Delhi District Court
State vs . Rakesh Kumar & Others on 29 July, 2022
IN THE COURT OF SAMAR VISHAL,
ADDITIONAL SESSIONS JUDGE-08,
WEST DISTRICT : TIS HAZARI COURTS : DELHI
CNR No. DLWT01-002738-2015
SC No 57694/2016
Under section : 302/307/34/174-A IPC
FIR No. 162/2015
Police Station : Ranhola
State Vs. Rakesh Kumar & Others
In the matter of :
State
Versus
1. Rakesh Kumar
S/o Shanti Lal,
R/o A-50, Gali No. 7,
Defence Enclave-1,
Mohan Garden,
Delhi.
2. Sunny @ Lulla,
S/o Kishan Lal,
R/o K-6/68, Mohan Garden,
Delhi.
3. Neeraj Kumar @ Abhishek,
S/o Makhan Singh,
R/o K-5/35, Mohan Garden,
Delhi.
4. Vikas Kumar,
S/o Bhagwan Das,
R/o K-5/58, Mohan Garden,
FIR No. 162/2015
Police Station : Ranhola
State Vs. Rakesh Kumar & Ors. Page No. 1/52
Delhi
5. Vicky @ Takkar,
S/o Narayan Singh,
R/o B-115, 2nd Floor,
Deep Vihar, Vikas Nagar,
Delhi
6. Pawan @ Pankhi,
S/o Laxman Ram,
R/o H No. K-5/14 Extn,
Gali No. 3, Mohan Garden,
Delhi
Date of Institution : 18.06.2015
Date of reserving Judgment : 15.07.2022
Date of pronouncement : 29.07.2022
Appearances
For the State :Mr. Santosh Kumar,
Additional Public Prosecutor
For accused :Mr. Ramneek Kumar and Kapil Kumar
Advocates for Rakesh, Neeraj @ Abhisek and
Sunny @ Lulla and Mr. RR Jha for the other
accused.
FIR No. 162/2015
Police Station : Ranhola
State Vs. Rakesh Kumar & Ors. Page No. 2/52
JUDGMENT
1. This is a trial of the murder of Mohit Gosain @ Montoo and an attempt to murder Rahul Singh @ Ranga on 06.03.2015 at around 1:30 PM in a single incident and all the six accused - Rakesh Kumar, Sunny @ Lulla, Neeraj Kumar @ Abhishek, Vikas Kumar, Vicky @ Takkar and Pawan @ Pankhi are accused of these crimes and are therefore prosecuted by the state before this court in this case. The determination of the fact whether deceased Mohit Gosain was murdered and murder of Rahul Singh @ Ranga was attempted by these accused as alleged by the prosecution is the subject of the present judgment of this trial in which the aforesaid six persons stood accused of murdering Mohit Gosain and attempt of murdering Rahul Singh @ Ranga before this Court.
2. There are two victims in the case. Mohit Gosain, who died due to the assault and Rahul Singh @ Ranga who was injured. The prosecution estimates the time of assault on both the victims at about 1.30 PM at noon. The first information regarding the fight, was received at around 1:55 PM, through the wireless operator. This information was marked to Sub-Inspector (SI) Braham Prakash for taking necessary action. He reached the spot that was near Nagar Furniture, Defence Enclave Delhi. He found some police personals already there and saw that a portion of the road in front of that shop was soddened with blood. A blood-stained brick piece and a blood-stained sleeper was lying there. On the platform FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 3/52 and near Nagar Furniture, a pair of black coloured leather shoes were lying scattered. He came to know that the injured was taken to the hospital by his friend. No eye witness was there on the spot. Later on, a new information was received through DD No. 43 A, of the same date, that the injured Mohit was brought dead to the hospital. After deploying some police constables at the spot to preserve the crime scene, ASI Braham Prakash went to the DDU Hospital, where he was confirmed that Mohit who was injured in that incident, was brought dead to the hospital. The dead body was sent for postmortem. He found the other injured Rahul Singh in the hospital. From him, he came to know about the incident. He recorded the statement of Rahul Singh Ex.PW1/A, who became the complainant of this case and his complaint became the basis of the FIR of the present case. In his complaint, he has alleged that he used to put lights in the weekly market in the area of Vikas Nagar and Mohan Garden. The accused Rakesh used to work with BSES. Some days before, Rakesh extorted Rs.200/- from his father on the ruse of electricity theft and also threatened him to regularly pay him. On 06.03.2015 at around 1:30 in the noon, he, his friend Mohit and Shiv Kumar were celebrating Holi. They reached near Qureshi Meat Shop in Vikas Nagar. The accused Rakesh met them and asked for money on which an altercation took place between them. Rakesh then left the place after threatening them. After almost 5-10 minutes, at around 1:40 PM, Rakesh came back with his associates Vicky Takkar who was the known criminal of the area, Pawan and 5-6 other associates. Rakesh came with a knife and with his associates surrounded them and beaten them. The FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 4/52 accused Vicky stabbed directly on the neck of Mohit with a knife due to which he started bleeding profusely and collapsed on the ground. Even after that the accused Vicky and his associates kept kicking Mohit. The accused Rakesh attacked him with a knife which he resisted by grabbing the knife by his hand on which they both scuffled. The accused Pawan picked a piece of brick and hit it on his head after which he also collapsed on the road. The complainant's third associate Shiv Kumar on seeing the fight, frightened and thinking that both of them (Rahul and Mohit) had died ran away from there. He brought his friend Mohit to the hospital where Mohit was declared dead by the doctors.
3. On this complaint and on the basis of the MLC's of the complainant and Mohit, ASI Braham Prakash, thought it fit to register the present FIR. He made an endorsement on the complaint and registered the present FIR under section 302/307/34 IPC on the same day at around 05:35 PM. The investigation was then marked to Inspector Manoj Kumar, who went on the spot, collected the relevant exhibits like the blood in gauze from the road, from the sleeper and brick etc. He seized the shoes lying there on the road. The scene of crime was inspected and photographed by the crime team. On 07.03.2015, the postmortem of the deceased Mohit was done. Doctor gave certain exhibits of the deceased like viscera etc., to the investigating officer with the sample seal. The postmortem report revealed that the cause of death was hemorrhage secondary to the stab wound over the neck.
FIR No. 162/2015Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 5/52
4. The investigating officer tried to search the accused but all absconded. The first arrest made in this case was on 08.03.2015 when the accused Rakesh was arrested by the crime branch of Delhi Police. The investigating officer of this case arrested him after taking permission from the court and interrogated him. He confessed his crime. He was taken on two days police custody remand during which, at his instance, the police recovered a blood- stained knife from his house. Police seized the knife and prepared its sketch. On the same day that was 10.03.2015, the accused Sunny and Neeraj Kumar were apprehended from the house of Sunny. They were interrogated and arrested. On 25.03.2015, the police took the blood samples of the complainant Rahul through DDU Hospital. On 12.04.2015, the accused Vikas was arrested from his house. The accused Sunny, Neeraj and Vikas were asked to join the test identification parade which they refused. On 19.04.2015, the accused Vicky @ Takkar was arrested by AATS Police South West Delhi. The investigating officer arrested him after his interrogation in this case also after taking permission from the court. He confessed his crime and then got recovered a blood- stained knife from his house during police custody. The knife recovered from the accused Rakesh was sent for subsequent opinion to the doctor, who opined that the possibility of sharp injuries on fingers of right hand of complainant from this knife cannot be ruled out. Similarly, the knife recovered from the accused Vicky @ Takkar was sent for subsequent opinion to the autopsy surgeon who opined that considering the size and nature of the knife and stab wound in the postmortem report, he was of the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 6/52 opinion that the injures mentioned under external injures on the body of the deceased in the postmortem report can be caused by this knife and the death of the deceased can be caused by this weapon. The investigating officer deposited the relevant exhibits in the FSL, the report of which were filed later. The sixth accused Pawan absconded and proceeding under section 82 Cr.PC was initiated against him. He was arrested later on, when he surrendered in another case against him in FIR No. 216/2011 police station Ranhola. The investigating officer arrested him in this case also on 21.07.2015, interrogated him and then filed the supplementary chargesheet against him.
5. The charge sheet after investigation in this case was filed on 28.05.2015. The case was committed to the court of Session on 05.06.2015. The supplementary chargesheet was filed against accused Pawan on 26.09.2015. On 03.10.2015, charge was framed against the all the accused under section 302/307/34 of the Indian Penal Code. Additionally, charge was also framed against the accused Pawan under section 174-A IPC who failed to appear before the court despite a written proclamation issued against him under section 82 Cr.PC. The accused persons pleaded not guilty and claimed trial.
6. During trial, the prosecution has examined thirty-one witnesses, out of which PW1 (prosecution witness 1) Rahul Singh, the complainant of this case and Shiv Kumar PW4, are the most crucial witnesses because they both are eye witnesses to the murder of Mohit and the complainant being also the injured witnesses FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 7/52 because he was injured in the incident. Further the medical evidence given by the doctors and proved reports of forensic science laboratory(FSL) along with the evidence of the investigation officer are also important pieces of evidences. Rest are formal witnesses associated with investigation of the case. I will now explicate each and every important piece of evidence in detail.
7. The complainant Rahul Singh as PW1 deposed that on 06.03.2015 at about 01:30 PM, he and his friends Mohit Gosain and Shiv Kumar were present Qureshi Meat Shop, Balaji Road, Vikas Nagar, Delhi for celebrating Holi. Accused Rakesh Bijliwala was known to him being the resident of the same area, whom he also identified in the court during evidence, met them there and demanded money as "hafta"(kind of extortion) as he used to supply battery lights in the market. Due to this, Rakesh abused and threatened to see him and left the spot. After around 10 minutes, the accused Rakesh, Vickey @ Takkar, Pawan Pankhi, Neeraj, Sunny and Vikas came there. He knew all the accused by their faces and know Vicky, Neeraj and Pawan by their names and faces both. He knew rest of the accused only by their faces. They all attacked them with knife and bricks. Accused Vicky @ Takkar stabbed Mohit with a knife in his neck after which he fell on the ground. Accused Rakesh attacked him with a knife which he grasped with his hand to stop the attack, due to which he was injured in his right hand. Accused Pawan hit on the back side of his head with a piece of brick after which he also fell down on the ground. His friend Shiv FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 8/52 Kumar ran away from the spot to his home. On regaining consciousness after 2-3 minutes, he took his friend Mohit to DDU hospital in an auto rikshaw, where he was declared brought dead by the doctors. SI Braham Prakash met him in the hospital where he recorded his statement Ex.PW1/A. After his discharge from the hospital, he went to the police station. From there with the investigating officer, he went to the spot where the sleeper of his left foot, a pair of shoes and one more sleeper was found. He identified his sleeper. It was seized by the police through seizure memo Ex.PW1/B, which was proved this witness. This witness also deposed about the incident which happened 2-3 months back when the accused Rakesh extorted some money from his father. Though his father later declined to pay. During evidence, he stated about the threats, he received to stop him from giving evidence. In his court evidence, he deposed that he received threats before his evidence in court from one Samarjeet, who is resident of C-1, Sita Puri and some other persons. Samerjeet came to him many times. Sometimes with 5-6 associates and sometimes with 10 associates. He pressurised him not to depose in the present case and further threatened to kill him. He gave his complaint in this regard to the police. A night before his evidence also, at about 01:30 AM, some persons approached his house. He was sleeping. His father noticed this thing and was about to open the door but his brother Rohit did not allow his father to open the door. Those persons uttered from outside the house while the door was closed. They said that he should not depose in the case failing which they will attack his family. He stated that he went to Tihar Jail for test identification of FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 9/52 the accused but they refused. He identified all the six accused in the court and the exhibits. He identified the brick, Ex.P1 used to assault him, his sleeper Ex.P2, the knife used by the accused Rakesh to attack him, Ex.P3, the knife Ex.P4 used by the accused Vicky with which he stabbed Mohit as well as the pair of shoes and a sleeper found at the spot as Ex.P5.
8. PW-4 Shiv Kumar is the other eye witness. He was with the complainant and the deceased at the time of incident though later ran away from there probably out of fear. He deposed that on 06.03.2015 at around 01:00 PM or 1:30 PM, he, his friend Rahul and Mohit were present near Qureshi Meat Shop, Vikas Nagar and were celebrating Holi. Rakesh Bijliwala came there and asked for money in lieu of light connection given in the market. Accused Rakesh Bijliwala said- "yahi raho main 10 minutes mein aata hu phir tumhe batata hu". Thereafter, Rakesh left the spot. After about 5-10 minutes, Rakesh and his associates Pawan, Sunny, Neeraj, Vikas and Vicky came there. Accused Rakesh had a knife in his hand. All the accused quarreled with Rahul ( ve Rahul se bhir gaye). They quarreled with Rahul and Mohit. They threw bricks etc., on them. Accused Rakesh Bijliwala stabbed a knife to Rahul but Rahul caught hold of that knife. Then accused Pawan hit a brick on the head of Rahul. He tried to rescue his friends but accused started beating him also. Accused Rakesh had a knife in his hand and he gave knife blows on Rahul and Mohit. Rahul had sustained knife injury on his hand and Mohit had sustained injuries on his neck. Both his friends fell on the ground. Then due to fear, he ran FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 10/52 away from the spot. Police officials came to his house and took him to the spot on that very day. By that time, Rahul was already taken Mohit to the hospital.
9. These are the two most important pieces of evidence in this case. These witnesses were the one who had seen the incident and are the best witnesses of this case.
10. The next important witnesses are the doctors. PW-7 is Dr.Nishu Dhawan. She has proved the MLC of the deceased Mohit Ex.PW7/A. According to the MLC, Mohit was brought to the causality of DDU Hospital on 06.03.2015 at 02:45 PM. On examination, it was found that the patient did not have any vital signs. Dr. Khushwant prepared the MLC and declared the patient brought dead and sent the dead body to mortuary for autopsy. The postmortem of Mohit was conducted by Dr. Narayana Dabas, PW-
23. According to his evidence, on 07.03.2015, he was posted as senior resident in Department of Forensic Medicine of DDU Hospital. He conducted the postmortem on the dead body of Mohit Gusain, a male aged about 21 years at the request of Inspector Manoj Kumar. On examination of the dead body, he observed four external injuries on the deceased. There was one stab wound on the left side of his neck and the second stab wound on his left buttock. There were multiple abrasions / nail marks on the right side of his neck. There was one bluish contusion over his right shoulder tip. On internal examination of his neck, strap muscles, carotid artery, internal jugular vein of left side of his neck were clean cut corresponding to external injury no. 1 i.e., injury over his neck.
FIR No. 162/2015Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 11/52 According to him, the cause of death was hemorrhage secondary to the stab wound as a result of stab wound over his neck. The manner of death was homicidal. The time since death was 20-24 hours before conducting postmortem. The blood sample, clothes and viscera of the deceased were sealed and handed over to the investigating officer. He proved his postmortem report, Ex.PW23/A. On 21.04.2015, Inspector Manoj Kumar filed an application for giving subsequent opinion with respect to the knife which he gave in a sealed parcel sealed with the seal of MK. The knife was single edged and had a pointed tip. There were reddish brown stains present on both surfaces of the blade of knife. He took measurement of the knife and prepared two sketches of it reflecting both sides of knife, which are Ex.PW23/B and Ex.PW23/C. He examined the knife and postmortem report of the deceased Mohit and opined that the external injuries i.e., stab wound mentioned in the postmortem report could be caused by the knife produced before him. Hence, death of deceased could be caused by the said knife. He proved his report regarding his opinion as Ex.PW23/D. He identified the big knife described in the sketch Ex.PW23/B and Ex.PW23/C in court during his evidence. He also identified the knife, Ex.P4 regarding which he gave his subsequent report Ex.PW23/D.
11. Then PW-8 is Dr. Saurabh Jain, who on 06.03.2015 examined the complainant Rahul and proved the MLC as Ex.PW8/A. According to this MLC, complainant Rahul had three injuries-CLW size 1cm x 0.5cm on left side of forehead, CLW size 2cm x 1cm on FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 12/52 occipital region, CLW of around 2cm x 0.5cm in the right hand of little finger, ring finger and index finger each. The injuries have been mentioned in the MLC. According to him, the nature of injuries was simple and were caused by a sharp edge weapon.
12. Rest are the police officers who were involved in the investigation of the case like SI Braham Prakash who initially went to the spot and taken down the complaint of the complainant and registered the case and others who deposited the exhibits in FSL or were there with the investigating officer and signed the documents like seizure memos, arrest memos etc. Their testimonies are not reproduced here to avoid repetition. The most important witnesses of the police are investigating officers, whose evidence is required to be discussed in order to understand how the investigation was done in this case. The first investigation officer was Bhrahm Prakash and main investigating officer is SI Manoj Kumar.
13. PW-27 SI Braham Prakash deposed that on 06.03.2015 at about 2:00 or 2:15 P.M., he was present in the area of P.S. Ranhola. It was the day of Holi. He received a telephone call from SHO inspector Udham Singh, who informed him about DD No.32A regarding quarrel near Qureshi Meat Shop, Balaji Chowk, Vikas Nagar, Delhi. He went there. HC Parminder, HC Jai Kishan and Ct. Naresh met him. There was a shop in the name of M/s Nagar Furniture and lot of blood was spread in front of that shop. One blood-stained slipper, one pair of blood-stained shoes, one slipper of black colour and one blood-stained piece of brick was lying at the spot. He then got an information through DD No.43 that Mohit @ Montu was FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 13/52 admitted in the DDU hospital, who was declared brought dead on arrival. He informed the crime team and went to DDU hospital with Ct. Naresh. He collected the MLC of Mohit. The dead body was already sent to mortuary. He collected the MLC of another injured Rahul, who was found fit for statement. He inquired about the incident from Rahul. He told about the involvement of Rakesh Bijliwala and Vicky @ Thakkar and their other associates. He recorded statement of Rahul Ex.PW1/A, made his endorsement Ex.PW27/A on the statement of Rahul and gave the 'ruka' to Ct. Naresh for registration of FIR. Then he and Rahul came to the spot, where he came to know through HC Parminder that the crime team had inspected the spot. He obtained the report from HC Parminder. After some time, Inspector Manoj Kumar reached at the spot who was the new investigation officer of this case. He gave the documents of this case to him. Ct. Naresh also returned to the spot with copy of FIR and original 'ruka' which he gave to inspector Manoj Kumar. He then deposed about the investigation done by inspector Manoj which is not repeated here as the evidence of the investigation officer is mentioned below.
14. The investigation officer Manoj Kumar deposed that on 06.03.2015 duty officer informed him about the complaint in the present case and asked him to reach at the spot. He reached the scene of crime that was A-25, Nagar Furniture, Defence Enclave, Vikas Nagar, Delhi. SI Brahm Prakash, HC Parminder and HC Jai Kishan were present there. He inspected the spot and interrogated the complainant Rahul and prepared the site plan Ex.PW28/A at the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 14/52 instance of complainant. Ct. Naresh reached the spot at about 6:40 P.M. with copy of FIR and original 'ruka' and gave these to him. He seized the exhibits from the spot through seizure memo Ex.PW27/B. He seized blood-stained pieces of concrete through seizure memo Ex.PW27/C, the blood- stained brick through seizure memo Ex.PW27/D, one slipper and two shoes through seizure memo Ex.PW27/E and one blood- stained slipper (hawai chappal of left foot) through Ex.PW1/B. He recorded the supplementary statement of complainant regarding these seizures. He also examined the maker of PCR call Mahak. He tried to search accused but in vain. On the next day 07.03.2015, he and SI Brahm Prakash went to DDU hospital, where the postmortem of deceased was done. He recorded the identification statement of Mohan Singh (father of the deceased) Ex.PW5/A and statement of Nikhil Gosai (brother of deceased) Ex.PW28/B. After autopsy, the dead body of the deceased was handed to Mohan Singh vide memo Ex.PW5/B. The doctor gave blood in gauze and clothes of deceased sealed with the seal of hospital 'PM DDUH' and sample seal which he seized through seizure memo Ex.PW27/F. Doctor also gave sealed viscera of the deceased which he seized through seizure memo Ex.PW27/G. On 08.03.2015, an information was received from Inter State Cell, Crime Branch, through DD No.41A, Ex.PW28/C, about the arrest of accused Rakesh. On 09.03.2015, he and HC Parminder went to Tis Hazari Court and moved an application for interrogation of Rakesh. After interrogation, he arrested Rakesh through arrest memo Ex.PW26/A and recorded his confessional statement, Ex.PW26/B. He got two days police custody remand of FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 15/52 Rakesh though court. On 10.03.2015, SI Brahm Prakash and HC Parminder joined the investigation. The accused Rakesh led them to his house number A-50, Defence Enclave, Delhi from where he took out a knife, which was hidden by him near the water tank on the mumty at the first floor of the house, which was used to commit the crime. The knife was checked. It had blood stains. He prepared the sketch of the knife Ex.PW26/B. He seized the knife through seizure memo Ex.PW26/C and sealed it. He also prepared the site plan of recovery of the knife Ex.PW28/D. Accused Rakesh then led them to house number K-6/68, Mohan Garden, Delhi, in search of his other associates. There were two persons in the house, who were pointed out by accused Rakesh. They were Sunny and Neeraj. He apprehended both of them and arrested them vide arrest memo Ex.PW26/D and Ex.PW26/E. On 11.03.2015, SI Braham Prakash moved an application for test identification parade of accused Sunny and Neeraj which was fixed for 17.03.2015 but both the accused refused to participate in the TIP proceedings. On 25.03.2015, complainant Rahul was sent to DDU hospital with constable Satish for his blood sample for DNA examination where his blood sample was collected. On 31.03.2015, the viscera of deceased were deposited in FSL Rohini through HC Ajeet. He obtained the subsequent opinion from the doctor regarding the weapon of offence and the injury caused which is Ex.PW28/E. On 01.04.2015, the rest of the exhibits were deposited in FSL Rohini through constable Netra Pal. On 12.04.2015, he came to know about the fourth accused Vikas. He went to his house at K-5/58, Mohan Garden, Delhi. After interrogation, he arrested Vikas FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 16/52 through arrest memo Ex.PW26/M. During the evidence in the court he identified accused Rakesh, Vikas, Sunny and Neeraj. He moved an application for TIP of accused Vikas which was fixed for 21.04.2015 but Vikas also refused to participate in TIP. On 19.04.2015, he got an information about the arrest of Vicky @ Takkar. He moved an application before the court on 20.04.2015 to interrogate the accused Vicky which was allowed. He interrogated accused Vicky @ Takkar and arrested him vide memo Ex.PW20/A. He recorded the confessional statement of Vicky @ Takkar Ex.PW20/B. He obtained one day police custody remand of Vicky @ Takkar. Vicky @ Takkar led them to his house B-115, 2nd floor, Deep Vihar, Vikas Nagar, Delhi, from where he got recovered knife used in the crime from the roof of his house. He prepared the sketch of the knife Ex.PW20/C and written its measurement. He seized the knife vide memo Ex.PW20/D. He also prepared the site plan of the place of recovery of this knife Ex.PW20/E. He obtained the subsequent opinion Ex.PW23/D, regarding the knife and the injuries of the deceased through autopsy surgeon. On 29.04.2015, he obtained non bailable warrants against accused Pawan. He got prepared a scaled site plan Ex.PW14/A of the place of incident through inspector Mahesh (Draftsman). On 12.05.2015 exhibits were deposited with Forensic Science Laboratory Rohini, through Ct. Madan Lal. During the investigation, he had also collected PCR form vide Ex.PW9/A1. On 18.05.2015, he moved an application before the court for issuance of process under section 82/83 Cr.P.C. against accused Pawan @ Pankhi. In his evidence in court, he identified the knife, Ex.P-3 which was recovered at the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 17/52 instance of accused Rakesh and piece of brick Ex.P-1 which was recovered from the spot which was used to assault the complainant. He also identified the plastic box Ex.P-5 in which the blood-stained cemented material was seized. He identified 'hawai chappal' Ex.P- 2, one pair of black colour shoes and the slipper Ex.P-5 and knife recovered from the accused Vikky @Takkar used to kill the deceased as Ex.P-4.
15. Regarding the last accused Pawan@Pankhi who could not be arrested by the time first chargesheet was filed, a supplementary chargesheet was filed against him after his arrest by the third investigation officer inspector Surya Prakash who is examined as PW-31. According to his evidence, he was posted at police station Ranhola as ATO on 09.06.2015. The investigation was done by the main investigating officer Inspector Manoj Kumar. The last leg of the investigation was marked to him against the accused Pawan. Accordingly, he took process under section 83 Cr.PC against accused Pawan and filed his report on 07.07.2015. On 23.07.2015, he received an information about arrest of accused Pawan in another case. He moved an application for production of accused Pawan. On 24.07.2015, he went to Rohini jail no.10 for formal arrest of accused Pawan where he was lodged in another case. The accused Pawan was interrogated and arrested vide arrest memo Ex. PW29/A. After completion of investigation, he filed the supplementary charge-sheet in the court.
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16. Lastly the reports of FSL shows that both the knives recovered from the possession of the accused and allegedly used in the crime have traces of blood of human origin on them.
17. This is the overall evidence led by the prosecution in this case.
18. After the prosecution evidence was over, the accused were examined under section 313 Cr.PC and the incriminating circumstances appearing in evidence against them were put to them. All the accused denied the evidence against them. They stated that they have nothing to do with the offence alleged nor any recovery was affected from them as alleged. Accused Vicky stated that he was not even present at the place of incident. The accused Rakesh Kumar stated that the recovery of knife was planted upon him. On the date of incident, he was present at the house of his wife in Shadahra. The accused Vikas stated that on the date of incident, he was not present on the spot. He does not know Shiv Kumar or Rahul. The accused Pawan stated that he was not present at the place of incident. He was arrested from the jail. The accused Sunny stated that he does not know Shiv Kumar and Rahul @ Ranga. The accused Vicky stated that the recovery of knife was planted upon him and he was not present at the place of incident.
19. Two accused led defence evidence in this case. The accused Rakesh examined his brother-in-law Ajay in order to show that the accused Rakesh went to his house on 05.03.2015 and left on 07.03.2015. The accused Neeraj has examined his wife Rajni in order to prove that on 06.03.2015 he did not go out of the house.
FIR No. 162/2015Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 19/52 She deposed that the accused Neeraj was in the house throughout the day and went to work on the next day on 07.03.2015.
20. This is the overall defence of the accused.
21. I have heard the final arguments for prosecution advanced by learned Public Prosecutor Mr. Santosh Kumar and for defence by Mr. R.R. Jha counsel for accused Vikas, Vicky and Pawan and Mr. Ramneek Kumar counsel for accused Neeraj, Rakesh and Sunny
22. Learned Public Prosecutor has argued that the entire case is based on the testimonies of eyewitnesses who were present on the spot before the incident and one was even injured in the assault. He further stated that there is nothing in the cross-examination of the eyewitnesses and other prosecution witnesses which could be said to be sufficient to create a doubt in the story of the prosecution. Both the eyewitnesses have given a true and reliable account of how the offence was committed in this case and there is nothing to disbelieve their unflinching and cogent testimony on this issue. He stated that the evidences given by the prosecution witnesses are so meticulously flawless that it points to only one conclusion that the prosecution is able to prove its case beyond reasonable doubt which is the required standard for it. He stated that the testimony of the complainant and other public witness were consistent throughout. He read the evidence and the important documents to connect the role of the accused with the crime alleged. He stated that the prosecution has broken the back of this case by examining these eyewitnesses and corroborating them with medical evidence and that the accused have been duly identified by the eye witnesses.
FIR No. 162/2015Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 20/52 The postmortem report has clearly established that the deceased was murdered. The motive of the crime has been proved by the prosecution. It is stated by him that the case has been proved beyond reasonable doubts and all the accused deserves to be convicted for the offences with which they are charged.
23. On the other hand, Mr. Ramneek Kumar and Mr. R. R Jha, defence counsels have argued that Rakesh is alleged to be employed in BSES but there is no evidence in this regard. Therefore, it not proved that the accused Rakesh worked with BSES. There is no earlier complaint against Rakesh for demanding the alleged 'hafta'. None of the injured called the police. The call to police was made by a lady Mahak who lives nearby but she has not been made a witness despite being the independent eye witness. She was not even joined for test identification parade. The accused Rakesh was at the house of his brother-in-law (sasural) on the date of incident. It is further argued that section 34 of the IPC is not applicable as all accused did not actively participate in the assault. The recoveries were falsely planted upon the accused and the names of all the accused was not there in the FIR. Complainant suffered merely simple injury, therefore the charge of attempt to murder complainant is unsubstantiated. It is further stated that no public witness was joined in the investigation as well as during the alleged recovery of incriminating articles at the instance of the accused. It was also argued that the culpable intention of the accused has not been established as it is a case of solitary blows. I will explicate on these arguments in detail later.
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24. The facts, if summarised in brief are that in the noon of 06.03.2015, all these six accused came in a group and attacked the complainant Rahul and his friends Mohit and Shiv Kumar with kicks, fists, knives and bricks. Mohit succumbed to the injuries suffered by him in this attack. During investigation the knives used by the accused Vicky and Rakesh in the assault were recovered at their disclosure from the place, where they hid them. The two injured Rahul and Shiv Kumar, who survived, became the eye witnesses of this case to bring the assailants to justice.
25. The case of the prosecution is therefore based on the eyewitnesses' accounts and not on circumstantial evidence. A witness that saw the happening of the incident being investigated by the court is an eyewitness. Reliable evidence of eyewitnesses cannot be disregarded in the absence of strong reasons. Conviction can be based upon the testimony of sole eyewitness if the same is found wholly reliable. In case if his testimony is not found to be wholly reliable, the court may insist upon some independent corroboration.
26. The prosecution has two eyewitnesses to this matter. They are its star witnesses. Eyewitnesses play an important role in the criminal justice system. The quality of evidence of an eyewitness depends on many factors prominent among them are his view in which the crime is committed, his confidence with respect to the accuracy of the description of the crime and identification of the accused and his description, the amount of attention the witness paid to the crime during its occurrence, the probability of the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 22/52 witness being present at the place of incident, the accuracy and probability of what he is defining etc. The law related to the appreciation of evidence of eyewitnesses is completely settled that generally the testimony of eyewitness of the incident is considered credible unless and until it is specifically shown or proved to have tainted for any reason on which it is assailed. Generally, the courts tend to believe what the eyewitnesses depose in the court and it is only when there exists grave and material discrepancies and contradictions in their statements which compels the court to think and doubt that whether the eyewitness is giving a truthful account, it can be come in the domain of suspicion. When the tenacity and doggedness of the eyewitness is suspicious, when the truthfulness of the testimony of the eyewitness is shrouded in grave clouds of suspicion and falsity, the court may disbelieve that witness or may look for such corroboration of his evidence which are capable of removing the blemish from his evidence. However, the contradictions and omissions which are not material regards being to the facts of the case those can be overlooked. Way back in 1957, in Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614, Hon'ble Supreme Court has categorised the witnesses in three categories. It was held that as a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 23/52 upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. It is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:(1) Wholly reliable, (2) Wholly unreliable, (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
27. It is not out of place to mention here that both the eyewitnesses were also injured in the incident and they also fall in the category of injured witnesses. The law regarding injured witness is that the evidence of an injured witness must be given due weightage. The statement of injured is generally considered to be very reliable and FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 24/52 it is unlikely that she or he will spare the actual assailant in order to falsely implicate someone else. The testimony of an injured witness / victim of offence has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. The evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
28. In Abdul Sayed vs State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court laid down that the question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.
29. In State of UP vs Naresh (2011) 4SCC 324, it was observed by Hon'ble Supreme Court that the evidence of an injured witness must be given due weightage being a stamped witness, thus, his FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 25/52 presence cannot be doubted. His statement is generally considered to be very reliable, and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence, and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.
30. The testimonies of the eyewitnesses in this case have to be judged on the anvil of the law discussed above.
31. Now with these legal parameters regarding appreciation of evidence of eyewitness and being conscious of the fact that the burden of proof in a criminal trial is always on the prosecution and it never shifts and to secure a conviction, the prosecution has to prove its case beyond reasonable doubt on the basis of acceptable evidence, I will proceed for the appreciation of evidence. It is a settled principle of criminal law jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Though it is neither possible nor prudent to have a straight-jacket formula or principle which would apply to all cases without variance and every case has FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 26/52 to be appreciated on its own facts and in light of the evidence led by the parties. It is for the court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt.
32. Coming to appreciation of the facts and evidence. The most important evidence in this case is of complainant PW1 Rahul and PW-4 Shiv Kumar. Their evidence is reproduced above. The complainant Rahul has given the account of the incident in his initial complaint ExPW1/A and also in court. He is the eyewitness of this case and also an injured witness. The testimony of witness Rahul in this case inspires confidence. He is a wholly reliable witness. His evidence deserves to be given due weightage due to its inherent consistency at different stages. He was also injured in the incident and the statement of an injured is generally considered to be very reliable and it is unlikely that he will spare the actual assailant in order to falsely implicate someone else. PW1 Rahul was injured in the incident and therefore his testimony has its own relevancy and efficacy. Why would he, if he has witnessed the incident, would not like the actual culprit punished or want to let the actual offender go unpunished for the commission of the offence merely to implicate the accused on an improbable and unproved defence of enmity. The evidence of Rahul has to be relied upon unless there are grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein which are absent in this case as will be discussed further. The complainant has FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 27/52 given the account of incident immediately in his complaint and there was no delay in the registration of the case. Rahul sticked to his allegations throughout the case. He has named all the accused as the murderers of Mohit. He knew some of the accused like Rakesh and identified in evidence those accused whose names he did not know. But the confidence of his testimony in identifying the all accused in court has clinched the issue regarding the involvement of accused in the crime. Further some of the accused refused to participate in TIP during the investigation of the case as stated above. Therefore, the identification of the accused by this witness or in fact by other eyewitness Shiv Kumar is not an issue. He has categorically stated in his evidence in court that on the fateful day, he was present at the spot with his friends. It was the day of Holi. The accused Rakesh demanded money from him which he refused. Rakesh left the spot after threatening him and came back with his associates. They assaulted all three of them. The accused Vicky stabbed the knife in the neck of Mohit whereas accused Rakesh tried to stab him. The motive for the crime seems to be some dispute between them with respect to the demand of money by one of the accused. Though in cases of direct evidence motive is generally immaterial. Rahul has been duly cross- examined on behalf of accused. There is an inherent consistency in the evidence of the complainant. He has given a consistent account of the incident in his complaint Ex.PW1/A, in his evidence as PW- 1 and during his cross-examination. There is nothing in his cross- examination to impeach his credit or to suggest that he is not a reliable witness or has not witnessed the incident or has not spoken FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 28/52 the truth. There is nothing in his cross-examination to impeach his evidence in the court or to discredit his evidence. The defence has not produced any proof/material that what can be the reason for complainant for false implication of accused except a bald assertion that they are innocent or of alibi by some accused. PW1 has clearly deposed about the assault and the manner in which it was done by the accused
33. PW-4 Shiv Kumar has further corroborated the oral evidence of complainant Rahul. He is also an eyewitness and himself attacked by this group of accused. His evidence bespoke with clarity that what happened on that day and what brought death to Mohit. There is nothing in the cross-examination of this witnesses also to show in any manner that whatever he spoke in court has even an atom of falsehood.
34. The testimonies of the complainant Rahul and Shiv Kumar are the backbone of the case of the prosecution. Their evidences inspire confidence and there is nothing in them to create any doubt or suspicion on their probative value. One important aspect of the cross-examination of the witness Shiv Kumar is that the defence did not have much opportunity to contradict or controvert his evidence with any previous statements, showing an inherent strength and consistency in what he said. In respect of the cross examination of Rahul, though there have been confrontations but they are immaterial and are concerned with the answers to the questions asked in the cross examination. In criminal jurisprudence, evidence has to be evaluated on the touchstone of FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 29/52 consistency. Consistency is the keyword. There must be a string that should join the evidence of all witnesses and thereby satisfying the test of consistency in evidence amongst all witnesses. And it happened here.
35. The evidence of the complainant is further corroborated by medical evidences. Deceased Mohit was taken to DDU Hospital, Delhi where he was examined by Dr. Khushwant Singh and according to the MLC he was brought dead in the hospital. Thereafter his autopsy was conducted by PW-23 Dr. Naryan Dabas. According to post mortem report the cause of death was hemorrhage secondary to the stab wound as a result of stab wound over his neck. The doctor observed four external injuries on the body of deceased Rahul. There was one stab wound on the left side of his neck and the second stab wound on his left buttock. There were multiple abrasion/nail marks on the right side of his neck. There was one contusion bluish over his right shoulder tip and the death was homicidal. This doctor also saw the knife, Ex.P-4 which was alleged to have been used in this assault and recovered from the accused Vicky. Therefore, the medical evidence related to the injury of Mohit is commensurate with the oral evidence of the aforesaid two eyewitnesses. There is no mismatch or variations in the oral evidence and the medical evidence.
36. The witness Rahul also sustained three injuries - CLW size 1cm x 0.5cm on left side of forehead, CLW size 2cm x 1cm on occipital region, CLW of around 2cm x 0.5cm in the right hand of little finger, ring finger and index finger each. The injuries have FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 30/52 been mentioned in the MLC. According to him, the nature of injuries was simple and were caused by a sharp-edged weapon. This again is commensurate with his oral evidence that he was attempted a stab by the accused Rakesh and then hit by a brick on the back of his head by accused Pawan. There is no mismatch or variations in the oral evidence and the medical evidence.
37. Finally, the FSL results Ex.PW32/A and PW32/B shows that the knives recovered from the accused Rakesh and Vicky who used the knives in this case have traces of human blood on them, thereby further strengthening the probative force of evidence against them.
38. This discussion proves that the evidences produced by the prosecution indicates that the accused have committed the crime with which they are charged.
39. Now coming to the defences which the accused have raised in their support which are common for all, except that of alibi raised by two of them. This is to be seen whether these defences raised, in any way either absolves them or diminishes their crime. It has also to be seen whether the defences raised, makes the case of prosecution weak or short of achieving the standard of proof beyond reasonable doubt, an established legal principle in criminal jurisprudence.
40. The first is the reliance on certain facts which according to defence are the omissions and contradictions/variations in the testimony of witnesses. It has been stressed that in his examination- in-chief, the witness Rahul said that accused Rakesh demanded hafta from him but there is nothing of that sort in his complaint FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 31/52 Ex.PW1/A and that witness Rahul has not stated in his statement Ex.PW1/A that he supplied battery light in the markets on rent or that all the accused attacked them with knives and bricks etc.
41. It is correct that the word hafta is not used in statement Ex.PW1/A but it is clearly mentioned there that accused Rakesh demanded money from this witness. Regarding these minor differences, like not talking about putting battery lights in the weekly market on rent, these are minor things which does not go to the root of the matter. He has stated in his statement that he put lights in the weekly market. Only the absence of the word 'rent' does not make any difference. Otherwise also the contradictions and variations have to be major to disbelieve the testimony of a witness. Which are not in this case.
42. In Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 256, Hon'ble Supreme Court observed that when eye- witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. 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. But 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.
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43. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court stated the legal position that the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
44. Further, in case of State v. Saravanan, AIR 2009 SC 152, it was held that the court can overlook minor discrepancies on trivial matters which do not affect the core of the prosecution case. In State of U.P. v. Krishna Master, AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that it is the duty of the court to separate falsehood from the truth, in sifting the evidence. At the same time, the eye-witness testimony must be credible and reliable. It should not be contradicted by other eyewitnesses or by the medical and forensic evidence, if any.
45. In Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra reported in AIR 2000 SC 3352, Hon'ble Supreme court reiterated the law laid down in its previous judgements and observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 33/52 should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye- witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not failing within a set pattern is unproductive and a pedantic exercise.
46. Hon'ble Supreme Court in State of Himachal Pradesh v. Lekh Raj & Anr., 1999 (9) Supreme Today 155, dealing with discrepancies, contradictions and omissions held that discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 34/52 out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. Mere congruity or consistency is not the sole test of truth in the depositions. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
47. Again, recently in Bhagchandra vs State of Madhya Pradesh, 2021 SCC Online SC 1209, Hon'ble Supreme Court upheld the conviction of the appellant in a murder case based on the testimonies of eye witnesses who were close relatives of the deceased like wife. While referring to other authorities on this issue, observed that 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 found, it is undoubtedly necessary for the court to scrutinise 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 and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 35/52 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. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not un-often that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 36/52 evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, the court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case. It could thus be seen that what is required to be considered is whether the evidence of the witness read as a whole appears to have a ring of truth. It has been held that 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, would not ordinarily permit rejection of the evidence as a whole. It has been held that the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. What is important is to see as to whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. It has been held that there are always normal discrepancies due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence. It is the duty of the court to separate falsehood from the truth in every case.
48. Therefore, even in this case, these differences no doubt are there in this case also but can be ignored if considered on the anvil of the settled law in this regard discussed above, particularly in the judgment of Lekh Raj (Supra) and Rammi @ Rameshwar (Supra) wherein it was observed that no true witness can possibly escape from making some discrepant details. In the present case, all the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 37/52 variations and contradictions referred above are minor in nature and when more than one eye witness have been examined by the prosecution, some variations in their evidences are bound to occur. The case of the prosecution has to be seen in broad probabilities and not each and every variation in the evidence of different witnesses be accepted as creating a doubt. Incidents like the present one happens quickly and is embedded in the memory of the witnesses in different manner.
49. Next it was argued that the complainant Rahul did know the accused persons and therefore the identification of the accused by him for the first time in the court has no value in the eyes of law. It appears the fact that this witness had seen these accused for the first time in the court after the incident but it is also, a fact that he has categorically identified them in the court and even told their names. Not only by the complainant, these accused have been identified by the other witness Shiv Kumar. It has come in the cross examination of PW-1 Rahul, that he had not seen Vicky, Neeraj, Rakesh, Sunny and Vikas before the date of incident but it cannot be lost sight of the fact that there was proper occasion for him to see the accused Rakesh as there was an altercation with him and also the other accused as that deadly assault took time and gave opportunity to these witnesses to see and observed the accused. Not only this, the accused Neeraj Sunny and Vikas even refused to particate in the test identification parade during investigation and the accused Pawan absconded after the crime. It was held in the case of Sidhartha Vashisht v State (NCT of Delhi) (2010) 6 SCC 1 by the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 38/52 Hon'ble Supreme Court that the substantive evidence of identification of the accused is his is identification in the court and not the test identification parade. Therefore, dock identification is substantive piece of evidence and even in absence of test identification parade, no prejudice shall be caused to the case of the prosecution unless there is something to show that the witness is not speaking the truth. The eyewitnesses in the present case have been found to be reliable witness. Their presence at the spot was natural as they were together with the deceased at the time of assault and were also injured in the incident. The defence is unable to show any serious animosity of these witnesses with the accused in order to discard their testimony.
50. It has been further argued that despite the availability of large number of independent witnesses at the spot and the onlookers gathered at the time of incident, particularly the lady Mahak who made the PCR call, none of them was made a witness in this case. It has been argued that the investigation of the case is faulty.
51. As far as the issue of independent witnesses is concerned, no doubt that it appears that there were some persons available, who may have gathered there during the fight as onlookers but then it cannot be overlooked that the eye witnesses examined are also the members of public. It is the quality of the evidence and not the quantity which proves a fact. It cannot be lost sight of the fact that in world we live today hardly anyone can be found, who would like to spare time for others, particularly to depose in a criminal case. People are afraid of many things, most common among them is FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 39/52 the apprehension of their own harm. Making somebody a witness in murder case is not that easy and then there are always apprehensions that he may be won over destroying the case of prosecution, that is why police may at times avoid basing their case on such witnesses. Further, there is no rule of law that the case cannot be decided or truth cannot be discovered without independent or unrelated witnesses. The quest is to find the truth and there is no particular path to it. Though it is a very convenient argument for defence that the independent witnesses not examined but is not very convincing. The persons gathered there may be mere onlookers. They may not be aware of the facts and witnesses who were acquainted with the facts are nevertheless made witnesses in this case. I only need to reproduce the observations of Hon'ble Supreme Court in case titled as Appabhai vs. State of Gujarat, AIR 1988 SC 696 to repel this argument which are that it is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 40/52 handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused.
52. Further in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. (2001) 6 SCC 145, Hon'ble Supreme Court held that it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 41/52 answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.
53. Therefore, all the facts/circumstances and the evidence led to prove the same, indicates towards only one conclusion and that is the guilt of the accused. To finally conclude, there is no doubt that in the noon of 06/03/2015 at around 01.30 PM, the accused of this case caused the death of Mohit and injured Rahul. The accused are charged under section 302/34 IPC for causing death of Mohit and under section 307/34 IPC for attempting on the life of Rahul.
54. Section 302 IPC punishes the offence of murder. Murder is defined under section 300 of IPC in the following words :-
Section 300 in The Indian Penal Code
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or (Secondly)--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 42/52 (Thirdly)--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly)--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
55. It has been argued on behalf of the prosecution that this case will fall under clause (1) and (3) of section 300 meaning thereby the death of Mohit amounts to murder because the act by which the death was caused, was done with the intention of causing death and also with the intention of causing bodily injury, which is sufficient in the ordinary course of nature to cause death. On the contrary, it has been argued on behalf of defence that even if the prosecution case is accepted, an offence of murder is not made out as the accused are alleged to have assaulted them with a single knife blow and that it was an ordinary fight between them which does not show their intention to cause the death.
56. The facts presented by prosecution shows that it is clear that this case will fall in the first clause of Section 300 IPC. The nature of injuries shown in the post-mortem report clearly indicates the culpable intention to that effect. Whether the death was actuated by the intention to cause death is a subjective element and has to be FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 43/52 deduced from the objective facts, circumstances and behaviour of the accused. In this clause, all those cases will be covered where the direct intention of the accused is to cause the death of a person. Inference of such intention can be drawn from the manner in which the death is caused, the weapon used, the nature of injury given, the seat of injury on the human body, the motive and any other relevant circumstance connected with the death of a person. In the present case, from the nature of injury no.1 to Mohit and its seat and the manner in which it was inflicted, sets out the clear intention of the accused to cause the death of Mohit. The blow was so fatal to him that he collapsed on the spot and even could not reach the hospital alive. The argument of the defence is that since the death was caused by a single blow, at most a case under section 304 IPC can be made out in this case. I could not agree with this contention. If as a result of solitary blow by a weapon the victim is done to death, the question as to whether the offence comes under section 302 or section 304 admits of no straight answer. Shortly stated if the facts proved by the prosecution brings the case within the ambit of any of the four clauses of the definition of murder contained in section 300 of the Indian Penal Code, the offence would be murder. If the case cannot be encompassed by any of the aforesaid four clauses, the offence would be culpable homicide not amounting to murder. It follows therefore that in every case of a single blow, stab or cut, the offence would not by the mere fact that it is a single blow reduce itself to section 304 IPC. In Jagrup Singh Vs State of Haryana AIR 1981 SC1552, Hon'ble Supreme Court held that there is no justification for the assertion that giving of a solitary FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 44/52 blow on a vital part of the body resulting in the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron 'rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause firstly or clause thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death. In this case, there were two stab wounds on Mohit, one the neck and the other on the buttock. The stab wound on the neck was measurng 4x1.5cm x muscle and vessel deep, was present over the left side of neck. Therefore, the place on body and manner of attack clearly shows a direct intention to kill the deceased. The case wll squarely be covered in clause (1) of section 300 IPC.
57. The third clause of section 300 IPC states that every culpable homicide is murder, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
58. To see whether the case of the accused will also fall under section 302 clause three or not, I am relying upon the judgment of FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 45/52 Hon'ble Supreme Court of India in Virsa Singh vs State 1958 AIR
465. In this case, Hon'ble Court has set out the four elements test, which the prosecution must prove to bring its case under this section. The following passage in the judgment which has become locus classicus on this issue. It's as -"To put it shortly, the prosecution must prove the following facts before it can bring a case under s.300, 3rdly" ; First, it must establish, quite objectively, that a bodily injury is present ;Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 46/52 enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a license to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
59. Now in the present case, it is clear that the bodily injuries were present on deceased Mohit and these were two in number. The nature of injuries is described in the post-mortem report(mentioned above). The facts and circumstances of the case shows that the accused intended to inflict the same injuries which were in fact there on the deceased Mohit. It is no case of the defence that it was accidental or unintentional, or that some other kind of injury was intended. Therefore, first three requirements according to this judgement are fulfilled. Lastly, it has to be proved by the prosecution that the injuries inflicted by the accused were sufficient to cause the death in the ordinary course of nature. The doctor, who had conducted the post- mortem has omitted to state this fact though he said that the death was homicidal in nature. Whether an injury is sufficient to cause death in the ordinary course of nature depends upon the probability of death which, if it is very great than the requirement of third clause is satisfied and the fact that a particular individual may by the fortunate accident of his having FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 47/52 secured specially skilled treatment or being in possession of particularly strong constitution, have survived an injury which would prove fatal to the majority of persons subjected to it is not enough to prove that an injury is not sufficient in the ordinary course of nature to cause death. It cannot be said that an injury sufficient in ordinary course of nature to cause death is an injury which inevitably and in all circumstances must cause death. The best evidence to prove the nature of injury and whether it is sufficient to cause death is the medical evidence of a competent doctor. But it has not been given in this case that injury number one that is stab wound, clean cut margins, wedge shaped, measurng 4x1.5cm x muscle and vessel deep was present over the left side of neck, situaed 9cm above the elbow was sufficient to cause death in the ordinary course of nature. Therefore, on this ground a benefit can be given to the accused by not covering this case in clause 300 of IPC. It was argued by the defence that as per FSL report Ex.D- 1, the deceased was in inebriated at that time but his being in that state does not alter the case as facts suggests that it was a one-sided assault.
60. Regarding the charge under section 307 IPC for trying to stab Rahul, his injuries have been opined as simple caused with sharp edged weapon. He sufferd three injuries, a CLW on forehead, a CLW on occipital region and CLW in right hand on little finger, ring finger and index finger each. The injuries to the hand was caused in his endeavour to save himself from being kniefed by accused Rakesh and the head injuries were caused by the brick FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 48/52 attack on head by the accused Pawan. Though the injuries were simple, but the intention was definitely such that if the knife attack would have been successful and would have caused the death of Rahul, the accused would have been guilty of murder. Similar is the case with the brick attack on the head. The nature of injuries is not the test of secton 307 IPC but intention is the real test. To convict under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. It is not necessary that the injury actually caused to the victim should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in Section 307 IPC. It is sufficient by law, if there is present an intent coupled with some overt act in execution thereof. The nature of weapon used, the intention expressed by the accused at the time of the act, the motive for commission of offence, the nature and the size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the assault are important factors to determine if an accused can be convicted of an attempt murder. In this case if the act committed by the accused would have caused death of the complainant, they would have been guilty of murder because a culpable homicide is a murder if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 49/52 ordinary course of nature to cause death. The intention of the accused to try to stab him and then hitting on his head with a brick was clearly to cause such injury which will make them liable to be convicted under section 307 IPC.
61. Therefore, in the facts and circumstances of the case, I find that the prosecution is able to prove its case beyond reasonable doubts and the accused do not have any plausible defence to justify their acts.
62. All the accused are charged with the aid of section 34 IPC. Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he has the common intention to commit the offence. The phrase common intention implies a pre-arranged plan and acting in concert pursuant to the plan. The common intention must be there prior to the commission of the offence in point of time and it can also develop at the spot.
63. In Girija Shankar v. State of U.P, (2004) 3 SCC 793, it is observed that section 34 has been enacted to elucidate the principle of joint liability of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34, if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime.
FIR No. 162/2015Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 50/52 Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.
64. In the present case it has been proved that that all the six accused shared common intention as required under section 34 of the IPC and were confederates of each other in the commission of this crime. They all attacked and assaulted the complainant and the deceased, though the fatal blow of knife, was not attributed to all accused but it will not make any difference. All of them shall be liable for acts of their other accomplice. Therefore, each one is liable not only for his own act but for the acts of others also and can be convicted with the aid of this section.
65. Regarding section 174-A of the IPC, there is not much evidence on record about the publication of the proclamation under section 82 Cr.PC. Inspector Manoj Kumar, the main investigating officer PW-28 only proved that on 18.05.2015, he moved an application for issuance of the process under section 82/83 Cr.PC against the accused Pawan. The investigating officer Inspector Surya Prakash who filed the supplementary charge-sheet against the accused Pawan has also not proved the relevant proceedings in this regard. What is proved is only the fact that Inspector Surya Prakash got an information that the accused Pawan is arrested in some other case. He then arrested the accused Pawan in this case also and filed the charge-sheet. Since the relevant record of the publication of the FIR No. 162/2015 Police Station : Ranhola State Vs. Rakesh Kumar & Ors. Page No. 51/52 proclamation has not been proved on record, the accused Pawan cannot be convicted under section 174-A of the IPC.
66. On the basis of aforesaid discussion, all the six the accused Rakesh Kumar, Sunny @ Lulla, Neeraj Kumar @ Abhishek, Vikas Kumar, Vicky @ Takkar and Pawan @ Pankhi are convicted for offence under section 302 and 307 read with section 34 of the Indian Penal Code as charged.
67. List the matter for arguments on sentence.
Pronounced in the open
Court on 29.07.2022 (Samar Vishal)
Additional Sessions Judge -08
West, Tis Hazari Courts Delhi
FIR No. 162/2015
Police Station : Ranhola
State Vs. Rakesh Kumar & Ors. Page No. 52/52