intervening 17/18.06.2015, I was present in my house at Shastri Nagar which was on rent as the construction in my house was going on at the above said address. At about 1-1.15 am, I received a call of my niece Sheetal and I was informed that Harvinder @ Vicky was murdered. (objected to). I along with my wife and Somesh reached the spot where many public persons were gathered and police was also present. Blood was lying in the gali. I came to know at the spot that some altercation had taken between Deepankar and Sohan, Rohan and Anshul. The wooden log supporting the tripal was lying on the ground and tripal was hanging. IO had recorded my statement."
90. In his cross-examination, he stated, as under:
"XXXXX by Sh. C.L. Sharma, Ld. Counsel for accused Yogesh @ Takkal.
I had made my tea stall on the patri near my house. I used to open my shop from 7 am to 7 pm. I used to go to my house in Shastri Nagar after closing the shop....."
91. PW-1 Sunny Kumar, immediate neighbor of the deceased corroborated the incident of stabbing and presence of PW-2 Narender Singh at the time of incident, as under:
"On the night intervening 17/18.06.2015 at about 11.15 pm, I came out in the gali from my house after hearing noise and I saw that some persons were stabbing my neighbourer Harvinder. On the asking of Harvinder and his brothers namely Narender and Vijay, I gave my motorcycle no. DL 6S AR 4091 and Vijay and Narender took Harvinder on the motorcycle and from Pyarelal Road they took Harvinder took in a TSR. After sometime, I also reached the hospital by my motorcycle and doctor declared Harvinder dead. I returned and parked my motorcycle outside my house i.e., 16/55 and washed the motorcycle."
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 44 of 65
92. PW-4 Vijender Singh is brother of the deceased. He had taken the deceased to LHMC Hospital. In his statement, he corroborated presence of PW-2 Narender Singh, as under:
"I am residing on the above said address along with my family and run a photo studio in Regar Pura, Karol Bagh. On the night intervening 17/18.06.2015 at about 11.15 pm, I was present in my house and I heard some sound of quarrel and I came down and came to know that my brother Harvinder was stabbed by Rohan, Anshul and Yogesh @ Takkal. My brother Harvinder was lying in the gali and blood was oozing out from his legs. I with the help of my brother Narender proceeded to hospital on motorcycle and we hired a TSR on Pyare Lal Road and shifted Harvinder to Lady Harding Hospital and got him admitted. Doctor declared my brother Harvinder brought dead. The above said persons were residing in the same locality and I knew them previously. After some time, SI Brij Pal from PS Prasad Nagar came to the hospital and he recorded the statement of my brother Narender and got the case registered. On the direction of the IO, I went to PS where I handed over my blood stained baniyan and grey colour shorts to the IO which he seized vide seizure memo Ex.PW4/A bearing my signature at point 'A' after converting them in a sealed parcel sealed with the seal of RCL."
93. In his cross-examination, PW-4 Vijender Singh stated, as under:
".....When I come down, I saw the accused persons running away from the spot.....My brother was running after receiving injuries and I followed him. We crossed one gali while running together. That gali was behind our gali. I do not remember the number of gali. It must be around 300 steps which we covered. There my brother fell down and I picked him up. I brought my brother back to the spot / house and then I made him sit on the motorcycle which was already parked there....."
94. PW-7 Harjinder Kaur is wife of the deceased. She made call at 100. She corroborated the evidence of PW-2 Narender Singh regarding his presence at the time of incident.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 45 of 65
95. PW-7 Harjinder Kaur deposed, as under:
"I am residing on the above said address at second floor. On 17.06.2015, I was present in my room between 11.30 - 12.00 midnight. At about 11.45 pm, I heard some noise from the gali, I saw through window that my husband Harvinder was standing and saw my brothers in law Narender and Bijender chasing the accused persons who are present in the court (correctly identified). Their names are Rohan, Anshul and Yogesh. (Vol. I had seen them for the first time). I came down in the gali and saw that blood was lying near the Dhaba of Deepankar. I went towards the small lane (chhoti gali) and in the meantime, I saw that my brothers in law were bringing my husband Harvinder. My husband was shifted to Lady Harding Hospital, on the motorcycle of Sunny who was my neighbourer. I had made a call on 100 number from the mobile phone of Narender and after making call, I had returned the mobile phone to Narender. I also went to the hospital and my husband was declared dead. All the accused persons who are present in the court had murdered my husband. (objected to). After 25-26 days, my statement was recorded by the police, though police had visited my house during those 25 - 26 days."
96. PW-20 Israr Babu, Nodal Officer, Vodafone brought Call Detail Record (CDR) Ex.PW20/G alongwith Customer Application Form (CAF) Ex.PW20/H pertaining to mobile No. 9911676846. The said number was subscribed to PW-2 Narender Singh. According to Call Detail Record (CDR) Ex.PW20/G, a call was made at 100 at 00:04:59 hrs. on 18.06.2015 for a duration of 42 seconds from mobile No. 9911676846. PW-11 HC Hans Kumar, Channel Operator received the said call at Channel No. 112 at 00:05:58 hrs. on 18.06.2015, vide PCR Form Ex.PW11/A, leading to lodging of DD No. 2A Ex.PW17/A dated 18.06.2015 at 00.06 a.m. In that regard, PW-7 Harjinder Kaur stated that ".....My brother in law were in the process of shifting my husband in the hospital and in the meantime, I informed the police on 100 number.....".
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 46 of 65
97. Therefore, PW-2 Narender Singh and PW-5 Dipankar Anand are natural witnesses. The incident in question had taken place near house of PW-2 Narender Singh and kiosk of PW-5 Dipankar Anand. PW-2 Narender Singh is not interested witness and his evidence cannot be disbelieved. He has no reason to falsely implicate the accused persons. He had no enmity or animosity with the accused persons. PW-2 Narender Singh is real brother of the deceased and he would not implicate innocent persons and save real assailants. PW-5 Dipankar Anand is an independent witness. He is neither related to the deceased nor has any motive to falsely implicate the accused persons. They have categorically described the incident and the role of the accused persons. Their evidence is corroborated by statement Ex.PW2/A and FIR Ex.PW16/A. Their evidence is further corroborated by PW-1 Sunny Kumar, PW-4 Vijender Singh, PW-6 Rishipal and PW-7 Harjinder Kaur. There is no material contradiction, inconsistency, omission, exaggeration and improvement in their evidence. The defence could not show that the evidence of PW-2 Narender Singh and PW-5 Dipankar Anand is not compatible with the other prosecution evidence.
98. Therefore, the prosecution proved that the accused Rohan had an exchange of words with PW-5 Dipankar Anand on the issue of removal pole of tarpaulin of tea-stall of PW-6 Rishipal and he had slapped him. Thereafter, the accused Rohan again came to the place of incident and quarreled with PW-5 Dipankar Anand and when PW-2 Narender Singh intervened, he left the place of incident while threatening them. The accused Rohan alongwith the accused Anshul and Yogesh @ Takkal came to the place of incident and quarreled with them.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 47 of 65
99. On hearing noise, the deceased cam out from his house and intervened. At this stage, the accused Anshul and Rohan uttered 'maar sale ko' and thereafter, the accused Anshul taken out a knife and the accused Yogesh @ Takkal taken out a sharp edged object and stabbed on right thigh of the deceased and on account of excessive bleeding, the deceased 'died'.
100. Section 34 IPC is 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."
101. In Gulab Singh vs. State of Uttar Pradesh , Crl. Appeal No. 81 of 2021 decided on 09.12.2021, Hon'ble Supreme Court of India enumerated the fundamental principles under Section 34 IPC, as under:
"24. Emphasizing the fundamental principles underlying Section 34, this Court held that:
(i) Section 34 does not create a distinct offence, but is a principle of constructive liability;
(ii) In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done;
(iii) There may not be a long interval between the act and the pre-mediation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and
(iv) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime."
102. The accused Rohan played an active role in the entire incident. He is the one who had an altercation with PW-5 Dipankar Anand and he had slapped him.
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103. Second time, the accused Rohan came alone and quarreled with PW-5 Dipankar Anand and when PW-2 Narender Singh intervened, he left the place of incident while threatening him. He is the one who brought the accused Anshul and Yogesh @ Takkal who were armed with knife and sharp edged object. He is the one who alongwith the accused Anshul uttered the words 'maar sale ko' and thereafter, the accused Anshul and Yogesh @ Takkal stabbed the deceased.
104. In view of the active role played by the accused Rohan, he is vicariously liable under Section 34 IPC as he shared common intention with the accused Anshul and Yogesh @ Takkal to commit culpable homicide.
(c) Whether the accused persons committed culpable homicide amounting to murder?
105. The sequence of events would show that the accused persons reached at the place of incident and they had a quarrel with PW-2 Narender Singh and PW-5 Dipankar Anand. They did not use knife immediately after reaching at the place of incident, though the accused Anshul and Yogesh @ Takkal were carrying knife and sharp edged object respectively. After sometime, the deceased came out from his house and intervened in the quarrel. At this stage, the accused Anshul and Yogesh @ Takkal on exhortation of the accused Rohan taken out a knife and sharp edged object and stabbed on right thigh of the deceased.
106. PW-2 Narender Singh categorically deposed that the accused persons caused single injury on thigh of the deceased with a knife, as under:
".....My brother Harvinder had sustained only one injury i.e. in his thigh by knife....."
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107. Post-mortem report Ex.PW10/A proved that there was a single injury on right thigh of the deceased, as under:
"1. Stab wound of size 3 x 0.5 x 12 cm, wedge shaped, oriented horizontally, present over anterio- medial aspect of upper part of right thigh, 12 cm below right pubic tubercle and 71 cm above heel. Margins and edges of wound are clean cut, medial end is acute, lateral end is less acute and contuse. On dissection, tract of wound is directed posterio laterally and inwards, cutting through and through under lines of soft tissues, femoral vessels and muscles upto femur bone. Tract and surrounding tissues contains clotted blood."
108. It has come in the evidence that the deceased chased the accused persons to a considerable distance after sustaining injury. PW-2 Narender Singh stated, as under:
".....My brother Harvinder and Deepankar ran behind them to apprehend the assailants but my brother fell down due to heavy bleeding.....My brother Harvinder ran upto fourth turn after receiving stab injury and then he fell down....."
109. PW-4 Vijender Singh stated that the deceased followed the accused persons upto 300 steps, as under:
".....My brother was running after receiving injuries and I followed him. We crossed one gali while running together. That gali was behind our gali. I do not remember the number of gali. It must be around 300 steps which we covered....."
110. PW-5 Dipankar Anand also deposed to this effect, as under:
".....After stabbing Harvinder, all three accused persons ran away in the gali. I, Harvinder and Narender followed them but after few steps, Harvinder fell down in the gali. He was bleeding from his legs....."
111. In scaled site plan Ex.PW27/A, the place where the deceased fell down on account of excessive bleeding is shown at point 'B' near H. No. 16/987-H, Bapa Nagar, New Delhi.
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112. In Harjinder Singh vs. Delhi Administration, AIR 1968 SC 867, the appellant stabbed a knife on upper portion of left thigh of the deceased below the inguinal ligament. Autopsy Surgeon stated that femoral artery and vein are important main vessels of the body and the cutting of the said vessels would result in great loss of blood and immediate death or after short duration. Hon'ble Supreme Court of India held, as under:
"14. It seems to us that the High Court has not considered whether the third ingredient laid down by Bose, J., in Virsa Singh v. State of Punjab 1958CriLJ818, has been proved in this case or not. In our opinion the circumstances justify the inference that the accused did not intend to cause an injury on this particular portion of the thigh. The evidence indicates that while the appellant was trying to assault Dalip Kumar and the deceased intervened, the appellant finding himself one against two took out the knife and stabbed the deceased. It also indicates that the deceased at that state was in a crouching position presumably to intervene and separate the two. It cannot therefore, be said with any definiteness that the appellant aimed the blow at this particular part of the thigh knowing that it would cut the artery. It may be observed that the appellant had not used the knife while he was engaged in the fight with Dalip Kumar. It was only when he felt that the deceased also came up against him that he whipped out the knife. In these circumstances it cannot be said that it has been proved that it was the intention of the appellant to inflict this particular injury on this particular place. It is, therefore, not possible to apply clause 3 of s. 300 to the act of the accused.
15. Nevertheless, the deceased was in a crouching position when the appellant struck him with the knife. Though the knife was 5" to 6" in length including the handle it was nonetheless a dangerous weapon. When the appellant struck the deceased with the knife, he must have known that the deceased then being in a bent position the blow would land in the abdomen or near it - a vulnerable part of the human body and that such a blow was likely to result in his death. In these circumstances it would be quite legitimate to hold that he struck the deceased with the knife with the intention to cause an injury likely to cause death. We are, therefore, of the opinion that the offence falls under s. 304 Part I."
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113. In Radhey Shyam vs. State of Rajasthan, MANU/RH/0209/1996, the deceased died due to injuries on femoral vein leading to hemorrhage and shock. Hon'ble High Court of Rajasthan held, as under:
"7. In the case in hand, the important fact and circumstance are that the deceased and the appellant were friends and they were taking liquor alongwith other persons. Suddenly a quarrel arose between them over a trivial matter to keep the candle burning or to put out. It has also come on the record that they exchanged words and altercation ensued and during this altercation the appellant inflicted simple injury by knife on the head and second injury on the thigh which has accidentally cut the femoral artery leading to profuse bleeding and deceased died due to shock. There was no premeditation or pre-planning on the part of the appellant to inflict the injury to the deceased. The injury on the vital part i.e. head was simple injury and on non vital part i.e. thigh happened to be of the nature sufficient in the ordinary course to cause death. There was scuffle and a little provocation from the deceased. In the above circumstance, I agree with the learned counsel for the appellant that the accused had no intention to cause death. He had also no intention of causing such bodily injury as was likely to cause death. The injury on the thigh which proved fatal due to femoral artery cut was without any intention on the part of the accused. Therefore in the facts and circumstances of this case and after considering the above cases cited before me, an intention to cause such bodily injury as was likely to cause death could not be attributed to the appellant. It could be said that the act was done by him with the knowledge that the injury was likely to cause death and the case is covered under Section 304 Part II and not under Section 304 Part I. Learned counsel for the complainant has relied upon MANU/SC/0546/1993 (Subran @ Subramanian and Ors. v. State of Kerala ) but this case is distinguishable on facts and is not applicable in the facts and circumstances of the case in hand. In the above referred case looking to the weapon with which the accused was armed and the nature, number and set of injury inflicted by him it was attributed to him that he had the knowledge that those injuries were likely to cause death and there were no other circumstances and the act was committed without any excuse.
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8. In view of the above discussion, I do not agree with the learned trial court and I hold that the conviction Under Section 304 Part I should be set aside and the appellant should be convicted Under Section 304 Part II."
114. In Chander Singh vs. State, Neutral Citation: 2024 :
DHC : 6509, the deceased sustained a solitary injury with a knife on his left thigh. Hon'ble High Court of Delhi held, as under:
"28. Obviously, there is no universal rule that whenever there is a solitary blow, it has to be presumed to be a case falling under Section 304 Part II IPC. Conversely, keeping in mind the factual matrix of any given case, the Court can hold it to be case of Section 304 Part II IPC, despite there being multiple blows. Thus, the number of blows cannot be the sole governing factor to determine whether it is a case of Section 302 IPC or of Section 304 Part II IPC.
29. Indisputably, the injury is not on any vital part of the body either.
30. There is nothing to indicate that the aim was directed towards chest or neck and that in the process of scuffle, such blow landed on thigh. On the contrary, the testimony of the solitary eyewitness is very firm and specific and it has been, in no uncertain terms, deposed by him that the blow was given on the thigh and thereafter all the accused persons vanished from there.
31. We also feel that if the intention was to eliminate them, the blow would have been either on the vital part or they would not have left the spot, merely after causing one solitary blow, that too on thigh.
38. We have also seen the postmortem report and the deposition of Autopsy Surgeon PW-10 Dr. Gaurav Vinod Jain, who noticed incised stab wound of size 2.1 x 0.6 x 10 cm over the outer middle left thigh. The injury had gone through the underlying blood vessel and nerve. There was no other external injury and, according to the Autopsy Surgeon, if immediate surgical intervention had been provided, it could have even saved the injured.
40. There is apparently no real premeditation or intention. The accused had returned within 15-20 minutes. If at all they had any animosity, it was with Hukam Singh who was not present when the appellants had inflicted the blows in question.
FIR No. 423/2015 State vs. Anshul & Ors. Page No. 53 of 65 Moreover, the injuries were caused to Vinod as well as Mohan Lal in an unvarying manner by the same appellant and with the same weapon and since the injury was on a non-vital part of the body, the learned Trial Court, itself, should have convicted the accused under Section 304 Part II IPC, instead of under Section 302 IPC.
42. In Randhir Singh vs State:
MANU/DE/1388/2011, almost similar question was posed to this Court and in judgment dated 07.04.2011, authored by one of us (Hon'ble Mr. Justice Suresh Kumar Kait), the conviction was altered from Section 302 IPC to rather Section 326 IPC. In that case, the injury was on right thigh, a non- vital part of the body and it was observed that it could not be held that the act was committed with the knowledge that it was likely to cause death. In Rahul vs. State: MANU/DE/2518/2023, this Court considered the appeal in which the conviction was recorded under Section 302/34 IPC by the learned Trial Court. In that case also, one of the accused had taken out knife from his pants and had stabbed the deceased on his right thigh. In that case also, it was a solitary blow and the Autopsy Surgeon had observed that such injury on the front right thigh was sufficient to cause death in ordinary course of nature but eventually, this Court altered the conviction to Section 304 Part II IPC.
43. In view of the above, both the appeals are allowed in part and while maintaining the conviction under Section 324/34 IPC, the order of conviction under Section 302 IPC for causing death of Vinod is altered to Section 304 Part II IPC. "
115. The accused persons and the deceased are residents of the same locality. They had no previous enmity. The sequence of events has its origin on the issue of removal of pole from tarpaulin of tea-stall of PW-6 Rishipal. On that issue, the accused Rohan had an altercation with PW-5 Dipankar Anand and thereafter, he slapped him. After sometime, the accused Rohan came alone and had an exchange of hot words with PW-5 Dipankar Anand and at this stage, PW-2 Narender Singh intervened. The deceased was not present during the sequence of events.
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116. The accused Rohan brought the accused Anshul and Yogesh @ Takkal with him and they had an altercation with PW-5 Dipankar Anand and PW-2 Narender Singh. At this stage, the deceased came into the scene. He came out from his house and intervened. During the course of exchange of hot words, the accused Anshul and Yogesh @ Takkal stabbed the deceased. The accused persons caused single injury on right thigh of the deceased with a knife leading to damage to femoral vessel. The accused persons did not cause multiple stabbing. They did not cause any injury to any vital part of body of the deceased. The deceased chased the accused persons after sustaining injury and he fell down at a considerable distance due to bleeding from his right thigh. Therefore, it cannot be said that the accused persons had any intention to cause death of the deceased or to cause such injury as is likely to cause death.
117. However, the accused persons used knife / sharp edged object and caused injury to right thigh which proved fatal on account of excessive bleeding. Therefore, the accused persons can be attributed knowledge that the accused persons committed the act with the knowledge that it was likely to cause death or to cause such bodily injury as was likely to cause death.
118. Therefore, the accused persons are convicted under Section 304 Part II read with Section 34 IPC. DEFENCE CONTENTIONS:
119. Ld. Counsel for the accused persons Anshul and Rohan contended that DD No. 3A Ex.PW17/B was regarding stabbing at H. No. 16/965, Gali No. 5, Bapa Nagar whereas DD No. 2A Ex.PW17/A was regarding heavy quarrel at H. No. 16/934, H-Block, Gali No. 5, Bapa Nagar, Delhi.
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120. The incident in question had taken place in the street near H. No. 16/930 and 16/934, H-Block, Gali No. 5, Bapa Nagar, Karol Bagh, Delhi. Moreover, from the evidence on record, it is established that the place of incident was near H. No. 16/930 and 16/934, H-Block, Gali No. 5, Bapa Nagar, Karol Bagh, Delhi. H. No. 16/965, Gali No. 5, Bapa Nagar is the point where the deceased fell down while chasing the accused persons.
121. As regards contention that PW-26 Insp. Ramesh Lamba did not record statement of the persons immediately when he reached at the place of incident who revealed that the accused persons had stabbed the deceased, it can be stated that PW-26 Insp. Ramesh Lamba was not aware of the nature of the injuries and seriousness of the offence when he reached at the place of incident. Therefore, there was no occasion for PW-26 Insp. Ramesh Lamba to record statements of the persons who revealed names of the accused persons.
122. As regards contention that PW-26 Insp. Ramesh Lamba did not record statement of PW-2 Narender Singh and PW-23 SI Brijpal Singh had recorded the statement, it can be stated that PW-23 SI Brijpal Singh reached at LHMC Hospital and collected MLC of the deceased and recorded statement of PW-2 Narender Singh. PW-26 Insp. Ramesh Lamba reached LHMC Hospital thereafter.
123. As regards contention that PW-2 Narender Singh improved his statement under Section 164 Cr.P.C. Ex.PW2/D that the accused Rohan caught hands of the deceased and the accused Anshul stabbed in the thigh of his brother with a knife, it can be stated that such variation can hardly be considered as a material improvement.
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124. In his statement under Section 164 Cr.P.C. Ex.PW2/D, PW-2 Narender Singh intended to assign role to the accused Rohan that he caught hands of his brother and the accused Anshul stabbed in the thigh of his brother with a knife and the accused Yogesh @ Takkal stated 'maar de sale ko'. Such improvements in the evidence of a witness are usual and made with a view to make their statement more specific. However, besides assigning role to the accused Rohan that he caught hands of his brother and the accused Yogesh @ Takkal stated that 'maar de sale ko', there is no other improvement in his statement which can be considered as a material improvement and could effect the core of the case of the prosecution. Such improvements, variations, embellishments, exaggerations or contradictions are normal in a criminal case and they do not have the effect of causing any impact to the core of the prosecution case, if there is sufficient evidence otherwise to prove the culpability of the offenders.
125. As regards contention that the manner of the incident, as stated in the statement Ex.PW2/A, evidence recorded before the Court and statement under Section 164 Cr.P.C. Ex.PW2/D are contradictory, it can be stated that this Court does not find any material contradiction in the said statements besides the minor improvement, as noted above.
126. As regards contention that in statement Ex.PW2/A, PW-2 Narender Singh did not state any injury on any specific part of body which is stated in statement under Section 164 Cr.P.C. Ex.PW2/D, it can be stated that such omission is not significant in view of observation of PW-23 SI Brijpal Singh in rukka Ex.PW23/A and post-mortem report Ex.PW10/A. FIR No. 423/2015 State vs. Anshul & Ors. Page No. 57 of 65
127. It can be noted that the deceased chased the accused persons for a considerable distance with the said injury and fell down and thereafter, he was taken to the hospital where he was declared 'brought dead'. It may be noted that in the rukka Ex.PW23/A, PW-23 SI Brijpal Singh categorically noted that there was a wound on the thigh near private parts. The exact place of the injury surfaced during post-mortem. Therefore, mere statement that PW-2 Narender Singh stated in statement Ex.PW2/D that the accused Anshul stabbed on thigh of the deceased cannot be taken as an improvement in his initial statement.
128. As regards contention that PW-1 Sunny Kumar, PW-2 Narender Singh, PW-4 Vijender Singh and PW-5 Dipankar Anand made contradictory statements regarding the persons who accompanied the deceased and PW-4 Vijender Singh to hospital, it can be stated that the incident had taken place so suddenly and unexpectedly that the entire focus of family members of the deceased was on hospitalization instead of noting the names of the persons who accompanied the deceased on motorcycle and TSR. It has come on record that there is no contradiction on the aspect that PW-4 Vijender Singh had taken the deceased to LHMC Hospital in TSR and moreover, MLC Ex.PW9/A recorded that the deceased was admitted in LHMC Hospital by PW-4 Vijender Singh (brother) at 12.55 a.m. on 18.06.2015.
129. As regards contention that PW-5 Dipankar Anand made contradictory statements in his evidence and statement under Section 164 Cr.P.C. Ex.PW8/B, it can be stated that PW-5 Dipankar Anand narrated the entire incident in detail in his examination-in-chief.
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130. Insofar as omissions and improvements in his statement under Section 164 Cr.P.C. Ex.PW8/B regarding the incident of slapping and that the accused Rohan caught hands of the deceased and the accused Yogesh @ Takkal stated ' maar de jan se aur khel khatam kar de', it can be stated that these are minor omissions and improvements which do not go to the root of the case of the prosecution. The core of the prosecution case that the accused Anshul and Yogesh @ Takkal at the behest of the accused Rohan stabbed the deceased remained intact.
131. As regards contention that the weapon of offence was not recovered, it can be stated that non-recovery of weapon of offence is insignificant.
132. In Rakesh and Another vs. State of Uttar Pradesh and Another, (2021) 7 SCC 188, Hon'ble Supreme Court of India held, as under:
"12.....For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non....."
133. In State through the Inspector of Police vs. Laly @ Manikandan and Another, Criminal Appeal No. 1750-51 of 2022, Hon'ble Supreme Court of India held, as under:
"9.....Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused....."
134. As regards contention that arrest of the accused persons creates doubt on the prosecution case, it can be stated that the accused persons were named in the FIR and even if there was any discrepancy, though there is none, it cannot have any affect on the prosecution case.
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135. As regards contention that there is no blood trail in the unscaled site plan Ex.PW2/B, it can be stated that in the said site plan, PW-26 Insp. Ramesh Lamba shown the places where blood stained slippers of the deceased were recovered and blood samples on cotton gauze were obtained.
136. PW-23 SI Brijpal Singh, in rukka Ex.PW23/A, noted that blood was scattered to a considerable distance. Similarly, PW-15 SI Rahul stated, in his evidence, that there was a blood trail. Photographs of the place of incident Ex.PW12/A-1 to Ex.PW12/A-22 would show blood at several places in the street. Therefore, it cannot be said that the prosecution has failed to lead evidence to show the blood trail.
137. As regards contention regarding absence of motive, it can be stated that it is not the case of the prosecution that offence in question was committed in furtherance of any motive. Moreover, absence of motive is not significant in the presence of testimony of eye-witnesses of the incident.
138. As regards contention that PW-26 Insp. Ramesh Lamba issued direction to apprehend the accused persons even before registration of FIR, it can be stated that the name of the accused persons revealed to PW-26 Insp. Ramesh Lamba and he searched the accused persons who are residents of the same locality. This Court does not find any illegality in the said aspect as the police has power to apprehend any person suspected to be involved in commission of a cognizable offence.
139. As regards contention that PW-1 Sunny Kumar did not name the accused persons, it can be stated that PW-1 Sunny Kumar is a resident of the same locality and there is reason for him not to disclose the name of the accused persons.
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140. PW-1 Sunny Kumar did not want to involve himself in this case. Moreover, his evidence regarding the place of incident and the manner of incident corroborated PW-2 Narender Singh.
141. In addition, Ld. Counsel for the accused Yogesh @ Takkal taken exception to the concealment of complaint dated 19.06.2015 lodged by PW-2 Narender Singh regarding involvement of Yogesh S/o Sh. Ashok Kumar in the incident. He contended that Investigating Officer has not mentioned anything regarding the said accused in the charge-sheet. He contended that PW-26 Insp. Ramesh Lamba has not given any reason to let him off from the array of the accused persons. He contended that the said accused filed an application for anticipatory bail, vide Bail Application No. 4499/2015 titled as ' State vs. Yogesh Kumar S/o Sh. Ashok Kumar R/o H. No. 16/986, Bapa Nagar', whereby Ld. Session Court dismissed the said application, vide order dated 23.06.2015. However, Hon'ble High Court, vide order dated 24.07.2015 in Bail Application No. 1293/2015 titled as 'Yogesh vs. The State', released him on anticipatory bail. He referred statement of PW-2 Narender Singh, as under:
"I know one Yogesh Kumar S/o Ashok Kumar who resides at House No. 16/986, Bapa Nagar, Karol Bagh, New Delhi. I did not see this person at the time of incident of murder. However, I had seen him in the starting when verbal altercations were going on. Accused Rohan and said Yogesh Kumar S/o Ashok Kumar were initially present when hot conversation regarding falling of bamboo of tripal was going on. No quarrel of Yogesh Kumar S/o Ashok Kumar took place.....No incident of pelting stones had taken place at the house of Yogesh S/o Ashok Kumar on the next day....."
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142. Ld. Counsel for the accused Yogesh @ Takkal stated that PW-7 Harjinder Kaur stated that she had damaged house of the said Yogesh Kumar S/o Sh. Ashok Kumar, as under:
".....I cannot comment whether Yogesh S/o Ashok Kumar resides at H. No. 16/986, Bapa Nagar, Delhi. I cannot comment upon any supplementary statement of Narender in which he had stated about the involvement of four persons in this case. I had damaged the house of Yogesh Kumar S/o Ashok Kumar. (vol. I had gone to damage the house of Yogesh S/o Ashok Kumar). It was happened on the next day of the incident. I had taken that step in anger as my husband had died and my children became orphan. I did not give any statement against Yogesh S/o Ashok Kumar after the damaging the house of Yogesh S/o Ashok Kumar....."
143. Ld. Counsel for the accused Yogesh @ Takkal contended that there is an issue of identity of the accused and the accused Yogesh @ Takkal was wrongly implicated in this case in place of the said Yogesh S/o Sh. Ashok Kumar.
144. Apparently, contentions of Ld. Counsel for the accused Yogesh @ Takkal appeared convincing. However, they did not withstand closer examination. PW-2 Narender Singh admitted presence of the said Yogesh Kumar S/o Sh. Ashok Kumar at the time of verbal altercation on the issue of removal of tarpaulin. However, he categorically stated that no quarrel had taken place with Yogesh Kumar S/o Sh. Ashok Kumar. He categorically stated that he had not seen him at the time of incident of stabbing. He denied that the said Yogesh Kumar S/o Sh. Ashok Kumar was a culprit and he implicated the accused Yogesh @ Takkal. In this regard, it would be relevant to take note of the fact that PW-5 Dipankar Anand was not questioned on this aspect. PW-7 Harjinder Kaur was not a witness to the incident.
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145. The Court has perused the complaint dated 19.06.2015 lodged by PW-2 Narender Singh with PS Prasad Nagar from the police file. It merely stated that on 17.06.2015 at about 11.30 p.m., four boys committed murder of the deceased and three of them are named in FIR and another one is Yogesh S/o Sh. Ashok Kumar. In the said complaint, PW-2 Narender Singh did not rule out the involvement of the accused Yogesh @ Takkal. The defence did not question him regarding the reason for filing the said complaint to include name of Yogesh Kumar S/o Sh. Ashok Kumar.
146. This Court is in agreement with Ld. Counsel for the accused Yogesh @ Takkal that Investigating Officer should have mentioned the said complaint in the challan and enclosed a copy thereof alongwith the result of the investigation qua the said Yogesh S/o Sh. Ashok Kumar. However, every defect in the investigation cannot be a reason to doubt the credibility of the evidence of the prosecution witnesses.
147. As regards contention that PW-26 Insp. Ramesh Lamba has not made Smt. Raj Dulari, maternal aunt of PW-5 Dipankar Anand as a witness in this case despite the fact that she was present at the time of the incident, it can be stated that the name of maternal aunt of PW-5 Dipankar Anand did not surface during investigation. Her name came to the fore in cross- examination of PW-5 Dipankar Anand.
148. It is not imperative for the prosecution to make each and every person witnessing the incident to make a witness. It is not the 'quantity' of the evidence but the ' quality' of the evidence which is a determinative factor.
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149. In criminal trial, it is the duty of the Court to examine the evidence on its record and not the evidence which could have or should have been brought on record.
150. As regards contention qua non-examination of wife and niece, namely, Sheetal of PW-6 Rishipal and Somesh, it can be stated that they were not witnesses to the incident. Ms. Sheetal merely informed PW-6 Rishipal regarding the incident and thereafter, he alongwith his wife and Somesh reached at the place of incident. They did not witness the incident. They are not material witnesses. Their non-examination is immaterial.
151. Discrepancies in the case of the prosecution, as highlighted by Ld. Counsel for the accused persons, regarding the time of visit of PW-15 SI Rahul and presence of Deepankar at the place of incident at the time of visit of PW-23 SI Brijpal Singh are natural and minor discrepancies.
152. Therefore, the prosecution succeeded in establishing that the accused persons committed an offence punishable under Section 304 Part II read with Section 34 IPC. CONCLUSION:
153. The accused persons Anshul, Rohan, Yogesh @ Takkal are convicted for committing offence punishable under Section 304 Part II read with Section 34 IPC.
Announced in the open Court SANJAY SHARMA-II th on this 07 February, 2025 DJ (Commercial Court)-03 (Shahdara) KKD Courts, Delhi FIR No. 423/2015 State vs. Anshul & Ors. Page No. 64 of 65 State vs. Anshul & Ors.
CNR No.: DLCT01-000943-2015 SC No. 27514/2016 FIR No. 423/2015 PS Prasad Nagar 07.02.2025 Proceedings convened through Video Conferencing. Present : None for the State.
Mr. Vineet Jain, Ld. Counsel for the accused Anshul and Rohan.
The accused Anshul is present.
The accused Rohan is produced from CJ No. 8 and the accused Yogesh @ Takkal is produced from CJ No. 1, Tihar, New Delhi.
Vide separate judgment announced in the open Court, the accused persons Anshul, Rohan and Yogesh @ Takkal are convicted for committing offence punishable under Section 304 Part II read with Section 34 IPC. Police file be sent to the prosecution. Judicial file be sent to the concerned Court for sentence. The accused Anshul is directed to appear / surrender before the concerned Court. A copy of judgment is enclosed for being given to Ld. Counsel for the accused Anshul and Rohan. A copy of judgment be sent to Superintendent, CJ-01, Tihar, New Delhi for being given to the accused Yogesh @ Takkal. A copy of this order be also sent to Superintendent, CJ-01 and CJ-08/09, Tihar with the direction to produce the accused Yogesh @ Takkal and Rohan, through physical mode, before the Court of Ld. ASJ-03, Central District, Tis Hazari Courts on 17.02.2025.
Sanjay Sharma-II DJ (Commercial Court)-03 Shahdara, KKD, Delhi 07.02.2025 FIR No. 423/2015 State vs. Anshul & Ors. Page No. 65 of 65