Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 1 of 39 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL NO. 679 OF 2001 % Date of Decision: 28th August, 2009 # DURGA PRASAD @ BABLU ...Appellant ! Through: Ms. Anu Narula, Advocate versus $ STATE …Respondent ^ Through: Ms. Richa Kapoor, APP WITH + CRIMINAL APPEAL NO. 731 OF 2001 # RAJINDER KUMAR & ORS. ...Appellants ! Through: Mr. Sumeet Verma, Advocate versus $ STATE …Respondent ^ Through: Ms. Richa Kapoor, APP WITH + CRIMINAL APPEAL NO. 168 OF 2003 # MADAN GOPAL ...Appellant ! Through: Mr. T.S. Khahar, Advocate versus $ STATE …Respondent ^ Through: Ms. Richa Kapoor, APP AND Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 2 of 39 + CRIMINAL APPEAL NO. 204 OF 2003 # LAJPAT @ BILLOO ...Appellant ! Through: Mr. Arvind Kumar Patel, Advocate versus $ STATE …Respondent ^ Through: Ms. Richa Kapoor, APP CORAM: * HON'BLE MR. JUSTICE B.N.CHATURVEDI HON'BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the Judgment?(No) 2. To be referred to the Reporter or not?(Yes) 3. Whether the judgment should be reported in the digest? (Yes) JUDGMENT P.K.BHASIN, J The four appellants have called in question the correctness of the judgment dated 20th August, 2001 passed by the Court of Additional Sessions Judge, Delhi in Sessions case no. 188/97 whereby all of them have been convicted under Section 302/34 IPC for having murdered one Amit Gupta on 10th January, 1997. Since all the three appeals arise of same judgment of the trial Court and were heard together we propose to dispose them of by this common judgment. 2. The prosecution case leading to the trial and conviction of the four appellants has been noticed by the trial Court in its judgment and relevant portions therefrom are re-produced below:- Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 3 of 39 “On 10.1.97 an information was received from RML Hospital which was recorded as DD No. 29A in P.S. Parsad Nagar. Information was regarding admission of one Amit Gupta in the hospital in injured condition. On the basis of this information SI Babbar Bhan along with Constable Manohar Lal reached in the hospital and collected the MLC of injured Amit Gupta but the injured Amit was declared unfit for statement by the doctor and the nature of injuries were opined as sharp. In these circumstances statement of injured could not be recorded by SI Babbar Bhan but the statement of his father Sat Sagar Gupta was recorded who was found present in the hospital. He had stated that he was staying in H.NO. 16/918 E, Khalsa Nagar, Tank Road, Karol Bagh, New Delhi along with his family members and was doing the business of readymade garments and that on that date he was present in his house along with his family members and had taken the dinner, when at about 10.30 PM someone called his son Amit and thereafter Amit went out. After some time noise was heard from outside the house and on hearing this noise he along with his son Parveen came out and saw four boys beating Amit. He had further stated that Rajinder and Bablu were holding the hands of Amit and one boy whose name he did not know but whom he could identify, was holding Amit from the neck and Biloo who was staying in Karol Bagh hit Amit with knife on his chest and left thigh. Amit fell down and seeing them, all the boys ran away. He with the help of his son Parveen removed Amit to RML Hospital. On this statement SI Babbar Bhan made an endorsement and send rukka for the registration of the case to police station. Thereafter FIR u/s 307/34 IPC in this case was registered. SI Babbar Bhan returned at the spot along with Sat Sagar Gupta and continued his investigation. He prepared site plan and photographs of the spot were also taken and the earth control with blood and without blood were also collected from the spot. Injured Amit Kumar expired on 11.1.97 and he could not make any statement and after his death FIR was converted for the offences u/s 302/34 IPC and the investigation was handed over to Inspector Ishwar Singh. The post-mortem of deceased Amit was conducted………On 12.1.97 accused Rajinder and Durga Prasad @ Bablu were arrested by Inspector Rajinder Singh at the instance of complainant Sat Sagar Gupta, who at the time of their arrest stated that they have been falsely implicated since a civil case regarding vacation of the tenanted premises is pending between them. On that very date i.e. 12.1.97 on the identification of Parveen Gupta, accused Lajpat @ Biloo and Madan Gopal were arrested from Madipur……………….” 3. The aforesaid incident was sought to be established by the prosecution from the evidence of two eye witnesses who were the father and brother of the deceased and the learned trial Court accepted their evidence and based on their evidence held all the four accused persons guilty of the offence of murder and vide separate Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 4 of 39 order dated 23rd August, 2001 sentenced them to undergo life imprisonment and also to pay fine of Rs. 15,000/- each and in default of payment of fine were ordered to undergo simple imprisonment for one year. Feeling dissatisfied with the verdict of the trial Judge all the four convicted accused have come up in appeal. 4. The learned counsel for two accused-appellants Rajinder Kumar @ Raju and Durga Parsad @ Babloo, both of whom are real brothers, started the attack on the trial Court‟s verdict with the argument which appeared to be the strongest weapon in their armoury. That weapon was used in the trial Court also but did not have any effect on the learned trial Judge. It was contended that after the investigation was completed the investigating agency had not been able to collect sufficient material during investigation against these two accused and so their names were kept in column no.2 of the charge-sheet meant for persons who are not sought to be tried. Learned counsel argued that since the investigating agency itself had not asked for the trial of these two accused the Metropolitan Magistrate before whom the charge-sheet was submitted could not have taken cognizance against them and only if during the trial in the Sessions Court some evidence had come against them from the side of the prosecution that they could be summoned as accused by the Sessions Court in exercise of the powers under Section 319 of the Code of Criminal Procedure, Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 5 of 39 1973. So, the trial of these accused was unconstitutional and their conviction cannot be sustained. In support of this contention learned counsel also placed strong reliance on two decisions of the Supreme Court reported as 2000 Criminal Law Journal 123, “Kishori Lal vs State of Bihar”. This argument when raised before the trial Court was repelled by the learned Additional Sessions Judge on the ground that these accused had not challenged the order dated 01/09/97 when charges were framed against them alongwith their two co-accused persons after rejecting the same submission which had been advanced at that stage also. We are in full agreement with this reasoning of the trial Court given for rejecting the argument that the trial of these two accused was illegal. 5. Even otherwise also the controversy whether someone kept in column no.2 of the charge-sheet by the police can be summoned as an accused by the Magistrate stands set at rest by a judgment of the Supreme Court which was pronounced after the judgment in Kishori Singh‟s case(supra) relied upon by the learned counsel for the appellants-accused Rajinder Kumar and Durga Parsad. That judgment is reported as (2001) 6 SCC 670, “M/s Swill Ltd. Vs State of Delhi” wherein the Supreme Court after taking note of its earlier three Judge Bench in the case of “Raghubans Dubey vs State of Bihar”, (1967) 2 SCR 423 had come to the conclusion that the Magistrate can summon Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 6 of 39 even the person kept in column no.2 of the charge-sheet as an accused even when the police had come to the conclusion that no case was made out for the trial of that person. 6. Coming now to the merits of the prosecution case, it may be noted that the learned counsel for all the four appellants did not dispute the fact that the deceased had been murdered and this is not a case of natural death. That fact even otherwise is duly established by the medical evidence adduced by the prosecution. The autopsy surgeon PW-3 Dr. Anil Kumar has deposed that while conducting post- mortem examination of the dead body of the deceased he had noticed the following external and internal injuries:- External Injuries 1. Incised stab wound 2.5 x 1 cm x Chest cavity deep over left side chest. The lower inner angle was blunt vide the outer upper angle was acute. The margins were clean cut. The lower inner angle was 5.5 cm outer to left nipple while outer angle was 6.5 cm below anterior auxillary fold. 2. Incised stab wound 2.5 x 0.4 cm x 10.5 cm deep present over middle outer of left thigh. The direction of the wound was upwards, inwards and backwards. Internal Injuries ………….The left side front of chest wall showed incised wound 2. 5 cm long in 4th intercostals space underneath injury no. 1………..Left lung showed a cut 2 cm long over lower front of upper lobe. A cut 1.8 cm long present over lower surface of upper lobe in continuation with above cut. Heart showed a cut 1.8 cm long over pericardial surface………..A cut 1.6 cm present over front of left ventricle…………………………………… Track of injury no. 1: Injury no. 1 entered the left chest after passing through 4th intercostal space on the left side. Entered the left plural cavity and then upper lobe of left lung. Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 7 of 39 Passed through and through the left lung and entered the left vertical of heart. The injury finished in the left ventricle cavity.” PW-3 deposed that in his opinion the cause of death was due to haemorrhage and shock consequent upon stab injury to left lung and heart via injury no. 1. All the above-noted injuries were ante-mortem, recent in duration and could be caused by a single edged sharp weapon and injury no. 1 was found to be sufficient to cause death in ordinary course of nature. The doctor who had initially examined the deceased on being brought to the hospital(PW-2 Dr. Dheeraj) had noticed a deep lacerated wound on the left upper chest below the second rib with a size of 2 cm x 1 cm and another deep lacerated wound in the left middle thigh on the anti-lateral aspect with a size of 2 cm x 1 cm. This evidence clearly establishes that the deceased died homicidal death. 7. Now, the question which we are to consider is whether the prosecution has been able to prove beyond reasonable doubt that the death of the deceased was caused by all the four accused in furtherance of their common intention. The prosecution is relying upon the ocular evidence of the incident given by two eye witnesses, namely PW-9 Sat Sagar Gupta, who is the father of the deceased, and PW-8 Parveen Gupta, who is the brother of the deceased. The version of the Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 8 of 39 complainant Sat Sagar Gupta as to how the incident occrured may be noticed in his own words. This is what he deposed about the occurrence in which his son Amit Gupta lost his life:- “On 10.1.97 at about 10.30 PM I was present at my house at second floor with my family members. Two persons(two boys) had called my son Amit Gupta, from the downward and on this call my son Amit had gone to the ground. After some time I heard a noise regarding the quarrel after some time then I along with my son Parveen Gupta had gone to the ground floor. Then I had seen in the street that my son was being beaten by four persons, those four persons are the accused persons present in court today, out of whom I came to know Madan Gopal later on. They took my son at the corner of gali where the board of Ganesh wali was there. Accused Rajinder Prasad and Durga @ Bablu had caught hold the hands of my son, accused Madan Gopal had caught hold neck of my son and accused Billu @ Lajpat had then given knife blows one on his chest and other on his thigh. After seeing us all the four accused persons had fled away from the spot and then we had taken the injured to hospital to RML Hospital.Police had reached the hospital and recorded my statement at the hospital and my statement is Ex. PW-9/A which bears my signature at point A. In the hospital my son had expired at about 2 am on 11.1.97, after about 2/3 hours of his admission.” 8. PW-8 Parveen Gupta‟s version of the occurrence is also being reproduced below:- “On 10.1.1997 at about 10.30 p.m. I was present at my house with my family members. At that time, two persons had called my brother Amit Gupta, from the downward and he had gone in response to that call. After some time I heard some noise regarding a quarrel, thereafter I along with my father had gone downside and I saw that two persons were taking my brother pulling and those two persons are Billu and Madan Gopal who were pulling my brother and two persons Raj Kumar and Bablu accused present in court were standing at the corner of street already. Accused Raj Kumar and Bablu had caught hold the hands of my brother, accused Madan Gopal had caught hold the neck of my brother from his back side and Billu known as Lajpat accused present in court had given the knife blows to my brother on his chest and left thigh. As we had reached there all the four accused persons had fled away from the spot and we took the injured Amit Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 9 of 39 Gupta to RML Hospital and there at about 2 am on 11.1.97 he was declared dead.” 9. The learned trial Court after considering the various infirmities pointed out in the evidence of PWs 8 and 9 by the counsel for the accused persons for rejecting the evidence of PWs 8 and 9 did not find any substance in the submissions advanced by the counsel and found the evidence of both the eye witnesses to be „unimpeachable‟ and relying upon the same held all the four accused guilty under Section 302/34 IPC and awarded sentence of life imprisonment to each one of them and also imposed on them fine of Rs.15,000/- each vide order dated 23rd August,2001. 10. The veracity of the evidence of the two eye witnesses was challenged by the respective counsel of the appellants on almost common grounds. It was contended that both the eye witnesses are interested witnesses being the father and brother of the deceased and so their evidence should not have been relied upon. Other ground of attack put forth on behalf of all the four appellants was that when the deceased was taken to the hospital by the two eye witnesses they did not disclose the names of the assailants to the doctor who had initially examined the deceased in the hospital and to whom it was only disclosed that the deceased had been stabbed in some incident and that was the only history recorded in the MLC Ex.PW-2/A. Learned Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 10 of 39 counsel contended that absence of the names of the assailants in the MLC shows that by the time it was prepared none of the two witnesses knew as to who were the assailants and it was only after due deliberations that they thought of implicating all the four appellants because of previous enmity and strained relations and that was also evident from the fact that they allegedly made statements before the police around 1.30 a.m. only although the incident had allegedly taken place at about 10.30 p.m. It was also submitted that conduct of PWs 8 and 9 at the time of the incident was not normal inasmuch as they did not make any attempt to save the deceased from being assaulted and that abnormal conduct creates a serious doubt about their being the eye witnesses of the incident. It was also contended that even though these eye witnesses have claimed that their clothes had got smeared with the blood of the deceased while taking him to the hospital but the police having not seized any blood stained clothes of these witnesses their evidence becomes doubtful for that reason also because if actually they were present at the spot at the time of the incident and their clothes had got blood stained the police would have definitely taken their clothes in possession as a piece of evidence substantiating their claim of being the eye witnesses. Evidence of the two eye witnesses was also attacked on the ground that they had contradicted each other instead of corroborating on material aspects of the prosecution case. Another argument put forth for rejecting the Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 11 of 39 prosecution case was that even the deceased himself had not named the assailants to the doctor in the hospital even though as per the MLC he was conscious when he was being examined by the doctor. 11. Counsel for appellants Rajinder Kumar and Durga Prasad also submitted that as far as these two accused are concerned admittedly there was landlord-tenant litigation going on between them and PW-9 Sat Sagar Gupta, the father of the deceased, who was their landlord and that was another reason to view the evidence of father and son, both of being highly interested witnesses, with suspicion since they had the motive to falsely implicate these two accused brothers. It was also submitted that the deceased himself had been a criminal involved in criminal cases as also his father PW-9 Sat Sagar Gupta and they were BCs(bad characters) of the area. Learned counsel had drawn our attention to that part of the cross-examination of PW-9 Sat Sagar Gupta wherein he had admitted that one case under Section 376 IPC had been registered against him at Karol Bagh police station and another case under Section 380 IPC at Maya Puri police station and he also admitted that against his son Amit, the deceased, also a case under Section 25 of the Arms Act was going on when he was alive. 12. As far as accused Madan Gopal and Lajpat are concerned their counsel had also submitted that the investigating officer(PW-15 SI Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 12 of 39 Babbar Bhan) had admitted in his cross-examination that when the deceased was in jail in connection with some case accused Madan and Lajpat were also in the same jail at that time and during their stay in the jail enmity had developed between the deceased and these two accused persons and so the evidence against these two accused persons given by the father and the brother of the deceased cannot be relied upon as they had the motive to falsely implicate these accused with whom their son had enmity. 13. In support of their submissions some judgments of the Supreme Court reported as AIR 2008 SC 533 “Kapildeo Mandal vs State of Bihar, 2001(2) Crimes 49(SC), “ Sohan & Anr. Vs State of Haryana”, “State of Rajasthan vs Teja Singh”, 2001 (II) Apex Decisions 125 , AIR 1978 Supreme Court 59, “ Bir Singh vs The State of Uttar Pradesh” and (1975) 3 SCC 562, “Jagir Singh Vs. State” were also relied upon by the learned counsel. 14. Finally, the counsel for appellants Rajinder Kumar, Durga Prasad and Madan Gopal submitted that these three accused in any event could not be held guilty for the offence of murder with the aid of Section 34 IPC even if the evidence of the two eye witnesses is totally relied upon. Learned counsel cited some judgments also of Hon‟ble Supreme Court in support of their submission on the non-applicability Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 13 of 39 of Section 34 IPC in the facts and circumstances of this case. Those judgments are reported as 2001 SCC(Crl.) 668, “Mithu Singh vs State of Punjab”, 2000 SCC(Crl.) 9, “Ramashish Yadav vs State of Bihar”, 1999 SCC(Crl.) 74, “Ajay Sharma vs State of Rajasthan” and 1999 SCC(Crl.) 120,“Jagtar Singh vs State of Punjab”. One judgment of a Division Bench of this Court was also cited and the same is reported as 89 (2001) DLT 237, “Raj Kumar vs. State”. One judgment of a Division Bench of this Court was also cited and the same is reported as 89 (2001) DLT 237, “Raj Kumar vs. State”. 15. The learned Addl. Public Prosecutor supporting the trial Court‟s judgment submitted that the prosecution case against all the appellants was flawless and evidence of the eye witnesses was unimpeachable despite the fact that they were related to the deceased and had some litigation also with accused Rajinder Kumar and Durga Parasd and some criminal cases were there against the deceased and his father and had been rightly found to be unimpeachable by the trial Court and so the appeals of all the four convicted accused deserved to be dismissed. 16. There is no doubt that both the eye witnesses in this case happen to be closely related to the deceased Amit, PW-9 being his father and PW-8 being his real brother. It is also not in dispute that Crl. A. Nos. 679/01, 731/01, 168/03 and 204/03 Page 14 of 39 there was some ligation going on between the eye witness PW-9 Sat Sagar Gupta and accused Rajinder Kumar and Durga Parsad and also that some criminal cases were there against PW-9 as well as the deceased. However, these are not the factors which by themselves can affect the credibility of a witness. A relation would not conceal actual culprit and implicate an innocent person. However, whenever guilt of an accused being tried for a serious offence like that of murder is sought to be established by the prosecution from the evidence of related witnesses the evidence of those witnesses has to be scrutinized and analysed with more care and caution. Same is the position when the accused and the witnesses are inimical to each other for some reason. Enmity is in any case a double edged weapon which can be used by the accused as well as the victim party. In the judgments of the Supreme Court cited by the learned counsel for the appellants the evidence of the eye witnesses of those cases who were related witnesses was disbelieved because of certain infirmities in their evidence and the prosecution case in general found by the trial Court as well as by the Supreme Court and not simply for the reason that they were interested or partisan witnesses. In none of the judgments cited on behalf of the appellants it has been held as a proposition of law that evidence of related witnesses or who have some kind of enmity with the witnesses must always be rejected for that reason alone. On this aspect we may make a useful reference to Crl. A. Nos.