Delhi District Court
Sc No.6542/16, State vs . Sumeet @ Akki Etc., Fir No.477/2013, Ps ... on 20 April, 2019
In the Court of Sh. Ajay Kumar Jain,
Additional Sessions Judge02, South District, Saket, New Delhi.
Session Case No. 6542/2016
In the matter of :
State
Versus
1. Sumit @ Akki @ Akshay (In J/C)
S/o Late Sh. Sanjay
R/o H. No. RZ534/24, Tuglakabad Extension
New Delhi.
2. Panchi @ Panchpal (In J/C)
S/o Anant Singh
R/o K1/1810, Sangam Vihar,
New Delhi.
FIR No. : 477/2013
Police Station : Sangam Vihar
Under section. : 302/34 IPC
Date of assignment : 05.05.2014
Reserved for judgment : 18.04.2019
Date of decision : 20.04.2019
JUDGMENT
1. Prosecution case as per chargesheet in brief that on receiving DD No. 5A dated 30.10.2013 SI Kishan Gopal alongwith Ct. Bajrang reached the spot i.e. K 19/642 Sangam Vihar where found that injured was already taken to AIIMS Trauma Center by PCR, however no eye witness was found. At AIIMS Trauma Center, injured Shahnawaz was found to be under treatment in operation theater, eye witness Sunny Kumar Gupta was also found present, thereafter, his statement was recorded in which he alleged that he runs a video cassette shop in Bhogal, and today he alongwith his friend Shahnawaz Ali and Ashwani took beer, then, at about 12 a.m, SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 1 of 31 when they reached Sangam Vihar on motorcycle. Shahnawaz asked him to drop at Street no. 8 as he has to collect committee from Nadeem. Thereafter, he was dropped there and then they reached K block Sangam Vihar where they found some boys gambling. They also started gambling and within ten minutes, Shahnawaz also came and started watching the gambling, in the meanwhile, one boy aged around 2025 years insisted him to play gamble, however Shahnawaz refused to play. Thereafter, that boy when tried to take him forcibly by holding his hands, then, scuffle ( hathapai) took place between Shahnawaz and that boy, then said boy called boys standing at some distance and asked Panchi to come. Thereafter, three boys came running towards him. Accused Panchi, to whom he knew prior to the incident was having knife. He can identify all other accused persons. He further stated that the boy who had scuffle with Shahnawaz was having stars engraved on the left side of the neck. Thereafter, those boys caught hold of Shahnawaz and Panchi inflicted knife injuries, and on seeing this, he and Ashwani got frightened and ran away, however came back after 30 minutes and found number of public persons gathered there and injured Shahnawaz was lying near the naali ( drain). He noticed that blood was oozing out from the chest and stomach of Shahnawaz. He then took out his sky coloured baniyan and tied it over his chest and stomach. The nearby persons informed that they have already called the PCR. PCR van came and he alongwith Ashwani, shifted injured Shahnawaz in the AIIMS Trauma Center. Pursuant to his statement, FIR u/s 307 IPC was registered.
2. During investigation, site plan was prepared. Crime Team was called. Photographs were taken. Blood in gauze was taken. Vide DD no. 13A dated 30.10.2013, it was informed that injured Shahnawaz @ Ali died during treatment, therefore, offence u/s 302 IPC was added. Post mortem over the body of deceased was conducted. On 01.11.2013 on the pointing out of Sunny Gupta, accused Panchi @ Panchpal Chauhan, Sumit @ Akki, Kuldeep and Suraj @ Pota were apprehended, thereafter, the eye witness Sunny Gupta apprised that Sumit @ Akki, Kuldeep and Suraj @ Pota had caught hold of his friend and Panchi @ Panchpal inflicted number of stab injuries. Thereafter, the disclosure statement of all the accused persons was SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 2 of 31 recorded. Accused Sumit @ Akki disclosed that on the intervening night of 29/30.10.2013, he had come to meet his friend Panchi where he also met Kuldeep and Suraj @ Pota. Thereafter they went to K block for gambling. They also took beer, during gambling, they had altercation with one boy to whom he did not know prior to the incident. That boy slapped him, thereafter, a quarrel took place and he called his friend, Panchi, Kuldeep and Suraj, and then Kuldeep and Suraj caught hold of that boy, and Panchi @ Panchpal inflicted number of knife injuries on his body. While running from the spot, Panchi handed over the knife to him which he had thrown behind the jungle of Ramleela ground. The disclosure statement of other accused persons were also recorded. Police also recorded the supplementary statement of eye witness Sunny Kumar regarding the apprehention of accused persons at his instance.
3. During investigation, IO also recorded the statement of eye witness Ashwani Kumar who also stated that when Shahnawaz was seeing the gambling, one boy forcibly tried to took him away, thereafter hathapai took place, then that boy called Panchi who came with a knife, and the boy with whom hathapai had taken place having stars on left side of his neck, thereafter, the said boy inflicted knife injuries, and in the state of fear, he alongwith Sunny ran away from that place, however came after 30 minutes and found injured lying near a naali and public persons also gathered there. Thereafter PCR took the injured to the hospital. Police, during investigation, also recorded the statement of another eye witness Harish Gupta who stated that accused Sumit @ Akki forced Shahnawaz to play gambling, however when he refused, hathapai took place. In the meanwhile, Sumit @ Akki called Panchi. Thereafter, Panchi, Suraj @ Pota and Aditya came. Panchi was having knife. Then, Sumit, Kuldeep and Suraj caught hold of Shahnawaz and Panchi inflicted knife injuries, however, due to fear, he ran away from that place. Police also recorded the statement of Nadeem Ahmed with whom Shahnawaz was having committee and also of Soni @ Shabana, wife of the deceased, who stated that in the night, at about 12.00 a.m she called her husband Shahnawaz who stated that whenever he will come, he will call her prior to that and asked her to keep the food ready. Thereafter, she received the SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 3 of 31 call of Sunny that her husband has been inflicted knife injuries, then she alongwith her mother reached AIIMS Trauma Center at about 3.00 a.m where her husband died during treatment at about 6.30 a.m.
4. During investigation, one open buttondar knife was recovered from the jungle at the instance of accused Sumit @ Akki. The PCR call form was collected. As per post mortem report, the cause of death was due to multiple injuries caused by sharp weapon. However, during investigation, accused Suraj @ Pota was found juvenile. The subsequent opinion over the knife was also sought. The statement of eye witness Sunny was also recorded u/s 164 CrPC. On completion of investigation, chargesheet against accused Panchpal Chauhan @ Panchi, Sumit @ Akki and Kuldeep was filed.
5. Ld. MM during enquiry found accused Kuldeep juvenile and sent him to JJ Board vide order dated 02.04.2014.
6. On committal, vide order dated 24.07.2014, charges u/s 302/34 IPC and Section 25(1)(b) r/w Section 4 of Arms Act were framed against accused Sumit @ Akki. Accused Panchpal Chauhan @ Panchi was charged for offence u/s 302 IPC and u/s 25(1)(b) r/w Section 4 and 27 of Arms Act. Both the accused persons pleaded not guilty and claimed trial.
7. Prosecution for substantiating its case examined 30 witnesses. PW3 Sunny Gupta is the eye witness to the incident. PW4 Mukesh Kumar who reported the matter to PCR. PW6 Soni @ Shabana is the wife of deceased. PW14 Nadeem Ahmed with whom deceased Shahnawaz was running a committee/chit. PW29 Insp. Shahid Khan is the IO. PW23 SI Kishan Gopal who reached the spot and recorded the statement of eye witness in the hospital and prepared rukka. PW1 Dr. Pradeep Yadav conducted the post mortem on the body of deceased. The summary details of their deposition is reproduced as under:
8. PW3 Sunny Gupta stated that on the intervening night probably 30.10.2013 or 01.11.2013, he alongwith his friend Shahnawaz @ Ali and Ashwani took beer at Gali no. 14 at around 10/10.30 p.m. Thereafter, they went to Sangam Vihar on his bike. Shahnawaz got down at Gali no. 8 in order to know the status of his committee with one Nadeem, then he alongwith Ashwani reached Gali no. 19 where he found 3 SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 4 of 31 4 boys playing gambling. He alongwith Ashwani remained standing near the boys and within 1015 minutes, Shahnawaz also reached there, and one of the boy asked Shahnawaz to play gamble with them but Shahnawaz refused to play, thereafter, scuffling took place, and the said boy called another boy namely Panchi. Panchi rushed towards Shahnawaz and he alongwith Ashwani tried to take away Shahnawaz from there, however, Panchi inflicted knife injuries on the chest and abdomen of Shahnawaz. He identified accused Panchi present in the court. He further stated that he is unable to recollect whether the other accused Sumit @ Akki is present or not. However, Sumit @ Akki was having stars engraved on right side of his neck. He further stated that stab injuries were only inflicted by accused Panchi and two person caught hold of Shahnawaz when he was stabbed. On seeing stabbing scene, he alongwith Ashwani left the spot due to fear and came back after 1520 minutes and saw Shahnawaz lying on the earth and blood was oozing out from his chest and abdomen. He put his baniyan and tied the wounds. Someone had already called the police at 100 number, thereafter, PCR reached, then he alongwith Ashwani took Shahnawaz to the AIIMS Trauma Center in PCR van. Police recorded his statement in the hospital. On the next day, his statement was also recorded by the Magistrate. He however stated that the knife shown to him is not the knife which was used by accused. He further stated that he pointed out the place of occurrence to the police. Police arrested both the accused in his presence. Police recovered the knife at the instance of accused Panchpal @ Panchi. On being allowed leading question over the identification of accused Sumit @ Akki, knife and location of stars on the neck of accused Sumit, stated that it is correct that accused was arrested from Ramleela ground, and he identified accused Panchi only and not others. However his statement was recorded on that day and name of accused Sumit @ Akki was revealed after his arrest. He further stated that accused Sumit had only caught hold of deceased alongwith 23 others. He further stated that due to lapse of time, since he had not seen the accused Sumit @ Akki before the incident, therefore, could not recognize him earlier. He further identified his blood stained vest which he was wearing at the time of assault.
SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 5 of 31
9. In crossexamination stated that deceased Shahnawaz @ Ali was his friend for last ten years and they used to take beer together at the shop in Govind Puri. He further stated that the incident pertains to the intervening night of 26/27, and they reached KBlock, Sangam Vihar at about 11.00/11.30 p.m. There were around 1420 boys who were gambling in KBlock in different groups however he do not know the name of said boys, and they could not join the group which was gambling as fight erupted before they could start gambling. He stated that Shahnawaz came to the spot of gambling after 15 minutes of his reaching there. The quarrel had started among other boys present there for gambling. He further stated that he and Ashwani had not gone to the place of gambling, and waited for deceased Shahnawaz, and only after the arrival of Shahnawaz, they all three proceeded to the place of gambling. He further stated that he do not know any person by the name of Harish Gupta. He further stated that quarrel took place after about 510 minutes of their arrival at the spot, and he had not met accused Panchpal Chauhan @ Panchi prior to the incident, and accused Panchi reached the spot after the quarrel was initiated which continued for 23 minutes. He further stated that he did not call anyone for help or raised alarm rather left the place. There was no noise on account of the fight. He further stated that he and Ashwani had ran away the distance of around 4050 meters from the spot, and remained there for around 10 minutes. He further stated that when they came back to the spot, there was gathering of many public persons however police had not reached there but reached the spot at around 11.30/11.35 p.m, and reached the hospital at about 12.45 a.m, in between PCR van also met road accident. Ashwani was also present in the PCR van. PCR official did not enquire anything from Shahnawaz. He further stated that he is not aware whether doctor had noted his name or name of Ashwani as the person who brought the injured Shahnawaz to the hospital. He further stated that he cannot tell the name of the police official who retained him however he was enquired and statement was reduced into writing by him. No other police official made enquiry from him and thereafter, his statement was not recorded in the hospital, and he remained in the hospital for about 5/10 minutes. Ashwani returned back from the hospital in the morning and in his presence, no police official recorded the SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 6 of 31 statement of Ashwani. He left the hospital with police official at about 1.30 a.m to P.S where he remained till morning and Ashwani also reached there at about 5.30 a.m. He further stated that his statement was again recorded at P.S, while the other statement was already recorded in the hospital. He remained in P.S till 89 a.m, thereafter, he returned to his house. He further stated that he do not remember if he left with the police for any place between 5.30 a.m to 8/9 a.m on 01.11.2013. He denied suggestion that accused Panchpal was not arrested in his presence. He also denied the suggestion that he was not present on the spot at the time of incident. He also denied suggestion that accused Sumit @ Akki was not arrested in his presence. He also denied suggestion that accused Sumit @ Akki not recovered anything in his presence.
10. PW4 Mukesh Kumar stated that on the intervening night of 29/30.10.2013 at about 1.30/2.00 a.m, he woke up to attend the call of nature however heard the noise of a boy saying Bachao Bachao. He saw one boy lying in pool of blood. He called the police from his mobile phone. After sometime, PCR reached the spot and took the injured Shahnawaz to the hospital. In crossexamination stated that when he came out of his house 56 public persons were present and in his presence, no one shifted the injured from that place to other place. He cannot tell the names of public persons who gathered there, and when PCR van reached there, many public persons had gathered there. He stated that after injured was taken away, he came inside his house.
11. PW6 Smt. Soni @ Shabana, wife of the deceased stated that at around 11.00 p.m, she received a call from her husband that he was going with his friend Sunny and Ashwani to Nadeem for collecting the money of committee, thereafter, she called him at about 12.00 a.m, he replied that he would reach within five minutes and asked her to warm the food as he is in Sangam Vihar, and thereafter, she received a call from Sunny that he has been stabbed with knife and asked her to reach AIIMS Hospital. Thereafter, she alongwith her mother reached trauma center at about 3.00 a.m, and found her husband in operation theater. At around 6.30 a.m, doctor informed them that her husband has died.
12. PW7 Shamshad Ansari, father of the deceased identified his dead body.
SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 7 of 31 PW8 Harish Gupta stated that around 1 ½ years back, when he woke up in the morning, he came to know that some quarrel had taken place but he did not witness any quarrel. On being declare hostile, in crossexamination by Ld. Addl. PP denied suggestion that he has witnessed the incident. He also denied suggestion that he used to charge from the gambler for using his premises for gambling. He further denied that accused Sumit @ Akki, Panchpal @ Panchi, Kuldeep and Suraj were working for him for any untoward incident. He further stated that he had not been booked for offence of gambling, and police had not inquired from him about gambling. PW10 Sarfaraz stated that on 29.10.2013, he received an information from his bhabhi Soni that his brother died due to assault from knife, thereafter they reached the hospital and also informed his father at Bhagal Pur. PW14 Nadeem Ahmed stated that Shahnawaz obtained a chit on deficient amount of Rs.6,000/, and came to collect money on 20.10.2013, and he had given him Rs.45,000/. He told him to give the entire amount by 05.11.2013, thereafter on 29.10.2013, he went to Amroha by taxi, and on the next day, received the call that Shahnawaz @ Ali has been murdered. In crossexamination stated that he had gone to Amroha leaving his mother, father and younger brother at home, and returned back from Amroha at around 10.00 a.m on the next day, and came to know about the murder of Shahnawaz from police.
13. PW27 SI Kishan Gopal stated that on receiving DD No. 5A regarding stabbing by three boys, he alongwith Ct. Bajrang reached the spot, and found injured already taken by PCR van. He did not find any witness to the incident, thereafter went to AIIMS trauma Center where he met Sunny and recorded his statement. He prepared rukka and gave the same to Ct. Bajrang for registration of FIR, and then came back to the spot with the complainant. Crime Team was also called. ( Sunny did not state that he accompanied the IO to the spot). Crime team inspected the spot and took the photographs. From the spot, blood samples were seized. DD No. 13A was received regarding the death of Shahnawaz, thereafter, he made request for preservation of dead body and added section 302 IPC, and handed over the case file to Insp. Shahid Khan. In crossexamination stated that they reached the spot at about SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 8 of 31 2.30 a.m on 30.10.2013 and 15/20 public persons were present at the spot. No police official met him at the spot, then within 10/15 minutes left for AIIMS Trauma Center with Ct. Bajrang and reached there at about 3.15 a.m. He further stated that one or two boys were with Sunny but did not enquire those boys and cannot tell their names. He recorded the statement of Sunny only in the hospital. He reached the spot at about 5.00 a.m. He further stated that when he accompanied Sunny to the spot from hospital his one or two associates were not with them, and crime team carried out the proceedings in his presence. He denied the suggestion that crime team did not visit the spot or did not inspect the spot. In crossexamination stated that he went to the place of incident on his motorcycle, and he has not interrogated the owner of the house which was situated in front of the place of incident, and he did not seize the clothes of Sunny. He also stated that he do not know if there were blood stains on the clothes of Sunny or not. He also denied suggestion that Sunny did not make any statement in the hospital. PW29 Insp. Shahid Khan/IO stated that on 29/30.10.2013, he was SHO in the police station. SI Kishan Gopal and Ct. Bajrang were sent to spot. In the hospital, SI Kishan Goptal met eye witness Sunny Gupta, thereafter, FIR was registered. After addition of Section 302 IPC, he took over the investigation. He could not apprehend accused Panchpal on 30.10.2013, thereafter, in the police station, he met Ashwani Kumar and Harish Kumar Gupta and recorded their statements. Thereafter, at the instance of Sunny Gupta, apprehended accused Panchpal @ Panchi, Sumit @ Akki, Kuldeep and Suraj @ Pota. At the instance of accused Sumit @ Akki, during investigation on 02.11.2013, a buttondar knife was recovered having blood stains on it. Accused Suraj @ Pota was found juvenile. In crossexamination stated that eye witness Sunny Kumar did not met SI Kishan Gopal in his presence in the hospital. Rukka was not sent in his presence and he took over the investigation at around 10/10.30 a.m. He further stated that Ashwani Kumar and Harish Kumar Gupta were not with him during the personal search of accused Panchi. He made enquiries from both at about 5.00 p.m on 30.10.2013, but both do not know his address, however both knew accused for the last many days. On 01.11.2013, Sunny Gupta came to PS at about 4.00 a.m alone, thereafter, at his SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 9 of 31 instance, accused persons were arrested. Recovered knife was not sent to FSL. He further stated that they went to pahadi wala in gypsy which was parked around 150 meters away where the accused persons were present, and reached the place of incident at about 9.30 a.m with accused. He denied suggestion that place of recovery of knife was a thoroughfare, however no photograph of the recovered knife was taken, and knife was recovered at about 11.30 a.m. He denied suggestion that Sumit @ Akki was arrested from his house.
14. PW1 Dr. Pradeep Yadav conducted the post mortem of the deceased Shahnawaz and also given subsequent opinion over the weapon of offence. PW2 Ct. Ashwani, crime team photographer stated that at the spot, he found blood, and at the instance of SI Krishan Kumar clicked the photographs. In crossexamination stated that at that time, no public person was present. PW5 Virender Yadav stated that on that day, at about 2.00 a.m, he received a call from CATS Control Room, he thereafter reached House No.6, Gali no. 19, and saw PCR van taking the injured to the hospital, then, injured was shifted in Ambulance from PCR van and taken to AIIMS Trauma Center. PW9 Dr. Shashikant Singh exhibited the MLC of deceased Shahnawaz. PW11 WSI Kanchan Mala, Duty Officer who recorded DD no. 13A regarding the death of injured Shahnawaz. PW12 Insp. Krishan Kumar, Crime Team Incharge who exhibited the crime team report. PW13 ASI Om Prakash Duty Officer stated that he recorded DD no. 5A regarding caller beaten and stabbed by three boys, thereafter, recorded the FIR. PW15 HC Kharak Singh, PCR official who reached the spot where CAT ambulance also reached and thereafter injured was taken to the hospital. In crossexamination stated that at the spot, he also met one boy who claimed himself to be the friend of injured. PW16 Ankit Singhla, Ld. MM recorded the statement of eye witness Sunny Kumar Gupta u/s 164 CrPC. PW17 ASI Satya Prakash was the witness to the arrest of accused Panchpal @ Panchi, Sumit @ Akki, Kuldeep and Suraj @ Pota and recovery of buttondar knife at the instance of accused Sumit @ Akki. PW18 Ct. Babita PCR official who exhibited the PCR form. PW19 ASI Sanjay Tyagi MHC(M) who exhibited the malkhana entries. PW20 ASI SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 10 of 31 Hari Ram also witness to the arrest of the accused persons. PW21 Ct Gaurav was also witness to the arrest of accused persons. PW22 Ct Mohinder collected the blood in gauze as well as sample seal. PW23 Ct. Rakesh Kumar Meena is the witness in whose presence the dead body was handed over to the family of deceased. PW24 HC Hari Om deposited the exhibited in FSL, Rohini. PW25 HC Bajrang accompanied SI Kishan Gopal to the spot. PW26 Insp. Mahesh Kumar prepared the scaled site plan of the place of occurrence. PW28 SI Vikram Singh was associated with the IO during investigation at the time of arrest and recovery of knife through the accused PW30 Ms. Sunita Gupta, Senior Scientific Officer who exhibited the biological and sereological report.
Material Exhibits
15. Ex. PW 3/A is the statement of Sunny Kumar Gupta. Ex. PW 27/A is the rukka. Ex. PW 13/B is the endorsement over rukka. Ex. PW 13/C is the FIR. Ex. PW 13/A is DD no. 5A dated 30.10.2013 recorded at about 2.00 a.m regarding three boys beating and causing stab injuries to the caller. Ex. PW 13/A dated 30.10.2013 recorded at about 8.30 a.m at P.S regarding intimation of death of injured Shahnawaz. Ex. PW 3/B is the statement of PW3 u/s 164 CrPC. Ex. PW 27/B is the rough site plan of the place of occurrence. Ex. PW 9/A is the MLC of injured. Ex. PW 26/A is the scaled site plan. Ex. PW 1/A is the post mortem report. Ex. PW 29/A is the request for post mortem. Ex. PW 29/B is the death report. Ex. PW 10/A and Ex. PW 7/A is the statement over the identification of the dead body. Ex. PW 29/E is the request for subsequent opinion. Ex. PW 1/C is the subsequent opinion over the knife. Ex. PW 1/D is the sketch of knife. Ex. PW 12/D is the crime scene report. Ex. PW 17/G is the PCR form. Ex. PW 23/A is the seizure memo of clothes of deceased. Ex. PW 22/A is the seizure memo of the blood in gauze. Ex. PW 12/A is the seizure memo of blood in gauze from the spot. Ex. PW 3/M is the site plan of place of recovery of knife. Ex. PW 17/E is the pointing out memo of place of occurrence by accused Kuldeep. Ex. PW 3/N is the seizure memo of knife recovered SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 11 of 31 at the instance of accused Sumit @ Akki. Ex. PW3/K is the sketch of knife. Ex. PW 3/J is the supplementary disclosure statement of accused Sumit @ Akki. Ex. PW 3/G is the disclosure statement of accused Sumit @ Akki. Ex. PW 3/H is the disclosure statement of accused Panchpal @ Panchi. Ex. PW 17/A is the disclosure statement of accused Kuldeep. Ex. PW 17/B is the disclosure statement of Suraj Pota. Ex. PW 3/C, Ex. PW 3/D and Ex. PW 17/C are the arrest memos of accused Sumit @ Akki, Panchpal @ Panchi and Kuldeep. Ex. PW 3/E, Ex. PW 3/F and Ex. PW 17/D are the personal search memos of accused Sumit @ Akki, Panchpal @ Panchi and Kuldeep. Ex. PW 2/A1 to Ex. PW 2/A4 are the photographs of the place of occurrence showing blood stains on one chabutra. Ex. PW 2/B is the strip of negatives of the photographs. Ex. PW 29/I is the FSL examination report. Ex. PW 29/J is the sereological report. Ex. PW 18/A is the PCR form. Ex. PW 19/A to Ex. PW 19/F are the malkhana entries. Ex. PW 19/H and Ex. PW 19/G are the road certificates. Ex. PW 9/B is the MLC of deceased.
16. Accused in their statement u/s 313 CrPC denied all the incriminating circumstances put to them and not opted to lead defence evidence.
17. Ld counsel for the accused persons submitted that prosecution unable to produce eye witness Ashwani, and another important eye witness PW8 Harish Gupta also not supported the prosecution case. Ld counsel submitted that the testimony of PW3 Sunny Gupta is full of inconsistencies and contradictions. Therefore, on the basis of his statement, the accused persons cannot be held liable for commission of such a serious offence of murder. Ld counsel submitted that the circumstances of the arrest and consequent recovery of knife from accused Sumit @ Akki is not at all credible. Ld counsel submitted that as per the testimony of PW9, there is possibility of death of deceased due to cardiac arrest. Ld counsel submitted that prosecution miserably failed to prove its case, hence, accused persons are entitled to be acquitted.
18. Ld. Addl. PP, on the other hand, submitted that PW Ashwani, eye witness, is not found traceable, therefore, dropped. Though PW8 Harish Gupta not supported the prosecution case but PW3 Sunny Gupta has given the credible description of the SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 12 of 31 incident as well as identified the accused persons. Ld Addl. PP submitted that his testimony is corroborated through his statement u/s 164 CrPC as well as the FIR. Ld. Addl. PP submitted that post mortem report and MLC clearly show number of vital injuries on the vital parts, therefore, the intent to cause murder is found explicit. Ld Addl. PP submitted that there is recovery of knife which was used for stabbing at the instance of accused Sumit @ Akki. Ld Addl. PP submitted that prosecution case cannot be disbelieved merely on the basis of minor variations and contradictions which are bound to occur in every prosecution case. Ld. Addl. PP submitted that prosecution is able to prove its case beyond reasonable doubt, hence, accused persons are liable to be convicted for the offences charged.
19. Arguments heard. Record perused.
20. Apex court in "Mohan Singh Vs. State of MP, AIR 1999 SC 883", held that effort should be made to find the truth, this is the very object for which courts are created. One has to comprehend the totality of the facts and circumstances as spelled out through the evidence depending upon the facts of each case.
21. In appreciating the evidence, the approach of the court must be integrated and not truncated or isolated meaning thereby inferences should not drawn by picking up an isolated statement from here and there; rather the evidence on a particular point should be examined in the background of the total statement of said witness or other witnesses as well as other evidence. The finding should be on the basis of objective assessment of the evidence and not on the conjunctures and surmises. In "Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC 1328", no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole appears to have ring of truth. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiency, drawbacks and the infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief. In 'Bhagwan Tana Patil Vs. state of Maharashtra, AIR SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 13 of 31 1974 SC 21', the apex court ordained that the function of the court is to disengage the truth from the falsehood and to accept what it finds the truth and rejects the rest. It is only where the truth and falsehood are inextricably mixed up, polluted beyond refinement down the core, the entire fabric of the narration given by a witness then the court might be justified in rejecting the same. This legal position was further elaborated in 'State of UP Vs. Shankar, AIR 1981 SC 897', wherein the Apex court observed that mere fact that the witness has not told the truth in regard to a peripheral matter would not justify whole sole rejection of his evidence. In this country, it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is only where the testimony is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence. Therefore, the duty is cast over this court to dispassionately disengage the truth from the falsehood and accept the truth and reject the same. This court is not meant to reject the testimony of a witness on slightest deflection, however has a bounden duty to search the truth. Apex court in 'Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018', in para 12 observed "while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed. It is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 14 of 31 that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.......".
22. As far as the defective and illegal investigation is concerned, apex court held that if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of faulty investigation otherwise criminal trial descend to the IO ruling the roost. Yet if the court is convinced that the evidence of eye witnesses is true, it is free to act upon such evidence though the role of the IO in the case is suspicious (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the IO whose investigation was defective by design. (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial (Paramjit Singh Vs. state of Punjab AIR 2008 SC 441). The lapses or the irregularities in the investigation could be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and evidence is of sterling quality. If the lapses or irregularities do not go the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored (Sunil Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
23. To sum up while appreciating evidence on record, the duty of the court is to separate credible and incredible part of evidence.
24. The brief sequence of the prosecution story is that the deceased Shahnawaz @ Ali, Ashwani and PW3 Sunny Gupta were friends, and after taking beer on the intervening night of 29/30.10.2013, at around 12.00 a.m, all three reached Sangam Vihar, but Shahnawaz got down from the motorcycle and told them that he would enquire about his committee from PW14 Nadeem Ahmed. Thereafter, PW3 alongwith Ashwani reached K Block, Gali no. 19 where they found number of boys playing gambling. Thereafter they also started playing gambling. After ten minutes, deceased also came to that place, however he refused to play, then he had a scuffle with accused Sumit @ Akki, then, Sumit called Panchi @ Panchpal, Suraj @ Pota @ SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 15 of 31 Aditya and Kuldeep. Sumit @ Akki, Suraj @ Pota and Kuldeep caught hold of deceased Shahnawaz @ Ali and Panchi @ Panchpal inflicted knife injuries, and on seeing the said incident, PW3 Sunny Gupta as well as Ashwani ran away from the spot, however came back within 30 minutes and found the injured lying at the spot, and somebody called PCR. PCR came to spot and took the injured to the hospital. The said incident is also witnessed by one Harish Gupta who during investigation stated that PW3 Sunny Gupta and his friend Ashwani came and started gambling with them and after around 10 minutes Shahnawaz @ Ali also came. Thereafter, Sumit @ Akki forced him to play, then, hathapai took place and Sumit @ Akki called Panchi, Kuldeep and Suraj. Thereafter, Sumit, Kuldeep and Suraj caught hold of Shahnawaz and Panchi inflicted number of knife injuries and he left the spot in the state of fear. Later on, he came to know that Shahnawaz died in the said incident. During investigation, it was also found that PW6 Soni @ Shabana, wife of Shahnawaz called the deceased at around 12.00 a.m who told her that he would come after sometime, and thereafter at around 3.00 a.m, she received a called from Sunny that deceased was inflicted stab injuries, she then reached AIIMS Trauma Center.
25. During investigation, prosecution primarily relied upon the statement of three eye witnesses i.e. PW3 Sunny Gupta, PW Ashwani and PW8 Harish Gupta. Prosecution was given number of opportunities to produce PW Ashwani, however this witness was not found traceable, hence, dropped vide order dated 23.10.2018. PW8 Harish Gupta resiled from his statement and not supported the prosecution case. Therefore, the entire case of the prosecution is dependent upon the statement of PW3 Sunny Gupta. During investigation, the statement of PW3 Sunny Gupta was also recorded u/s 164 CrPC ( Ex. PW 3/B) which corroborated his statement given to the police Ex. PW 3/A.
26. PW3 Sunny Gupta in his testimony stated that on the intervening night of 29/30.10.2013, he alongwith his friend Shahnawaz @ Ali and Ashwani, after taking beer went to Sangam Vihar on his motorcycle driven by him. Thereafter, deceased got down at Gali no. 8 Sangam Vihar to know about the status of his committee from one Nadeem. He alongwith Ashwani reached Gali No. 19, K Block Sangam Vihar SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 16 of 31 where he noticed 45 boys gambling, then he alongwith Ahwani remained standing with those boys and within 1015 minutes, deceased also reached there. He refused to play with one boy, then scuffle took place. In the meanwhile, the said unknown boy called other boy by the name of Panchi and then, Panchi rushed towards the deceased and the said boy who was having stars engraved on his right side of neck, started scuffling with deceased. When he alongwith Ashwani tried to save Shahnawaz, then the said Panchi inflicted knife injuries. This witness categorically identified accused Panchi in the court however stated that he is not sure whether the other accused Sumit @ Akki was present there or not, but having engraved stars on his neck. He stated that accused Panchi inflicted stab injuries and two other persons including the boy who has stars engraved caught hold of the deceased. He stated that after seeing the incident, he alongwith Ashwani left the spot and ran away due to fear and came back after 1520 minutes.
27. This witness has categorically stated in his testimony that on the said fateful night, he alongwith Ashwani and deceased after taking beer came to Sangam Vihar and dropped the deceased near Gali no. 8 to enquire about his committee from PW14 Nadeem. That part of his testimony is duly corroborated from the testimony of PW6 Smt. Soni @ Shabnam, wife of deceased who also stated that she had a talk with her husband who told her that he is going to Nadeem for collecting the committee. PW14 Nadeem also corroborated the factum of committee/chits of deceased Shahnawaz @ Ali. PW3 further stated that thereafter, he alongwith Ashwani went to the spot i.e. Gali No. 19, K block, Sangam Vihar where some boys were playing gambling. PW6 also corroborated the fact that later on, she received a call from her husband/deceased that he will come after sometime and requested her to keep the food ready. Therefore, the factum of the company of deceased with PW3 Sunny Gupta is duly corroborated with the statement of PW6 Smt. Soni @ Shabnam.
28. PW3 in his testimony stated that after seeing the stabbing incident, he alongwith Ashwani ran away from the spot and came back after 1015 minutes and found deceased lying at the spot near the naali. PW4 Mukesh Kumar also stated that one boy was found lying in the pool of blood in front of his house and thereafter, he SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 17 of 31 called the police. PW3 also stated that somebody from the public called the police and PCR reached the spot, and he alongwith Ashwani and PCR official took the injured to AIIMS Trauma Center. PW15 HC Kharak Singh, PCR official, stated that he reached the spot but PCR van could not be started, therefore, injured was taken to the hospital by CAT Ambulance. PW5 Virender Yadav of CAT Ambulance stated that on receiving the information, he reached House No. 6, Gali No. 19, K Block, Sangam Vihar and found PCR taking the injured to the hospital. He stopped the ambulance and injured was shifted in ambulance from PCR, and was admitted in the hospital. MLC of the injured also suggest that he was admitted by one Virender.
29. One thing pertinent to be noticed is that PW3 Sunny Gupta categorically stated that he alongwith Ashwani accompanied the deceased from the spot to the hospital. PW3 in crossexamination stated that PCR van also met with an accident and this factum is somehow corroborated with the testimony of PW15 who stated that the PCR could not be started and injured was shifted in CAT Ambulance. PW5 Virender also stated that at Ratia Marg, the injured was shifted in CAT Ambulance. There are minor inconsistencies in the statement of PW3 that whether the injured was shifted in the CAT ambulance from the spot itself or after some distance, however in the crossexamination of PW 15, it has also come that he came to know about the name of injured Shahnawaz from his friend. He also stated that his friend was also telling the police about the incident. Therefore, these circumstances somehow also confirms the presence of PW3 Sunny Gupta at the spot, both at the time of incident as well as after the incident when the injured was removed to the hospital from the spot. PW27 SI Kishan Gopal who prepared the rukka stated that he recorded the statement of Sunny Gupta at the hospital. PW25 HC Bajrang also stated that the statement of PW3 Sunny Gupta was recorded in the hospital. PW3 Sunny Gupta in his crossexamination also stated that though he cannot tell the name of the police official who retained him however he was enquired and his statement was reduced into writing.
30. The place of incident is corroborated through the testimonies of PW4 Mukesh Kumar, PW15 HC Kharak Singh, PCR official, PW2 Ct. Ashwani, crime team SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 18 of 31 photographer and PW12 Insp. Krishan Kumar, Crime Team Incharge. Therefore, the testimony of PW3 regarding the factum of incident, place of incident is also corroborated through the testimony of PW4 Mukesh Kumar, PW15 HC Kharak Singh, PW5 Virender Yadav, PW2 Ct. Ashwani and PW12 Insp. Krishan Kumar.
31. PW3 Sunny Gupta is found to be the sole eye witness to the incident. Therefore, it is the prime duty of this Court to examine the credibility of this witness before relying upon his testimony. As already discussed, the presence of this witness at the spot do not appear to be at all doubtful. This witness in his examination in chief has given the detailed description of the incident. He categorically stated firstly scuffle took place with accused Sumit @ Akki and thereafter, he called accused Panchi who inflicted knife injuries. He gave specific role to accused Sumit @ Akki that he caught hold of injured, and to accused Panchi that he caused stab injuries to the injured. Ld counsel for the accused tried to impeach the credibility of this witness on the ground that he could not tell the name of the boys with whom he used to gamble or gambling on that day. Ld counsel submitted that this witness also could not state that he know Harish Gupta or not, and he even could not identify accused Sumit @ Akki at the first instance, however identified Sumit @ Akki later on after Additional PP was allowed to put leading questions to this witness.
32. The presence of this witness at the spot is not at all doubtful. The mere fact that this witness could not tell about the description of other persons who were gambling or the fact that he knew Harish Gupta or not, do not in any way creates doubt that he was not present at the spot at the time of incident. This witness has categorically identified accused Panchi @ Panchpal. He has also disclosed the name of Panchi in his statement u/s 161 CrPC (Ex. PW 3/A) and u/s 164 CrPC (Ex. PW 3/B). There is nothing in crossexamination of this witness which could suggest that accused Panchi @ Panchpal was not present at the spot at the time of incident.
33. This witness, fumbles at first instance, in identifying accused Sumit @ Akki in his examination in chief, however categorically stated that Sumit @ Akki was having stars engraved on the right side of his neck. This factum is also duly corroborated with his first statement Ex. PW 3/A recorded by the police pursuant to which FIR SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 19 of 31 was registered. In that statement also, he had mentioned the name of accused Panchi and stated that the second accused with whom scuffle took was having star marks on left side of his neck. During the course of examination in chief on the same day when the Ld. Addl. PP was allowed to put some leading questions, he categorically stated that he got to know the name of accused Sumit @ Akki after arrest, and further stated that inadvertently he might have noticed the stars on the left side instead of right side because he was wearing blanket, and identified the accused Sumit @ Akki on the same day in examination in chief. The Court has to appreciate the testimony of a witness in its entirety. This witness is found credible over the description of incident and role of accused persons. His testimony appears natural as well as consistent both in examination in chief as well as in crossexamination. The material part of his testimony is duly corroborated through the testimony of other witnesses who were found involved either prior to the incident or after the incident. It is pertinent to notice that this witness in his examination in chief as well as in his statement before the police has categorically stated about the use of his baniyan in stopping the blood oozing from the chest and stomach of the deceased. This factum is also corroborated through the FSL report, thus confirms his presence at the spot.
34. As far as identity of the accused persons is concerned, PW3 in his statement to the police Ex. PW 3/A as well as in statement u/s 164 CrPC Ex. PW 3/B had categorically named the accused Panchi @ Panchpal as an assailant who inflicted stab injuries to the deceased. PW3 in his statement before the police though not named the accused Sumit @ Akki, however stated in the statement before the police that the other accused with whom the scuffle took place and who had caught hold the deceased was having star marks on the left side of his neck, though in his testimony before the court stated that the star marks were on the right side of the neck. The star marks were found on the right side of the neck of accused Sumit @ Akki. PW3 though at first instance unable to identify accused Sumit @ Akki in his examination in chief, however, later on identified him after the Ld. Addl. PP is allowed to put some leading questions. But his testimony do not at all suggest that he identified the accused Sumit @ Akki, merely because of suggestions by the Ld. Addl. PP, however SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 20 of 31 found to have recollected his memory over the identity of the accused Sumit @ Akki. Therefore, this fumble is not material particularly when accused Sumit @ Akki was also identified by PW3 through the star marks on his neck. The contradictions regarding the star marks whether on left side or on right side of the neck is not only minor in nature and appears natural in present facts and circumstances. It is pertinent to notice that the identity of the assailants is known to the Investigating Officer on the next day itself through the statement u/s 161 CrPC of PW8 Harish Gupta, though Harish Gupta had not supported the prosecution case in his testimony before the court. The testimony of PW3 appears very natural, the minor inconsistencies are normal wear and tear of the observation, on the other hand enhances the credibility of the witness, therefore, from the testimony of PW3, the identity of both the accused persons is credibly proved.
35. The next circumstance to be appreciated is the arrest of accused persons and recovery of knife at the instance of accused Sumit @ Akki. PW29 IO Insp. Shahid Khan in his testimony stated that in the early morning of 01.11.2013, complainant Sunny Gupta came to the police station and informed that accused Panchi and his associates are present in pahari wala jungle. Thereafter, he alongwith PW28 SI Vikram Singh, PW17 HC Satya Prakash, PW20 HC Hari Ram, Ct. Gaurav and Rakesh left the police station, then at the instance of complainant apprehended accused Sumit @ Akki @ Akshay, Panchpal @ Panchi, Kuldeep and Suraj @ Pota @ Aditya. However, PW3 Sunny Gupta in his examination in chief nowhere stated that in the morning of 01.11.2013, he saw the accused persons in the aforesaid jungle and thereafter informed the police and accompanied the police party for the arrest of accused persons. Though after being allowed to put leading questions, he stated that it is correct that on 01.11.2013, he called the police and got arrested the accused from ramleela ground. PW3 also stated in his testimony that a knife was also recovered at the instance of accused Sumit @ Akki however in his examination in chief stated that the knife shown is not the knife used by the accused Panchi @ Panchpal, therefore, the recovery of knife as shown to be used at the instance of Sumit @ Akki is not in anyway incriminating against accused. Though PW3 stated that the accused persons SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 21 of 31 were arrested in his presence however, he nowhere stated that he noticed the presence of the accused in the said jungle at around 3.00/4.00 a.m in the morning of 01.11.2013. Therefore, the manner and the timing of arrest of accused persons as projected by the prosecution appears suspect, however, it do appear doubtful that the accused were not apprehended on 01.11.2013.
36. PW3 Sunny Gupta categorically stated that the stab injuries were inflicted by the accused Panchi @ Panchpal and the said statement is duly corroborated with the MLC Ex. PW 9/B showing six stab injuries on the chest and other parts. However, PW9 Dr. Shashikant Singh in crossexamination stated that deceased was taken for emergency surgery and he died during the surgery after developing the cardiac arrest and could not be revived despite pulmonary resuscitation. Ld counsel for the accused submitted that the testimony of PW9 suggest that deceased did not die due to the injuries but due to the cardiac arrest, however this cannot be inferred from the testimony of PW9 who only stated that because of the said injuries, the deceased was operated and during operation, he suffered cardiac arrest. Now it is pertinent to examine the testimony of PW1 Dr. Pradeep Yadav who conducted the post mortem of the deceased and as per his testimony, during post mortem examination, following external injuries and internal injuries were suffered by the deceased :
"...1. Lacerated contusion, 4 cm x 3 cm with a laceration of 2 cm x 1 cm x scalp deep was present over forehead in midline and running towards left side, bluish in colour and 2 cm above glabella.
2. Multiple abrasions, present in an area of 5 cm x 4 cm, reddish in colour measuring 1 cm x 1 cm to 0.8 cm x 0.2 cm over right cheek and 2.3 cm in front of helix of right ear.
3. Surgical stapled wound with two staple pins in situ. On opening the wound it was 2.5 cm x 1 cm x sternum bone deep and was present on right side of chest wall and 1 cm lateral to midline of sternum and is placed obliquely with sharp end on the higher and medial side. The wound was 39 cm above right side of lower end of pubic symphysis. The wound was running laterally, downwards and backwards upto a sutured rent in diaphragm on right side and lower end of oesophagus.
4. Surgically stapled wound with two stapler pins in situ was present over left side of chest wall, 4 cm lateral to mid point of sternum and 34 cm above the lower end of pubic symphysis on left side. On opening the wound it was 2.6 cm x 9 cm x cavity deep running posteriorly, downwards and medially cutting the anterior chest wall bones and muscles, the diaphragm and the wall of SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 22 of 31 stomach (stitched wound). Wound was obliquely placed over body with a sharp end present at lower and lateral end.
5. Surgically stapled wound with one stapler pin in situ was present over left side of chest wall 11 cm left lateral to mid point of sternum and 30 cm above left anterior superior iliac spine. On opening the wound it was 0.5 cm x 0.5 cm x intercostal muscle deep running medially, downwards and posteriorly. The wound was present obliquely.
6. Surgically managed wound with two stapler pins and one suture in situ was present on left lateral aspect of chest wall 32 cm above left anterior superior iliac spine and 15.4 cm left lateral to mid point of sternum. On opening the wound it was 3 cm x 0.8 cm x chest cavity deep running medially, posteriorly and upwards and was horizontal.
7. Surgically sutured wound with two stapler pins in situ was present over left side of abdomen 10 cm left of umbilicus and 9 cm above left anterior superior iliac spine. On opening the wound it was 2.1 cm x 0.5 cm x cavity deep present obliquely with sharp end towards medial side. The direction of the wound was downwards posteriorly and medially.
8. Surgically stapled wound with two pins in situ was present over left side of abdomen, 14 cm from midline of abdomen and 12.5 cm from anterior superior iliac spine. On opening the wound it was 2.2 cm x 1 cm x cavity deep and was obliquely placed with a sharp end was on the medial and lower side. The wound runs upwards medially and backwards.
9. Surgically stapled wound with four pins in situ was present over right side of abdomen, 12 cm above right anterior superior iliac spine and 16 cm right from the midline. On opening the wound it was 4 cm x 1 cm x cavity deep with both ends blunt and obliquely placed running medially, backwards and downwards.
10. Lacerated wound 1 cm x 1 cm x skin deep present over right thumb on its proximal end.
11. Surgically sutured wound with two sutures in situ was present over left side of back in para spinal area of lower back 5 cm above gluteal cleft and 2 cm lateral from mid point of vertebra. On opening the wound it was 2.1 cm x 0.5 cm x cavity deep placed obliquely with both ends blunt and running medially forwards and upwards.
12. Multiple abrasions in an area of 7 cm x 3 cm present over anterior part of chest wall in midline measuring 2 cm x 1 cm to 1 cm x 0.9 cm, reddish brown in colour.
13. Laparotomy wound, 22 cm long and 7 cm above pubic symphysis with exposed abdominal contents.
During the post mortem examination of the deceased, following internal injuries were also observed by me on the body, namely,
1. Defect in ribs and chest wall was present corresponding to external injuries no. 3, 4 and 5.
2. Surgically sutured rents in diaphragm on left and right side was present.
3. Lower end of oesophagus showed collection of blood with a laceration.
SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 23 of 31
4. Plural cavity contained about 500 ml of blood tinged fluid.
5. Laceration of right middle lobe of lung and collection of blood of about fist size was present at hilum of lung.
6. Surgically managed arotic repair was present with extravasation of blood.
7. Peritoneal cavity contained about one litre of blood tinged fluid.
8. Stomach was empty. Anterior and posterior wall of stomach showed surgically sutured wound.
9. Small intestine showed multiple laceration.
10. Extravasation of blood in left perinephric area.
As per my observation of the body of the deceased, the external injuries no. 3, 4, 5, 6, 7, 8, 9 and 11, mentioned hereinabove, were stab wounds, which were managed surgically prior to autopsy.
As per my opinion, the death was due to hemorrhagic shock consequent upon multiple injuries to chest and abdomen by a sharp weapon. All injuries were ante mortem in nature and could be produced in the manner as alleged, that is, assault by knife..."
This witness categorically stated that as per his opinion, the death was due to hemorrhagic shock consequent upon the multiple injuries on the chest and abdomen by sharp weapon. There is nothing in his crossexamination also to infer that death was only due to cardiac arrest, and not because of the injuries suffered. Considering the MLC and post mortem report, the injuries found homicidal in nature.
37. Delhi High Court in case titled Nanko Devi Vs. State, Crl. Appeal 152/2001 dtd. 6.12.2010 observed as under:
In Arun Nivalaji More (supra) the Hon'ble Supreme Court held as under: "25. In order to ascertain that "there was an intention to inflict that particular bodily injury" the enquiry should not be directed to find out whether the offender had intention to cause those very injuries to the internal organs of the body which were actually found to be there in the medical examination. The intention has to be gathered from a host of circumstances like the seat of injury viz. the place or portion of the body where the injury has been caused, the nature of the weapon, its size and dimension or other attributes and the force applied in inflicting the injury. Being a question of fact it is difficult to lay down exhaustive tests to ascertain as to whether the offender intended to inflict that particular injury which is found on the body of the deceased but the features enumerated above will certainly play a vital role in arriving at a correct conclusion on the said issue.
26. The mere fact that a dangerous or deadly weapon was not used or SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 24 of 31 the injuries were not caused on vital parts of the body may not necessarily take out the offence from the clutches of clause Thirdly of Section 300 IPC. Death may take place on account of large number of blows given by a blunt weapon like lathi on hands and legs causing fractures. Though the injuries may not be on a vital part of the body as the said term is generally understood, but if the medical evidence shows that they were sufficient in the ordinary course of nature to cause death, the offence would fall in clause Thirdly of Section 300 IPC. In Anda v.
State of Rajasthan where there were large number of injuries which had resulted in fractures of ulna, third metacarpal bone, tibia and fibula, Justice Hidayatullah (as His Lordship then was) speaking for a four Judge Bench held that the offence will be under cause Thirdly of Section 300 IPC having regard to the fact that the doctor had opined that all these injuries collectively were sufficient to cause death in the ordinary course of nature though individually no injury was sufficient in the ordinary course of nature to cause death. It was observed: (AIR p.148) "The third clause of Section 300 IPC views the matter from a general standpoint. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. Here the emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature. When this sufficiency exists and death follows and the causing of such injury is intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The intentional injury which must be sufficient to cause death in the ordinary course of nature, is the determinant factor."
38. PW1 Dr. Pradeep Yadav who conducted the post mortem on the body of deceased categorically opined that the death was due to hemorrhagic shock consequent upon the multiple injuries on the chest and abdomen by sharp weapon. The stab injuries as noticed are found sufficient to cause death. Therefore, the present case falls within the ambit of Section 300 IPC, thus, punishable for an offence u/s 302 IPC.
39. Ld counsel for the accused stated that PW3 Sunny Gupta in his testimony not able to depose the exact date of the incident. Ld counsel submitted that PW3 in his examination in chief stated that he do not remember the exact date and it was intervening night of 30.10.2013/01.11.2013 whereas the incident took place on the intervening night of 29/30.10.2013. Ld counsel submitted that this witness in cross SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 25 of 31 examination also could not tell the date and stated that the incident pertains to the intervening night of 26/27.10.2013.Ld counsel further submitted that in his statement before the police he stated that he came b ack to the spot after seeing the incident within 30 minutes, however in his testimony stated that he came back after 1520 minutes. Ld counsel submitted that this witness is expected to interfere in the said incident but not interfered. Furthermore, in crossexamination stated that other accused are not identified and his statement over the identity of accused Sumit @ Akki is not at all reliable, and with these discrepancies, his statement over the identity of accused Panchi @ Panchpal also cannot be relied upon.
40. It is settled law that to assess the credibility of a witness, the Court has to see his testimony in entirety with the other material available on record. The presence of this witness at the spot as well as his credibility as witness to the incident as discussed found trustworthy. The discrepancies in the dates when the testimony was recorded after two years of the incident are natural, on the other hand suggest that this witness is not at all a tutored witness. The discrepancies as pointed out are all minor in nature and do not at all of the nature to shake the credibility of this witness.
41. Ld counsel for the accused submitted that one of the eye witness PW Ashwani is not produced before the court and PW8 Harish Gupta has not supported the prosecution case and the testimony of PW3 Sunny Gupta is not credible, therefore, the conviction cannot be based on the sole testimony of PW3 Sunny Gupta. As already discussed, the testimony of PW3 Sunny Gupta is found credible and trustworthy on the factum of his presence with the deceased prior to the incident, at the time of incident and after the incident. This witness has given the credible description over the manner of causing stab injuries by accused Panchi @ Panchpal, and the role of accused Sumit @ Akki in caught holding the deceased at that time. The minor discrepancies as pointed out in his testimony do not at all hit the core of his deposition. The discrepancies as noticed on the other hand are natural variations fortifying the veracity of his deposition. These natural variations also suggest that he is not a tutored witness.
42. Apex Court in case titled Jitender Kumar v. State of Haryana 2012 (6) SCC SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 26 of 31 204 held that the FIR as a piece of evidence could be used for corroboration of the prosecution case, therefore, the statement of PW3 Sunny Gupta on the basis of which the FIR was registered could be used for corroboration. Furthermore, Apex Court is case titled R. Shahji v. State of Kerala, 2013 (14) SCC 266 held that though the statement u/s 164 CrPC is not a substantive piece of evidence, however it can be used both for contradictions as well as corroboration. The testimony of PW3 Sunny Gupta is duly corroborated with his statement Ex. PW 3/A given to the police as well as his statement u/s 164 CrPC Ex. PW 3/B recorded by the Metropolitan Magistrate and further finds support through the medical evidence. In the present facts and circumstances, therefore, there is no hindrance to arrive at the finding of conviction on the basis of the sole testimony of PW3 Sunny Gupta. Apex Court in case titled Namdeo v. State of Maharashtra, (2009) 1 SCC (Cri) 773, after discussing the number of judgments over the factum of regarding finding of conviction on the sole testimony of eye witness in Para 28 observed as under:
"... From the aforesaid discussion, it is clear the Indian legal system does not insist on plurality of witnesses. Neither the legislature ( Section 134 of the Evidence Act, 1872) nor the judicial mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye witness, therefore, has no force and must be negatived.."
43. Therefore the contention of the counsel for accused persons that no conviction on the basis of solitary eye witness, in the present facts and circumstances is not worth consideration.
44. Ld counsel submitted that there are definite inconsistencies in the prosecution case. As per PW23, the site plan was prepared at the instance of PW3 however from the crossexamination of PW3, it cannot be inferred that he was taken to the spot from the hospital by PW23. Ld counsel submitted that PW3 stated that his statement SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 27 of 31 was recorded in the hospital and thereafter in the police station also. This itself suggest that there might be some improvements and exaggerations in the testimony.
45. PW3 in his testimony categorically stated that his statement was recorded in the hospital, though in his crossexamination he stated to have given his statement in the police station also. PW3 is uneducated type of witness, though he stated to have made statement in the police station also, it cannot be held that it was some formal statement u/s 161 CrPC recorded by the police on the same day in the police station. It is very natural that this witness was enquired by the police officials in the police station also. These anomalies instead of making this witness incredible enhances his credibility and suggest that he has given natural version of incident. Furthermore, there is nothing in crossexamination to suggest that he is not witness to the incident. The lapses in the prosecution case regarding the fact that the site plan was not prepared in his presence or clothes of PW3 are not seized do not at all go to the root of the case and no benefit could be given to the accused of these lapses. Apex court in "C. Muniappan Vs. State of Tamil Nadu,2010 (10) SCC 567", observed that defective investigation by itself cannot be ground for acquittal. If the primacy is given to such designed or negligent investigations then the faith and confidence of people in criminal justice administration would be eroded. There is legal obligation on the part of court to examine prosecution evidence dehors such lapses. The investigation is not the solitary area for judicial scrutiny in the criminal trial. The conclusion of trial in a case cannot be allowed to be dependent solely on probity of investigation. The testimony of PW3 alongwith the other facts and circumstances as already discussed found credible over the factum of core incident of assault and the fatal injuries suffered in the said incident. Therefore, on the basis of any lapses on the part of the Investigating Officer, the prosecution case cannot be disbelieved.
46. Furthermore, the testimony of PW3 cannot be discredited merely on the basis of the facts that the prosecution case over the recovery and use of knife at the instance of accused Sumit @ Akki is not found credible.
47. The accused persons are charged for commission of offence u/s 302/34 IPC. Though as discussed, the clear case of culpable homicide for offence u/s 302 IPC is SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 28 of 31 made out, however the Court has to evaluate whether both the accused shared the common intention to commit the murder or not. As per evidence on record, there is no previous enmity between the deceased and the accused persons. PW3 Sunny Gupta and PW Ashwani reached the spot where the gambling was found to be going on and later on, deceased Shahnawaz @ Ali also reached the spot where a scuffle took place between accused Sumit @ Akki and the deceased. In the meanwhile, accused Sumit @ Akki also called accused Panchi and other coaccused persons ( found juvenile). Accused Panchi came with knife and inflicted knife injuries on Shahnawaz. There is nothing in the testimony of PW3 what exactly transpired between accused Sumit @ Akki and Panchi @ Panchpal. It has also not come in the testimony of PW3 or in the statement before police or in statement u/s 164 CrPC that accused Sumit @ Akki instigated or boosted the accused Panchi @ Panchpal to inflict so many stab injuries on the body of the deceased. No threatening appears to have been given by accused Sumit @ Akki to the deceased or any other person for inferring that this accused instigated or shared the common intention to cause murder. The entire incident took place in spur of moment. There was no preplanning to commit the said offence. Apex court in case titled "Munna Ayyia Vs. State of UP, 1993 Cr.L.J 45 (SC)" held that both accused sharing common intention to beat up or assault the victim though not to kill him, however one of the accused suddenly stabbed the victim, therefore coaccused could be convicted only under sec. 326/34 IPC and not u/s 302/34 IPC. Apex Court in "Babu Bhai Ranchodbhai Patel & ors v. State of Gujrat 1994 (1) SCC 410" held that even if there was a sudden quarrel that cannot be a ground to hold that he had only the knowledge. The intention for the purpose of Clause 3rdly of Section 300 IPC has to be inferred from the facts and circumstances in each case. One can understand if there had been some grappling or struggle between A1 and the deceased in the course of which if he came to inflict an injury perhaps a doubt may arise whether he aimed and intended to cause that particular injury during that grappling or struggle. But in this case the evidence is that he went straight and attacked the deceased with a knife inflicting such a serious injury and not only that he also inflicted injuries on the two witnesses with the SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 29 of 31 weapon. These circumstances would attract Clause 3rdly of Section 300 IPC. Therefore an offence under Section 302 IPC is clearly made out against him. The High Court has convicted both A1 and A2 under Sections 302/34 IPC. Having regard to the fact that it was a sudden affair and that A2 inflicted only a simple injury, it is difficult to hold that he had the common intention with A1 to commit the murder of the deceased. We think it would be unsafe to convict A2 also for the offence of murder. The injury inflicted by him endangered life and would be punishable under Section 326 IPC. Apex court in "Hardev Singh & Anr. Vs. State of Punjab, AIR 1975 SC 79, held that the view that even the person not committing the particular crime could be held guilty of that crime with the aid of Section 34 if the commission of the act was such as could be shown to be in furtherance of the common intention not necessarily intended by every one of the participants, is not correct. The common intention must be to commit the particular crime, although the actual crime may be committed by any one sharing the common intention. Then only others can be held to be guilty. Apex court in case tittled "Dajya Moshya Bhil & Ors. Vs. State of Maharashtra, AIR 1984 SC 1717", held that in order to attract sec. 34 it is not sufficient to prove that each of the participating culprit had the same intention to commit a certain act. What is requisite ingredient of sec. 34 that each must share intention of other.
48. The necessary ingredient of attracting Section 34 IPC that all the accused should share common intention to cause murder for offence u/s 302 IPC, however as discussed, the incident occurred in the spur of moment and accused Sumit @ Akki called accused Panchi @ Panchpal and other accused during the course of minor scuffle, then accused Panchi @ Panchpal came with knife and inflicted number of stab injuries. There is nothing in the evidence that accused Sumit @ Akki had shared common intention for inflicting such large number of injuries on the vital parts of the body of the deceased. From the evidence on record, at best, it can be inferred that accused Sumit @ Akki shared the common intention to cause injuries, therefore, accused Sumit @ Akki could at best be liable for committing grievous hurt in furtherance of common intention. No constructive liability can be fastened through SC No.6542/16, State Vs. Sumeet @ Akki etc., FIR No.477/2013, PS Sangam Vihar 20.04.2019 Page No. 30 of 31 Section 34 IPC in present facts and circumstances for offence u/s 302 IPC against Sumit @ Akki. But accused Panchi @ Panchpal is found to have caused number of stab injuries on the vital parts, therefore, he alone is found guilty of the offence punishable u/s 302 IPC, and offence u/s 326/34 IPC is found to be made out against accused Sumit @ Akki @ Akshay. Accused Panchpal @ Panchi is also charged for the offence u/s 25(1B) r/w Section 4 Arms Act, 1959 and Section 27 of Arms Act and accused Sumit @ Akki is also charged for offence u/s 25(1B) r/w Section 4 Arms Act, 1959. However, as discussed, the recovered knife was not found to be used in commission of offence, therefore, the offence under Arms Act is not proved against the accused persons.
49. It is cardinal principle of criminal law that the guilt of the accused must be proved beyond all reasonable doubt, however burden of prosecution is only to establish its case beyond all reasonable doubts and not all doubts, and such rule does not warrant acquittal of accused by resorting to surmises, conjunctures or fanciful consideration [Yogesh Singh Vs. Mahabir Singh & Ors., 2017(11) SCC 195].
50. In view of above discussions, prosecution able to prove its case beyond reasonable doubt against accused Sumit @ Akki @ Akshay for commission of offence u/s 326/34 IPC and against accused Panchi @ Panchpal for commission of offence u/s 302 IPC. Accused Sumit @ Akki @ Akshay is found guilty for the offence u/s 326/34 IPC and accused Panchi @ Panchpal is found guilty for the offence u/s 302 IPC. They both are convicted accordingly. However, both the accused persons stands acquitted of the charges under Arms Act.
51. Accused persons be heard on point of sentence.
Announced in the open Court (AJAY KUMAR JAIN)
On 20th April, 2019. ASJ02 (South)
Saket / New Delhi
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