Crl.A Nos.10/2011 etc. Page 1 of 24 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Hearing : 30th March, 2011 Date of Decision : 28th April, 2011 + CRL.A No.10/2011 MURARI ... APPELLANT Through: Mr.Sameer Chandra, Advocate. Versus STATE ... RESPONDENT Through: Mr.Jaideep Malik, APP for the State AND CRL.A No.228/2011 SANDIP @ SANJU ... APPELLANT Through: Ms.Meenakshi Lekhi, Advocate. Versus STATE ... RESPONDENT Through: Mr.Jaideep Malik, APP for the State AND CRL.A No.241/2011 CHANDAN @ CHANDU ... APPELLANT Through: Mr.Ranjit Singh, Advocate. Versus STATE ... RESPONDENT Through: Mr.Jaideep Malik, APP for the State AND CRL.A No.139/2011 RAKESH ... APPELLANT Through: Mr.Sameer Chandra, Advocate. Versus STATE ... RESPONDENT Through: Mr.Jaideep Malik, APP for the State AND CRL.A No.11/2011 SURESH ... APPELLANT Through: Mr.Sameer Chandra, Advocate. Crl.A Nos.10/2011 etc. Page 2 of 24 Versus STATE ... RESPONDENT Through: Mr.Jaideep Malik, APP for the State CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE G.P.MITTAL 1. Whether reporters of local papers may be allowed to see the Order? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Order should be reported in the Digest? Yes J U D G M E N T G.P. MITTAL, J. Crl. A. Nos. 10/2011, 228/2011, Crl. A. Nos. 241/2011, 139/2011 & 11/2011 1. Criminal law was set into motion when on the basis of information given by operator S-53 (of PCR) that there was a quarrel at Lado Sarai T point, near Masjid and a person was lying there in a serious condition, DD No.41/A (PW17/A) recorded in Police Station (PS) Mehrauli was handed over to Head Constable Mahender Bhardwaj for necessary action. Since the area of the incident fell within the jurisdiction of Police Post (PP) Saket, HC Mahender Bhardwaj transmitted the said information to the Police Post which was recorded by Constable Satbir at 10:50 P.M. by DD No.29 (Ex.PW27/A). DD No.29 was assigned to SI Aishvir Singh in charge PP Saket. He (SI Aishvir Singh) left for the spot along with HC Shiv Kumar, HC Devender and HC Jagdish. 2. On reaching the spot PW-29 SI Aishvir Singh (the SI) found a pool of blood at two places. One big stone and one small stone (both blood stained) were lying there. A motor cycle (Hero Honda Splendor) bearing No.DL3SAJ 7048 was parked at a distance of 50-60 metres from the spot. On inquiry SI Aishvir Singh came to know that the injured had been removed to AIIMS in his vehicle by a public person. HC Jagdish was directed to remain present at the spot to secure it. The SI proceeded to AIIMS along with other members of the staff. Crl.A Nos.10/2011 etc. Page 3 of 24 3. On reaching AIIMS, the SI obtained the MLC (Ex.PW16/A) of Jitender Panwar (the deceased) who had been declared brought dead at 11:15 P.M. One Mohd. Sagir (PW-9A) met him who claimed to have seen the incident. The deceased‟s belongings were handed over to him by the Duty Constable Satish which were seized by him by memo Ex.PW12/A. SI recorded Mohd. Sagir‟s statement (Ex.PW-9A). He made an endorsement Ex.PW29/A and sent the same to the Police Station for registration of the case. 4. The SI along with his staff, the deceased‟s car and witnesses, namely, Nand Kishore, Naveen Kumar, Mohd. Sagir and Fakre Alam reached the spot at 12:45 A.M. He requisitioned the crime team. 5. Inspector Pankaj along with SHO and other staff met him at the spot. The investigation of the case was handed over to Inspector Pankaj (IO). He (SI) entrusted him (the IO) DD No.29 and MLC Ex.PW16/A of the deceased. 6. According to the prosecution, the crime team reached the spot at about 12:50 A.M. SI Vinod Kumar and Constable Girdhar of the crime team took photographs of the spot from various angles. The crime team gave its report to the IO at 1:25 A.M. with direction to send the dead body to the autopsy surgeon to ascertain the cause of death. The IO prepared the site plan Ex.PW-9/B at the instance of Mohd Sagir PW-9A. The IO lifted the blood from the spot. Blood stained earth and control earth were seized from the spot. The articles seized were given various serial numbers and were taken into possession by the IO by memo Ex.PW-9/A. A “Splendor” motorcycle bearing No. DL 3SAJ 7048 was seized by memo Ex.PW-9/D. Two blood stained teeth were found in the backseat of the Maruti Zen car bearing no. DL2CN 7646. They were kept in a plastic box, which was converted into a pulanda and sealed with the seal of „PS‟. The seat cover also had blood stains. These were kept in a plastic bag sealed with a seal of „PS‟ and seized by memo Ex.PW9/F. A blood stained large stone was kept in a plastic bag whereas a blood stained roda was kept in a separate white plastic bag. SI Aishvir Singh got the names of registered owners of Crl.A Nos.10/2011 etc. Page 4 of 24 both motorcycles bearing No. DL3SAJ 7048 (make Splendor) and DL 4SAU 5239 (make CBZ) from the traffic helpline. Case property was deposited by Inspector Pankaj at Police Post Saket. The police party then reached H.No.C-18, JJ Colony, Khanpur, the residence of Mukesh (registered owner of the Splendor motorcycle). He informed the IO that the said motor cycle was taken by Appellant Suresh. According to the prosecution at about 9:30 A.M. Inspector Pankaj along with other police staff again went to AIIMS where he met the relatives of the deceased, namely, Dharmender Panwar and Sunil. The IO recorded their statements Ex.PW-7/A and Ex.PW-1/A regarding identification of the dead body. He held the inquest proceedings and sent the body for post mortem examination. 7. According to the prosecution, on 17.07.2007 at about 2:00 P.M. the IO received secret information regarding the presence of the four accused near a food rehri at T point Khanpur and arrested Appellants Rakesh, Suresh, Sandip and Chandan on identification by a secret informer. Motorcycle bearing No. DL 4SAU 5239 was parked near these four Appellants. After personal search of the Appellant Sanjay keys of the Splendor motorcycle bearing No. DL3SAJ 7048 were also recovered. The keys were converted into a packet and sealed with a seal of „PS‟. 8. Appellants Suresh, Sandeep, Rakesh and Chandan made disclosure statements Ex.PW12/P, Ex.PW12/Q, Ex.PW12/R and Ex.PW12/S respectively. The four Appellants then led the police party to the spot and pointed out the place of incident. The IO prepared the pointing out memo Ex.PW12/T. Appellant Rakesh got a helmet recovered (Ex.P12/3) from the left side of the road at Anuvart Marg which was seized by memo Ex.PW12/V. Appellant Sandeep got recovered a helmet (Ex.P12/4) which was seized by memo Ex.PW12/W. Appellant Chandan took the police party to a place in front of a CNG petrol pump and took out a danda lying adjacent to the MCD office. The said danda was seized by memo Ex. PW12/X after preparing it into a sealed packet. Appellants Chandan, Sandeep, Suresh, Rakesh were found wearing blood stained shirts. They Crl.A Nos.10/2011 etc. Page 5 of 24 were asked to take them off; the shirts were seized by memos Ex.PW12/Y, Ex.PW12/Z, Ex.PW12/Z1 and Ex.PW12/Z2 respectively. According to the prosecution, the four Appellants were instructed to muffle their faces when they were produced in the Court on 18.07.2007. 9. On 18.07.2007 at about 6:00 P.M. Appellant Murari was arrested from his house No.L-I/150, Gali No.13, Sangam Vihar and arrest memo Ex.PW12/Z3 was prepared. He took out a white colour shirt from his bath room; it had blood stains on its left shoulder and arm. The shirt was seized by seizure memo Ex.PW12/Z6 after converting it into a pulanda and sealing it with a seal of „PS‟. 10. During investigation the Appellants refused to join the Test Identification Proceedings. Autopsy on the dead body of the deceased was performed by Dr. B.L. Choudhary (PW-24) who found seven injuries. He opined the cause of death to be coma as a result of head injury (injury No.1). The IO of the case produced a sealed bag with a seal of „PS‟ seeking his opinion regarding the stone recovered from the spot. PW-24 testified that on opening the sealed bag it was found to contain one stone weighing 20 kg with dimension 40x27x21 cms. of irregular size. He along with Dr. Raghvender Kumar, a junior resident opined that injuries No. 1 to 6 were possible due to impact of that stone. PW-24 was also shown the danda seized during investigation. PW-24 opined that injury No.7 was possible from this danda. After completion of investigation a report under Section 173 Cr.P.C was filed in the Court. 11. The Appellants pleaded not guilty to the charge for the offence punishable under Section 302 read with Section 34 IPC. The prosecution, in order to prove its case examined 29 witnesses. PW-2 Fakre Alam, PW-9A Mohd. Sagir and PW-22 Constable Rohtash claimed to be eye witnesses. PW-16 Dr. Sunil Kumar medically examined the deceased when he was removed to the casualty section of AIIMS. He declared the patient brought dead and proved his report Ex.PW16/A. PW-24 Dr. B. L. Choudhary performed the autopsy and proved post mortem report Ex.PW-24/A and gave his opinion in respect of the weapon of offence as Ex.PW-24/B. Crl.A Nos.10/2011 etc. Page 6 of 24 PW-7 Dharmender Panwar, (brother of the deceased) deposed that on 16.07.2007 (at about 10:30/11:00 P.M.) receiving a telephone call from a police man from AIIMS that his brother Jitender Panwar had met with an accident. He, along with his father reached AIIMS and identified his brother‟s corpse. On 17.07.2007 during cross-examination, the witness deposed having reached AIIMS between 10:30/11:00 P.M. and he was there till 4:00 /5:00 A.M. He met a police man, Shiv Kumar. He did not meet anyone else. Rest of the witnesses are police officials and have deposed about the part played by them during investigation of the case. 12. PW-9A Mohd. Sagir is an eye witness to the incident. The FIR was recorded on the basis of his statement Ex.PW9/A. He (PW-9A) deposed that on 16.07.2007 he along with Fakre Alam was returning from Lado Sarai park after seeing a cricket match. At about 10:30 P.M. they reached Lado Sarai Red Light, T-point, when they saw one Maruti Zen car bearing No.7646. In the meanwhile, one Hero Honda Splendor bearing No. DL3SAJ 7048 hit the bumper of the said car. Deceased Jitender Panwar (whom they knew previously) got down from the car and argued with the two boys on the motor cycle. The two boys started arguing with Jitender Panwar (the deceased). Jitender Panwar picked up a danda from his car and showed it to those boys and then sat in his car. In the meanwhile, three persons reached on a motorcycle CBZ No. 5239. They had a word with the two persons on the other motorcycle (who had argued with the deceased) and started abusing Jitender Panwar. He proceeded further and stopped at the Traffic Signal in front of the Masjid. He went out from the car with a danda. The said five persons too reached the spot and got off their motor cycles. There was a quarrel between Jitender Panwar and those five persons. The two persons who were driving the motor cycle started beating Jitender Panwar with the help of helmets whereas the others (three persons) kicked him and gave fist blow and snatched the danda. He was given danda blows as a result of which he fell down on the road. They gave beatings to Jitender Panwar while he was lying on the road. They picked up a stone lying nearby and started hitting the deceased‟s head with it. They (PW9A and PW-2) raised an alarm and Crl.A Nos.10/2011 etc. Page 7 of 24 tried to chase the five culprits. In the meanwhile, one police man also reached the spot and accompanied them in their chase to catch the culprits. The three persons on the CBZ motorcycle fled on the bike. One of the other two tried to start the other motor cycle in order to escape, but could not start it. He, therefore, tried to run with the motor cycle. The fifth man ran towards Lado Sarai. Since the motorcycle (the Hero Honda) did not start, its rider ran towards the forest after leaving it on the left side of the bus stand. The witnesses‟ chase to catch the culprits was unsuccessful; therefore, they returned to the spot and found that members of the public had taken Jitender Panwar to AIIMS in his (deceased‟s) car. They also reached AIIMS where Jitender Panwar was found declared “brought dead”. 13. PW-2 Fakre Alam and PW-22 Constable Rohtash gave their own account of the incident which we would discuss in a later part of the judgment. 14. On close of the prosecution evidence, the Appellants were examined under Section 313 Cr.P.C in order to enable them to explain the incriminating circumstances on the record against them. All of them denied involvement in the incident and took the plea that they were falsely accused in the case by the police. They stated that eye witnesses were planted by the police and had deposed falsely. 15. The Appellants Murari, Suresh and Rakesh produced, DW-1 Ram Avtar, DW-2 Mohd Farooque and DW-3 Ghanshaym to prove that at the time of the alleged incident they were with them. 16. DW-1 Ram Avtar deposed that he knew Appellant Murari for the last 10- 12 years. On 16.07.2007 at about 9:00 P.M. the Appellant went to his house to clear the dues on account of milk supplied by him. He (Murari) had his dinner with him (DW-1) and left his house at 11:30 P.M. 17. DW-2 Mohd. Farooque testified that on 16.07.2007 at about 8:45 P.M. he and Appellant Suresh were present at Sainik Farms Gate No.1 and they had proceeded to Pali for loading a truck. The Appellant Suresh remained with him till 11:45 P.M. Crl.A Nos.10/2011 etc. Page 8 of 24 18. Similarly, DW-3 Ghanshyam deposed that Appellant Rakesh was his neighbour. On 16.07.2007 at about 9:00 P.M. the Appellant Rakesh went to attend the birthday party of his daughter and he remained at his (DW-3) residence till 11:00 P.M. 19. By impugned judgment the learned Additional Sessions Judge (ASJ) found that Appellants Murari and Suresh were responsible for causing Injury No.1 on the person of the deceased which proved fatal. They were thus, individually and jointly held liable under Section 300 (3) read with Section 302 IPC. It was further held that the Appellants Sandeep, Chandan and Rakesh had shared the common intention of causing serious injuries on the person of the deceased and thus they were also held vicariously liable for the acts of the Appellants Murari and Suresh. Accordingly, all the Appellants were convicted under Section 302 read with Section 34 IPC and sentenced as stated earlier. 20. We have heard Mr. Sameer Chandra Advocate for Appellants Murari, Rakesh and Suresh, Ms. Meenakshi Lekhi Advocate for Appellant Sandeep, Mr. Ranjit Singh Advocate for Appellant Chandan and Mr. Jaideep Malik, Additional Public Prosecutor for the State and have perused the record. 21. It is urged by the learned counsel for the Appellants that PW-2 and PW- 9A who were claimed by the prosecution to be eye witnesses to the occurrence are chance witnesses. Their testimonies do not inspire confidence as their conduct was unnatural. PW-22 (Constable Rohtash) who claimed himself to be an eye witness was disowned by the IO to be so. The testimonies of the three witnesses (i.e. PW-2, PW-9A and PW-22) are discrepant on major aspects of the prosecution version. Mohd. Sagir (PW-9A) did not give even the slightest description of the assailants; Constable Rohtash (PW-22) an alleged eye witness was associated in the search and apprehension of the culprits, though the culprits were previously not known to him which would make the investigation tainted and unfair. Therefore, it would be unsafe to rely upon their testimonies to base conviction of the Appellants. Crl.A Nos.10/2011 etc. Page 9 of 24 22. Learned counsel for the Appellants referred to the crime team report Ex.PW-11/A which does not mention the weapon used, the name of the complainant is mentioned as „PCR‟ though the FIR had already been recorded on the basis of the statement of PW-9A. It is contended that as per the prosecution version the statement Ex.PW-9/A of Mohd. Sagir was recorded at about 12:15 A.M. on 17.07.2007 on the basis of which the FIR was allegedly recorded immediately which is falsified by the scribe (of Ex.PW-9/A) SI Aishvir Singh initial IO of the case, who testified that the statements of Fakre Alam and Mohd. Sagir were recorded later, after completing search for the accused persons at about 6:00 A.M. 23. It is pleaded that the story of the arrest of the four Appellants Sandeep, Chandan, Rakesh and Suresh on 17.07.2007 at 2:00 P.M. at the pointing out of the secret informer at Khanpur T Point where the Appellants were allegedly standing near a food rehri is improbable and unbelievable. It is contrary to normal human conduct that four persons after committing a crime would casually stand near the place of the incident, wearing blood stained shirts. It is submitted that it has been stated by PW-24 Dr. B.L. Choudhary that “blood could not have splashed after the face of the deceased was hit with the stone as there was no large size damage of the arteries” and thus, there cannot be any blood stains on the clothes of the Appellants. 24. It is submitted that the prosecution version was that the quarrel took place all of a sudden, on a spur of moment without any preconcert or pre- planning and the Appellants were not armed with any weapon. Thus, the Appellants cannot be made liable for the act of others with the aid of Section 34 IPC. 25. On the other hand, it is contended on behalf of the State that there are some minor variations and discrepancies here and there in the testimonies of the three eye witnesses which do not affect the main substratum of the prosecution version. The recovery of danda and blood stained clothes at the instance of the Appellants has put a seal of authenticity on the Crl.A Nos.10/2011 etc. Page 10 of 24 prosecution version. The two public witnesses are reliable and trustworthy and thus the Appeals are liable to be dismissed. 26. PW-2 Fakre Alam is a resident of Ward No.1 Mehrauli, whereas PW-9A Mohd. Sagir is a resident of Ward No.6 Mehrauli. Deceased Jitender Panwar was not their immediate neighbour. The two public witnesses and the deceased were not travelling together. The incident took place at quite a distance from the place of their residence. According to PW-2 he along with Mohd. Sagir (PW-9A) was returning to his home in the Wagon R when they had seen this incident. If by a coincidence or by chance someone happens to be at a crime scene at the time it takes place, he is called a “chance witness”. And if he or she happens to be a relative or friend of the victim or is inimically disposed towards the accused then his being a chance witness is viewed with suspicion. (Bahal Singh v. State of Haryana, 1976 SCC (Cri.) 461). Of course, testimony of such a witness cannot be discarded such witness ipso facto is not unworthy of credence. The testimony of such witness, however has to be scrutinized with due care. 27. Both PWs 2 and 9A claim to have witnessed the incident from the Wagon R in which they were travelling. PW-2 deposed that on the way they noticed a Zen Car bearing No.7646. A black coloured motor cycle (Splendor make) with two boys hit the rear of the Zen. Jitender (deceased whom they knew previously) came out of the Zen Car; there was an altercation between the boys (on the motorcycle) and the deceased. Another motor cycle with three boys reached there. This resulted in an altercation between the five boys and the deceased. The deceased took out a danda from the car and showed it to the five boys. The red light turned green, the deceased‟s car and the motor cycles went ahead. At Anuvart Marg in front of the Masjid the two motor cycles went in front of the deceased‟s car. He went out and hit one of the boys and they snatched the danda. Those boys hit the deceased on his head with helmets and the danda which they had snatched (from the deceased). He fell down. Two boys came towards the foot path, picked up a stone and hit the deceased Crl.A Nos.10/2011 etc. Page 11 of 24 on the head. The witnesses raised alarm; the three boys on the CBZ motor cycle escaped, one boy who wielded the stone ran towards Lado Sarai; the other boy wheeled the motor cycle, and could not start it. He later left the motor cycle, and ran towards the jungle. A police man came. Mohd. Sagir, PW-2 and the police man followed the CBZ motor cycle in their Wagon R, but could not nab the assailants. The witnesses and the policeman returned to the spot. They learnt that some persons had removed the deceased to AIIMS. 28. PW-9A on the material aspect as to what happened after hitting of the car by the motor cyclist deposed that the deceased came down from the car and scolded the two boys. The said two boys started arguing with the deceased. The deceased picked up a danda from his car and showed it to them. Thereafter, the deceased sat in the car. In the meanwhile, three persons reached there on a CBZ motor cycle. They had a word with the two boys and then started hurling abuses at the deceased. The deceased proceeded further and the five persons on the two motor cycles chased him. The deceased crossed the traffic signal and stopped the car in front of a Masjid and got down with a danda. The five persons who reached the spot on the motor cycles also got down and a scuffle took place. Two persons who were riding the motor cycles started beating the deceased with their helmets and others started giving kick and fist blows to the deceased. They snatched the danda from him and beat him with it as a result of which he fell on the road. They gave beating to the deceased with danda while he was lying on the road. They picked up a stone lying nearby and started hitting the deceased on his head. The witnesses raised alarm and tried to chase the five culprits. In the meanwhile, one police Constable reached there. He accompanied them in their chase of the culprits. Three of them escaped on the CBZ motor cycle while one of them tried to start the other motor cycle could not do so. He, therefore, held the handle of Hero Honda motor cycle and tried to flee. The fifth attacker of them ran towards Lado Sarai. The accused who was wheeling Hero Honda Motor cycle (on foot) parked it to the left of the bus stand and ran towards the jungle after crossing the iron fencing. They tried Crl.A Nos.10/2011 etc. Page 12 of 24 unsuccessfully to chase above said five assailants in their car. They returned to the spot and saw that some members of the public had removed the deceased to AIIMS. 29. Constable Rohtash PW-22 testified that on 16.07.2007 at about 10:30 P.M. he was patrolling the area on his motor cycle. He stopped his motor cycle at the Lado Sarai traffic signal and MB Road crossing. He noticed five persons quarreling with someone near the Mosque. They were giving leg and fist blows to a man and beating him with danda and helmets. As soon as the signal