Crl.A.No.156/2005 Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 4th February, 2010 Judgment Pronounced on: 17th March, 2010 + CRL APPEAL NO.156/2005 RAJESH & ORS. ..... Appellants Through: Mr.P.D.Sharma, Advocate versus STATE ..... Respondent Through: Mr.M.N.Dudeja, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. 1. Vide impugned judgment and order dated 04.12.2004, appellants, Rajesh, Sanjay and Amit, have been convicted for the offence of having murdered Sat Parkash @ Santosh (herein after referred to as the “Deceased”), for which offence they have been sentenced to undergo imprisonment for life and pay fine in sum of Rs.1,000/- each; in default to undergo rigorous imprisonment for one year. Additionally, the appellants have also been convicted for the offence of having attempted to murder Mohd.Safiq, for which offence they have been Crl.A.No.156/2005 Page 2 of 35 sentenced to undergo rigorous imprisonment for a period of five years and pay fine in sum of Rs.500/- each; in default to undergo rigorous imprisonment for a period of six months. 2. Case of the prosecution is that on 04.12.2002 the appellants went to the shop of Rampher PW-3, where they quarrelled with Rampher and his brother-in-law Sant Lal PW- 17, and stabbed Sant Lal. On 09.12.2002 at about 01.30 P.M. armed with knives and danda the appellants again came to the shop of Rampher to take revenge as they were nursing a grudge against Rampher and his family. The deceased, who was the brother-in-law of Rampher was present in the shop at that time. The appellants gave several knife and danda blows to the deceased. At the time when the appellants were attacking the deceased, Mohd.Safiq PW-10, tried to save the deceased from the clutches of the appellants upon which the appellants inflicted injuries upon the person of Mohd.Safiq. The appellants fled from the place of the incident after causing serious injuries to the deceased and Mohd.Safiq. The deceased and Mohd.Safiq were removed to the hospital where the deceased was declared brought dead. Mohd.Safiq was given treatment and he survived. Rampher PW-3 and Ram Prakash PW-4 witnessed the appellants attacking the deceased and Mohd.Safiq PW-10. Crl.A.No.156/2005 Page 3 of 35 3. Needless to state, the case of the prosecution hinged upon the veracity and credibility of the testimony of Rampher PW-3, Ram Prasad PW-4 and Mohd.Safiq PW-10. 4. Process of criminal law was set into motion when at around 01:55 P.M. on 09.12.2002, DD Entry No.17A, Ex.PW- 1/B, was recorded by ASI Pritam Singh PW-1, to the effect that a wireless information has been received from HC Ishwar Chand informing that a quarrel had taken place near fire station at Ravidas Marg and that one person who has been stabbed has been removed to the hospital. 5. The events which preceded the recording of the afore- noted DD Entry are that HC Ishwar Chand PW-5, who was on patrolling duty, was informed by an unknown person that two persons are lying in an injured condition at Ravidas Marg. HC Ishwar Chand immediately proceeded to Ravidas Marg where he found the deceased and Mohd.Safiq lying on the road in an injured condition and he removed them to Lady Harding Hospital. 6. On receipt of the DD Entry Ex.PW-1/B, SI Jai Raj Singh PW-25, Inspector Ram Meher Singh PW-23, SI Dhanpat Singh PW-19 and Const.Pritam Singh PW-5, reached the place of the incident where they learnt that the deceased and Mohd.Safiq Crl.A.No.156/2005 Page 4 of 35 have been removed to the hospital upon which they proceeded to the hospital. On reaching the hospital, the aforesaid police officers learnt that the deceased had been declared brought dead as recorded in the MLC Ex.PW-2/A of the deceased. They further learnt that Mohd.Safiq PW-10, had been admitted in the hospital and was not fit for making a statement, as recorded on the MLC Ex.PW-2/B of Mohd. Safiq. It may be noted here that the relevant portion of the MLC Ex.PW-2/B of Mohd. Safiq reads as under:- “Name of relative or friend H.C. Ishwar Jan Rai 1192 PCR IC-OSCAR-47 Date & time of examination 2.10 pm; 9/12/02 Local exam i) A CLW 3 cm present on the lt. side of cheek ii) A CLW 3 cm present on the lt. side of the chin iii) Abrasions over the lt. knee" 7. At the hospital, SI Jai Raj Singh PW-25, met Rampher PW- 3, who claimed to be an eye-witness to the incident in question. SI Jai Raj Singh recorded the statement Ex.PW-3/A of Rampher and made an endorsement Ex.PW-25/A thereon, and at around 04.15 P.M. handed over the same to Const.Pritam Singh PW-5, for registration of an FIR. Const.Pritam Singh took the endorsement Ex.PW-25/A to the police station where ASI Pritam Singh PW-1, registered the FIR No.359/2002, Ex.PW-1/A. Crl.A.No.156/2005 Page 5 of 35 8. Relevant would it be to note that the statement Ex.PW- 3/A of Rampher reads as under:- “I reside at the aforesaid address and sell betel and cigarettes from my shop at the corner of street No.2, (illegible), Ravidas Marg. Two – three months ago my brother-in-law Sant Lal came from village in search of employment and used to reside with me. My two nephews Ram Prakash and Satya Prakash @ Santosh also used to reside with me. Ram Prakash also sells tea from a shop at road. One week ago Satya Prakash @ Santosh also came to me from Noida in search of employment and sometimes he used to sit at my shop. Sometimes Sant Lal also used to help me. Sometimes Sant Lal also used to help me. In the night of 04.12.2002 Rajesh @ Nauua who is the son of Moti Lal and resident of G-Block, Street No.2, accompanied by his two friends came to his shop. Rajesh @ Nauua demanded cigarette from my brother-in-law who was running my shop at that time. When Sant Lal demanded money for the cigarettes purchased by Rajesh @ Nauua Rajesh and his friends quarrelled with Sant Lal. Rajesh @ Nauua stabbed Sant lal and thereafter Rajesh and his friends fled from the place of the incident. Today at about 01.30 P.M. I was present near my shop when Nauua along with his same two friends who had accompanied him on 04.12.2002 and were of medium height came there. One of the said two boys was armed with a stick (danda) of about one meter in length and he hit Satya Prakash @ Santosh who was sitting on his shop with the same upon which Satya Prakash fell down. Rajesh @ Nauua said „Rascal you were saved that day; today we would take revenge‟. Thereafter within a span of few minutes Rajesh @ Nauua and his friends took knives from their arm sleeves and stabbed Satya Prakash @ Santosh multiple times which hit Satya Prakash @ Santosh on his neck and face. During the time Satya Prakash @ Santosh was being attacked, Safiq who is a resident of Katputhli Colony, Shadipur, Delhi and used to work in the opposite between intervened. Nauua and his friends also gave knife blows to Safiq which hit him on his Crl.A.No.156/2005 Page 6 of 35 various body parts. I raised hue and cry upon which many people gathered there. Rajesh @ Nauua and his friends carrying knives in their hands fled from there. In the meanwhile a PCR van came there and removed Satya Prakash @ Santosh to Lady Harding Hospital. The doctor declared Satya Prakash @ Santosh brought dead. Rajesh @ Nauua and his friends inflicted knife and danda blows on Satya Prakash with an intention of murdering him which caused his death. Dangerous injuries have been sustained by Safiq due to knife blows inflicted upon him. The friends of Rajesh were of medium height and that he can identify them. An action be taken against Nauua and his friends.” 9. Since the deceased was declared brought dead, his body was sent to the mortuary of Lady Harding Hospital where Dr.Sumit Seth PW-8, conducted the post-mortem and gave his report Ex.PW-8/A, which records following external injuries on the person of the deceased:- “1. A stab wound is present 2 cm above the sternol notch in the midline. The wound is 3 x 0.5 cm x 5 cm deep. The margins are clean cut. The angle of the right side is acute and that on the left side is rounded. The shape of the wound is elliptical. The principle direction of the wound is toward the left and backward. The wound is obliquely placed the inner end lower than the upper outer end. A track is established starting from the mid line towards the left side with cutting of the carotid sheath of left side with its structure. The track ends blindly near the left margin of the first thoracic vertebrae. There is extensive haemorrhage present over the subcutaneous tissue & sternoclidemastaicd muscle of the left side. 2. A clean cut incised wound of dimensions 2.5 x (illegible) cm is present over the left cheek bone (zygma) obliquely (illegible) inner margin is lower than the outer end. (margins) illegible is spindle Crl.A.No.156/2005 Page 7 of 35 shaped. The incised wound is deeper on the (illegible). 3. A clean cut incised wound present over the ramu (illegible) mandible of the left side over the middle half portion, 3 cm above the margin of jaw. Obliquely placed The dimension of wound is 3.5 x 1 cm x skin deep 4. A clean cut incised wound is present over the outer lateral aspect of neck obliquely place 3 cm below the margin of jaw, 5 cm below the angle of jaw. The dimension of wound is 3.1 x 1 cm (spindle shaped) x skin deep. 5. 0.5 x 0.3 cm (illegible) wound present below the left lower lip ( 2 cm below lowerlip). The wound is skin deep. 6. An abrasion of size 3 x 2 cm, dark red in colour is present over the left side of forehead, 3 cm from the midline & 2.5 cm from the left eyebrow.” 10. The doctor opined that the death of the deceased was caused due to haemorrhagic shock resulting from injury No.1 which was further opined to be sufficient to cause death in the ordinary course of nature. 11. On 10.12.2002 the doctor declared Mohd.Safiq to be fit to give a statement, upon which Inspector Ram Meher Singh PW- 23, recorded the statement Ex.PW-10/A of Mohd.Safiq under Section 161 Cr.P.C. wherein he also indicted the appellants as the persons who had attacked him and the deceased. 12. On the same day i.e.10.12.2002 the police recorded the supplementary statement Ex.PW-23/DB of Rampher under Crl.A.No.156/2005 Page 8 of 35 Section 161 Cr.P.C. wherein Rampher ostensibly stated that he had given wrong details regarding the manner in which the deceased was murdered by the appellants in his statement Ex.PW-3/A as he was perplexed at the time of making the said statement. He disclosed that the knife blow was inflicted on the person of the deceased by only one of the persons who had accompanied Rajesh whereas the other person had given danda blow to the deceased. 13. In view of the statements Ex.PW-3/A and Ex.PW-10/A of Ram Prakash and Mohd.Safiq respectively, the police set out to apprehend the appellants. 14. On 11.12.2002 at about 05.00 P.M. the police arrested the appellants as recorded in the arrest memos Ex.PW-20/A, Ex.PW-20/B and Ex.PW-20/C. The appellants were interrogated and their disclosure statements were recorded. Pursuant to the recording of his disclosure statement, appellant Amit got recovered a t-shirt, pant, knife and stick. We need not note the contents of the disclosure statements of appellants Rajesh and Sanjay as the same are completely inadmissible in evidence as they admit of guilt. We note that neither any recovery was effected nor was a fact discovered pursuant to the said statements made by appellants Rajesh and Sanjay. Crl.A.No.156/2005 Page 9 of 35 15. The exhibits seized by the police during the investigation including the clothes, knife and stick recovered at the instance of appellant Amit were sent to Forensic Science Laboratory for serological examination. Vide FSL report Ex.PW-23/F, it was opined that human blood was detected on the clothes, knife and stick recovered at the instance of appellant Amit; group whereof could not be determined. 16. Armed with the statements Ex.PW-3/A and Ex.PW-10/A of Rampher and Mohd. Safiq, the post-mortem report Ex.PW8/A of the deceased and the FSL report Ex.PW-23/F, the police filed a charge sheet against the appellants. (It may be noted here that Sant Lal PW-17, was not cited as an eye-witness to the occurrence in the charge sheet). 17. Charges were framed against them for having committed offences punishable under Sections 302 and 307 IPC read with Section 34 IPC. 18. Ignoring the testimony of the police officers who participated in the investigation of the present case, we note the testimony of such witnesses, in respect whereof, submissions were made during the arguments of the appeal on the issue, whether Rampher PW-3, Ram Prasad PW-4, Mohd Safiq PW-10 and Sant Lal PW-17, were at all eye-witnesses. Crl.A.No.156/2005 Page 10 of 35 19. Rampher PW-3, deposed that on 09.12.2002 at about 01.30 P.M. he had gone from his shop to his home for taking lunch. His home is at a distance of 20 steps from his shop. The deceased and Ram Prakash who were his nephews were sitting in his shop at that time. He saw from his house that appellants Sanjay and Amit came to his shop and gave beating to the deceased. Appellant Sanjay gave knife blows to the deceased whereas appellant Amit gave danda blow to him. Appellants Sanjay and Amit fled from the spot after inflicting injuries on the person of the deceased. He did not see appellant Rajesh inflicting any injury on the person of the deceased. On 04.12.2002 at about 09.30 P.M. he was sitting in his shop when appellant Rajesh came there and started beating him. After sometime appellant Amit also came there. The statement Ex.PW-3/A bears his thumb impressions. 20. Since there was a variation between the testimony of Rampher and the contents of his statement Ex.PW-3/A, Rampher was declared hostile by the prosecutor. On being cross-examined by the learned prosecutor, Rampher admitted that the contents of his statement Ex.PW-3/A are correct. 21. On being cross-examined by the defence about the manner in which the deceased was murdered by the appellants, Rampher stated (Quote): ‘It was one accused Crl.A.No.156/2005 Page 11 of 35 person, Rajesh, who had attacked Satya Prakash with knife several times. The accused Sanjay had hit Satya Prakash with Danda. Sanjay had used the Danda only on Satya Prakash’. On being cross-examined by the defence about the attack on Mohd. Safiq, Rampher stated (Quote): ‘Shafiq works in a shop opposite our shop. He was not attacked with Danda. He was attacked with knife’. 22. Ram Parkash PW-4, the brother of the deceased, deposed that on 09.12.2002 in the noon time he had come to shop of the deceased. When he was near the shop of the deceased he saw the appellants coming to the shop of the deceased. Appellant Sanjay had a Danda in his hand whereas appellant Amit had a knife in his hand. Appellant Sanjay gave a danda blow on the head of the deceased whereas appellant Amit stabbed him with knife multiple times. Appellant Rajesh was giving exhortations to the other appellants to kill the deceased. He i.e. Ram Prakash, raised a hue and cry upon which Mohd Safiq, who is a tailor came. When Mohd Safiq tried to save the deceased, appellant Sanjay gave a danda blow to him whereas appellant Amit gave a knife blow to him. Thereafter the appellants fled from the place of the incident. A PCR van arrived at the place of the incident and removed the Crl.A.No.156/2005 Page 12 of 35 deceased and Mohd.Safiq to the hospital. He and Rampher accompanied the deceased and Mohd.Safiq to the hospital. 23. Mohd.Safiq PW-10, deposed that on 09.12.2002 at about 1.35 P.M. he was present outside his shop when he saw appellants Rajesh and Sanjay inflict knife and danda blows to a person who sits on a betel shop. On seeing appellants Rajesh and Sanjay causing injuries to that person he became perplexed and started running but the said appellants chased him and attacked him with knife and danda. 24. Sant Lal PW-17, deposed that he along with his brother- in-law Rampher sells betel and cigarettes from a shop. On 04.12.2002 at about 10.00 P.M. he and Rampher were sitting in their shop when two boys came there and took cigarettes from them. When Rampher demanded money for the cigarettes, the said boys started quarrelling with him. In the meantime a third boy also came there. The said three boys gave beatings to him and Rampher. Appellant Rajesh gave knife blows on his face and fingers. The deceased came there to save them from the clutches of the said three boys. The appellants fled from there. The appellants were the three boys who had attacked him and Rampher on 04.12.2002. On 09.12.2002 the deceased was sitting on the shop in question when the appellants came there and stabbed him with knives. Crl.A.No.156/2005 Page 13 of 35 (It may be noted here that the witness has not deposed a word about the manner in which the crime of murder of the deceased was committed by the appellants) 26. On being cross-examined by the defence about his witnessing the murder of the deceased, Sant Lal stated (Quote): ‘On 9.12.02 the accused persons again came on our shop and I did not see who cause murder of Sat Prakash.’ 27. Believing the testimony of Rampher PW-3, Ram Prasad PW-4, Mohd Safiq PW-10 and Sant Lal PW-17, to be creditworthy, the learned Trial Judge has convicted the appellants. 28. At the hearing of the appeal, learned counsel for the appellants advanced following six submissions:- A The first submission advanced by the learned counsel for the appellants was that there are material contradictions in the statements given by Rampher at various stages. The first contradiction pointed out by the learned counsel was regarding the involvement of the appellants in the crimes with which they were charged. Counsel pointed out that Rampher stated in his statement Ex.PW-3/A that all the three appellants had attacked the deceased and Crl.A.No.156/2005 Page 14 of 35 Mohd. Safiq and that all the three appellants came to his shop on 04.12.2002 and quarrelled with him and Sant Lal whereas he deposed in his examination-in- chief that appellants Amit and Sanjay had attacked the deceased and Mohd.Safiq; that he had not seen appellant Rajesh attacking the deceased and Mohd.Safiq and that appellants Rajesh and Amit had come to his shop on 04.12.2002. Counsel further pointed out that Rampher did not depose a word about the appellants having attacked Mohd.Safiq in his examination-in-chief. Counsel lastly pointed out that Rampher took a somersault in his cross- examination by stating that the contents of his statement Ex.PW-3/A which were at variance with the statement given by him in examination-in-chief are correct. The second contradiction pointed out by the counsel was regarding the manner in which the deceased was murdered by the appellants. Counsel pointed out that Rampher stated in his statement Ex.PW-3/A that all the three appellants had given knife blows to the deceased whereas he deposed in his testimony that appellant Rajesh had given knife blows to the deceased and that appellant Sanjay had Crl.A.No.156/2005 Page 15 of 35 only given a danda blow to the deceased. The third contradiction pointed out by the counsel was regarding the place from where Rampher witnessed the incident. Counsel pointed out that Rampher stated in his statement Ex.PW-3/A that he witnessed the incident in question when he was standing near his shop whereas he deposed in his testimony that he witnessed the incident from his house. Counsel submitted that evidence of Rampher is not worthy of credence as he was shifting stands and there is no scale to find out which of his statements is truthful. It was submitted that evidence of such a vacillating witness should be best ignored and discarded. B The second submission advanced by the learned counsel for the appellants was that there is a material contradiction between the evidence of Rampher PW-3 and Ram Prakash PW-4. The contradiction pointed out by the learned counsel was regarding the manner in which Mohd.Safiq was attacked by the appellants. Counsel pointed out that Rampher PW-3, deposed that Mohd.Safiq was not attacked with danda by the appellants whereas Ram Crl.A.No.156/2005 Page 16 of 35 Prakash PW-4, deposed that appellant Sanjay gave a danda blow to Mohd. Safiq. C The third submission advanced by the learned counsel for the appellants was that there are material contradictions between the evidence of Rampher PW-3, Ram Prakash PW-4 and Mohd.Safiq PW-10. The first contradiction pointed out by the learned counsel was regarding the involvement of appellant Amit in the crimes with which he was charged. Counsel pointed out that Mohd Safiq PW-10, deposed that he had seen appellants Rajesh and Sanjay attacking the deceased and that the said appellants had also attacked him whereas Rampher PW-3 and Ram Prakash PW-4, stated that the deceased and Mohd. Safiq were attacked by all the three appellants. The second contradiction pointed out by the learned counsel was regarding the manner in which Mohd.Safiq was attacked by the appellants. Counsel pointed out that Mohd.Safiq PW- 10, deposed that he was given danda blows by appellants Rajesh and Sanjay whereas Rampher PW- 3, deposed that Mohd.Safiq was not attacked with a danda. Crl.A.No.156/2005 Page 17 of 35 D The fourth submission advanced by the learned counsel for the appellants pertained to the credibility of the evidence of Sant Lal PW-17. Counsel submitted that the facts that Sant Lal PW-17, did not depose a word about the manner in which the deceased was attacked by the appellants and that Mohd Safiq was attacked by the appellants shows that Sant Lal did not witness the murder of the deceased. Counsel further submitted that there is a material discrepancy between the evidence of Sant Lal PW-17 and Rampher PW-3, regarding the quarrel which had taken between them and the appellants on 04.12.2002. Counsel pointed out that Rampher PW-3, did not depose a word about the presence of the deceased at the time of the quarrel in question whereas Sant Lal PW-17, deposed that the deceased had intervened in the said quarrel. E The fifth submission advanced by the learned counsel for the appellants was predicated upon the statement Ex.PW-3/A of Rampher, which statement has formed the basis of the FIR registered in the present case. Counsel urged that there is not a word about the presence of Ram Prakash PW-4 and Sant Crl.A.No.156/2005 Page 18 of 35 Lal PW-17, at the time of the occurrence in the statement Ex.PW-3/A and therefore the claim of Ram Prakash PW-4 and Sant Lal PW-17, that they witnessed the occurrence is doubtful. F The last submission advanced by the learned counsel for the appellants was predicated upon the recording contained in the DD Entry Ex.PW-1/B that „one person who has been stabbed is removed to the hospital‟. Counsel urged that the said recording is suggestive of the fact that it was only the deceased who was found by the police in an injured condition on the spot; that Mohd Safiq was not present on the spot and that he was introduced subsequently to create an eye-witness to the occurrence. 29. The transactions with which the appellants are charged can be divided into following three stages:- I Stage 1: Stage 1 is the quarrel which took place on 04.12.2002 between