Delhi District Court
State vs . Sunil @ Babu & Anr. on 26 March, 2014
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In the court of Sh. Dig Vinay Singh
ASJ/Spl. Judge: NDPS Rohini Courts: Delhi
In the matter of:
SC no. 31/13
State Vs. Sunil @ Babu & anr.
FIR no. 137/11
PS Jahangir Puri
U/s 302/34 IPC
State
Versus
1. Sunil @ Babu
S/o Late Sh. Ganga Ram
R/o Jhuggi no. N-36/B-67,
K-Block, Lakhi Park,
Jahangir Puri, Delhi.
2. Vinod @ Vinodi
S/o Late Sh. Dalbir Singh
R/o H.No. K-1889,
Jahangir Puri, Delhi.
Date of receipt : 10.08.2011
(Received in this court on) : 06.11.2013
Date of Arguments : 11.03.2014
Date of judgment : 26.03.2014
JUDGMENT
1. The above named two accused were sent for trial for offence of murder, punishable U/s 302 IPC r/w Sec. 34 of IPC. The case of prosecution is that on 29.04.2011 at 7.25 PM, a telephonic information was received in police station Jahangir Puri about the incident of this case. On this information, SI Seva Singh was deputed to go to the spot and enquire. Subsequently, another telephonic information was received from BJRM SC No. 31/13 State vs. Sunil & Anr. Page 1 of 38
- 2- Hospital at 7.40 PM, which was recorded in DD no. 37 A, to the effect that one Jitender son of Sh. Jwala Prashad was admitted to Babu Jagjivan Ram Hospital in injured condition by one Mohd. Jalal. The SHO of the Police Station along with SI Shailender and Ct. Kushvaidvan went to the hospital where SI Seva Singh met them and informed that the injured has been declared dead. In the hospital, one eye witness to the murder, namely Vikas Chauhan, met the SHO and gave his statement, upon which the present case was registered.
2. Vikas Chauhan stated that the deceased was his brother-in-law and was also his good friend. On that day, he had gone to the office of deceased at 6.30 PM to lend him Rs.1000/- as demanded by the deceased. At that time, the two accused were found sitting and smoking on the staircase leading to the first floor office of deceased. The deceased scolded and slapped them whereupon they left. The deceased, subsequently, told him the names of those two persons as Vinod and Babu. Thereafter, when at 7 PM he was returning towards his motorcycle parked in the gali, he heard the cries of deceased. When he looked back, he saw the two accused having control of deceased in the gali outside his office, and out of them the taller and dark complexioned boy inflicted knife blow on the left side chest of the deceased. When he rushed towards them, the two accused fled and thereafter the deceased was brought to the hospital with the help of others, where he was declared dead.
3. The MLC of deceased records that he was brought to the hospital at 7.12 PM and was declared dead at 7.23 PM. The deceased had one incised wound measuring 5 cm X 2.5 cm over left side of chest medial to nipple, and another wound measuring 1 cm X 2.5 cm over right groin.
SC No. 31/13 State vs. Sunil & Anr. Page 2 of 38- 3- Subsequently, the post mortem of deceased was conducted in which one more injury i.e. incised stabbed wound measuring 2 cm X 0.5 cm X 2.2 cm was noticed on the left side of thigh. In the postmortem, the injury no.1 on the left side of the chest was found to be measuring 6.5 cm X 2.5 cm X cavity deep, and it was this injury which was opined to be sufficient to cause death in the ordinary course of nature.
4. During investigation, the two accused were apprehended at 5 AM on the intervening night of 29th-30th April, 2011, from a vacant plot opposite MCD colony, Jahangir Puri, Delhi, on the pointing out of none other than the complainant. The blood stained clothes of the two accused, which they were wearing at the time of their apprehension, were seized. Pursuant to the disclosure statement and pointing out of accused Vinod, the knife used in the crime was also recovered from one open plot of DDA in K Block of Jahangir Puri. During investigation, the investigating officer also lifted blood samples and other articles from the spot.
5. Accordingly, both the accused were charged for offence U/s 302 read with section 34 IPC, to which both of them pleaded not guilty and claimed trial.
6. In support of its case, prosecution examined total 20 witnesses.
6.1. The eye witness Vikas Chauhan was examined as PW13. The eye witness supported the case of prosecution in toto and nothing material could be brought out in the cross examination of this witness in order to discredit him. The witness deposed that the deceased was his brother-in- law as well as good friend and had asked to lend him a sum of Rs.1000/- and accordingly he had gone to the office of the deceased at K-block in Jahangir Puri on 29.4.2011. The deceased met him outside his office and SC No. 31/13 State vs. Sunil & Anr. Page 3 of 38
- 4- when they were proceeding to the office of deceased, the two accused were found sitting and smoking on the stairs leading to the office of deceased, upon which the deceased scolded them, slapped one of them and, made them leave the place. Thereafter, deceased told this witness that those two persons were Vinod and Babu. Thereafter, this witness gave Rs.1000/- to the deceased and, when at about 7 PM he was about to leave and was walking towards his motorcycle in the gali, he heard cries of deceased. He turned back to see as to what happened. The witness noticed that out of those two persons who were scolded, one had caught hold of the deceased and another was holding one knife in his hand. The boy having knife inflicted a blow on the left chest of the deceased and both of them ran away. Thereafter, the injured was removed to the hospital with the help of Mohd. Jalal and others and the police was informed by Mohd. Jalal. Thereafter, the police came to the hospital and recorded his statement upon which the present case was registered. The witness also deposed that on the intervening night of 29th & 30th April, 2011, he remained in the police station and in the morning of 30.4.2011, the two accused were apprehended on his identification from a vacant land of MCD in Jahangir Puri and they were arrested vide arrest memos Ex.PW7/B & C. Thereafter, the two accused persons made disclosure statement Ex.PW7/F & G. Pursuant to the disclosure statement of accused Vinod, Ex.PW7/F, the knife was recovered at his instance from a vacant land of DDA behind Lakhi Park Jhuggies, K-Block, Jahangir Puri, which was taken into possession by the investigating officer after preparing its sketch and it was sealed. Subsequently, the clothes of both the accused, which they were wearing at the time of their apprehension and which were SC No. 31/13 State vs. Sunil & Anr. Page 4 of 38
- 5- having blood stains, were also taken into possession.
6.2. Mohd. Jalal, who was a co-worker in the factory of deceased and who took the deceased to the hospital, was examined as PW6. He deposed that he was working in the factory of deceased and on the date of incident and at about 7 PM, he heard the cries of the deceased. He came down to the gali and saw that his deceased employer was lying in the gali in injured condition and he also noticed that two boys were running away in gali and one of them was having knife in his hand. He however could not see the face of the two boys, but he made a PCR Call, and with the help of one or two public persons took the deceased to the hospital in a TSR where the deceased was declared brought dead. Witness specifically deposed that one of the family members of the deceased was also present prior to taking the deceased to the hospital whose name was Vikas Chauhan.
6.3. The investigating officer Inspector Yashpal Singh, the SHO of the police station, has been examined as PW20. His testimony would be discussed later, with other similar witnesses.
6.4. PW1 HC Nanhe Lal was the duty officer who registered FIR Ex.PW1/A and made endorsement on rukka Ex.PW1/B. This witness also proved DD no. 35A and 37A recorded at 7.25 PM and 7.40 PM, respectively, on 29.4.2011, as Ex.PW2/B2 & B1. In Ex.PW2/B2, it is recorded that at 7.35 PM an information was received by police control room from mobile no. 8750576934 that two boys were stabbed at K-Block Market of Jahangir Puri, upon which SI Sewa Singh (PW12) was deputed to go to the spot. In DD no. 37A, Ex.PW2/B1, it is recorded that injured was admitted to SC No. 31/13 State vs. Sunil & Anr. Page 5 of 38
- 6- hospital by Mohd. Jalal and the injured has been declared brought dead in the hospital.
6.5. PW2 Dr. Bheem Singh conducted the post mortem on the body of deceased and proved the post mortem report as Ex.PW2/A. During post mortem, he observed following three injuries on the body of the deceased :-
a) Stab wound 6.5 cm X 2.5 cm X cavity deep left side of chest, longitudinally placed, 1.5 cm medial to left nipple, margins clean cut, upper angle obtuse, lower angle acute.
b) Incised stab wound 2 cm X 0.5 cm X 2.1 cm, horizontally placed right side abdomen, at lower end, near pubic symphysis, margins clean cut, outer angles obtuse, inner angle acute.
c) Incised stab wound 2 X 0.5 cm X 2.2 cm left side of thigh outer aspect upper part, outer angle obtuse, inter angle acute.
In the post mortem report, it is also mentioned that the first injury, which was sufficient to cause death in ordinary course of nature, showed stab wound, cutting skin, muscles and fourth & fifth ribs, measuring 5 cm in length, enters into chest cavity cutting lower middle portion of lung through & through enters in left ventricle of heart via cutting pericardium. Pleural cavity and pericardial cavity full of blood, cut mark measuring 3.8 cm in length. Total length of track was approximately 11 cms, and as much as 1.5 litres of blood quantity was found in the pericardial cavity. Time since death was found to be approximately 17 hours. The deceased was subjected to post mortem on 30.4.2011 at 11.45 AM. All the injuries were found to be anti-mortem in nature and were fresh and opined to be caused SC No. 31/13 State vs. Sunil & Anr. Page 6 of 38
- 7- by single edged sharp weapon such as knife. The clothes of deceased, blood sample and gauze piece were taken and given to the police. The inquest papers were proved as Ex.PW2/B1 to B10. PW2 also deposed that subsequently on 14.07.2011 weapon of offence was received in sealed condition and he examined the weapon of offence and gave opinion that the three injuries present on the body of deceased could have been possible by the weapon. The said report is proved as Ex.PW2/C. PW2 specifically deposed that the nature of injuries caused by a single edged knife and a double edged knife would be different. His PM report Ex.PW2/A specifically mentions that the injury no.1 was caused by single edged sharp weapon like knife.
6.6 PW3 Dr. Shakuntala Rani identified handwriting and signatures of Dr. Uma Kant who had examined the deceased when he was brought to the hospital, vide MLC Ex.PW2/B3, and she also identified signatures of Dr. Suresh who was the CMO in the hospital at the relevant time. She deposed that both the doctors who had examined the deceased had left the hospital and their whereabouts were not known.
6.7 PW4 Ravi Shankar was elder brother of deceased who identified his dead body.
6.8 PW5 SI Manohar Lal had prepared the scaled site plan of the place of incident Ex.PW5/A, on 7.7.2011 on the basis of rough notes and measurements taken on 6.7.2011, after he visited the spot.
6.9 PW8 SI Mata Deen was the Incharge of the mobile crime team which went to the spot and inspected the spot. He prepared and proved his report Ex.PW8/A and deposed that at the spot there were blood stains, one SC No. 31/13 State vs. Sunil & Anr. Page 7 of 38
- 8- piece of jute bag, one paper, both of which were having blood, and there was one disposable plastic glass lying in the gali, of which photographs were taken.
6.10 PW9 Ct. Parvinder was the photographer of the crime team and he took six photographs of the crime spot, proved as Ex.PW9/A1 to A6, with their negatives Ex.PW9/B1 to B6.
6.11 PW10 Ct. Mahesh Chand carried copies of FIR to senior police officers and the concerned area magistrate after its registration.
6.12 PW12 SI Seva Singh deposed that on the date of incident, on receipt of DD no. 35A he along with Ct. Surender (PW14) reached the place of incident where blood was lying in the gali. He came to know that injured had been shifted to the hospital upon which he went to the hospital where he collected the MLC of the deceased and the doctor also handed over personal search articles of the deceased. Subsequently, the SHO with his staff came to the spot, and he handed over the MLC and personal search articles of the deceased to the SHO, which were taken into possession by the SHO vide Ex.PW12/A. 6.13 PW14 Ct. Surender Singh carried true copy of DD no. 35 A Ex.PW2/B2 from the duty officer to SI Seva Singh (PW12) and he also accompanied SI Seva Singh to the crime spot. The witness also carried the clothes of deceased, blood sample and sample seal from the hospital to the IO Insp.Yashpal Singh on 30.4.2011 who seized them vide Ex.PW14/A. 6.14 PW17 Ct. Jaipal took the twelve sealed parcels with two sample seals to the FSL, Rohini from the malkhana and deposited them in the FSL, on 21.7.2011.
SC No. 31/13 State vs. Sunil & Anr. Page 8 of 38- 9- 6.15 PW18 Ct. Phool Kumar was the malkhana moharrar of Police Station Jahangir Puri. He deposed that on 30.04.2011 the SHO Insp. Yashpal deposited seven sealed parcels sealed with the seal of YPS and the personal belongings to the deceased in the malkhana, vide entry in register no. 19, Ex.PW18/A. He also deposed that on that very day, Insp. Yashpal deposited three more sealed parcels with the same seal of YPS in the malkhana. On 05.05.2011, Insp. Yashpal again deposited two sealed parcels which were sealed with the seal of hospital, along with sample seal. On 14.7.2011, the sealed parcel containing knife was handed over to Insp. Yashpal Singh for opinion of doctor and after obtaining the opinion, it was again deposited in the malkhana. On 21.7.2011, the twelve sealed parcels were handed over to Ct. Jaipal (PW17) along with sample seal for depositing them in the FSL, vide road certificate Ex.PW18/B, and Ct. Jaipal after depositing the parcels in the laboratory obtained and deposited one acknowledgment receipt Ex.PW18/C in the malkhana.
6.16 PW19 HC Naresh Kumar was deputed on the PCR Van on the date of incident, and on receipt of the call he reached the spot where it was learnt that the injured had already been taken to the hospital. He accordingly informed the control room and proceeded to the hospital, where it was learnt that injured was declared brought dead. Thereafter, local police reached the spot and he informed the control room about the developments, which communication with the control room is proved as Ex.PW19/A. 6.17 PW7 HC Narender, PW15 Ct. Khusvidwan, PW16 SI Shailender and PW20 Insp. Yashpal Singh, deposed that on the date of incident on receipt of information of this case, they reached the hospital where injured SC No. 31/13 State vs. Sunil & Anr. Page 9 of 38
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was declared brought dead and complainant Vikas Singh gave his complaint to the SHO on which the FIR was registered and subsequently at the spot, the exhibits were lifted including blood stained cemented material, plastic cup, one piece of jute bag, one piece of paper, one pair of sleepers and earth control. These articles were sealed by the investigating officer with his seal of YPS after keeping them in seven different parcels and they were taken into possession vide Seizure Memo Ex.PW7/A. The witnesses also deposed that on 30.04.2011 early in the morning they along with PW11 SI Anil Kumar went to vacant land opposite MCD flats, G- Block, Jahangir Puri along with the complainant Vikas Chauhan and from the said place both the accused were apprehended at the pointing out of the complainant. Both the accused were arrested and their personal search was conducted. Both the accused made disclosure statements and pursuant to disclosure of accused Vinod, knife used in the offence was recovered at his instance from vacant plot of DDA at K-Block of Jahangir Puri, which was taken into possession after sealing it. Before sealing it, sketch of knife was prepared. The witness has also deposed that both the accused were wearing blood stained clothes at the time of their apprehension and the same were also taken into possession in the police station vide a seizure memo. The witnesses identified the exhibits collected from the place of incident, the knife, and the clothes of both the accused.
7. On conclusion of prosecution evidence, all the incriminating evidence was put to the two accused in their examination U/s 313 Cr.P.C to which both the accused generally denied the evidence and claimed that they have been falsely implicated. Neither of the two accused opted to lead any SC No. 31/13 State vs. Sunil & Anr. Page 10 of 38
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evidence in their favour and neither of them came forth with the answer as to why they would be falsely implicated in this case.
7.1 To the question that they were arrested by Insp. Yashpal Singh vide arrest memo Ex.PW7/C and 7/D, the two accused admitted it to be correct. When they were questioned that their clothes, which they were wearing at the time of their apprehension, were taken into possession vide seizure memo Ex.PW7/K by the police and were sealed with the seal of YPS, both of them claimed that it was matter of record. When the two accused were questioned that PW13 Vikas Chauhan took the injured to the hospital and gave his statement to the police, both the accused claimed ignorance stating that they do not know. The two accused claimed that the witnesses were false and interested witnesses and claimed that police implicated them to solve the case and that their signatures were taken on blank papers.
8. I have heard Ld. Prosecutor for the State, the counsel for accused and have gone through the written submissions filed on behalf of both the sides.
9. The accused have challenged the case of prosecution primarily on the ground that the evidence on record does not prove beyond reasonable doubt the presence of PW13 Vikas at the spot at the time of incident, and besides Vikas there is no other witness of the incident and, therefore, the benefit must go to the two accused. It is claimed by the accused that though Vikas claims himself to be a relative of the deceased but his name does not figure in the MLC Ex.PW2/B3 vide which the deceased was examined in the hospital for the first time and instead, on the MLC name of SC No. 31/13 State vs. Sunil & Anr. Page 11 of 38
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Mohd. Jalal co-worker with telephone no. 8750576934 is mentioned as the person who brought the injured to the hospital.
9.1. Absence of name of Vikas in the MLC by itself cannot be a reason to suspect that Vikas did not accompany the deceased to the hospital or that he was not present at the spot. When an injured is taken to the hospital by more than one person, it is but natural that the name of any one of them would only be recorded in the MLC as the person bringing injured to the hospital. Neither is it necessary, nor is it practicable to record the name of everybody who accompanies an injured to the hospital.
9.2. It is deposed by Vikas as well as Mohd. Jalal that both of them took the injured to the hospital together. When the SHO and his team reached the hospital, Vikas was found present at the hospital. It is nobody's case that Vikas was informed by somebody else about the incident, so that he could reach the hospital even before the police reached the hospital.
9.3. The MLC Ex.PW2/B3 finds mention that Mohd. Jalal brought the injured to the hospital and therefore, it is nobody's case that Mohd. Jalal was not with the deceased at that time. Rather his presence in the hospital with the injured is proved beyond doubt by this document. The MLC was prepared between 7.12 PM to 7.23 PM i.e. the time when the deceased was brought in the hospital and the time when he was declared dead on the date of incident. Mohd. Jalal (PW6) specifically deposed that Vikas accompanied him. He has no reason to falsely depose on this aspect of the matter. Had Vikas not accompanied him and the injured to the hospital, there is no reason why Mohd. Jalal would so depose that Vikas accompanied them. Mohd. Jalal deposed that he knew the SC No. 31/13 State vs. Sunil & Anr. Page 12 of 38
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name of Vikas as Mr. Chauhan only as Mr. Chauhan used to visit the factory frequently. When he was suggested that Vikas Chauhan did not accompany the deceased and him to the hospital, he denied that suggestion, specifically. Throughout cross examination he maintained that Mr. Vikas Chauhan was very much present at that time in the hospital. He even denied the suggestion that Vikas Chauhan was not present at the spot on the date of incident, thereby meaning that Vikas was indeed present at the spot at the time of incident. The witness even deposed that Vikas Chauhan was not allowed by the guard in the hospital to go inside as only one person was permitted. Thus, mere absence of name of Vikas Chauhan in the MLC by itself cannot be a ground to disbelieve his presence.
9.4. The second limb of argument in this regard is that Vikas did not even inform the police from his own mobile phone and it was Mohd. Jalal who had informed the police from his mobile. Again, when more than one person assist an injured in taking him to hospital, is it necessary that all of them must inform the police? The answer ought to be in negative. When more than one person are witnesses to a crime, or they assist an injured in shifting to hospital, any one of them informing the police and telling others that police is being informed or has been informed would suffice and others need not again inform the police. We cannot lose sight of the fact that Vikas was related to Jitender and both of them were also good friends. In such circumstances, after witnessing fatal blows given to the deceased with knife, it would be improper to expect a close friend to have reacted and behaved in a pre-defined manner. When a person witnesses a gruesome crime, the person may react differently from others. Not SC No. 31/13 State vs. Sunil & Anr. Page 13 of 38
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everyone placed in the same situation in witnessing a gruesome crime would react in the same manner and different people would react differently when faced with such a life threatening situation. After witnessing the fatal blows given to his dear friend and relative, the priority of Vikas must have been to shift him to hospital with the aide of others and to inform family of injured, and he could not have been expected to have informed the police first and then to shift the injured.
9.5. Absence of name of Vikas Chauhan in the two DDs no. 37A & 35A Ex.PW2/B1 & B2 by itself cannot be a circumstance to disbelieve presence of Vikas Chauhan at the spot, as when more than one person accompanies an injured or witnesses a crime, any one of them can inform the police and not everyone is required to call the police.
9.6. The next limb of argument, claiming that Vikas was not present at the spot, is that SI Sewa Singh (PW12), who reached the hospital on receipt of DD no.35A, deposed that he did not meet any public person in the hospital. Perusal of testimony of PW12 would reveal that the witness deposed that no public person met him at the hospital and that in his presence, nobody's statement was recorded by the investigating officer and also that he did not ask the doctor whether any public person had come there or not. Throughout cross examination of PW12, neither of the two accused suggested the witness or questioned the witness as to the presence or absence of Vikas Chauhan or Mohd. Jalal. Attention of the witness was not specifically drawn to the fact by asking him specifically that either of these two persons were or were not present in the hospital. A general and vague question was asked as to whether any public person met the witness or not. The answer to the SC No. 31/13 State vs. Sunil & Anr. Page 14 of 38
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said question cannot be construed to draw an inference that the witness stated that Vikas Chauhan was not present in the hospital. It may well be a case where the witness PW12 merely contacted the doctor or the concerned official in the hospital, collected the MLC and, then informed the police station about death of injured. The witness nowhere deposed that he tried to find out presence of any eye witness in the hospital. The witness rather stated that he did not even ask the doctor as to whether any public person had come there or not. This fact would show that the witness did not even make an attempt to find out any public witness in the hospital. In such circumstances, even the testimony of PW12 does not go to prove that Vikas Chauhan was not present in the hospital.
9.7. The next circumstance to challenge presence of Vikas Chauhan in the hospital is from the contents of Ex.PW19/A. Ex.PW19/A was proved by HC Naresh (PW19) who was posted in PCR. He went with the PCR Van to the spot and to the hospital, on the date of incident, on receipt of information. Ex.PW19/A contains the communication between the PCR Van and the police headquarters. It mentions that at 7.26 PM, the PCR Van informed the headquarters that nobody met at the spot and it was learnt that the injured had been shifted to the hospital and that PCR van was proceeding to the hospital. Thereafter, at 7.55 PM it is recorded that deceased has been declared dead and he was brought to hospital by Mohd. Jalal and that Mohd. Jalal was out of his shop and when he came out of his shop, he saw that somebody had stabbed the deceased and ran away. Towards the end of the communication, the description of injuries were mentioned and it is recorded that the person who had stabbed could SC No. 31/13 State vs. Sunil & Anr. Page 15 of 38
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not be known and that SHO with staff were present in the hospital.
9.8. From the above mentioned communication between the PCR Van and the headquarters, it is argued that Vikas Chauhan was neither an eye witness of the incident, nor he was present at the hospital.
9.9. I am afraid no such inference can be drawn from the contents of Ex.PW19/A. The reasons for negating the contention of accused is that PCR Van officials or PW19 did not claim anywhere that they tried to find out the eye witnesses or the cause of death at the hospital or at the spot. It is nobody's claim that PW19 attempted to find out any eye witness either at the spot or in the hospital. It is also nobody's claim that PW19 communicated the police control room about non-identification of the culprits after speaking to Mohd. Jalal or anybody else. In any case, Mohd. Jalal has himself deposed that he did not see the face of the assailants. In his deposition, Mohd. Jalal specifically said that when he saw the injured after hearing his cries, he saw that two persons were running away and one of those persons was holding a knife and the injured was lying in the gali. Thus, even if PW19 spoke only to Mohd. Jalal at that time, Mohd. Jalal must have given only that information to him which was personally available with him. The communication Ex.PW19/A thus does not go to indicate that there was no eye witness of the incident or that Vikas Chauhan is a planted witness or that Vikas Chauhan was not present at the spot. PW19 has deposed that when the PCR Van reached the hospital, at the same time local police also reached there. Once local police reached the hospital and took over the investigation, PCR van officials did not go into the details, and it is not something which is unusual. Normally investigation is done by the local police and the SC No. 31/13 State vs. Sunil & Anr. Page 16 of 38
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moment the local police reaches the spot, the PCR van leaves after completing formalities is a normal procedure.
9.10. Neither of the two accused questioned PW19 as to the presence or absence of Vikas Chauhan in the hospital. Even Mohd. Jalal was not questioned on the contents of Ex.PW19/A and attention of Mohd. Jalal was not drawn towards the contents of Ex.PW19/A. Therefore, the contents of Ex.PW19/A cannot be read in favour of the accused. If the accused claims that the spot of incident was somewhere else and not in the gali, or that if there was no eye witness, Mohd. Jalal ought to have been questioned specifically as to contents of Ex.PW19/A. Mohd. Jalal has been rather specific in deposing that Vikas Chauhan was present at the time of incident and was present in the hospital.
9.11. The next circumstance, argued by the accused to claim that Vikas was not present at the spot is that the investigating officer did not seize blood stained clothes of Vikas and Mohd. Jalal, although both of them claimed to have shifted the injured to hospital.
9.12. No doubt, the investigating officer ought to have seized the clothes of these witnesses in order to lend credence to the case of prosecution, but merely because their blood stained clothes were not seized cannot be a ground to brush aside the testimony of eye witness. The hospital documents particularly MLC and, the initial PCR communication, clearly finds mention that Mohd. Jalal brought the injured to the hospital. But then even his clothes were not seized by the investigating officer. It is not a case where clothes of Mohd. Jalal were seized but clothes of Vikas are not seized. Had that been so, it would have given rise to some suspicion that SC No. 31/13 State vs. Sunil & Anr. Page 17 of 38
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there was something for the prosecution to conceal by not seizing clothes of Vikas Chauhan only. But when the clothes of both of them are not seized, it indicates nothing but lack of competency on the part of the investigating officer. The mistakes committed by an investigating officer while investigating a crime cannot be allowed to go to such an extent that the testimony of an eye witness should be thrown out. No law mandates such an inference. Rather in serious offences, such as present one, defects in investigation cannot be allowed to come in the way of justice. The clothes may not have been seized either because of incompetency or may be deliberately. The investigating officer was the best person to answer as to why the clothes were not seized, but merely because of that defect in investigation, I cannot ignore the testimony of Vikas Chauhan or, term his testimony as false.
9.13. Ld. Counsel for accused Vinod relied upon the case of Bhimapa Chandapa Hosamani & Ors. Vs. State of Karnataka (2006) 11 SCC 323 to lay stress to the argument that absence of blood stains on the clothes of Vikas Chauhan is a fatal circumstance. The said judgment is distinguishable, as in that case the narration of events by the witness was found not credible and the witness had made untrue and improved statements to project the presence from very beginning and in those circumstances absence of blood stains on their clothes was found to be a suspicious circumstance.
9.14. Mohd. Jalal's presence is established from the initial documents of this case and he categorically stated that Vikas Chauhan was also present at the time of incident. The testimony of Vikas specifically indicts the two accused. During cross examination of Mohd. Jalal or Vikas nothing SC No. 31/13 State vs. Sunil & Anr. Page 18 of 38
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material could be brought out to create any reasonable suspicion as to their testimony. For that matter, even from the cross examination of Mohd. Jalal, nothing could be brought out to show that he was deposing falsely or that Vikas Chauhan was not present.
9.15. Reliance placed by the accused upon the case of Ran Singh & Ors. Vs. State 2007 (2) JCC 1496 is misplaced. Rather that judgment supports the case of prosecution and not the accused, as in that case it was held that different persons react differently on seeing the same occurrence and mere non-disclosure of the names of assailants to the doctor in the hospital does not render the testimony unreliable or doubtful. This judgment nowhere holds that non-seizure of clothes of eye witness must result into acquittal in every case.
9.16. Similarly, reliance placed by the accused upon the case of Johnson Vs. State 2012 III AD Delhi 154 does not help the case of accused. In that case, the testimony of one witness was found by the court to be unsafe to act upon and there was absence of motive to stab the deceased and also that the only possible motive of previous altercation was not proved and therefore, benefit was given to the accused.
9.17. The accused has also placed reliance upon the case of State of Rajasthan Vs. Teja Singh & Ors. (2001) 3 SCC 147. It is also distinguishable, as in that case one of the witness was found to have problem in his eyes due to old age and the statement of the second witness was recorded five days after the crime without any satisfactory explanation by the investigating officer and in such circumstances, absence of seizure of clothes of third witness, which were admittedly SC No. 31/13 State vs. Sunil & Anr. Page 19 of 38
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having blood stains was held to be a circumstance against the prosecution. Besides it, the Sarpanch of the village in that case had stated that when he was initially told about the incident by the eye witness, the name of the accused was not told, which created a reasonable doubt against the case of prosecution and therefore in those circumstances, benefit was given to the accused.
9.18. Reliance placed by accused Vinod on the case of Tinku & Ors. Vs. State 187 (2012) DLT 86 (DB) is again distinguishable as in that case the presence of PW4 at the time of incident was found suspicious and TIP of accused was not got conducted and also no independent witness was joined at the time of recovery of weapons of arrest of accused. In the present case, I do not find any circumstance which can create suspicion about presence of Vikas Chauhan at the place of incident. Vikas Chauhan was present when both the accused were arrested, knife was recovered and blood stained clothes of accused were taken possession of.
9.19. In the case of Brahm Prakash Vs. State 2011 (3) Crimes page 132, ocular testimony of witness did not get support from medical evidence; the son-in-law of the deceased not accompanying him to the hospital created doubt and; weapon was not deposited in the police station were the circumstances, which coupled with absence of blood stains on the cloth of witness, created suspicion. Therefore, that judgment is also distinguishable.
10. In the present case, I do not find any circumstance creating a reasonable suspicion about the presence of eye witness Vikas Chauhan at the spot. Rather presence of Vikas Chauhan at the spot is proved from two SC No. 31/13 State vs. Sunil & Anr. Page 20 of 38
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circumstances. Had Vikas not been present at the spot, there was no occasion that in his initial complaint both the accused would have been named. Had Vikas Chauhan not witnessed the incident at all, he was not in a position to name these very two accused in his complaint. The time gap between the incident and complaint is not such which could have afforded adequate time to the investigating agency to concoct the story and to introduce the name of two accused. FIR of this case was lodged promptly. This fact reveals that Vikas did witness the crime.
10.1. The second circumstance is that in the personal search of the body of deceased, conducted by the doctor, Rs.1022/- were recovered. Vikas Chauhan consistently maintained the stand that he had gone to the deceased to give him Rs.1000/- and the incident occurred after he had given Rs.1000/- to the deceased. Had Rs.1000/- or more not been found in possession of deceased at the time of his examination by doctor, still a reasonable suspicion could have crept in. But the availability of the said amount does indicate that what Vikas Chauhan has deposed is correct.
10.2. After all, Vikas Chauhan does not have any reason to falsely name these two accused. No previous enmity between the eye witness and the two accused or the deceased is put forth. The accused have not come up with any explanation as to why they would be falsely implicated. Rather the accused claim that they did not even know the deceased or Vikas. Therefore Vikas Chauhan had absolutely no reason to name the two accused or to implicate them.
11. Besides the testimony of eye witness, there is also other material to show SC No. 31/13 State vs. Sunil & Anr. Page 21 of 38
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presence of the two accused while committing the crime. When accused were apprehended, their clothes were seized. The fact of seizure of clothes of accused was not denied by the accused in their statements U/s 313 Cr.P.C. Instead they said that it was a matter of record.
11.1. The lower of accused Sunil which he was wearing at the time of his apprehension was taken into possession and was sent for forensic examination. The lower of Sunil was found to be having human blood stains of B Group. It is the same blood group which the deceased had. The said fact that the deceased had B blood group stands adequately proved from the blood stained gauze taken by the doctors and also the blood stains on the clothes of the deceased.
11.2. The shirt of accused Vinod which was also taken into possession, was also having human blood stains, though its blood group could not be established. No reasonable explanation has been put forth by either of the two accused as to under what circumstances their clothes were bearing blood stains. It is not proved by the accused Sunil that his clothes were bearing his own blood stains or that his blood group was B. This fact also indicates presence of the two accused at the time of commission of crime at the spot.
11.3. Though the alleged knife used in the crime was found to be having no blood stains at all, but it may be mentioned that the knife was not thrown or found at the spot, but was recovered at the instance of accused Vinod around 10 to 12 hours after the incident. This intervening time was sufficient for the two accused to have wiped off the blood stains from the knife and, therefore, absence of blood on the knife Ex.P8 cannot be a SC No. 31/13 State vs. Sunil & Anr. Page 22 of 38
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circumstance in favour of the accused.
11.4. Reliance is placed by the accused upon the case of Maheshwari Prasad & anr. Vs. State 2012 [4] JCC 2777, but it does not help their case as in that case besides absence of blood stains on the knife, there were other circumstances creating suspicion, particularly material contradictions and omissions in the testimony of prosecution witnesses and non-seizure of clothes of the only witness which had got blood stained.
11.5. When a weapon of offence is retained by a criminal, it is a matter of common knowledge that such criminal would not keep the weapon stained with the blood for long and would either try to get rid of the weapon itself or to clean the weapon.
12. The argument that the name and the number of assailants was not mentioned in the MLC of deceased again cannot be a circumstance in favour of the accused as MLC is not supposed to be an encyclopedia of the events. In this regard, accused Vinod has relied upon the case of Rakesh Aggarwal Vs. State 1995 (3) Crimes Page 149. The said case is again distinguishable as in that case the name of the eyewitness did not appear even in the first information report and the evidence indicated that the FIR was anti-timed and in those circumstances, absence of name of relative of injured in MLC was held to be a circumstance against the prosecution. In the present case both accused were named in the FIR and the FIR was lodged promptly.
12.1. The case of Johnson Vs. State 2012 III AD (DELHI) 154, relied upon by the accused, regarding absence of details of incident in MLC, is distinguishable as in that case, name of person who brought the deceased SC No. 31/13 State vs. Sunil & Anr. Page 23 of 38
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to the hospital appeared to have been added subsequently on the MLC. That fact with other facts, drove the court to disbelieve the case of the prosecution.
13. The argument that the site plan was not signed by any public witness is futile as there is no requirement in law that site plan must be signed.
14. It is also argued that Poonam Sharma the executor of Ex.PW20/D & E and who was Senior Scientific Officer (Biology) FSL was not examined in the court, and therefore, those reports cannot be read against the accused.
14.1. First of all, Ms. Poonam was also an Ex-Officio, Chemical Examiner to the Government and therefore, the two reports are admissible U/s 293 of Cr.P.C. Under Sub-Section (4) of Sec. 293 of Cr.P.C, report of Chemical Examiner is per se admissible and if the accused wanted to cross examine the chemical examiner, he should have requested the Court during the stage of evidence to summon the witness and examine the expert.
14.2. In any case, when these reports were proved in the testimony of PW20, the investigating officer Inspector Yashpal, no objection whatsoever was raised by the two accused, as to the mode of proof of documents. If the two accused wanted to challenge the mode of proof of these documents, objection as to it ought to have been raised at the time when the reports were being exhibited in evidence. By choosing not to raise objection, the two accused allowed the prosecution to carry an impression that mode of proof of document was not being challenged and therefore, the prosecution cannot be now put into a state of disadvantage by not reading these documents. Had the objection been raised timely, prosecution could have the documents, through other modes. It is now too late in the day to SC No. 31/13 State vs. Sunil & Anr. Page 24 of 38
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challenge the exhibition of these documents and therefore, this contention has to be rejected.
15. Non-putting of specific mark of identification on the knife at the time of recovery, is not a circumstance which can be read in favour of the accused. The eye witness identified the knife as the same and also the doctor opined that the injuries were possible with the knife in question.
16. The argument that in the PCR Call Ex.PW19/A, the place of incident is shown to be inside the shop is fallacious, as that document is nothing but a wireless communication sent by the PCR official PW19 from the hospital and those were most initial communications made and it is nobody's case that PW19 made that communication based on the statement of Vikas Chauhan or Mohd. Jalal. In any case, Mohd. Jalal was not questioned about the contents of that document and his attention was not even drawn to that document and therefore, the document cannot be read in favour of the accused. Presence of blood stains in the gali and presence of other articles seized by the investigating officer from the Gali corroborates the version of eye witness that the place of incident was in the Gali.
17. Absence of physical description of accused in the complaint given by Vikas Chauhan Ex.PW20/A does not make his testimony suspicious for the simple reason that in his complaint, Vikas Chauhan specifically named both the accused and therefore, there was no requirement of giving physical description of both the accused.
18. The contention that the deceased was earning well and therefore, there was no requirement of borrowing of Rs.1000/- from Vikas Chauhan is a futile argument. Deceased was the best person to have explained the SC No. 31/13 State vs. Sunil & Anr. Page 25 of 38
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reasons for borrowing. There can be umpteen number of reasons for borrowing money by a person. The fact that Rs.1022/- were recovered in the personal search of deceased conducted in the hospital by the doctor rather lends credence to the version of Vikas Chauhan.
19. Though, some minor contradictions do appear in the testimony of Mohd.
Jalal as to where statement of Mohd. Jalal was recorded; whether he went to the spot after the police came to the hospital; whether the police came to the spot; what were the proceedings conducted by the police at the spot; what were the names of those 6-7 workers who were working in the factory of deceased with Mohd. Jalal, but all those contradictions are trivial in nature and are bound to occur when witnesses are examined in the court after a considerable gap of time from the date of incident. No unnecessary weightage can be attached to such trivial contradictions.
20. The argument that Dr.Bhim Singh PW2 could not tell whether the injuries on the person of deceased could have been inflicted with one knife or multiple knives, is also futile. After seeing the injuries it is difficult to say whether the injuries were inflicted with only one weapon or more than one weapon of same kind. More important question is that the injuries were inflicted with single sharp edged weapon and the same kind of weapon was recovered at the instance of accused Vinod which weapon was then examined by Dr. Bhim Singh and he gave his report that the injuries present on the body of deceased could have been possible by the said weapon.
21. The argument that no pieces of cigarette or ash of cigarette were recovered on the stairs leading to the office of the deceased is again futile SC No. 31/13 State vs. Sunil & Anr. Page 26 of 38
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as PW13 specifically deposed that at the time when the two accused were sitting on the stairs of the deceased, they were smoking. It is nobody's case that they threw the cigarette at the stairs and then left. In any case, it cannot be anything but slight lacuna on the part of investigating officer and therefore, cannot be given any undue weightage.
22. The argument that the mobile phone details and location chart of mobile of complainant as to his location at the spot was not collected by the investigating officer is also futile, since, if the accused were disputing presence of Vikas Chauhan at the spot, they could have got the said details preserved and proved, but it was not done by them.
23. It is also argued by the accused that since the complainant Vikas came to the court throughout trial with a counsel, particularly during the time of his evidence in the court, it creates suspicion that the testimony of Vikas was manipulated and was an afterthought. I do not find any justification to draw such an inference. A close relative and good friend of Vikas died in the incident and in such circumstances, even if the witness/complainant engaged services of a counsel, that fact does not go to indicate in any manner that the witness was planted. Rather, why would an eye witness of an incident and relative of a deceased, let the actual culprit go scot free and would implicate somebody else falsely. It is nobody's case that the two accused had any kind of enmity with Vikas. Thus, Vikas had no reason to falsely make out a case against the two accused or to let off the actual culprits.
24. The argument that there is no signature of Vikas on any proceeding conducted by the police on the date of incident is factually incorrect, as not SC No. 31/13 State vs. Sunil & Anr. Page 27 of 38
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only the rukka on which the present FIR was registered is duly signed by Vikas and attested by the SHO, but even the recovery memo vide which the exhibits including one pair of sleepers, one piece of jute, one plastic cup and blood stained earth control and cement pieces material were taken also bears signatures of Vikas Chauhan. Even the arrest memo and personal search memo as also the disclosure statement of both the accused bears signature of Vikas. The recovery memo of knife and the sketch of knife also bears the signatures of Vikas. Thus, practically at almost every crucial stage of the case, Vikas was involved and present.
25. The argument that there was no advance booking of deceased to go to Balaji and there was no booking of taxi or bus etc. is futile as those things could have been answered by the deceased only and Vikas was not a party to those bookings, if at all.
26. It is also argued that PW13 Vikas claimed that the deceased was his good friend, yet he was unaware of name and place of residence of wife of deceased as also as to names and number of brothers & sisters of deceased. The argument is fallacious. It has come in the evidence that the deceased had strained relations with his wife and wife was also living separately. There may be many reasons for which the name and address of wife of deceased and other brother, sisters was not disclosed by the eye witness Vikas and therefore, the said fact cannot be construed to suggest that Vikas was not believable.
27. The next argument on behalf of accused Sunil is that PW13 Vikas did not mention anywhere in his statement given before the police or in his deposition in the court as to which of the two boys was slapped by the SC No. 31/13 State vs. Sunil & Anr. Page 28 of 38
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deceased and which of the two boys inflicted the knife blows. On the basis of said fact, it is claimed that Vikas was not present at the time of incident. I do not find the argument of accused justified for the simple reason that both the accused were identified by Vikas in the court as the same persons who were sitting on the staircase; were smoking; were scolded and one of them was slapped by the deceased. Both of them were also identified as the same persons who subsequently came armed with a knife and one of them caught hold of the deceased and the other one inflicted the knife blow. Though the person who inflicted the knife blow and the person who caught hold of the deceased was not specifically identified in the initial deposition of PW-13, but PW13 was recalled by the court U/s 311 Cr.P.C and in his further deposition PW13 identified accused Sunil as the person who caught hold of the deceased and accused Vinod as the person who inflicted the knife blows. Nonetheless, both the accused were clearly and specifically identified as the two persons who had come to the spot again and one of them was armed with knife. Both of them were identified by the eye witness as the persons one of whom caught hold of the deceased and the other one inflicted knife blows.
28. The said conduct of the two accused in coming to the spot again after the initial incident that too armed with a deadly weapon, clearly points out their common intention to commit the crime. Once common intention to commit the crime is established in the facts & circumstances of a case, it really becomes immaterial as to which one inflicts the actual injury and which one held the injured. Both of them would be guilty for having committed the same offence U/s 34 of IPC. Therefore, this contention can also be safely rejected.
SC No. 31/13 State vs. Sunil & Anr. Page 29 of 38- 30 -
29. It is also vehemently argued on behalf of the accused that recovery of knife is planted as there are number of contradictions in the testimony of witnesses as to the fact of recovery of knife. Additionally, it is claimed that absence of blood stains on the knife is also a ground indicating plantation of knife. Even if it is ignored that the knife was recovered at the instance of accused Vinod, still the result of the present case would not change for the simple reason that there is an eye witness of the commission of murder and the eye witness has remained unimpeached during cross examination by both the accused. The testimony of Vikas, the eye witness, was tested in the cross examination, but no circumstance could be brought out on record to impeach his creditworthiness. It does not in any manner create suspicion that Vikas did not witness this incident. In such circumstances, the contradictions as to recovery of knife can be safely ignored.
30. The complainant side also relied upon various authorities and filed written submissions in the present matter. The written submissions of the complainant have already been taken care of by the court while dealing with the submissions of the two accused. However, it would be appropriate to notice the judgments relied upon by the complainant. The complainant has relied upon following cases.
31. In the case of Manglu Vs. State Crl. Appeal 301/2000 decided on 05.03.2013 by Hon'ble Delhi High Court, it was held that non-recovery of crime weapon is not fatal. In that case, efforts were made to search the weapon but it could not be traced. The court ignored that circumstances in view of the fact that accused did not give plausible explanation as to the incriminating circumstances proved against them and they did not reveal as to where else they were present at the time of occurrence. Minor SC No. 31/13 State vs. Sunil & Anr. Page 30 of 38
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contradictions and discrepancies were held to be not fatal as they did not go to the root of the case.
31.1. In the present case, weapon has been shown to be recovered and has been identified in court. The accused of the present case failed to explain as to if they were not present at the spot at the time of incident, where else they were present.
32. The complainant next relied upon Govind Vs. State of Madhya Pradesh 2001 (4) MPHT 466, decided on 15.05.2001, by Hon'ble Madhya Pradesh High Court. In the said case, it was held that under Sub-Section 293 of Cr.P.C the reports itself are per se admissible and there is no need of examining the scientific expert. I have already dealt with the said issue in the above portion of the judgment holding that the report given by the chemical examiner was admissible per se.
33. In Sheelam Ramesh & anr. Vs. State of Andhra Pradesh 2000 Cri.L.J 51 SC, the Hon'ble Court held that when all the eye witnesses of the occurrence have been examined, failure of prosecution to examine other persons present nearby is not fatal as evidence of eye witness cannot be discarded on the ground of non-examination of other eye witnesses, as courts are concerned with quality and not quantity.
34. In the case of Brathi @ Sukhdev Singh Vs. State of Punjab 1991 Cri.L.J 402 SC, it was held that mechanical rejection of evidence on the ground that witnesses were closely related to the deceased and thus were interested, is unwarranted.
35. In the case of Triloki Nath & Ors. Vs. State of U.P. AIR 2006 SC 321, it was held that the rule 'Falsus in uno, Falsus in omnibus', is not a rule of SC No. 31/13 State vs. Sunil & Anr. Page 31 of 38
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evidence in criminal trial and it is the duty of court to disengage truth from falsehood and to sift grain from chaff.
36. The case of Dayaram Vs. The State AIR 1988 SC 615 is not applicable to the facts & circumstances of the present case as it was a case based on circumstantial evidence, whereas the present case is a case with an eye witness.
37. The case of Bachan Singh Vs. State of Punjab AIR 1980 SC 898, again is not applicable at this stage of the matter as in that case death penalty as an alternative punishment U/s 302 IPC was considered.
38. In the case of State of Haryana Vs. Wazir Singh AIR 1992 SC 1429, it was held that where evidence of eye witness is supported by medical evidence, the accused would be liable to be convicted. In the present case also, the testimony of eye witness Vikas is duly supported by the medical evidence as to the nature of injury and also presence of blood on the clothes of the two accused.
39. It was held in the case of Vahula Bhusan @ Vehuna Krishnan Vs. State of Tamil Nadu AIR 1989 SC 236, that evidence of eye witness found to be cogent and trustworthy and which is also supported by medical evidence is sufficient to base conviction.
40. It was held in the case of Nashik Vs. State of Maharashtra Cri. Appeal No. 42 of 1984, that where the accused dealt with several knife blows on the stomach of the deceased without provocation and when deceased was unarmed and had already been injured by co-accused, the accused cannot be held to be having no intention to cause murder by the mere fact that only one blow was inflicted.
SC No. 31/13 State vs. Sunil & Anr. Page 32 of 38- 33 -
40.1. In the present case also one of the accused had caught hold of deceased making him immobilised and denying him opportunity to escape and flee, and the other one inflicted a severe knife blow on the chest. This injury on the chest was inflicted after earlier two injuries on the thigh and abdomen of the deceased. This fact is so clear from the evidence of eye witness who has stated that after the fatal blow on the chest was given, the two accused fled from the spot, thereby meaning that the other two injuries were given prior to the chest injury. It indicates repeated injuries inflicted upon the deceased. The fatal blow was so powerfully inflicted that the knife penetrated right up to the heart of the deceased.
41. In Pal Singh Vs. State of Punjab, AIR 1999 SC 2548, it was held that when one witness had seen both the accused running away soon after the incident and the evidence of the eye witnesses was not suffering from any infirmity and was consistent with the evidence of person who saw both the accused running away soon after the incident and there was no reason for the witnesses to falsely involve the accused, the accused can be convicted.
41.1. In the present case also, the testimony of eye witness finds corroboration from the evidence of Mohd. Jalal who saw two persons running away from the spot when one of them was holding knife. It is consistent with the evidence of Vikas. Thus, the two witnesses Mohd. Jalal and Vikas corroborates each other on material aspects and no explanation has been put forth by either of the accused as to why they would be falsely implicated in this case and as to how their clothes had blood stains.
42. The case of Dalpat Singh & anr. Vs. State of Rajasthan 2005 Cri.L.J SC No. 31/13 State vs. Sunil & Anr. Page 33 of 38
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749, is distinguishable as it was a case based on circumstantial evidence.
43. The case of Gulab Chand Vs. State of Madhya Pradesh AIR 1995 SC 1598, is also distinguishable as in that case, there was a presumption against the accused since the accused was found in possession of ornaments of deceased immediately after the murder which is not the case before this court.
44. The case Sanjay @ Kaka Vs. State (N.C.T of Delhi) AIR 2001 SC 979, is also distinguishable on the facts and does not apply to the facts & circumstances of the present case.
45. In Mallanna & Ors. Vs. State of Karnataka (2007) 3 SC (Cri) 731, it was held that merely because witness was related or interested or was not injured in the incident, the evidence cannot be discarded if the same is otherwise found to be credible especially when it supports the prosecution case in material particulars.
46. It was held in Sunil Kumar Vs. The State Govt. of NCT of Delhi, 2003(4) Crimes 383 (SC), that it is the quality of evidence which matters, as the evidence has to be weighed and not counted. And it was also held that on account of some minor omissions which are but natural because the examination of witness took place years after the occurrence cannot be a ground to give benefit to the accused. In that case, it was also held that it is not necessary that there has to be exact and precise reproduction in any mathematical manner and what needs to be seen is whether the version presented in the court was substantially similar to what was stated during investigation.
47. It was held in the case of State of Rajasthan Vs. Om Prakash VI (2007) SC No. 31/13 State vs. Sunil & Anr. Page 34 of 38
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SLT 94, that the testimony of sole eye witness can be made basis of conviction provided the sole eye witness passes the test of reliability and corroboration would be necessary only when the sole eye witness is not found to be wholly reliable. It was also held that mere relationship with deceased is no ground to discard his testimony, if it is otherwise found to be trustworthy.
48. Appreciation of evidence of this case, as discussed above, does establish guilt of the two accused, beyond reasonable doubt. Vikas Chauhan specifically deposed that both the accused were found smoking on the staircase and for that reason, they were reprimanded by the deceased, whereupon they left the spot and after sometime they came back armed with one knife and the deceased was fatally attacked. Thus, the said fact of reprimanding the two accused by the deceased acted as a motive in the minds of two accused to teach the deceased a lesson. They returned to the spot together, one of them being armed with a knife which is a deadly weapon. Vikas deposed that accused Sunil caught hold of the deceased and accused Vinod inflicted the knife blows. As many as three knife injuries were inflicted. One was on thigh, second on abdomen and, third on the chest. The injury on the chest was inflicted with such brutal and excessive force that the knife penetrated the ribs of the deceased and injured the heart of the deceased. Version of Vikas is corroborated by Mohd. Jalal who saw two persons running away from the spot, one of them holding a knife. The injury no.1 on the chest of the deceased was sufficient in the ordinary course of nature to cause death. Medical evidence corroborates the testimony of eye witness. There is no reason to doubt the testimony of prosecution witnesses. FIR was lodged promptly, SC No. 31/13 State vs. Sunil & Anr. Page 35 of 38
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which rules out concoction. There is no reason as to why the two accused would be falsely implicated.
49. In order to attract Exception 4 to Section 300 of IPC, four requirements must be satisfied viz., firstly that it was a sudden fight, secondly that there was no pre meditation, thirdly that the act was done in a heat of passion and fourthly the assailant did not take any undue advantage and did not act in a cruel or unusual manner. The present case does not fall within that Exception.
50. It cannot be claimed by the two accused that the act was not pre meditated. Rather after the two accused were scolded by the deceased and they left the spot, they returned to the spot and this time they were armed with one deadly weapon i.e. knife. One of the accused i.e. Sunil, caught hold of the deceased, denying him the opportunity to escape. The other accused Vinod inflicted as many as three knife injuries on the body of deceased. The fatal blow was given in the last and prior to it, two injuries were inflicted. It is not the case of accused that they intended to inflict the injury no.1 on the chest which was fatal on any other part of body of deceased or that due to movement of the deceased, the blow landed on the chest of the deceased which punctured his ribs and heart. The eye witness account of the assault on the deceased led with the medical evidence makes it more than clear that the act of the accused, by which death of deceased was caused, was done with such intention of causing such bodily injury to the deceased as found by the medical evidence in this case and that the bodily injury intended to be inflicted was sufficient in the SC No. 31/13 State vs. Sunil & Anr. Page 36 of 38
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ordinary course of nature to cause death of the deceased. Thus, the facts brings the present case within the four corners of clause thirdly of Sec. 300 of IPC. There was pre meditation to cause death of deceased. The accused first of all gave blows with the knife on other parts of body of deceased and thereafter on the chest of the deceased. If the intention of accused had not been to murder the deceased, the accused would not have inflicted a second and third blow of knife, particularly the third blow with such great force on the vital part of the body of deceased which punctured the heart of deceased and ultimately resulted into death of deceased within no time. The accused cannot claim that the fight was sudden as there is nothing on record of the case to suggest that it was a sudden quarrel between the deceased and the accused, rather the accused returned to the spot armed with lethal weapon. Also the accused took advantage of the situation in the sense that after the deceased was caught hold and immobilized, and after inflicting of two injuries on the deceased, the accused was not contended and the third fatal injury was caused. There is no evidence to suggest that the injuries were inflicted in the heat of passion. Thus the four requirements of the Exception 4 of Sec. 300 are not fulfilled and the present case falls within clause thirdly of Sec. 300 of IPC.
51. The act committed by the two accused falls within the definition of culpable homicide amounting to murder, punishable U/s 302 of IPC r/w 34 of IPC. It falls within the four corners of definition of murder as provided in Section 300 of IPC.
SC No. 31/13 State vs. Sunil & Anr. Page 37 of 38- 38 -
52. Both the accused are thus found guilty and convicted U/s 302 r/w 34 IPC.
Announced in the open court Dig Vinay Singh
on 26th day of March, 2014. Spl. Judge : NDPS / ASJ
Rohini / Delhi
SC No. 31/13 State vs. Sunil & Anr. Page 38 of 38