CRL. A. No.542 /2009 Page 1 of 44 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 20.09.2010 Judgment Pronounced on: 27.09.2010 + CRL.A. 542/2009 NAVJEET @ PRINCE & ORS. ..… Appellants - versus - STATE ..... Respondent Advocates who appeared in this case: For the Appellants : Mr Avninder Singh For the Respondent : Mr Sanjay Lao, APP CORAM:- HON’BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MR JUSTICE V.K. JAIN 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes V.K. JAIN, J 1. This appeal is directed against the judgment dated 27th April, 2009 and Order on Sentence dated 30th April, 2009, whereby both the appellants were convicted under section 302 and 307 of the Indian Penal Code (IPC) read with section 34 thereof for committing murder of Sanjay CRL. A. No.542 /2009 Page 2 of 44 Sharma and attempting to commit murder of the informant Sagar Sharma and were sentenced to imprisonment for life and to pay fine of Rs.5,000/- or to undergo SI for 3 months each in default under section 302/34 of the IPC. Identical sentence was awarded to them under section 307 of the IPC read with section 34 thereof. 2. The case of the prosecution, as disclosed in the FIR registered on the statement of Sagar Sharma, nephew of the deceased, is that a quarrel had taken place between the informant Sagar Sharma and the appellant Navjeet on payment of money for purchase of eggs by the informant on 2nd December, 2003. This is also the case of the prosecution that on 3rd December, at about 11.15 p.m. when the informant along with his uncle deceased Sanjay Sharma was returning after attending a marriage reception, the appellants who are brothers, stopped the motorcycle being driven by the deceased, saying that they have been searching him since the previous day, and would teach him a lesson. This was followed by the appellants abusing him. The informant was dragged from the motorcycle and the appellant Tavinder gave knife blows on his left shoulder and CRL. A. No.542 /2009 Page 3 of 44 stomach. When deceased Sanjay Sharma tried to save him the appellant Navjeet held him whereas Tavinder gave a knife blow on his chest, as a result of which he fell on the ground. Thereafter Tavinder gave a number of knife blows to the deceased. In the meanwhile his uncle Babloo Sharma and the younger brothers of the deceased, namely, Lalit Sharma and Amit Sharma, who also were returning after attending the same marriage reception, stopped there on seeing them. When they raised alarm and rushed towards them, the appellant Tavinder fled away along with his knife, but, the appellant Navjeet was apprehended by Babloo and Lalit Sharma. A number of persons from the public also rushed there on hearing the alarm and Navjeet sustained some minor injuries when he was overpowered by them. The informant and Amit Sharma brought Sanjay Sharma to S.D.N. Hospital where he was declared brought dead. The murder as well as the attempt to commit his murder, according to the informant, was actuated by a feeling to take revenge for the incident which had taken place on 2nd December, 2003. 3. The case of the prosecution against the appellants CRL. A. No.542 /2009 Page 4 of 44 is based on ocular as well as circumstantial evidence. The ocular evidence comprises of the testimony of the informant Sagar Sharma, his uncle Babloo Sharma and younger brothers of the deceased, namely, Lalit Sharma and Amit Sharma. The following circumstances were also alleged by the prosecution against the appellants: (a) There was a quarrel between the informant and the appellant Navjeet which constituted motive for the murder and the attempted murder; (b) The appellant Navjeet was apprehended on the spot; (c) An abrasion was found on the right side outer angle of the right eye of the appellant Tavinder when he was examined in the hospital on 5th December, 2005, which indicates his involvement in the incident. (d) The weapon used for committing the offence was recovered concealed in a park pursuant to the disclosure statement made by the appellant Tavinder; (e) The knife recovered at the instance of the appellant Tavinder was found stained with blood and it was opined by the doctor that injuries to the deceased were possible from that knife; CRL. A. No.542 /2009 Page 5 of 44 Ocular Evidence 4. The complainant Sagar Sharma came in the witness box as PW-1 and stated that on 2nd December, 2003 at about 9:30 p.m. he gave a Fifty Rupee note to the appellant Navjeet, who along with his brother and co- appellant Tavinder used to sell eggs, towards payment of four eggs. He, however, did not return the balance amount and started abusing him. The appellant Tavinder also abused him and pushed him. He then came back to his house. He further stated that on 3rd December, 2003 at about 11:15 p.m., he along with Sanjay Sharma, was returning on the motor cycle of Sanjay Sharma, after attending the wedding reception of his neighbor Sonu, held at Sanatam Dharam Shala Gali No.13, Shanti Mohalla. When they reached near house No.3938, Gali No.13 of Shanti Mohalla both the accused persons came in front of their motor cycle which was stopped by Sanjay Sharma. Navjeet caught hold of him(PW1) and dragged him from the motorcycle saying that he had been searching him and would teach him a lesson. He also started abusing him. CRL. A. No.542 /2009 Page 6 of 44 Tavinder gave a knife blow on his right chest and left shoulder. When Sanjay Sharma tried to save him, Navjeet caught hold of him (Sanjay Sharma) and Tavinder gave knife blow on his chest as a result of which he fell down. Tavinder then gave 5-6 blows to Sanjay Sharma. Jatinder Sharma alias Babloo, Lalit Sharma and Amit Sharma also reached there and caught hold of Navjeet, whereas Tavinder ran away from the spot. He along with Amit Sharma took Sanjay Sharma to S.D.N. Hospital, where he was declared brought dead. He further stated that Navjeet also sustained minor injuries when he was overpowered by Jitender Sharma and Lalit Sharma. He also identified Exhibit P1 as the knife which was used by Tavinder for causing injuries to him and to his uncle deceased Sanjay Sharma. 5. PW-2 Jitender Sharma alias Babloo stated that on 3rd December, 2003 at about 11:20 p.m. when he was coming back after attending the reception ceremony of his friend Sonu held at Sanatam Dharam Shala Gali No.13, Shanti Mohalla along with his two small children and reached Gali No. 13, at Shanti Mohalla, he saw Tavinder giving knife blows to Sanjay Sharma and Navjeet quarreling CRL. A. No.542 /2009 Page 7 of 44 Sagar Sharma. He, Lalit Sharma, and Amit Sharma asked the accused persons as to why they were stabbing Sanjay Sharma, Tavinder then ran away with knife in his hand whereas Navjeet was apprehended by him with the help of Lalit Sharma and some persons from the public who had gathered on the spot. Police came to the spot and the accused Navjeet was handed over to the police. 6. PW-3 Lalit Sharma stated that when he along with Amit Sharma reached Gali No. 13 while returning from the wedding reception on foot, he saw Tavinder giving knife blows to Sanjay Sharma and Navjeet quarreling with Sagar Sharma. When he cried and asked them as to why they were beating Sanjay Sharma Tavinder ran away with knife whereas Navjeet was apprehended by him and Jitender Sharma. Amit Sharma and Sagar Sharma took Sanjay Sharma to S.D.N. Hospital whereas Navjeet was handed over to the police. 7. PW-5 Amit Sharma corroborated the deposition of the informant Sagar Sharma and stated that when he reached Gali No.13, Shanti Mohalla along with his brother Lalit Sharma and PW-2 Jitender Sharma alias Babloo after CRL. A. No.542 /2009 Page 8 of 44 attending the wedding reception held at Shiv Mandir Dharam Shala, Shanti Mohalla, he saw Navjeet holding his brother Sanjay Sharma who was lying on the ground whereas Tavinder was stabbing him with a knife. When they cried and asked them not to beat their brother, Tavinder ran away with knife. He chased him but on account of darkness could not catch hold of him. He then came back to the spot. In the meanwhile his brother Lalit and Jitender had over powered Navjeet with the help of some persons from the public. He and Sagar Sharma then took Sanjay Sharma to S.D.N. Hospital, where he was declared dead by the doctors. 8. In his statement under section 313 of the Code of Civil Procedure the appellant Navjeet alias Prince admitted that he used to sell eggs on a cart but denied that his brother Tavinder was also selling eggs with him. He denied the incident of 2nd December, 2003. As regards the incident of 3rd December, 2003 he, while denying the case of the prosecution against him, stated that he was beaten by the deceased and several prosecution witnesses and not by the public, when he was going to the police station for making CRL. A. No.542 /2009 Page 9 of 44 enquiry about their complaint. He further stated that after giving beating to him they fled from the spot. He also stated that Tavinder had gone to seek help when he was beaten by the deceased and the prosecution witnesses. He claimed that no one was injured by him and his brother. 9. The appellant Tavinder, however, admitted that he along with his brother co-appellant Navjeet alias Prince used to sell eggs at Shanti Mohalla on a cart. He, however, denied the incident of 2nd December, 2003. He also denied the case of the prosecution against him regarding the incident which took place on 3rd December, 2003 and stated that the deceased had suffered injuries somewhere else and had implicated him and his brother in the case. He claimed that his brother Navjeet was beaten by the deceased and prosecution witnesses when they were going to the police station to enquire about their complaint. He also claimed that he had gone to seek help when his brother was beaten by the deceased and the prosecution witnesses. He also denied having caused injuries to the deceased or to any other injured. 10. PW-14 Dr. N.K. Tangri who was posted as CMO in CRL. A. No.542 /2009 Page 10 of 44 S.D.N. Hospital, Shahdara on 4th December, 2003 examined PW-1 Monu Sharma alias Sagar Sharma and found that he had a clean incised wound right side lower part of chest 8 mm x 2 mm deep up to subcutaneous deep. He also found 5 cm long abrasion over left upper arm which was skin deep. The injuries were noted by him on the MLC Exhibit PW14/B. 11. The MLC of the informant Sagar Sharma coupled with his deposition in the court leaves no doubt that he was injured in the incident which took place in the night intervening 3/4th December, 2003 at Shanti Mohalla. Being injured, the informant is the best witness of the incident in which injuries were caused to him and in the absence of strong and compelling reasons, his testimony needs to be believed since being one of the victims of the crime, he is unlikely to spare the real culprit and implicate an innocent person. He would rather be keen to ensure that the real culprit does not go unpunished. Though, in his statement under section 313 of Cr.PC the appellant Tavinder claimed that the injuries by the deceased and the prosecution witnesses were sustained CRL. A. No.542 /2009 Page 11 of 44 in some other incident, he did not tell the court as to what that incident was, where it had taken place and who had caused injuries to the deceased and to the informant Sagar Sharma. There is absolutely no evidence of either the deceased or the informant having sustained injuries in some other incident. Therefore, we see no reason to disbelieve the injured Sagar Sharma who categorically and unequivocally stated that he was injured by the appellant Tavinder in the course of the same incident in which injuries were caused by him to the deceased Sanjay Sharma. As held by the Supreme Court in a number of cases including Machhi Singh vs State of Punjab 1983 Crl. LJ 1457, Makan Jivan and Ors. vs State of Gujarat: AIR 1971 SC 1797; Mori Lal and Anr. vs State of U.P. AIR 1970 SC 1969; and Jamuna Chaudhary and Ors. vs State of Bihar AIR 1974 SC 1822, the evidence of the injured alone is sufficient to bring home the guilt of the accused, even if the evidence of other witnesses is excluded from consideration. Therefore, even if the testimony of PW-2 Jitender Sharma, PW-3 Lalit Sharma and PW-5 Amit Sharma is excluded from consideration, the deposition of CRL. A. No.542 /2009 Page 12 of 44 injured Sagar Sharma by itself is sufficient to prove the involvement of the appellants in the incident in which deceased Sanjay Sharma lost his life and the informant was injured. 12. A perusal of the MLC of the deceased Exhibit PW 14/A and the MLC of the informant Exhibit PW-14/B shows that they were brought to the hospital by Amit Sharma s/o Ravinder Kumar Sharma, who had been examined as PW-5 in this case. He has fully corroborated the deposition of the informant from the stage he reached the spot. Since the deceased was brought to S.D.N. Hospital by the informant as well as PW-5 Amit Sharma as is evident from their MLC besides their oral deposition, we see no reason to disbelieve this witness. His testimony cannot be rejected merely because he happens to be the brother of the deceased. In fact, none of the appellants specifically claimed that this witness was not present at all when the incident took place. 13. The testimony of PW-2 Jitender Sharma, PW-3 Lalit Sharma and PW-5 Amit Sharma was assailed by the learned counsel for the appellants on the ground that being relatives of the deceased they are interested witnesses and CRL. A. No.542 /2009 Page 13 of 44 since no independent eye witness was examined by the Investigating Agency, their testimony should not form basis of the conviction of the appellants. We find no merit in the contention. Relationship of the witnesses with the deceased does not by itself affect their credibility. A witness cannot be said to be an interested witness merely because he happens to be a relative of the victim of the crime. As observed by Supreme Court in Ashok Kumar Chaudhary vs State of Bihar 2008 Crl.L.J 2030, the term “interested” postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either, because he had some animus with the accused or for some other oblique motive. 14. The only rule of caution the Court may adopt with respect to such a witness is to scrutinize his evidence with care and caution but, if on such scrutiny his evidence is found to be reliable, probable and trustworthy, conviction can be based even on the sole testimony of a witness who is related to the victim of the crime. In this regard Supreme Court in Dalip Singh vs State of Punjab 1954 SCR 145 inter alia observed as under:- CRL. A. No.542 /2009 Page 14 of 44 “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.” Hence, the testimony of PW-2, PW-3 & PW-5 cannot be discarded merely on account of their relationship with the deceased, particularly when there is no evidence of any of them having any kind of animus against the appellants or harbouring any grudge against them. 15. It was contended by the learned counsel for the appellants that the case of the appellants is covered by Exception IV to Section 300 of IPC, since the stabbing was preceded by a quarrel and happened in a heat of passion generated during the quarrel. In support of his contention, the learned counsel for the appellant has referred to the decision of the Supreme Court in Satish Narayan Sawant CRL. A. No.542 /2009 Page 15 of 44 vs State of Goa JT 2009 (12) SC 224. In that case there was a heated exchange of words between the appellant and the deceased. Thereafter, the appellant and the other accused gathered in a hall to assault the deceased, PW-1 and PW-8, who in order to avoid the assault, went to the balcony. The appellant then brought a knife from the room of his brother and stabbed the deceased, using that knife. Only one main injury was caused to the deceased, other injuries being superficial and that main injury was also given on his back side. It was also noticed that there was scuffle between the parties before the incident of stabbing took place. It was held by Supreme Court that the appellant could not be said to have any intention to kill or to inflict an injury of a particular degree of seriousness. It was, therefore, held that the case fell under Section 304 Part II of IPC. 16. Exception IV An accused is entitled to the benefit of exception IV to section 300 of the Indian Penal Code, only if the act committed by him satisfies the following conditions: (i) It is committed without premeditation; CRL. A. No.542 /2009 Page 16 of 44 (ii) it is committed in a sudden fight; and (iii) the act is committed in the heat of passion upon a sudden quarrel, provided the offender does not take any undue advantage and does not act in a cruel and unusual manner. 17. All the above conditions must exist before this exception is invoked. Even if one of the aforesaid conditions is missing. The case of the accused cannot be brought within the purview of this exception. 18. „Undue advantage‟ would mean an unfair advantage. The nature of the weapon used by the accused and the manner of attack made by him have a material bearing while deciding whether the accused had taken an undue advantage or not. If the nature of the fight does not justify the use of weapon actually used by the accused, this would clearly amount to taking undue advantage of the victim and would take the case of the accused out of the purview of Exception IV to section 300 of the Indian Penal Code. After considering the facts and circumstances of the case, including the nature of the quarrel between the accused and the deceased, if it is found that use of the CRL. A. No.542 /2009 Page 17 of 44 weapon actually used by the accused was wholly unjustified and unwarranted, that by itself may amount to acting in a cruel manner and may deprive the accused of the benefit of this exception. 19. In the case of Satish Narain (supra), initially the appellant did not have any weapon with him and he lifted it from the room of his mother during the course of the quarrel, whereas in the case before us the appellant Tavinder Singh was already armed with a knife when he met the deceased and the informant. There could be no good reason for the appellant Tavinder Singh to be carrying a knife with him late in the night. According to the appellants, they were going to the Police Station to enquire about the complaint made by them, against the informant, with respect to the incident of 2nd December 2003, when they met him and the deceased on the way to the Police Station. The plea taken by the appellants, however, is not convincing at all. Ordinarily, one would not go to make an enquiry of this nature past 11 „O‟ Clock in the night, when very few police officials are expected to be available in the Police Station. In any case, there could be no reason for the CRL. A. No.542 /2009 Page 18 of 44 appellant Tavinder to be carrying a knife with him while going to the Police Station. The logical inference, therefore, is that the appellants were at least prepared to cause injury to the informant, using a knife for the purpose, when they intercepted them in the night of 3rd December 2003. Moreover, the appellant Tavinder first gave two knife blows to the informant which was followed by giving one knife blow to the deceased on his chest. He did not stop even there and, despite the deceased having fallen on the ground on receipt of the knife blow on his chest, and gave three other knife blows to him, which clearly indicates an intention to commit his murder by giving repeated knife blows on vital parts of his body. The following stab wounds were found on the body of the deceased when postmortem was conducted by PW-13 Dr Akash Jhanjee:- 1. Incised penetrating wound 2.2 x 0.5 cms present over front of lower half left side chest 015 cm above the level of left heel, 12.2 cms below and inner to left nipple with margins clean cut. The upper and outer angle was rounded and lower inner angle was acute. 2. Incised punctured wound 1.2 x 0.5 cms present over back of lower half left side chest 8.2 cms below and inner to left scapula inferior angle, 3.8 cms to the CRL. A. No.542 /2009 Page 19 of 44 left of midline slightly obliquely placed with margins clean cut outer angle rounded and inner angle acute. Wound was muscle deep with depth of 0.4 cms. 3. Incised penetrating wound 2.3 x 0.6 cms present over back of lower half left side chest 3.2 cms below and inner to injury no. 2, almost near midline with outer angle acute and inner angle rounded. 4. Incise punctured wound 1.8 x 0.5 cms obliquely placed over back of upper half right side abdomen placed obliquely with margins clean cut 3 cm below and to the right of injury no. 3. Wound was muscle deep with depth of 0.5 cm. The blade of the knife recovered by the police at the instance of the appellant Tavinder Singh was found to be about 11cm long. The depth of injury No. 1 was found to be 9.5cm whereas the depth of injury No. 3 was found to be 8.6cm. This clearly shows that full force was applied by the appellant Tavinder while giving knife blows to the deceased, inasmuch as almost whole of the blade was thrust in his body. The injury No. 1 had cut through the skin, subcutaneous tissues, inter costal muscle of eight left inter costal muscle space, entered into left side chest cavity, then cut through the anterior wall of pericardialsac, produced a CRL. A. No.542 /2009 Page 20 of 44 cut 0.5 cm in length over anterior wall of right ventricle and ended in the cavity of the right ventricle. The third injury cut through the skin, subcutaneous tissues, inter costal muscle of seventh left inter costal muscle space, entered