Delhi District Court
State vs . 1. Raj Kumar @ Gola S/O Rajpal Sharma, ... on 18 May, 2010
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 06/09
State Vs. 1. Raj Kumar @ Gola S/o Rajpal Sharma, R/o B358, Gali No.6,
Near Ramnaresh Public School, Mahalaxmi Enclave, Delhi.
2. Raj Kumar @ Totewala S/o Ramesh Chand, R/o A17, G.
No.1, Mahalaxmi Enclave, Delhi.
3. Lokesh Kumar S/o Surender Singh, R/o B310, G. No.12,
Mahalaxmi Enclave, Delhi.
4. Sanjay Kumar S/o Deshraj Singh, R/o A224, Gali No. 7,
Mahalaxmi Enclave, Delhi.
5. Shekhar S/o Vinod, R/o Gali No.5, Choteylal Wali Gali,
PhaseV, Shiv Vihar, Delhi.
6. Rajneesh @ Rajnikant S/o Jagdish Prashad, R/o 346, Gali
No.4, PhaseV, Shiv Vihar, Delhi.
FIR No. 180/05
PS Gokapuri
U/s 341/302/307/34 IPC.
Date of Institution : 06.01.09
Date on which reserved for Order : 12.04.2010
Date of Decision : 06.05.2010
J U D G E M E N T : Succinctly stated, the case of prosecution is that on 28.03.05, Padam Singh @ Bunty, along with Satish @ Bittoo (since deceased) and Tej Prakash @ Kallu went to Madina Hotel, Mustafabad, for taking dinner. After taking dinner, they were coming on foot via Gali No.1, Chaman Park, Delhi. At about 7.30pm, accused Raju @ Totewala along with Raj Kumar @ Gola, Lokesh Kumar, Sanjay Kumar, Shekhar, Rajneesh @ Rajnikant and Ravi came towards them. Accused Raju @ Totewala called Tej Parkash @ Kallu, on which he turned towards him. Accused Raju @ Totewala started quarrelling with Tej Prakash @ Kallu. Thereupon, he and Padam Singh @ Bunty and Satish @ Bittoo were caught hold of by his associates and they had started assaulting them with legs and fist blows. Thereafter, Raju @ Totewala S.C. No. 06/09 Page 1/41 2 inflicted knife blow on the person of Tej Prakash @ Kallu, Padam Singh @ Bunty and Satish @ Bittoo. Padam Singh @ Bunty ran away from the spot and reached at shop of Rajneesh and informed about the incident to mother of Tej Prakash, whereas Tej Prakash approached HC Devender (PW13), who was on patrolling duty at Bhagirathi Vihar and Chaman Park area and informed him about injuries caused to him and his friends by the accused persons. HC Devender Singh along with Tej Prakash reached at Gali No.1, Chaman Park, where he found Satish @ Bittoo in injured condition. He removed both injured to GTB Hospital, where Satish @ Bittoo was declared brought dead by the doctor, whereas Tej Prakash was admitted in the hospital. After sometime, Padam Singh was brought to the hospital by Smt. Mithlesh (PW3) and he was also admitted in the hospital. On receipt of DD No.29A, which is Ex.PW15/A, ASI Mohd. Yusuf (PW15) along with HC Noor Mohd (PW6) reached street No.3, Shiv Vihar, PhaseV, Delhi, where they were informed by the public that injured have been taken to GTB Hospital. Accordingly, ASI Mohd. Yusuf reached GTB Hospital, collected MLCs of Tej Prakash, Padam Singh @ Bunty and Satish @ Bittoo. Tej Prakash was declared fit for statement, as such ASI Mohd. Yusuf recorded his statement Ex.PW1/A and made his endorsement Ex.PW15/B, and gave rukka to HC Noor Mohd for getting the case registered. Accordingly, FIR Ex.PW20/A was recorded by SI Vikram Singh (PW20). Said report was sent to Sh. Rakesh Kumar, MM and other senior officers through Constable Satender (PW18). Padam Singh @ Bunty was examined by Dr. Amit Kumar Jain, who prepared his MLC Ex.PW22/A. Tej Prakash was also examined by Dr. Shailesh, who prepared his MLC Ex.PW3/A. Dr. Subhash also examined patient Satish and prepared his MLC Ex.PW23/B. The post mortem on the dead body of Satish @ Bittoo was conducted on 29.03.05 by Dr. Sone Lal (PW8), who gave his detailed post mortem report Ex.PW8/A. The dead body of Satish was S.C. No. 06/09 Page 2/41 3 identified by Gopal (PW4) and Harkesh Singh (PW5), vide identification statement Ex.PW4/A and Ex.PW5/A. After postmortem examination, dead body of Satish was handed over to PW Gopal and PW Harkesh Singh for funeral rites, vide Ex.PW4/B. Investigation of the case was entrusted to Inspector Gurmeet Singh (PW21), who along with his staff reached street No.1, Chaman Park, where SI Rakesh Kumar Khari, Incharge Crime Team, (PW11) along with Constable Sanjeev Beniwal, photographer (PW10) and other members of the crime team were present. Constable Sanjeev Beniwal took photographs of scene of crime from different angles at the spot. Blood, blood stained soil, earth control and one black vest were lifted from the spot by Inspector Gurmeet Singh, which was taken into possession, vide Ex.PW13/B. Site plan was prepared by Inspector Gurmeet Singh. Doctors at GTB Hospital gave two sealed parcels containing clothes of the injured, besides sample seals, which were taken into possession. On the basis of secret information, Inspector Gurmeet Singh along with his staff reached in a room located in the fields of Balbir and overpowered all the accused persons, except accused Rajneesh @ Rajnikant. All the accused persons were arrested. They made disclosure statements. Accused Raju @ Totewala led the police party to his house located at Mustafabad Enclave, and produced blood stained knife Ex.P1 from underneath the bed of his house, which was taken into police possession. After sealing the same in a cloth parcel, with the seal of GSP, vide memo Ex.PW13/T, blood stained clothes comprising of shirt and pant of Raju @ Totewala were also taken into possession, vide memo Ex.PW13/B. The knife recovered at the instance of Raju @ Totewala was sent for subsequent opinion to Dr. Sone Lal. On 25.04.05, accused Rajneesh @ Rajnikant surrendered himself before the police. On 03.06.05, SI Mukesh Kumar (PW12) prepared scaled site plan Ex.PW12/A. During the course of investigation, exhibits were sent to FSL. Same were examined by V. S.C. No. 06/09 Page 3/41 4 Shankarnarayanan, who gave his expert report Ex.PW24/A and Ex.PW24/B. After completing investigation, challan was submitted against all the accused persons.
2. Charge for offences punishable under sections 341, 302, 307 and 324 read with section 34 IPC was framed against all the accused persons, to which charge they pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Tej Prakash @ Kallu (PW1), Padam Singh @ Bunti (PW2), Smt. Mithlesh (PW3), Sh. Gopal (PW4), Harkesh Singh (PW5), Noor Mohd, Head Constable (PW6), Omkar (PW7), Dr. Sone Lal (PW8), Sh. Anil (PW9), Sanjeev Bani Wal, Constable (PW10), Rakesh Kumar Khari, SI (PW11), Mukesh Kumar Jain SI (PW12), Devendera Singh, Head Constable (PW13), Om Prakash, Constable (PW14), Mohd. Yusuf, ASI (PW15), Satvir Singh, Head Constable (PW16), Vinod, Head Constable (PW17), Satender, Constable (PW18), Sanjeev Kumar SI (PW19), Bikram Singh SI (Retd.) (PW20), Gurmeet Singh, Inspector (PW21), Dr. S. Kohli (PW22), Dr. Devender Kumar (PW23) and Sh. V. Shankarnarayanan, Sr. Scientific Assistant (PW24) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against all the accused persons, they were examined under section 313 Cr.P.C. They had denied all allegations levelled against them. Their case has been of denial simplicitor. They claimed themselves to be innocent. They pleaded their false implication in the instant case. In order to defend themselves, they have examined Ram Pal Sharma (DW1), Laxmi Singh (DW2), Pratap Singh (wrongly mentioned as DW2), Smt. Hemlata (DW3), Radhey Shyam (DW4), Vijay Kumar (DW5), Chander Pal Singh (DW6), Chander Pal (DW7), Surender (DW8), Dr Pradeep Kumar (DW9) and Kiran Pal (DW10) in their support.
S.C. No. 06/09 Page 4/415
5. I have heard Sh. S.R. Raghav, Sh. Gopal Sharma, Sh. V.K. Singh and Sh. Manoj Kumar, Advocates, for the accused persons and Sh. Subhash Chauhan, ld. Prosecutor, on behalf of State assisted by Rajiv Sarswat, Advocate, for the complainant, and have also perused the record.
6. It was submitted by ld. Counsels for the accused that PW1 Tej Prakash has not supported the case of prosecution at all and he has not identified any of the accused. Testimony of PW2 Padam Singh is not reliable. Moreover, if testimony of PW1 is excluded from consideration, then there is solitary testimony of this witness, on the basis of which no conviction can be placed upon. Even PW3 Mithlesh and PW7 Omkar Singh have not supported the case of prosecution. All the accused persons were lifted from their houses and knife was planted upon accused Raju @ Totewala. There is no independent witness to the recovery. Moreover, accused Rajneesh was not even in Delhi at the time of incident. Under these circumstances, it was submitted that prosecution has failed to bring home guilt of the accused persons beyond reasonable doubt, as such accused persons are entitled to be acquitted.
7. Rebutting the contentions of ld. Counsel for the accused, it was submitted by ld. Prosecutor that even if PW1 Tej Prakash had not identified accused that does not mean that his entire testimony is to be rejected in toto. That part of his testimony, which supports the case of prosecution, can be considered. Further more, Padam Singh is not the only eyewitness, but also injured witness and as such his testimony deserves more credence. Despite crossexamination, his testimony could not be shattered by the ld. Counsel for the defence. Moreover, his testimony finds due corroboration from remaining prosecution witnesses, medical evidence, expert evidence etc. As regards the plea that Tej Prakash did not support the case of prosecution regarding identity of the accused, it S.C. No. 06/09 Page 5/41 6 was submitted that he as well as PW3 Mithlesh and PW7 Omkar Singh are the members of the same family. At the time of final arguments, an application was moved for placing on record copy of another FIR bearing No. 40/07, which was lodged by Omkar Singh against Padam Singh under section 302 IPC and it was submitted that because of his reason the entire family members have chosen not to support the case of prosecution. But the same is not fatal to the case of prosecution because his own testimony lends assurance and credence to the testimony of Padam Singh, who is injured witness and his testimony finds corroboration from medical evidence. As regard plea of alibi taken by accused Rajneesh, it was submitted that same is devoid of merits and none of the witness examined by the accused are reliable. Therefore, it was submitted that prosecution has been able to establish its case beyond reasonable doubt and the accused persons are liable to be convicted for the offences alleged against them.
8. In order to substantiate its case, prosecution is relying upon : (1) Eyewitness account of the incident.
(2) Medical Evidence.
(3) Recovery of weapon of offence at the instance of accused Raju @ Totewala.
(4) Expert Evidence.
(5) Motive.
9. I shall deal with each one of them one by one. First of all, I shall take up eyewitness account of the incident and material witnesses in this regard are PW1 Tej Prakash, PW2 Padam Singh, PW3 Mithilesh, PW4 Gopal, PW5 Harkesh, PW7 Omkar Singh and PW13 HC Devender Singh.
PW1 Tej Prakash @ Kallu has unfolded that Anil is his friend. Accused Raju @ Totewala is known to him as he resides in Mustafabad Enclave.
S.C. No. 06/09 Page 6/417 Accused Rajneesh, Gole, Shekhar, Sanjay and Lokesh are also known to him as Rajneesh and Shekhar are residing near his house, while other accused are resident of Mustafabad Enclave.
On 23.03.05, an altercation had taken place between Anil and Raju @ Totewala on account of something prior to the incident. He intervened and matter was got settled.
On 28.03.05 at about 7.30pm, he along with Satish @ Bittoo and Padam Singh @ Bunty had gone for taking dinner to a hotel at Mustafabad. They had taken food there. After taking dinner, they were coming towards their house via Gali No.1, Chaman Park, on foot. As soon as they entered the gali, some boys attacked them. In the incident, Satish @ Bittoo, Padam Singh @ Bunty along with him sustained injuries. He sustained injuries on his left hip with a knife. He ran to inform the police and had informed them about the incident at Mustafabad road, where some police officials were present. Police removed him and Satish @ Bittoo to the hospital from the place of incident in an auto rickshaw. Satish @ Bittoo and Padam Singh @ Bunty also suffered injuries in the incident. Padam @ Bunty had run away from the spot after sustaining injuries. Due to darkness, he could not identify culprits and deposed that accused persons are not the person, who had inflicted injuries upon him and upon the person of Satish @ Bittoo and Padam Singh @ Bunty in his presence. Although, he admitted his signatures on statement Ex.PW1/A, but went on stating that he had not given any statement to the police being unconscious. As such, this witness was crossexamined by the ld. Prosecutor. In crossexamination, he admitted that his statement given to the police on 28.03.05 is Ex.PW1/A written in Hindi and he can easily read his statement. However, he went on deposing that his signatures were obtained on a blank paper. He admitted that he had sustained injuries in S.C. No. 06/09 Page 7/41 8 the incident along with Padam @ Bunty and the deceased. He also admitted that he and Padam Singh @ Bunty were medically examined in GTB Hospital. Satish @ Bittoo had also received injuries in the incident and died. He admitted that he did not lodge any complaint with any authority regarding taking of his signatures by the police on blank paper.
10. PW2 Padam Singh @ Bunty gave confirmation to facts deposed by Tej Prakash @ Kallu. He is another injured, who has testified that Satish @ Bunty is his elder brother. Tej Prakash is his friend. He was informed by Tej Prakash prior to the incident that an altercation had taken place between him and Raju, when he was going on motorcycle along with Anil and matter was got settled between him and Raju @ Totewala by Anil. At that time, Raju had threatened Tej Prakash that incident would cost him heavily. This incident was narrated by Tej Prakash to him as well as his brother Satish @ Bittoo. Their parents came to know about the incident. Due to fear of their parents, he along with his brother Satish slept in the house of Tej Prakash and did not go to their house on that day. They came to know that accused Raju was seeking an opportunity for killing them along with his friend Rajneesh, Gole, Sanjay and Rakesh, who were known to him as they were resident of Mustafabad Enclave. On 28.03.05, in the evening time at about 7pm, he along with Satish and Tej Prakash went to Madina Hotel, Mustafabad, for taking dinner and after taking dinner they were coming on foot and reached at Gali No.1, Chaman Park. At that time, he saw accused Raju @ Totewala along with his friends, namely, Gole, Rajneesh, Sanjay, Shekhar, Lokesh and Ravi coming towards them. As soon as accused persons came near them, accused Raju @ Totewala called Tej Prakash @ Kallu, on which Tej Prakash turned towards them. Raju @ Totewala started quarrelling with Tej Prakash. Remaining accused persons caught hold of him and Satish @ Bittoo, and started assaulting S.C. No. 06/09 Page 8/41 9 them with leg blows and fist blows. Raju inflicted knife injuries on his person as also on the person of Tej Prakash and his brother Satish @ Bittoo. Accused inflicted knife injuries on his buttock and lower abdomen and on thigh of his brother Satish @ Bittoo and on the back of Tej Prakash. He ran away from the spot to save his life and reached at the shop of Rajneesh. He narrated incident to mother of Tej Prakash. He was taken to GTB Hospital by mother of Tej Prakash @ Kallu. He was treated for his injuries in the hospital. He came to know in hospital that due to injuries sustained by his brother Satish @ Bittoo, he has expired. Satish @ Bittoo and Tej Prakash were brought to hospital by police. Police recorded his statement as well as that of Kallu in the hospital.
11. PW3 Smt. Mithlesh is the mother of PW1 Tej Prakash @ Kallu and has not supported the case of prosecution, inasmuch as, she went on deposing that accused are not known to her. According to her, one year prior to the date when she came before the Court on 06.02.06, she was present at her house in evening time. 1020 boys came to her house and inquired about her son Tej Prakash @ Kalu. She inquired from them as to what was the matter. They did not say anything and went away. She telephoned police, who came to her house and left after sometime. Since this witness did not support the case of prosecution, she was crossexamined by the ld. Prosecutor. In crossexamination, she admitted having made statement to police in respect of the incident. She admitted that on 28.03.05, when she was sitting outside her house, in the meantime Ravi, Rajneesh, Shekhar, Raju @ Totewala along with three or four more boys came, abused her and asked about Kallu, Bunty and Bittoo. She told them that she is not aware about their present whereabouts. Thereafter, those persons left after abusing and threatening. Even she informed the police at number 100 and waited for police in her house. However, she denied rest of the case of S.C. No. 06/09 Page 9/41 10 prosecution that she had taken Padam to GTB Hospital. She could not say, if her son Kallu was injured in the incident, if he was admitted in the hospital or how long he remained admitted in the hospital.
12. PW4 Gopal has deposed that on 28.03.05, he was present at his house. At about 8pm, when he received telephone call that his mausi' s sons, namely, Satish @ Bittoo and Bunty have received injuries in a quarrel and they have been stabbed he along with his mausaji went to GTB Hospital, where he met Padam @ Bunty and Kallu in the emergency ward. On inquiry, he was informed by Padam @ Bunty that Raju @ Totewala had stabbed them, resulting in injuries to him and Kallu, whereas Satish @ Bittoo met his death.
13. PW5 Harkesh is the father of deceased Satish @ Bittoo and has deposed that on 28.03.05 on receipt of information from Sh. Yaad Ram Gahlot regarding inflicting of knife injuries by Raju @ Totewala on his son, namely, Padam and Bittoo and Tej Prakash, son of Omkar Singh, he went to GTB Hospital along with Gopal, where he found police officials, who recorded statement of Padam Singh in his presence. Subsequently, he identified dead body of his son.
PW7 Omkar Singh is the father of Tej Prakash. This witness has not supported the case of prosecution inasmuch as, he has merely deposed that three boys had sustained stab injuries. Names of two of them were Kallu and Bunty. One of the injured has died. He could not identify any of the accused persons, as such he was crossexamined by the ld. Prosecutor. However, nothing material could be elicited in favour of the case of prosecution.
14. PW13 HC Devender Singh was on patrolling duty in Baghirathi Vihar, Chaman Park, area on 28.03.05. At about 7.45/8pm, one boy, namely, Tej Prakash came to him in injured condition and told him that Raju @ S.C. No. 06/09 Page 10/41 11 Totewala, Shekhar, Raj Kumar @ Gola, Sanjay, Lokesh and their associates had inflicted knife blows to him and his other friends. He along with him reached Gali No.1, Chaman Park, where he saw one more person lying in injured condition, whose name was revealed as Satish. He took both injured to GTB Hospital, where Satish @ Bittoo was declared dead and Tej Prakash was admitted. After sometime, one more injured, namely, Padam Singh @ Bunty came in the hospital. He was also admitted in the hospital.
15. A perusal of aforesaid evidence led by the prosecution goes to show that PW2 Padam is the injured eye witness. This witness has given clear and vivid picture of entire incident and roles played by the accused persons. He was crossexamined at great length by ld. Defence counsel. However, nothing material could be elicited to discredit his testimony.
16. As regards submission of ld. Counsel for accused that there is solitary testimony of Padam Singh, it may be mentioned that section 134 of the Indian Evidence Act attaches importance to the quality than to the quantity of the evidence, by providing that no particular number of witness in any case, is required for the proof of any fact. Proof of a fact would depend upon the character of witness and his competency to speak to that fact. It is not enough to prove a fact that a number of witness should assert it. No fix number of witness is needed to prove a fact, even testimony of one witness is sufficient. Law to this effect was laid by the hon' ble Apex Court in State Vs. Valula Bhushan, AIR 1988 S.C. 236; State Vs. Jayaram Shiva Tagore, AIR 1991 S.C. 1735 and State Vs. Ramju Surja, 1983 Cr.L.J. 1105.
The Legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons that it shall not be answer for proving or disproof of a fact, to call any particular number of witnesses. The S.C. No. 06/09 Page 11/41 12 General Rule recognized in section 134 Evidence Act, enshrines well recognized maxim that "Evidence has to be weighed and not counted". The Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. It is a sound and wellestablished rule of law that the Court is concerned with quality and not the quantity of the evidence necessary for proving or disproving a fact. For holding this view, I am fortified by 1957 SCR 981, Vadivelu Thevar vs. State of Madras, where it was held : "On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established: (1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a S.C. No. 06/09 Page 12/41 13 witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes."
This very authority was relied upon in 2008 Cr.L.J. 1804, Kunju @ Balachandran. In view of these authoritative pronouncements, there is no legal bar in convicting an accused on the solitary testimony of a witness.
17. Moreover, in the instant case, PW2 Padam Singh is not only eyewitness of the incident, in fact he was also injured in the same incident. The testimony of injured eyewitness stands on a higher pedestal, inasmuch as, the fact that witness is injured at that time and in the same occurrence lends support to his testimony that witness was present during the occurrence and saw happening with his own eyes (Balmiki Mandal @ Chunnu Vs. State, MANU/DE/261/2009). While dealing with the testimony of injured witness, Hon' ble Apex Court in State of Gujarat v. Bharwada Jakshibhai Nagribhai, 1990 Cr.L.J. 2531, observed that for appreciating the evidence of the injured witnesses, the Court should bear in mind that : (1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident.
S.C. No. 06/09 Page 13/4114 His action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
(5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation.
(6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
18. After recapitulating number of cases in the case of Appabhai v. State of Gujrat, AIR 1988 SC 696 : (1988 Cr.L.J. 848), Hon'bl e Supreme Court has succinctly dealt with this aspect. The Court has held that the injured witness should be considered to be the best eyewitness to the incident and the discrepancy in his evidence which does not shake the basic version of the prosecution case may be discarded.
19. Similar view was taken in State of UP vs. Kishan Chand and others, (2004) 7 SCC 629, wherein it has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In 1994 Supp (3) SCC 235, Shivlingappa Kallayanappa vs. State of Karnataka, Hon' ble Supreme Court has held that the deposition of the S.C. No. 06/09 Page 14/41 15 injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case, it is proved that he suffered the injury during the said incident. In 2009 (X) AD SC 381, Jarnail Singh and others vs. State of Punjab, Hon' ble Supreme Court held that in case the injured witness is subjected to lengthy crossexamination and nothing can be elicited to discard his testimony, it should be relied upon.
In view of these authoritative pronouncement, testimony of Padam Singh stands on a higher pedestal, he being an injured witness. His presence at the relevant time and place of occurrence cannot be doubted. Moreover, none of the accused claims any animosity, illwill or grudge against this witness for which reason he will allow the real culprit to go scot free and implicate the accused falsely in this case.
20. Moreover, as regards actual incident is concerned, his testimony finds substantial corroboration from the complainant Tej Prakash @ Kallu, who himself is an injured and although this witness did not support the case of prosecution to the extent that he did not identify accused persons, but he admitted that injuries were sustained by him in the same incident, in which Padam Singh and Satish @ Bittoo sustained injuries. Moreover, he has also given motive behind the commission of crime, inasmuch as, few days prior to the incident an altercation had taken place between accused Raju @ Totewala and Anil and with his intervention the matter was got pacified. Although, a slight discrepancy is appearing in regard to the incident, which took place on 23.03.05, inasmuch as, according to Tej Prakash the altercation had taken place between Anil and Raju and he had intervened, whereas according to Padam Singh, he was informed by Tej Prakash that altercation had taken place between Tej Prakash and Raju @ Totewala S.C. No. 06/09 Page 15/41 16 and Anil got he matter compromised. Be that as it may be, this discrepancy is not very material, inasmuch as, it has come on record that prior to the incident, that is, on 28.03.05, an altercation had taken place on 23.03.05 with Raju @ Totewala. Padam Singh has further deposed that he had come to know that Raju @ Totewala was seeking an opportunity to take revenge along with his friend
21. Thereafter, on 28.03.05 when Tej Prakash, Padam Singh and Satish were coming back towards their house via gali No.1, Chaman Park, on foot after taking dinner, they were attacked by the accused persons. Even this witness admits that they were inflicted injuries with knife and he, Padam Singh and Satish @ Bittoo sustained injuries. He also admits that he had run away from the spot to inform the police. He informed about the incident to police at Mustafabad, where some police officials were present,. He and Satish were removed to GTB Hospital from the place of incident in an auto rickshaw. This part of his testimony finds substantial corroboration from HC Devender Singh (PW13), who removed him and Satish to GTB Hospital. This witness further admits that Padam @ Bunty had ran away from the spot, after sustaining injuries. It is also the case of Padam Singh that he had run away from the spot and had gone to the shop of Rajneesh, where he met Mithlesh, mother of Tej Prakash and informed him about the incident and Mithlesh removed him to hospital. Under these circumstances, testimony of Tej Prakash corroborates Padam Singh on material particulars, except the fact that he has not identified the accused.
22. The law regarding the hostile witness is well settled that evidence of a witness though declared hostile should not to be treated as effaced from the record and can be relied upon. In Satpaul Vs Delhi Administration AIR 1976 SC 294, it was held as under:
"In a criminal prosecution when a witness is cross examined and S.C. No. 06/09 Page 16/41 17 confronted with the leave of the court by the court calling him, his evidence cannot, as a matter of law be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole, with due caution and care, accept in the light of other evidence on the record, that part of his testimony which he finds to be trustworthy and act upon it. If in a given case whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited the judge should as matter of prudence, discard his evidence in toto."
In Guru Singh Vs. State of Rajasthan, AIR 2001 SC 330, it was held :
"It is misconceived notion that merely: a witness is declared hostile and his entire evidence should be excluded or rendered unworthy of consideration. In a criminal trial where a prosecution witness is cross examined and contradicted with the leave of the court by the party calling him for evidence cannot, as a matter of general rule be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result call of such cross examination and contradiction the witness stand discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness of that part of the deposition found to be credit worthy."
In Santosh vs. State of M.P., 2006 VIII AD (SC) 719, evidence of a witness though declared hostile is not to be treated as effaced from record and can be relied upon in part. This position of law was reiterated in Bindu S.C. No. 06/09 Page 17/41 18 vs. State (NCT) of Delhi, 2009 VIII AD (Delhi) 190, Alaqarsang & Ors vs. State by Deputy Superintendent of Police, 2009 XI AD (SC) 125.
In view of these authoritative pronouncements, a witness who is cross examined by the prosecution with leave of the Court is not to be discarded altogether and that part of his testimony which inspires confidence may taken into consideration and the rule of prudence only requires that testimony of such a witness should be scrutinized with care.
23. In view of this legal proposition, it becomes clear that although Tej Prakash sustained injuries in the same incident. However, he chose not to identify the accused persons. PW Mithlesh is her mother, while PW7 Omkar Singh is his father. All the family members have chosen not to identify any of the accused persons. As regard PW3 Mithilesh is concerned, although in her examinationinchief, she deposed that 1012 boys came to her house and she could not identify them as there was no electricity and it was dark. However, when she was crossexamined by the ld. Prosecutor, then she admitted that on 28.03.05, when she was sitting outside her house, accused Ravi, Rajneesh, Shekhar, Raju @ Totewala along with three or four associates came and abused and inquired about Kallu, Bunty and Bittoo and when she expressed her ignorance, then they left away abusing and threatening and then she informed the police. Further more, although as per testimony of Padam Singh, he was removed to GTB Hospital by Mithlesh and his testimony in this regard finds corroboration from PW13 HC Devender Singh, who has deposed that Padam Singh came along with Mithlesh to the hospital. However, conduct of Mithlesh in this regard is worth noting, inasmuch as, she not only denied having taken Padam to hospital, she even denied that her son Kallu was injured in the incident. She could not even say, if his son Tej Prakash @ Kallu was admitted in GTB Hospital for treatment of his injuries, and S.C. No. 06/09 Page 18/41 19 whether he remained there for a period of 1520 days for treatment of his injuries, after the incident. It is impossible that a mother would not know that her son is admitted in the hospital and the duration for which he remained in the hospital, more particularly when it has come in the testimony of Padam Singh and HC Devender, it was she only who had brought Padam Singh to hospital and Kallu was admitted in the hospital and it is his own case that he had sustained injuries in the same incident for which Padam Singh and Satish @ Bittoo sustained injuries. Aforesaid discussion goes to show that three witnesses, who are members of the same family being son, mother and father have chosen not to identify any of the accused persons for reasons best known to them. The reason for not supporting the case of prosecution was tried to be highlighted by ld. Counsel for complainant, who had moved an application after final arguments were heard, for placing on record copy of FIR No. 40/07, u/s 363/302/120B IPC against Ravinder etc on the complaint of Omkar Dubey and statements made by the witnesses. This application was contested by the accused persons on the ground that it was an FIR which was registered much subsequent to the registration of the present case. Without going much into these details, keeping in view the fact that FIR No. 40/07 was got registered at the instance of PW7 Omkar Singh Dubey against PW2 Padam Singh, at a much later stage, therefore same may not be very helpful for the prosecution to show reasons why these witnesses did not support the case of prosecution.
But in view of the settled legal proposition enunciated above, that part of testimony which inspires confidence and supports the case of prosecution can be read in evidence.
24. Moreover, there is sufficient material on record to show that at the earliest available opportunity, PW3 Mithlesh took Padam Singh to hospital, S.C. No. 06/09 Page 19/41 20 which fact is fortified by the testimony of Padam Singh and HC Devender Singh. and Tej Prakash himself sustained injuries in the same incident and it was on his statement only that police machinery was set in motion and in his complaint he had given names of the accused persons with their specific roles. It was only subsequently, during his deposition before the Court that he has chosen not to support the case of prosecution by not identifying the accused persons and by stating that his signatures were obtained on blank piece of paper, but he admitted that he did not make any complaint to the higher authorities that his signatures were obtained on blank papers. Moreover, a perusal of this statement goes to show that he has given a detailed account of entire incident which is not denied by him even when he deposed in the Court. Under these circumstances, it is clear case that witnesses have chosen not to identify accused persons for reasons best known to them and to some extent the reason is subsequent registration of FIR against Padam Singh, who was one of the injured and brother of deceased.
25. As regards identity of the accused persons, Padam Singh has categorically identified all the accused persons and have specified their roles. This witness was crossexamined at great length. However, he stood the test of crossexamination. Nothing material could be elicited to discredit testimony of this witness. None of the accused are claiming any animosity, illwill or grudge against this witness. As such, there was no reason for this witness to falsely implicate accused persons in this case and allow the real culprits to go scotfree. Further more, PW4 Gopal has deposed that on receipt of telephonic message regarding receiving injuries by Satish @ Bittoo and Bunty in the quarrel, he went to hospital. He met Padam Singh @ Bunty, who informed him that Raju @ Totewala and his associates have stabbed them, resulting in death of Satish @ Bittoo and sustaining injuries S.C. No. 06/09 Page 20/41 21 by him and Kallu. To the same effect is the testimony of Harkesh Singh, who has also deposed that he received information that his sons Padam @ Bunty and Satish, and Tej Prakash, son of Omkrar received injuries inflicted by Raju @ Totewala. This part of his testimony is not challenged in crossexamination. Similarly, HC Devender Singh has testified that when Tej Prakash came to him in injured condition, he informed him that Raju @ Totewala, Shekhar, Raj Kumar @ Gola, Sanjay and Lokesh and their associates had inflicted knife blows to him and his friends. Thereafter, he along with him went to Gali No.1, Chaman Vihar, where he found Satish in injured condition and he removed both of them to GTB Hospital. This part of his testimony has not been challenged in crossexamination. Under these circumstances, there is sufficient material on record to corroborate testimony of PW2 Padam Singh that it were accused persons, who had caught hold of Padam Singh, Satish and Tej Prakash and inflicted knife injuries on their person. Injuries sustained by Satish proved fatal and he succumbed to his injuries.
26. Medical Evidence : Ocular testimony of PW Tej Prakash and PW2 Padam Singh regarding inflicting of knife blow on their person and sustaining injuries find support from medical evidence, inasmuch as, PW22 Dr. S. Kohli, CMO, GTB Hospital, has deposed that on 28.03.05 Dr. Amit Kumar Jain prepared MLC of Padam @ Bunty, which is Ex.PW22/A. As per contents of MLC, there was an incised wound present over left gluteal region, having dimension of 3cm X 1cm, which was muscle deep with active blood. Another incised wound was present over left side of perineum near anal margin, with the dimension of 3cm x 1cm muscle deep with active deep.
He further opined that injuries sustained by Padam were caused by sharp edged object and the injuries were subsequently found to be of S.C. No. 06/09 Page 21/41 22 simple in nature.
27. As per testimony of PW23 Dr. Devender Kumar, CMO, GTB Hospital, on 28.03.05 Dr. Shailesh prepared MLC of Tej Prakash and as per contents of MLC, one stab wound over left buttock was caused to Tej Prakash, having dimension of 4cm X 1cm. There was slight swelling over his upper lip.
Dr. Shailesh also examined patient Satish and prepared his MLC Ex.PW23/B. As per contents of MLC, patient was brought dead in the hospital.
28. Postmortem on the dead body of Satish was conducted by PW8 Dr. Sone Lal, who has deposed that on 28.03.05, he conducted postmortem on the dead body of Satish @ Bittoo and prepared his detailed postmortem report Ex.PW8/A. Following injuries were found on the person of deceased: (1) Stab wound 5x0.4cm was present on right lower thigh over lateral aspect placed 2cm above the midline of popliteal fossae. The wound was obliquely placed and angle of the wound was acute. The wound was 2cm lateral to midline of thigh and place 40 cm below the iliac crest. The wound goes inside the muscle of thigh in upward and medially direction and cutting the femoral vessels and coming out from the other side of lower thigh by making an exit wound in size 4X0.3cm. This wound was placed 8cm above the midline of popliteal fossae and 35cm below the pubic turbecle. The length of the track of wound was about 12cm.
29. He further opined the cause of death as haemorrhagic shock due to antemortem injuries, produced by a double sharp edged weapon and sufficient to cause death in ordinary course of nature.
30. As such, occular testimony of injured finds corroboration from medical record.
S.C. No. 06/09 Page 22/4123
31. Recovery of weapon of offence : It has come in the testimony of Inspector Gurmeet Singh that on 28.03.05, he received information that at Shiv Vihar, all the accused persons were hiding in a room located in the fields of Balbir. They reached at the field, where a room in dilapidated condition was found constructed in the field. He along with police officials went inside the room and overpowered Raj Kumar @ Gola, Raju @ Totewala, Shekhar, Sanjay and Lokesh. After interrogation, they were arrested vide arrest memo Ex.PW13/D, Ex.PW13/F, Ex.PW13/G and Ex.PW13/H. Their personal search was conducted vide memo Ex.PW13/I to Ex.PW13/M. Accused persons made disclosure statements Ex.PW13/N to Ex.PW13/R. Accused Raj Kumar @ Totewala had disclosed in his disclosure statement that he had concealed a knife under the cot in his house and he can get recovered the same. In pursuance to his disclosure statement, he led the police party to his house located at Mustafabad Enclave. He produced blood stained knife from the back room of his house, which was lying underneath the bed. The knife was converted into cloth parcel, sealed with seal of GSP and taken into possession vide memo Ex.PW13/T. Testimony of Inspector Gurmeet Singh in regard to apprehension of the accused persons, recovery of weapon of offence at the instance of accused Raju @ Totewala finds substantial corroboration from PW6 Constable Noor Mohd, HC Devender Singh (PW13) and SI Sanjeev Kumar (PW19). Despite lengthy crossexamination, nothing material could be elicited to discredit testimony of police officials.
32. It has further come in their statements that at the time of recovery of knife, independent persons from locality were tried to be joined, but none agreed. It is common experience that public persons are generally reluctant to join police proceedings. There is general apathy and S.C. No. 06/09 Page 23/41 24 indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors (mohd.) vs. State, 2010 III AD (Delhi) 133. It was observed by Hon' ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish vs. State, 2000 VIII AD (SC) 29 and in A. Bhai vs. State, AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit.
33. Moreover, there is no reason to disbelieve testimony of police officials regarding recovery of knife at the instance of accused Raju @ Totewala. Their testimony cannot be rejected merely because they happen to be police officers. As observed by the Hon' ble Supreme Court in Tahir vs. State, (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khimavs. The State of Saurashtra, AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. These two authorities were also relied upon by Hon' ble High Court in Aslam & Ors (Mohd.) vs. State, 2010 III AD (Delhi) 133.
34. Under these circumstances, in view of the corroborative testimony of police officials, it stands proved that at the instance of accused Raju @ S.C. No. 06/09 Page 24/41 25 Totewala, blood stained knife was recovered.
35. SI Sanjeev Kumar has further deposed that on 16.04.05, on the instructions of investigating officer of the case, he approached the surgeon and obtained his subsequent opinion after knife was recovered from possession of the accused Raju @ Totewala. He obtained parcel containing knife, sealed with seal of GSP from Moharrer Malkhana and took parcels to autopsy surgeon with request to examine it and give his opinion. Dr. Sone Lal (PW8) has deposed that on 16.04.2005, an application was received from SHO Gokalpuri along with one parcel containing weapon of offence. After opening the parcel, one double edged knife with wooden handle with a metallic nob on the base of the handle was found. Diagramatic representation of the weapon was given by him in his subsequent opinion ExPW8/B. After going through postmortem report finding and examination of weapon, he gave opinion that antimortem injury mentioned in postmortem report was possible with the weapon given for examination. He further opined that weapon was sufficient to cause injury mentioned in postmortem report.
36. The witness was shown knife Ex.P1 and he deposed that it is the same double edged knife, which was seen by him regarding which he gave subsequent opinion Ex.PW8/B, and the blade of the knife also bear his signatures at point 'X'.
He denied the suggestion that knife Ex.P1 is single edged weapon. Despite lengthy crossexamination, nothing material could come out to favour the case of prosecution. Under these circumstances, it further stands proved that injuries sustained by Satish @ Bittoo, Padam Singh and Tej Prakash were caused by knife Ex.P1, which was recovered at the instance of accused Raju @ Totewala.
37. Expert Evidence : As per testimony of Inspector Gurmeet Singh, when investigation of S.C. No. 06/09 Page 25/41 26 the case was entrusted to him he along with staff reached Gali No.1, Chaman Park. SI Rakesh Khari, Incharge Crime Team, along with his team was present. Blood, blood stained soil, earth control and one black vest were lifted by him from the spot. He converted these articles into separate parcels, sealed with seal of GSP and took the same into possession vide memo Ex.PW13/B. As per testimony of HC Devender (PW13), when he took injured Satish @ Bittoo and Tej Prakash to hospital, doctor took underwear and pant of Tej Prakash, sealed with seal and handed over the pullanda to him. When Padam Singh came in the hospital and was admitted, his clothes were also sealed by the doctor and pullandas were handed over to him. After he came back to the spot, he handed over sealed pullanda to Inspector Gurmeet Singh, who took the same into possession, vide memo Ex.PW13/A. After postmortem, sealed pullanda was handed over by the doctor to HC Noor Mohd., who handed over the same to IO, who seized the same vide memo Ex.PW13/C. After arrest of accused Raju @ Totewala, blood stained knife was recovered from him, which was seized and the shirt and pant of the accused were also sealed in a sealed parcel with seal of GSP and were seized vide seizure memo Ex.PW13/I. All the sealed parcels were deposited with HC Vinod (PW17), who was working as MHC(M) at the relevant time. On 06.05.05, HC Satender Singh (PW16) took 10 parcels duly sealed, five sample seals and one form of FSL from MHC(M) and took the same to FSL Rohini, vide R.C. No. 17/21 and deposited parcels in FSL Rohini in intact condition. Sealed parcels were examined by PW24 Sh. Shivnarayanan, Sr. Scientific Assistant (Biology), FSL Rohini. Description of articles contained in parcel are as follows : Parcel ' 1' : One sealed cloth parcel with the seal of 'M LC GTB HOSPITAL DELHI95' containing exhibits '1a' & '1b'.
S.C. No. 06/09 Page 26/4127 Parcel ' 1a' : One paints with belt having brown stains.
Exhibit ' 1b' : One underwear having darker stains.
Parcel ' 2' : One sealed cloth parcel sealed with the seal of ' MLC GTB HOSPITAL DELHI95' containing exhibits ' 2a' & '2b'.
Exhibit ' 2a' : One pants having darker stains.
Parcel ' 3' : One sealed cloth parcel sealed with the seal of ' GSP' containing exhibit '3 ' .
Exhibit '
3' : One banian having darker stains.
Parcel '
4' : One sealed cloth parcel sealed with the seal of '
GSP'
containing exhibit '4
' kept
in a plastic container.
Exhibit '
4' : Small pieces of stones along with earthy material
having brown stains.
Parcel '
5' : One sealed cloth parcel sealed with the seal of '
GSP'
containing exhibit '5
' kept
in a plastic container.
Exhibit '
5' : Gauze cloth piece having brown stains.
Parcel '
6' : One sealed cloth parcel with the seal of '
GSP'
containing exhibit '6
'
.
Exhibit '
6' : Pieces of stones.
Parcel '
7' : One sealed cloth parcel sealed with the seal of 'SL'
containing exhibits '7
a',
'7b',
'
7c'
& '7d'.
Exhibit '
7a'
: One Tshirt having darker stains.
Exhibit '
7b'
: One shirt having brown stains.
Exhibit '
7c' : One pants having brown stains.
Exhibit '
7d'
: One underwear having brown stains.
Parcel '
8' : One sealed envelope sealed with the seal of 'S
L'
containing exhibit '8
'
.
Exhibit '
8' : Brown gauze cloth piece described as 'B
lood on gauze'.
Parcel '
9' : One sealed cloth parcel sealed with the seal of 'SL'
S.C. No. 06/09 Page 27/41
28
containing exhibit '9
'
.
Exhibit '
9' : One weapon of offence having rusty brownish stains.
Parcel '
10'
: One sealed cloth parcel sealed with the seal ' seal of GSP' containing exhibits '10 a' & '10 b'.
Exhibit ' 10a' : One shirt Exhibit ' 10b' : One pants having brown stains.
Result of the analysis was as under : (1) Blood was detected on exhibits '1a', '1b', ' 2a' , '2b', '3', '4', ' 5', ' 7a' , '7b', '7c', '7d', ' 8' '9' & '10 b'.
(2) Blood could not be detected on exhibits '6' & '1 0a' .
(3) Report of serological analysis was as under : Exhibits Species of Origin ABO Group/Remarks '1a' Pants with belt Human ' B' Group '1b' Underwear Human ' B' Group '2a' Pants Human ' B' Group '2b' Underwear Human ' B' Group '3' Banian Human No reaction '4' Blood stained pieces Human No reaction of stones '5' Gauze cloth piece Human ' B' Group '6' Pieces of stone No Reaction .......
(Control)
'7a'
Tshirt Human 'B
'
Group
'7b'
Shirt Human 'B
'
Group
'7c'
Pants Human No Reaction
'7d'
Underwear Human 'B'
Group
'8' Blood stained gauze Human 'B'
Group
cloth piece
'9'
Weapon of offence Human 'B'
Group
'10
b' Pants Human 'B'
Group
S.C. No. 06/09 Page 28/41
29
38. A perusal of this report goes to show that it substantially corroborates the ocular testimony of prosecution witnesses and medical evidence.
39. Motive : It is the case of prosecution that on 23.03.05, an altercation had taken place between Tej Prakash and Raju @ Totewala and Anil had intervened. At that time, Raju @ Totewala had threatened to see Tej Prakash and because of this reason on 28.03.05, the incident in question had taken place. In order to prove motive, prosecution has examined PW9 Anil. However, this witness has not supported the case of prosecution and has deposed that in the year, 2005, police officials came to him and made inquiries about Kallu. However, he told them that he did not know any Kallu. Since the witness did not support the case of prosecution, he was crossexamined by the ld. Prosecutor and in crossexamination, he denied that one day before Holi festival, in the year, 2005, he had gone to Shiv Vihar and while he was coming back, Kallu met him and he gave him lift or that when they reached at phaseV, Shiv Vihar, Raju @ Totewala was standing in the lane, he stopped them and told them not to roam in this manner, to which he objected or he started abusing them. He further denied having stated to the police that when Kallu intervened, an altercation took place between Raju @ Totewala and Kallu and Raju threatened Kallu to see him later on. He was confronted with his statement Mark 'X', which he denied having made to the police. Although this witness did not support the case of prosecution, it has come in the testimony of PW1 Tej Prakash that an altercation had taken place between Anil and Raju, for which he intervened and PW2 Padam Singh had also deposed that he was informed by Tej Prakash regarding altercation between Anil and Raju and intervention of the Tej Prakash. Even if it is assumed that in S.C. No. 06/09 Page 29/41 30 view of the fact that PW Anil has not supported the case of prosecution and therefore motive to commit crime is not fully established. Even them the same is not fatal to the case of prosecution, inasmuch as, prosecution case stands proved from the testimony of eyewitness, who has been found to be truthful and reliable. That being so, motive assumes secondary role. For holding this view, I am fortified by AIR 1947 SC 1593, Mehar Lal Arora and another vs. State of Maharashtra and AIR 1988 SC 192, Surender Narayan @ Manu Pandy vs. State of U.P.
40. Result of the aforesaid discussion is that prosecution has been able to establish beyond reasonable doubt that on 28.03.05 at about 7.45pm at Gali No1, Chaman Park, Delhi, accused persons caused stab injuries to Tej Prakash @ Kallu, Satish @ Bittoo and Padam @ Bunty.
41. It is now to be seen what offences were made out.
42. As regards Satish @ Bittoo is concerned, it stands established beyond reasonable doubt that stab injuries were caused on his person, which proved fatal.
43. Now question for consideration comes as to whether offence u/s 307 read with section 34 IPC is made out against the accused or not for causing injuries on the person of Padam Singh?
44. To constitute an offence under section 307 IPC, it is sufficient if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, S.C. No. 06/09 Page 30/41 31 irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof.
For holding this view, I am fortified by : (1) (2006) 8 SCC 799, Vipin Bihari vs. State of MP; (2) (2004) 6 SCC 485, Bappa @ Bapu vs. State of Maharashtra and another;
(3) (2003) 10 SCC 434, State of Maharashtra vs. Kashi Rao and others; (4) (2004) 12 SCC 220, Hari Mohan Mandal vs. State of Jharkhan; and (5) 2010 III AD (Delhi) 198, Surender Kumar Sharma vs. State.
This being the legal position, the intention can be deduced not only from nature of injuries caused, but also from other circumstances. In the instant case, the intention of the accused persons is manifest from the fact that they inflicted injuries on the person of as many as three persons and the weapon of offence used was a knife, which proved fatal so far as Satish @ Bittoo is concerned, even as per MLC of Padam, there was an incised wound present over left gluteal region, having dimension of 3cm X 1cm, which was muscle deep with active blood, besides an incised wound over left side of perineum near anal margin with dimension of 3cm X 1cm muscle deep with active bleed. Similarly, as per MLC of Tej Prakash, he had sustained one stab wound over left buttock having dimension of 4cm X 1cm. Although, the nature of injuries on both the injureds were opined to be simple in nature, but in view of the legal proposition enunciated above, the requisite intention is manifest. It was per chance that both these injured had providential escape, while one of them succumbed to injuries. Under these circumstances, although charge for offence u/s 307 IPC stands proved qua both injureds, however as regard Tej Prakash is concerned, S.C. No. 06/09 Page 31/41 32 charge has been framed u/s 324 IPC only. Keeping in view the fact that case is already pending trial since the year, 2006 it will not be desireable to amend the charge. Moreover, in any case the offence of 302 IPC stands already proved qua all the accused persons.
45. Another charge against the accused is under section 341 IPC. It has come on record through the testimony of Padam Singh that all the accused persons voluntarily obstructed him along with Tej Prakash and Satish, when latter were proceeding towards Chaman Park, Gali No.1. Consequently, offence u/s 341 read with section 34 IPC also stands proved against all the accused persons beyond reasonable doubt.
46. Now, it has to be seen whether section 34 IPC is attracted or not. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of section 34, be it prearranged or on the spur of the moment: but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has S.C. No. 06/09 Page 32/41 33 done it individually by himself. As observed in Ashok Kumar vs. State of Punjab, AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy vs. State of A.P., 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused.
The above position was highlighted in Girija Shankar v. State of U.P., 2004 (3) SCC 793.
47. In view of this legal position, in the instant case, there is ample material on record to prove that all the accused persons shared common intention. That being so, although actual stabbing is done by accused Raju @ S.C. No. 06/09 Page 33/41 34 Totewala, but all the accused are liable for his acts which resulted into death of Satish and injuries to Padam Singh and Tej Prakash.
48. Result of the aforesaid discussion is that prosecution has been able to establish beyond reasonable doubt that on 28.03.05 at about 7.45pm at Gali No1, Chaman Park, Delhi, all the accused persons in furtherance of their common intention wrongfully restrained the complainant Tej Prakash @ Kallu, Satish @ Bittoo (since deceased) and Padam @ Bunty and committed murder of Satish @ Bittoo, and caused stab injuries on the person of Padam @ Bunty and Tej Prakash with such intention or knowledge and under such circumstances if by that act they would have caused their death, then they would have been guilty of an offence of murder and thus committed offence of attempt to murder.
49. Now coming to the defence of accused, all the accused persons except accused Rajneesh @ Rajnikant have taken a plea that they were lifted from their houses and falsely implicated in this case. In order to substantiate this plea, accused persons have examined Ram Pal Sharma (DW1), Laxmi Singh (DW2), Pratap Singh (wrongly mentioned as DW2), Smt. Hemlata (DW3), Radhey Shyam (DW4), Vijay Kumar (DW5), Chander Pal Singh (DW6), Chander Pal (DW7), Surender (DW8), Dr. Pradeep Kumar (DW9) and Kiran Pal (DW10) . All these witnesses have deposed that accused persons were taken from their house and thereafter implicated in this case. Their bald plea does not inspire confidence, inasmuch as, all these witnesses in their crossexamination have admitted that no complaint was made by any of them to any of the superior authorities that accused persons have been lifted from their house, and thereafter falsely implicated in this case. Moreover, accused persons have not alleged any enmity against police officials and as such they had no axe to grind to falsely implicate the accused persons in this case.
S.C. No. 06/09 Page 34/4135
50. Accused Rajneesh has taken a plea of alibi. According to him, he had gone to a village in Distt. Bulandshahar, UP, on 24.03.05, where he suffered from typhoid and remained under treatment since 27.03.05 till 30.03.05 in Primary Health Centre Muner, Distt. Bulandshahar, U.P. In order to prove this plea, he has examined DW1 Smt. Vijay, wife of Ram Pal, who has deposed that on 30.03.05 accused Rajneesh was present at village Muner. She was Pradhan of that village and accused Rajnikant @ Rajneesh had come to the house of his bua in village Muner, where he fell ill for two or three days and later on he was admitted in government hospital. According to her, she had given a certificate to this effect, which is mark 'A'.
In crossexamination, although she claims that Rajnikant is known to her as resident of Shiv Vihar in Delhi, but admitted that even on the date when she issued certificate Mark 'A', she was not aware about house number and other particulars of accused Rajneesh @ Rajnikant. Moreover, although she claims that certificate Mark 'A' is written by her only, however she admitted that she is illiterate. It is surprising that although the witness was very emphatic in stating that Rajneesh @ Rajnikant had come to her bua's house on 24.03.05, where he fell ill and got admitted in hospital on 27.03.05 till 30.03.05. In crossexamination, she could not tell the date of Holi or Diwali festival. However, she admitted that she herself fell ill in the year, 2009, but could not tell the date when she fell ill. Further more, according to her, although she was Pradhan of village, however, entire work of Pradhan was being looked after by her husband. Again, although she states that Rajnikant remained in hospital, but she could not tell the name of the doctor, who gave treatment to him. She admitted that she did not make any complaint to the effect that Rajnikant was present at her village or that he has been falsely implicated in this case. Under these circumstances, her testimony does not inspire S.C. No. 06/09 Page 35/41 36 confidence.
Accused has also examined DW3 Hem Lata, who is his bua. She has deposed that Rajnikant came to her village Muner on 24.03.05 and after three or four days he fell ill and thereafter he was got admitted in government hospital for four days and was discharged on 30.03.05. This witness also, in her crossexamination, deposed that she also fell ill during last two or three years, but could not tell dates when she fell ill. She could not produce any document to prove that Rajnikant was admitted in government hospital of village Muner. Although, she deposed that she had given in writing to the concerned authorities that accused Rajnikant was admitted in hospital and falsely implicated in this case, but could not produce any such complaint/documents in writing. Under these circumstances, testimony of this witness also does not help the accused.
51. DW9 Dr. Pradeep Kumar, Medical Officer, Incharge has deposed that he was posted at PHC, Muner Bulland Shahar, U.P., as medical officer from 2002 to 2007. Accused Rajnikant came to PHC Muner on 27.03.05 and got done his treatment till 30.03.05 as he was diagnosed having typhoid. During this period he used to come PHC, Muner. He issued medical certificate Ex.DW9/B and also gave an affidavit to that effect, photocopy of which is Ex.DW9/C. In crossexamination, he admitted that Rajnikant was admitted at PHC, Muner, Bullandshahar, U.P. He could not produce any document to the effect that accused Rajnikant came at PHC and was examined by him on 27.03.05. He admitted that a register is maintained regarding treatment of the patient, where names, parentage, address and illness from which the patient is suffering are mentioned. However, that register was not brought by him. He also could not produce any document to show that patient was referred by him to undergo some test somewhere else. He admitted that as per norms of Medical Council of S.C. No. 06/09 Page 36/41 37 India, a doctor has to maintain a register regarding issuance of medical register to the patient and that only after entering details in that register, medical certificate can be issued to the patient. He also admitted that signatures of the patient are required to be obtained regarding issuance of certificate. However, that medical certificate was not produced. He also admitted that normally no affidavit is given along with medical certificate to the patient. It was very unusual on the part of the witness to furnish his own affidavit. The oral testimony of this witness was not corroborated by any documentary evidence, viz register maintained by hospital regarding examination of patient or register regarding issuance of medical certificate. Under these circumstances, oral testimony of the witness does not inspire confidence.
52. DW10 Kiran Pal brought record pertaining to original emergency record register from Primary Health Centre at Muner, Bulandshahar. As per its record, one patient, namely, Rajnikant R/o Muner was examined by the doctor on 27.03.05, vide entry at Sr. No. 230. He was diagnosed as suffering from typhoid and was advised three days bed rest. He proved photocopy of register Ex.DW10/A. In crossexamination, the witness admitted that cover of register and papers are in separate condition. The name of the medical incharge, PHC, who has signed on the first page is not mentioned. He also admitted that on page No.1 of the register, certificate regarding page is fresh and it has also another certificate on page No.2, where also medical officer has affixed his seal, but does not sign. Sr. No. 220225 of page No.6 were left blank and had only date from 15.03.05 to 29.03.05 is mentioned, but no entry has been mentioned against these entries. He could not say, if patient remained admitted at PHC or not. He also admitted that register maintained regarding issuance of medical certificate for the patient and details regarding issuance of S.C. No. 06/09 Page 37/41 38 medical certificate are mentioned in a register. He did not bring the same. Under these circumstances, it seems that register produced by him was not maintained in the ordinary course of nature and no reliance can be placed upon the same, keeping in view the fact that entries are left blank and where stamp is affixed signatures of doctor is not obtained.
53. Result of the aforesaid discussion is that none of the defence witnesses examined by this accused help him. Moreover, this plea of alibi has seen light of the day at the fag end of the proceedings, inasmuch as, no such plea was taken, when PW2 Padam Singh, who has clearly identified him to be one of the assailants, no suggestion was given that he was not even present in Delhi. Similarly, PW3 Mithlesh although has been declared hostile, even this witness has deposed regarding the visit of this accused to her house on 28.03.05, along with coaccused persons and no suggestion was given to this witness that he had not come to her house. Under these circumstances, accused has failed to prove the plea of alibi.
54. In view of foregoing discussions, I hold that prosecution has been able to bring home guilt of all accused beyond any shadow of doubt. As such, all the accused persons are held guilty and convicted for offences punishable under section 341, 302, 307 and 324 read with section 34 IPC.
Announced in the Open Court (Sunita Gupta) On this 6th day of May, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 06/09 Page 38/4139 IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 06/09State Vs. 1. Raj Kumar @ Gola S/o Rajpal Sharma, R/o B358, Gali No.6, Near Ramnaresh Public School, Mahalaxmi Enclave, Delhi.
2. Raj Kumar @ Totewala S/o Ramesh Chand, R/o A17, G. No.1, Mahalaxmi Enclave, Delhi.
3. Lokesh Kumar S/o Surender Singh, R/o B310, G. No.12, Mahalaxmi Enclave, Delhi.
4. Sanjay Kumar S/o Deshraj Singh, R/o A224, Gali No. 7, Mahalaxmi Enclave, Delhi.
5. Shekhar S/o Vinod, R/o Gali No.5, Choteylal Wali Gali, PhaseV, Shiv Vihar, Delhi.
6. Rajneesh @ Rajnikant S/o Jagdish Prashad, R/o 346, Gali No.4, PhaseV, Shiv Vihar, Delhi.FIR No. 180/05
PS Gokapuri U/s 341/302/307/34 IPC.
Date of Institution : 06.01.09 Date on which reserved for Order : 06.05.2010 Date of Decision : 18.05.2010 ORDER ON THE POINT OF SENTENCE : Leniency in punishment has been claimed by Sh. S.R. Raghav, Advocate, on behalf of convict Lokesh, Sanjay and Raj Kumar @ Gola. He claimed that convict Lokesh was a young boy aged about 18 years on the date of incident. He has yet to start his life. In case he is awarded severe punishment, then his life would ruin. He also submits that Lokesh is not a previous convict and is the only member in his family to support it.
2. Sh. S.R. Raghav, Advocate, also claims leniency on behalf of convict Sanjay, pleading that he was a young man aged about 21 years on the date of incident. He has to support his wife and a minor child. In case, he is awarded severe custodial sentence, then his family would starve. He S.C. No. 06/09 Page 39/41 40 claims that this convict also is not a previous convict. He also claims leniency on behalf of convict Raj Kumar @ Gola, submitting that he was aged about 20 years at the time of incident. He has old aged parents to look after. In case he is awarded custodial sentence, then his parents would die in grief of their desolate son.
3. Sh. Gopal Sharma, Advocate, submits that convict Shekhar is not a previous convict. This is the first offence committed by him. Since he is saddled with his family responsibilities, as such he be dealt with leniency. Sh. Manoj Sharma, Advocate, has also claimed leniency on behalf of convict Rajneesh @ Rajnikant, pleading that he has a small child, besides his wife and old aged parents to look after.
4. Sh. V.K. Singh, Advocate, has also submitted that convict Raj Kumar @ Totewala be dealt with leniency while awarding sentence to him.
5. On the other hand, ld. Prosecutor submitted that none of the convict deserves any leniency, keeping in view the gravity and seriousness of the offence.
6. Needless to say, offences committed by the accused persons are very grave and serious in nature, inasmuch as, in furtherance of their common intention, they stabbed Satish @ Bittoo, Padam Singh and Tej Prakash. While Padam Singh and Tej Prakash sustained injuries, Satish @ Bittoo succumbed to injuries.
7. However, keeping in view the fact that present case does not fall in the category of rarest of rare case, coupled with the mitigating circumstances surrounding the convicts, I sentence them as under : (1) For offence u/s 302 IPC, they are sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/ each. In default of payment of fine, they would further undergo RI for one year each.
S.C. No. 06/09 Page 40/4141 (2) For offence u/s 307 IPC, they are sentenced to undergo RI for 7 years each and to pay a fine of Rs.3,000/ each. In default of payment of fine, they would further undergo RI for six months each. (3) For offence u/s 324 IPC, they are sentenced to undergo RI for two years each and to pay a fine of Rs.1,000/ each. In default of payment of fine, they would further undergo RI for one month each. (4) For offence u/s 341IPC, they are sentenced to undergo RI for one year each.
8. Substantive sentences awarded to convict persons shall run concurrently. Convict persons shall get benefit of period already undergone in detention during investigation and trial of the case. Fine, if recovered, a sum of Rs.30,000/ be given to injured Padam Singh. A copy of judgement and order on sentence be supplied to them free of cost.
Announced in the Open Court (Sunita Gupta) On this 18th day of May, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
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