Delhi High Court
Dharambir & Ors. vs State on 6 November, 2009
Author: P.K.Bhasin
Bench: Badar Durrez Ahmed, P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Judgment delivered on: 6th November,2009
+ CRIMINAL APPEAL NO. 140 of 1994
DHARAMBIR & ORS. ..... Appellants
- versus -
STATE .....Respondent
Advocates who appeared in this case:
For the Appellants : Mr. D.C.Mathur, Sr. Advocate with Mr. Vikram Singh
Pawar, Advocate
For the Respondent : Mr. Sunil Sharma, APP.
CORAM:
* HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see
the Judgment?(Yes)
2. To be referred to the Reporter or not?(Yes)
3. Whether the judgment should be reported in the digest?(Yes)
JUDGMENT
P.K.BHASIN, J Feeling aggrieved by the judgment dated 28-05-1994 passed by the Additional Sessions Judge whereby the three appellants were convicted under Sections 302/307/34 IPC and the order dated 30-05-1994 vide which they were awarded different sentences of imprisonment and fine they have filed the CRIMINAL APPEAL NO. 140 of 1994 Page 1 of 26 present appeal. They have been held guilty of murdering their close relative Gobind and attempting to murder his brother Murari Lal (PW-1).
2. The prosecution case is that the relations between the family members of the deceased and the accused persons were strained. The accused persons used to abuse ladies in the family of the complainant party and the incident leading to the murder of the deceased Gobind and the murderous attack on his brother Murari Lal on 25/08/91 took place as a result of that strained relationship between the two families. The crime was registered by the police on the eye-witness account of the injured Murari Lal and his version as had been given by him to the police after the incident and noticed by the learned trial Judge in the impugned judgment is re-produced below:-
"....... at about 3 p.m. on 25-08-93 Murari Lal along with his wife Saroj had gone to the utensils shop were Gobind and Ashok, his younger brothers were present. He parked his scooter near the shop and then he complained to his uncle Jagdish who was present at his shop by saying as to why his sons abused Saroj un-necessarily at this, Jagdish sprang up towards Saroj with danda in order to attack her. At this, he tried to prevent Jagdish from beating his wife Saroj who in turn got aside in order to save herself but in the meantime, sons of Jagdish namely Rajinder and Dharambir also joined Jagdish and came there armed with scissors and knife. Dharambir then gave the knife blow in his abdomen as a result of which, he started bleeding. His brother Gobind then raised an alarm and tried to release Murari from the clutches of Dharambir and Rajinder. However, Rajinder and Dharambir attacked Gobind with knife and scissors. Gobind received injuries and started bleeding profusely. Gobind fell down on the ground. A large number of people CRIMINAL APPEAL NO. 140 of 1994 Page 2 of 26 collected at the spot. He along with Gobind were removed to the hospital....................."
3. The above version of Murari Lal was sought to be established during the trial by the prosecution by examining four eye witnesses of the occurrence including the injured-informant Murari Lal. The other three eye-witnesses were PW-2 Anil Kumar, PW-3 Saroj Bala and PW-5 Ashok Kumar.
4. When examined under Section 313 Cr.P.C. all the three accused pleaded their innocence and denied all the allegations levelled against them by the prosecution. Accused Rajender and Dharambir took the plea of alibi claiming that at the time of the occurrence Rajender was at the house of his in-laws with his wife on the occasion of Rakhi and Dharambir was at Patel Nagar park with some students in connection with their studies. However, no evidence was adduced by these accused persons in support of their plea of alibi. Accused Jagdish took the plea that, in fact, PW-1 Murari Lal and the deceased Gobind had dragged him from his shop to their shop due to which he had sustained injuries and his shirt had got stained with blood and that in fact he was saved by the crowd collected there and was taken to his shop. Regarding the injuries sustained by PW-1 Murari Lal and the deceased, his stand was that injuries might have been caused to them by someone from the crowd which had collected there CRIMINAL APPEAL NO. 140 of 1994 Page 3 of 26 when they were being dragged by them. This accused also did not adduce any evidence in defence.
5. The learned Additional Sessions Judge found the evidence of all the eye witnesses wholly reliable and trustworthy and relying upon their evidence held the three accused guilty of having murdered Gobind and making an attempt to kill his brother Murari also.
6. Before us it was not disputed by the learned senior counsel Shri D.C.Mathur on behalf of the appellants that the death of the deceased Gobind was homicidal. That fact is even otherwise fully established from the evidence of PW-11 Dr. Tarun Gupta who had attended to the deceased immediately on being brought to RML Hospital and the autopsy surgeon PW- 12 Dr.L.M.Baruah who had conducted post-mortem examination on the body of the deceased. PW-11 Dr. Gupta deposed that the deceased had been brought dead to the hospital and that on examination of the body of the deceased he had found three clean lacerated wounds on the left lateral chest wall, one of which was two inches long along posterior axillary line, another was one inch long along anterior axillary line and the third one was two and half inch is long from the lateral aspect of the left arm. This witness also proved the MLC of the deceased which is Ex.PW-11/B according to which the injuries were shown to have been caused by a sharp edged CRIMINAL APPEAL NO. 140 of 1994 Page 4 of 26 weapon. PW-12 Dr. Baruah had deposed that he had found the following external injuries on the body of the deceased at the time of post-mortem examination:-
"1. One vertically placed incised wound on left angle of chest of size 2.2 cm x 1.2 cm into querry deep. This injury was 12 cm below the left anterior axillary fold.
2. One incised wound 4 cm lateral and posterior to the injury No. 1 and 10 cm below the posterior axillary fold placed almost vertically of size 2.6 cm x 1.5 cm into querry; both the angles of the wound were acutely cut.
3. One incised wound on the back of left arm just below the posterior axillary fold placed obliquely vertically. The lateral margin of the wound showed one small projection whereas the medial border showed slight bevelling of size 4 cm x 1.5 cm into querry. After exploration of this injury it had two bifurcated cuts at a distance of approximately 1 cm. It had not cut any major blood vessels. The depth of injury was about 3.5 cm."
About the internal injuries, the doctor had stated that abovenoted injury no. 1 had entered the chest cavity through the 5th inter-costal space and was passing medially and had cut the medial border of left lung (upper lobe) and then it had cut the pericardium and then the left ventricle of the heart and then coming out through the right ventricle of the heart. The total depth of this injury was about 10 cm. Injury no. 2 had also entered the left chest cavity through the 6th intercostal space extending medially and downwards. Total depth of this injury was about 11 cms. In the opinion of this doctor, injury nos. 1 & 2, noticed above, were individually sufficient to cause death in the ordinary course of nature and the cause of death was due to CRIMINAL APPEAL NO. 140 of 1994 Page 5 of 26 shock and haemorrhage resulting from these injuries. PW-12 proved his report which is Ex. PW-12/A. From this evidence of the two doctors, it thus stands proved that the death of the deceased was homicidal.
7. However, Mr. Mathur seriously challenged, on various grounds, the reliability and correctness of the prosecution case and the findings of the trial Court that the three accused- appellants were responsible for the murder of the deceased Gobind. We shall now examine those grounds of challenge but, before doing that, we would like to notice the relevant parts of the evidence of the eye witnesses. We begin with the evidence of the injured-complainant PW-1 Murari Lal. The relevant part of his testimony is extracted below:-
"I know all the three accused persons namely Dharambir, my cousin brother accused Rajinder my cousin brother and accused Jagdish, my uncle, present before the Court. My father has a utensils shop in Shadipur Bazaar vide shop No. 2649, Main Bazar, Shadipur. The accused Jagdish has a cloth shop No. 2666 in front of the shop of my father. I also know Krishan & Vishnu, who were my partners in the Iron & Steel business at NOIDA. Said business continued from 1986 to March 1990. The accused persons had been telling against me to my said partners Vishnu and Krishan and it led to the dissolution of partnership. The accused persons has sided with my partners Vishnu and Krishan at the time of dissolution of the firm. On this account, relations between me and the accd. persons became strained. Thereafter, the accused persons had been abusing us, being my wife, my younger brother‟s wife and my sister. On the Tuesday, prior to the occurrence, the accused Jagdish and his son abused and uttered filthy words to my wife and the wife of my younger brother and sister.
On the eve of rakhi on 25.8.91 at about 3.00 p.m. I had gone to the shop of my father at Main Bazar, Shadipur, with my wife Smt. Saroj, in a TSR. We got the TSR parked outside the CRIMINAL APPEAL NO. 140 of 1994 Page 6 of 26 shop of my father. We then went to the accd‟s Jagdish‟s shop to him. I asked my uncle Jagdish, as to why he was abusing and used to utter filthy words to our ladies. My wife also enquired the same from the accused Jagdish. The accused Jagdish then bounced upon my wife Saroj with a danda to beat her. I apprehended my uncle Jagdish with the danda to save my wife Saroj. My wife stood by the side. In the meantime, the accused Dharambir came out from the shop of Jagdish and stabbed me with knife in my back; my brother Gobind came to my rescue; the accused Rajinder who had a scissor with him and Dharambir with above knife stabbed my brother Gobind. The accused Dharambir stabbed with the knife at 3/4 places in his left arm-pit. The accd. Rajinder stabbed my brother Gobind on the same side towards the back i.e. near left shoulder with the scissor. Gobind fell on the ground on receiving the injuries, my jija Anil Kumar came there; my brother Ashok Kumar was also there; they both removed Gobind to the hospital, I came on foot uptil the red-light signal, and then went to the hospital in the same TSR with my Jija and brother Ashok and Gobind. Gobind was declared dead by the doctor. Police came in the hospital and recorded my statement Ex. PW-1/A signed by me at point A..........."
8. The relevant part of the examination-in-chief of the next eye witness PW-2 Anil Kumar, as recorded by the trial Court is re- produced below:-
"I know all the three accd. Persons present in Court. I know PW-1 also who is my relative. The father of PW-1 Murari Lal has a shop in Main Bazaar Shadipur of utensils and accd. Has shop of cloth opposite to his shop.
On 25.8.91 at about 3 or 3.15 p.m. I had gone to main Bazar Shadipur to meet my relation Om Parkash, father-in-law and my brother-in-law; I saw a quarrel going on outside the shop of accd. Jagdish; the quarrel was between the three accused persons present in Court and PW-1 Murari Lal; The accd. Rajinder with a scissor and accd. Dharambir with a knife were stabbing to Gobind; Rajinder gave stab injuries with scissor on the left back shoulder of Gobind while Dharambir was stabbing with the knife in the left armpit of Gobind from the front side. The accd. Dharambir stabbed four or five times to Gobind; accd. Rajinder also stabbed once or twice; There were two stab injuries to Gobind, with knife and the third injury on the back shoulder to Gobind was with scissor; I also saw injuries on the person of PW Murari, which was bleeding from CRIMINAL APPEAL NO. 140 of 1994 Page 7 of 26 his back. Gobind fell down on the ground on account of the stab injuries. I tried to save Gobind; the accd. Rajinder & Dharambir ran away from the spot. I did notice about accused Jagdish as to if he remained there or ran away. The accused Jagdish was present during quarrel at the spot and was having danda with him, when I went to rescue Gobind accused Jagdish uttered filthy words „Maaro Behan Chodon Ko‟. I removed Gobind to the hospital and my brother in law, Ashok was also with me, in a TSR. PW-1 Murari went with us i.e. with our TSR on foot uptil the chowk and from there he was also taken in the TSR and we went to the hospital................................."
9. PW-3 Smt. Saroj Bala‟s version of the occurrence is like this:-
".................On the rakhi of 1991 being 25th of August, at about 3.00 p.m. I along with PW1 my husband had come to the shop of my father-in-law in Main Bazar, Shadipur, in a TSR from NOIDA, the TSR was parked near the said shop. I and PW-1 enquired from accused Jagdish as to why he used to abuse us including to my sister-in-law(nanad) and other ladies of our family. The accused Jagdish pounced upon me with a danda. I was saved by my husband PW1. The accused Dharambir & Rajinder came from inside the shop. Accused Dharambir stabbed my husband PW1 with a knife in his back, my devar Gobind raised an alarm and came to the rescue of my husband PW1, the accused Dharambir and Rajinder then stabbed my devar Gobind, the accused Dharambir stabbed with knife to Gobind and accused Rajinder stabbed with scissor to Gobind. Dharambir stabbed from front side in the left armpit of Gobind with a knife while accused Rajinder stabbed with scissor to Gobind on his left back side of his shoulder ...................."
10. PW-5 Ashok Kumar, brother of the deceased and PW-1, is the fourth eye witness of the occurrence. His narration about the incident is also being re-produced below:-
"......................On 25.8.91 at about 3 p.m. I was present at the utensils shop in Main Bazar, Shadi Pur; the accd. persons have also a shop there of cloth. My brother Gobind was also present with me in my above shop. We and accused persons had strained relations with each other. There was a partnership in NOIDA between Vishnu and Jagdish and us. My brother Murari was having strained relations with them. Our above partnership could not continue and same was dissolved about one and half CRIMINAL APPEAL NO. 140 of 1994 Page 8 of 26 years prior to the above occurrence. My uncle Jagdish had sided the opposite party in the said dissolution. He used to abuse the ladies of our house. On the Tuesday, prior to the occurrence, the accused Jagdish had uttered filthy language to the ladies of our house. On the day of occurrence, as above, my brother Murari and my Bhabhi Saroj had come on a TSR at our shop at the above place from NOIDA. They had got parked the TSR near the shop. My Bhabhi Saroj enquired from accused Jagdish as to why he used to abuse and give filthy words. My uncle Jagdish pounced upon my bhabhi Saroj with a danda. My brother Murari came to her rescue and my Bhabhi went towards a side. Rajinder & Dharambir accused came with scissors and knife from inside the house. Accused Dharambir was having a knife and accused Rajinder had a scissors. Dharambir hit on the back of Murari with knife resulting in bleeding. Gobind raised an alarm and went to his rescue. Dharambir stabbed Gobind on the left side of his chest with knife. Rajinder accused hit with scissors on the left back side of shoulder to Gobind..........................................."
11. From the evidence extracted above it is clear that all of them are closely related to each other and to the deceased and their relations with the accused persons were admittedly strained. However, evidence of these witnesses cannot be rejected or viewed with suspicion simply for the reason that they are related to the deceased and the relations between the complainant party and the accused party were not cordial, as was the submission of Mr. D.C.Mathur, learned senior counsel for the appellants. Testimony of eye-witnesses cannot be discarded on the ground that they were related to the deceased and previously there was some dispute between the accused and the witnesses or the victim of the crime. The evidence of such witnesses, of course, is required to be scrutinized with more caution and care. So, we have very carefully and cautiously scrutinized the CRIMINAL APPEAL NO. 140 of 1994 Page 9 of 26 evidence of the four eye witnesses. As far as the statements of these four witnesses in their respective examination-in-chief are concerned, all of them have given a consistent version of the incident and fully corroborate each other on all material particulars. In their cross-examination no contradictions on any material aspect of the prosecution case with reference to their statements before the police could be brought on record which shows that they have stuck to their version which they had given to the police after the incident. That fact makes their evidence trustworthy despite the fact that all of them are related to each other and to the deceased and their relations with the family of the accused persons, who are also their close relatives, were strained. The presence of PWs 1 and 3 is clearly admitted by accused Jagdish in his statement under Section 313 Cr.P.C. as also the fact that both of them had come to his shop and then the deceased had also come following them. This is our impression about the evidence of the eye-witnesses which has been formed by us after examining their examinations-in-chief and cross- examination. Now we shall examine their evidence through the eyes of the counsel for the accused persons who had seen certain infirmities in their testimonies and the prosecution case in general and then come to the final conclusion whether those infirmities make any dent in our impression about the prosecution case or not.
CRIMINAL APPEAL NO. 140 of 1994 Page 10 of 26
12. Referring to the above extracted portions from the evidence of the eye witnesses Mr. D.C. Mathur, learned senior counsel for the appellants, had contended that there is no doubt that all the eye witnesses had deposed that the three accused persons had participated in the occurrence leading to the death of Gobind and injuries to PW-1 Murari Lal but when other evidence adduced during the trial, which has not been noticed by the trial Judge at all, is also examined carefully the evidence of all the eye witnesses would definitely appear to be highly vulnerable and it would become apparent that they had really not witnessed the incident at all. Mr. Mathur‟s contention put in the forefront was that the entire prosecution story becomes false inasmuch as the prosecution case was that place of crime was the verandah of shop no.2649, which was the shop of the father of the deceased, and that was shown to be place of incident not only in the charge but also in the rough site plan of the place of incident, Ex.PW-18/A, prepared by the investigating officer as also in the scaled site plan Ex.PW-9/A prepared by the draftsman, both of which were prepared on the pointing out of the eye-witnesses. Even in the ruqqa Ex.PW-4/A the place of incident shown was verandah of shop no.2649 and as per the prosecution case blood was also found in the verandah of the shop of the father of the deceased and not inside or outside the shop of accused Jagdish. However, as per the version of PW-1 Murari Lal given in Court the CRIMINAL APPEAL NO. 140 of 1994 Page 11 of 26 incident had taken place at the shop of accused Jagdish, which was shop no.2666, where he had gone alongwith his wife PW-2 Saroj Bala to ask Jagdish as to why he used to abuse ladies of his(PW‟s) family. Thus, argued Mr. Mathur, the prosecution has shifted the place of occurrence and has also suppressed the genesis of the occurrence and that fact makes the entire prosecution case highly doubtful and probabalises the defence version that in fact accused Jagdish was dragged by Murari Lal and the deceased from his shop upto the verandah of the shop of the father of the deceased and in that process someone from the crowd, which had collected at the spot, might have caused injuries to PW-1 and the deceased. In support of the submission that the prosecution case becomes doubtful because of the prosecution having changed the place of occurrence during the trial, reliance was also placed on two judgments of the Supreme Court in "Balwan Singh vs State of Haryana": (2005) SCC 245 and "Buta Singh vs State of Punjab": AIR 1991 SC 1316. One judgment of a Division Bench of this Court in "Narain Singh vs State": 66(1997) Delhi Law Times 177 was also cited in support of the submission regarding the effect of change of place of occurrence and that the scaled site plan prepared by a draftsman is admissible in evidence.
13. We are afraid, this argument carries no weight and cannot be accepted at all. The submission is in the teeth of the well CRIMINAL APPEAL NO. 140 of 1994 Page 12 of 26 settled legal position that if evidence of any prosecution witness is to be demolished because of his having given one version to the police and another in Court then that can be done only by confronting that witness with his statement to the police and inviting his explanation for the discrepancies/contradictions between the two versions. In the present case, none of the eye witnesses was cross-examined with reference to any of the two site plans referred to above, both of which were prepared by policemen during the course of investigation on the basis of information given by the eye-witnesses. It was not even elicited from the eye witnesses whether they had pointed out the place of occurrence to the draftsman. So, none of the plans available on record can be looked into for any purpose much less for the purpose of discrediting the eye-witnesses. As far as the ruqqa is concerned, the same was prepared by the investigating officer (PW-13 SI Shiv Kumar) and even he was not cross-examined regarding the place of occurrence as recorded by him in his ruqqa. In the Supreme Court decisions cited on behalf of the appellants as also in the decision of this Court, the Court had found from the evidence that the place of occurrence had been changed and so the prosecution case was viewed with suspicion but since in the case in hand we have not found any such thing, those judgments are of no help to the appellants. So, the prosecution case cannot be discredited for the reason urged by CRIMINAL APPEAL NO. 140 of 1994 Page 13 of 26 Mr. Mathur that the place of occurrence has been shifted during the course of the trial.
14. Mr. Mathur had also contended that the prosecution had also suppressed the genesis of the incident and that was evident from the fact that it was the plea of accused Jagdish that he was, in fact, dragged from his shop by PW-1 Murari Lal upto the shop of his(PW-1‟s) father and that version of Jagdish gets confirmed from the statement of the investigating officer(PW-18) who in his cross-examination had admitted that he had found injuries on the person of accused Jagdish when he had arrested him and had also got him medically examined. Mr. Mathur submitted that the police had got accused Jagdish medically examined but it had withheld his MLC and the prosecution has also not explained the presence of injuries on the person of accused Jagdish which showed that the eye-witnesses had suppressed true facts. This argument also, like the previous one, is bereft of merit and is liable to be rejected. There is no doubt that the investigating officer PW-18 had admitted in cross-examination that in the case diary there was reference to some injuries of Jagdish and his medical examination was conducted, but the accused cannot get any benefit from that admission. Accused Jagdish has not claimed that during the incident he had received any injury, much less a serious one, at the hands of the deceased and his brother Murari Lal. So, there was no occasion for the prosecution to have CRIMINAL APPEAL NO. 140 of 1994 Page 14 of 26 explained the injuries on the person of accused Jagdish. As far as his plea that he was dragged from his shop upto the shop of the complainant party is concerned he has not even attempted to prove the same even though he has claimed that when he was being dragged crowd had collected at the spot but nobody has been examined as a defence witness. So, the prosecution case cannot be viewed with suspicion because of non-explanation of the injuries on the person of accused Jagdish, as appear to have been mentioned in the case diary and which, even if the plea of dragging of the accused is accepted, were unlikely to be serious injuries.
15. Another submission of Mr. Mathur was that in this case the FIR had been ante-timed and that was clear from the fact that in the Crime Team report (Ex. PW-17/DB) the number of the FIR was not mentioned which would have been so mentioned in that report, which was prepared between 5 and 6.30 p.m., if the FIR had actually been registered at 4.50 p.m. as is recorded in the FIR. Challenging the truthfulness of the four eye witnesses examined by the prosecution, Mr. Mathur contended that none of them can be said to be an eye witness of the incident because the in-charge of the Crime Team in his report had advised the investigating officer to record the statement of the injured and also to look for eye witnesses of the incident and since the crime team report was prepared between 5 and 6.30 p.m. this kind of CRIMINAL APPEAL NO. 140 of 1994 Page 15 of 26 advise to the prosecution would not have been given at that time if actually the statement of the injured eye witness Murari Lal had already been recorded. This submission of the learned senior counsel is also without any substance. There is no doubt that in the crime team report Ex.PW-17/DB marked as Ex.PW-17/DB (this document in fact is Ex.PW-18/DB and by mistake it appears to have been written as Ex.PW-17/DB by the trial Judge) where it is mentioned that the crime team had examined the place of incident between 5 p.m. to 6.30 p.m. and as per the prosecution case the FIR had been registered at the police station at about 4.50 p.m. but FIR number was not mentioned in the crime team report. It is also correct that in the crime team report the in- charge of the crime team had advised the investigating officer to record the statement of the injured and also to look for the eye witnesses. However, from the absence of the number of FIR in the crime team report and the piece of advice given for the investigating officer it cannot be said that neither the FIR had been registered nor the statement of the injured Murari Lal had been recorded by the time crime team report was prepared. The police inspector who had prepared the crime team report is not a prosecution witness and it was not elicited from any of the two investigating officers, namely, PW-13 Shiv Kumar and PW-18 Inspector G.L. Mehta, as to whether they had any talk with the in- charge of the crime team and whether they had informed him CRIMINAL APPEAL NO. 140 of 1994 Page 16 of 26 about the registration of the FIR and recording of the statement of the injured and whether the crime team report had been handed over to them by the in-charge of the crime team at the spot.
16. Mr. Mathur also attacked the trustworthiness of the prosecution case and particularly the version of the incident given by the eye-witnesses on the ground that in the inquest report Ex. PW-18/B also, which was prepared on 26-8-91, the names of the assailants had not been mentioned and even in the investigating officer‟s letter to the autopsy surgeon requesting for post-mortem the names of the perpetrators of the crime were not given. In support of the argument, absence of the names of the assailants in the inquest report makes a prosecution case doubtful. Learned senior counsel cited one judgment of the Supreme Court in "Balak Singh vs State of Punjab": AIR 1975 SC 1962 and a Division Bench judgment of this Court in "Balwant Singh vs. the State": 1976 C.L.R. (Delhi) 41. These decisions do not advance the case of the appellants. In those cases, names of the some of the accused were mentioned and during the trial others were also sought to be roped in. That fact was taken into consideration alongwith other flaws in the prosecution case for doubting the prosecution case. However, it was not held that whenever the names of the accused, which are known by the time inquest report is prepared, are not mentioned in the inquest report the eye-witnesses naming the accused would be considered to be CRIMINAL APPEAL NO. 140 of 1994 Page 17 of 26 unreliable witnesses. The Supreme Court has taken the view on this aspect in "Mahendra Rai vs. Mithlesh Rai and others": (1997) 10 SCC 605 and it has held that the names of the assailants are not required to be mentioned in the inquest report and the absence of the names of the assailants in the inquest report would have no impact on the trustworthiness of the prosecution case. The relevant paras from the judgment are being re-produced below:-
"9. Coming to the evidence of eye witnesses Jagdish Rai, PW 7 Jageshwar Rai, PW 8 it may be pointed out that their evidence has been rejected by the High Court merely on the ground of discrepancy in the timings of reparation of the inquest report Ext. 9 and the absence of the names of the assailants in the same. However, we find that the High Court committed a patent error in appreciating the same. It may be pointed out that inquest reports are prepared as envisaged in Section 174(1) Cr.P.C. Section 174 Cr.P.C. contemplates the preparation of an inquest report by the police officer in the presence of two or more respectable inhabitants of the neighbourhood and draw up a report of apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body stating in what manner or by what weapon or instrument (if any) such marks appeared to have been inflicted. For ready reference Sub-section (1) of Section 174 Cr.P.C. is reproduced hereunder:
174. Police to enquire and report on suicide, etc. (1) When the officer-in-charge of a police station or some other police officer specially empowered by the State Government in that behalf received information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the district or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitant of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any) such marks appears to have been inflicted.CRIMINAL APPEAL NO. 140 of 1994 Page 18 of 26
A perusal of Section 174(1) would go to show that it does not require anywhere to mention the names of assailants. It was, therefore, neither incumbent upon the police officer Kailash Prasad, PW 13, who prepared the inquest report, to mention the names of the assailants nor it was necessary for the eye witnesses Jagdish Rai and Jageshwar Rai who are the witnesses to the said inquest, to insist the mention of the names of the assailants in the said inquest report ........."
17. Another ground of challenge to the truthfulness of the evidence of the eye-witnesses raised by Mr. Mathur was that the evidence of the eye-witnesses does not find support from medical evidence as far as the injuries allegedly caused by the accused Rajinder Kumar and Dharambir to the deceased are concerned. There is no force in this submission also. PW-2 Anil Kumar had clearly deposed that there were three stab injuries caused to Gobind, two with knife and one with scissors. The medical evidence, which has already been noted by us fully supports the evidence of this witness. Mr. Mathur had contended that the autopsy surgeon could not confirm whether the injuries were caused with one weapon or more than one weapons and that fact also casts doubt about the truthfulness of the evidence of the eye- witnesses and it becomes doubtful whether accused Rajinder Kumar and Dharambir had both caused injuries to the deceased or not and that doubt becomes strong since in the Brief Facts, Ex. PW-18/C, prepared by the investigating officer for being forwarded to the autopsy surgeon alongwith his application for conducting post-mortem it had been mentioned that Dharambir had caused injuries on the person of the deceased with knife and CRIMINAL APPEAL NO. 140 of 1994 Page 19 of 26 regarding accused Rajinder Kumar it was not mentioned that he had used scissors in the incident. Mr. Mathur‟s submission was that Brief Facts must have been prepared on the basis of statements of the eye-witnesses only and that shows that accused Rajinder Kumar had not been assigned the role of causing injuries with a scissors by that time and later on it might have been decided to introduce the use of scissors by Rajinder Kumar. There is no doubt that in cross-examination PW-12 Dr. Baruah had stated that he could not say so but that does not rule out that injuries were not caused to the deceased with a knife as well as with scissors, as deposed by all the eye-witnesses. As far as the absence of the use of scissors by accused Rajinder Kumar in the Brief Facts prepared by the investigating officer is concerned, that document cannot be used to contradict the eye-witnesses‟ version of the incident since the same is not a substantive piece of evidence and neither the eye-witnesses nor the investigating officer were asked anything about that document in cross- examination to explain the absence of use of scissors by accused Rajinder Kumar.
18. Mr. Mathur, in the end, also raised a grievance regarding the casual way of recording of the statements of the accused in this case by the trial Judge and submitted that that casual approach has definitely prejudiced the accused persons. In support of this submission the learned counsel cited one CRIMINAL APPEAL NO. 140 of 1994 Page 20 of 26 judgment of the Supreme Court in " Asraf Ali vs State of Assam":
2008(3) Crimes 112. There is no doubt that in this case the trial Judge who had recorded the statements of the three accused persons under Section 313 Cr.P.C. had been grossly negligent in recording the statements and in fact it also appears that the job of recording of the statements was assigned to the stenographer and that is evident from the fact that certain questions put to the three accused were simply copied and even answers to those questions were copied verbatim even though the questions related to a particular accused only. We view such a casual approach on the part of the trial Judge quite seriously but nothing further is being said on this aspect since we were informed during the course of the hearing that the concerned Judge was no more in service. As far as accused persons are concerned they, however, do not stand to benefit from this lapse on the part of the trial Judge and the decision of the Supreme Court cited by Mr. Mathur also does not entitle them to acquittal on this ground since in our view no prejudice appears to have been caused to them and this is what was held by the Supreme Court that any irregularity in the recording of statement of an accused shall not vitiate the trial unless prejudice is shown to have been caused to the accused or it has resulted in miscarriage of justice.
19. These were the infirmities highlighted by the learned senior counsel for the appellants in the prosecution case. However, all CRIMINAL APPEAL NO. 140 of 1994 Page 21 of 26 these infirmities have failed to make any dent in the prosecution case. Having thus found that the deceased died a homicidal death and that the eye-witnesses examined by the prosecution have given a trustworthy and reliable version of the incident we have no hesitation in affirming the findings of the learned trial Judge that the incident did take place in the manner deposed to by the four eye-witnesses. With this conclusion of ours the escape route for the two accused brothers, namely, Rajinder Kumar and Dharambir, at least, stands closed completely. Whatever role they performed in the incident, as deposed to by the eye- witnesses, regarding the assault on the deceased and PW-1, was clearly in furtherance of their common intention and that intention was to finish off the deceased and his brother PW-1 Murari Lal. They succeeded in killing the deceased Gobind but their attempt on the life of PW-1 Murari Lal failed. He was fortunate to survive despite the fact that he had sustained injuries which were found by the doctor (PW-17) to be dangerous for his life could be only to kill him also. The Supreme Court in "Parsuram Pandey vs State of Bihar":(2004) 13 SCC189 held that "For the purpose of Section 307 IPC what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention......... The intention or knowledge of the accused must be such as is necessary to constitute murder." It was also observed by the Supreme Court in "R.Parkash vs State of CRIMINAL APPEAL NO. 140 of 1994 Page 22 of 26 Karnataka": AIR 2004 SC 1812, that the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused. So, the intention of accused Dharambir in causing dangerous injury on the person of PW-1 Murari Lal with a knife could be only to kill him also. Therefore, the conviction of accused-appellants Rajinder Kumar and Dharambir for the offences punishable under Sections 302 and 307 IPC read with Section 34 IPC calls for no interference in this appeal.
20. Mr. Mathur had also contended that as far as accused Jagdish is concerned he cannot be convicted in any event either for the murder of the deceased Gobind or the attempted murder of PW-1 Murari Lal with the aid of Section 34 IPC since from the evidence of the eye-witnesses it is not at all made out that he had the shared common intention with his two sons to commit the offences for which they have been found guilty. It was contended that only one eye-witness, PW-2, had claimed that when he had come forward to rescue Gobind accused Jagdish had made an exhortation using filthy words (which we have already noted while narrating his version of the incident) and that exhortation was also only „maaro......‟ which did not mean „to kill‟ anyone. It was also submitted that this accused had not called his sons to come outside their shop to kill the deceased and his brother. His sons had come out on their own and had allegedly assaulted the CRIMINAL APPEAL NO. 140 of 1994 Page 23 of 26 deceased and PW-1. No other eye-witnesses including the injured Murari Lal had said that Jagdish had exhorted his sons at all. So, Jagdish cannot be said to have shared any intention with his sons. Reliance in this regard was placed on one judgment of the Supreme Court in "Suresh & Anr. Vs State of U.P.": AIR 2001 SC 1344 wherein against one of the convicted accused, out of the three eye-witnesses of the incident only one had ascribed the role of catching hold of the deceased and exhorting co-accused to kill everybody . The Supreme Court did not think it proper to invoke Section 34 IPC in respect of that accused by accepting the version of one eye-witness and acquitted that accused. One judgment of a Division Bench of this Court in "Raj Kumar vs State": 89(2001) DLT 237 was also cited in which case also against one of the accused the role ascribed was of catching hold of the victim and exhorting other co-accused by saying "Dekhta kiya hai maar saleko". The Division Bench had held that the exhortation "Maar saleko" did not mean that co-accused was exhorted to kill the deceased but only to teach a lesson to the rascal (the deceased). In this submission of the learned senior counsel, however, we find a great deal of strength. The only role assigned to accused Jagdish and that, too, by only one of the four eye-witnesses namely, PW-2 Anil Kumar is that he was having a danda and when he (PW-2) had rushed forward to save the deceased he had uttered filthy words while exhorting (his sons) "maaro......". However, no other CRIMINAL APPEAL NO. 140 of 1994 Page 24 of 26 witness stated so. In any case, it cannot be said that Jagdish had, by using the word „maaro‟, intended to command his sons to kill the deceased and his brother. As per the prosecution case, he had not called his sons to come out from their shop. They came on their own and first assaulted Murari Lal and then the deceased when he rushed forward to rescue his brother. There does not appear to be any pre-concerted plan amongst the father and sons to assault the deceased and his brother. As per the prosecution case PW-1 had come to the shop of accused Jagdish and the accused had not gone to the shop of PW-1. Thus, in our view conviction of accused Jagdish with the aid of Section 34 IPC for the offences under Sections 302 as well as 307 IPC cannot be sustained.
21. As a result of the fore-going conclusions arrived at by us, this appeal stands dismissed as far as appellants Dharambir and Rajinder Kumar are concerned and their convictions and the sentences awarded to them by the trial Court under Sections 302/307/34 IPC are affirmed. The sentences of imprisonment of these two accused-appellants were suspended during the pendency of the appeal and now that their appeals stand dismissed their bail bonds stand cancelled and they are directed to be taken into custody forthwith to serve out the remaining part of the sentences awarded to them. However, the impugned judgment in respect of appellant Jagdish is set aside and he CRIMINAL APPEAL NO. 140 of 1994 Page 25 of 26 stands acquitted of all the charges for which he was tried, convicted and sentenced. He was also released on bail during the pendency of the appeal and now with his acquittal his bail bonds stand discharged.
P.K.BHASIN,J BADAR DURREZ AHMED,J November 06, 2009 CRIMINAL APPEAL NO. 140 of 1994 Page 26 of 26