* IN THE HIGH COURT OF DELHI AT NEW DELHI % CRL. APPEAL NO. 974 OF 2001 + Date of Decision: 29th August, 2008 # RAJESH @ HUNNY @ MUNNY ...Appellant ! Through : Mr. Anil Soni, Advocate Versus $ STATE ...Respondent ^ Through : Ms. Richa Kapoor, APP WITH % CRL. APPEAL NO. 979 OF 2001 # HARJESH @ SUNNY ...Appellant ! Through : Mr. Anil Soni, 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?(Yes) 2. To be referred to the Reporter or not?(Yes) 3. Whether the judgment should be reported in the digest?(Yes) JUDGMENT Crl.A. Nos. 974 & 979 /2001 2 P.K.BHASIN, J: This appeal has been filed by the two appellants, who are real brothers, against the judgment dated 21.11.2001 and order dated 22.11.2001 passed by the learned Additional Sessions Judge, Delhi in Session Case No.90/2000 whereby they were convicted under Sections 302 and 307 read with Section 34 of Indian Penal Code („IPC‟ in brief) and sentenced to imprisonment for life and also to a fine of Rs.5000/- each, with a default stipulation, for the murder of one Kapil and rigorous imprisonment for seven years and a fine of Rs.5000/-each, with a default stipulation, for the attempted murder of his mother. 2. The incident leading to the prosecution of the two appellants(hereinafter to be referred to as the accused persons) was narrated by PW-2 Santosh Sharma in her first information statement to the police(Ex.PW- 2/A) on 12th December,1998 when the incident had taken place. She had claimed that that day i.e. 12th December, 1998, her sons Kapil(the deceased) and Crl.A. Nos. 974 & 979 /2001 3 Anuj(PW-5) had gone to play cricket in the park near their house. At about 12.30 p.m. when both of them returned to the house Anuj told her and her husband that there was a quarrel over the game of cricket between Kapil and Sunny-Munny(the two appellants herein). Then her husband came out of the house followed by Kapil and Anuj and she also followed them. Sunny and Munny were present in the gali. Sunny(appellant Harjesh) was having a knife in his hand and Munny(appellant Rajesh) caught hold of Kapil and when Sunny was about to assault Kapil she told him(Sunny) not to quarrel. Upon that Sunny stabbed her with the knife and then stabbed Kapil number of times. Her husband and son Anuj tried to save Kapil but Munny kept on holding Kapil and Sunny kept on stabbing him. 3. Injured Santosh Sharma went from the spot and informed the police on phone from a nearby shop. After the incident Kapil was taken to Hindu Rao hospital where he was examined by PW- 21 Dr. Mukesh Kumar. On examination, this doctor had found the following injuries on the body of Kapil:- Crl.A. Nos. 974 & 979 /2001 4 1. Incised wound 2 cm x 1.25 cm on right side of chest. 2. Incised wound over left side of chest 2 cm x 0.5 cm. 3. Incised wound over back left back dorsal region 1 cm x .25 cm. 4. Incised wound 1 cm x .25 cm on back and left lumber region. 4. The injured-complainant Santosh Sharma was also got medically examined and as per her MLC, Ex. PW-21/B, she had sustained stab injury which was found to be dangerous in nature. 5. Kapil succumbed to the injuries sustained by him on the day of the incident itself. The dead body of the deceased was subjected to post-mortem examination by PW-4 Dr. C.B. Dabas of Hindu Rao Hospital. The following external and internal injuries were noticed by this autopsy surgeon:- EXTERNAL INJURIES 1. Abrasion 0.5 x 0.5 cm over left forehead. 2. Abrasion 0.7 x 0.2 cm over left side forehead medial to injury no. 1. 3. Scratch abrasion 1.8 x 0.2 cm over right side of chin. Crl.A. Nos. 974 & 979 /2001 5 4. Scratch abrasion 4 x 0.2 cm over middle front of right side of neck. 5. One scratch abrasion 1.3 x 0.2 cm over right clavicle. 6. Scratch abrasion 2.5 x 0.5 cm over infra clavicle region on right side. 7. Scratch abrasion 0.8 x 0.3 cm over dorsum of right fore-arm in lower part. 8. Scratch abrasion 1.5 x 0.2 cm over dorsal aspect of right thumb. 9. Scratch abrasion 4 x 0.5 cm over dorsum of right foot. 10. Scratch abrasion 0.5 x 0.3 cm over dorsum of right little toe. 11. One stab wound 3 x 1 cm x 7 depth located on right side front of chest 2 cm outer to mid line, 7.5 cm inner to nipple and 118 cm above right wheel. The room was placed vertically margins were clean cut, lower angle was round, upper angle was acute. 12. One stab wound 3 x 1 cm x ? depth located on left side of chest on lower lateral aspect 17 cm outer to mid line and 15 cm below left nipple and 112 cm above left heel. The wound was placed vertically, the margins were clean cut, upper angle was acute, lower angle was round. There was a lenious scratch in upper angle of the wound measuring 4.5 x 0.2 cm in continuation of the wound. 13. One stab wound 2.5 x 1 cm x ? depth located on left side back of chest 9 cm outer to mid line 117 cm above left heel, margins clean cut, wound was placed horizontally with inner angle of the wound being round and outer angle was acute. 14. One stab wound 2.5 x 1 cm x ? depth located on left side back of chest 12 cm outer to mid line Crl.A. Nos. 974 & 979 /2001 6 and 109 cm above left heel. The wound was placed horizontally 8 cm below injury no. 13. The margins of the wound were clean cut, inner angle was round and outer angle was acute, wound was actively bleeding. INTERNAL INJURIES CHEST AND ABDOMEN “Injury no. 11 entered the chest cavity after cutting through fort rib and third inter coastal muscle on right side just near external edge and then entered the pericardial sack, cut through wall of right ventricle and entered the ventricular cavity, depth of the wound was 11 cm. Direction was confront behind and slightly to the left. Plural cavity was full of blood. Injury No. 12- Travelled subcrutaneously in left side chest wall upto depth of 6 cm. Injury No. 13 – Entered the chest cavity through 7th intercoast space. Then penetrated through left lung in its lower lobe and then ended in left dome of diaphragm and ended in lower, outer surface of spleen making a deep cut of 2 cm depth in the substance of spleen. Total depth was 9.5 cm. In the opinion of the autopsy surgeon the cause of death of the deceased Kapil was haemorrhagic shock due to aforesaid injuries and injury nos. 11, 12 13 and 14 were opined to be collectively sufficient to cause death in ordinary course of nature. Crl.A. Nos. 974 & 979 /2001 7 The autopsy surgeon gave his detailed post-mortem report Ex. PW- 4/A. 6. Both the accused were arrested on the day of the incident itself. They made separate disclosure statements after their arrest and allegedly got recovered one knife Ex. P-11 from their house. That knife was produced before the autopsy surgeon who gave his opinion that the injuries no. 11 to 14 (noticed already) could be caused with a sharp edged weapon like the knife Ex. P-11. That knife was later on sent to Forensic Scientific Laboratory (FSL) where on examination human blood was detected on that knife. The sweater and the jeans which appellant-accused Harjesh was wearing at the time of his arrest were found to be blood stained and so the same were taken into police possession. The shirt which appellant-accused Rajesh was wearing at the time of his arrest was also found to be blood stained and so the same was also taken into possession by the Investigating Officer. Those clothes were also sent to FSL where on examination human blood Crl.A. Nos. 974 & 979 /2001 8 of „B‟ group, which was the blood group of the deceased also, was detected. 7. On the completion of investigation both the accused brothers were charge-sheeted for the murder of Kapil and attempt to murder Kapil‟s mother. After the commitment of the case to Sessions Court both of them were charged and tried under Sections 302/34 and Sections 307/34 IPC. The prosecution had sought to establish its case mainly upon the evidence of three eye-witnesses of the occurrence, namely PW-1 Ram Niwas, PW-2 Santosh Sharma and PW-5 Anuj Sharma. Other witnesses were also examined who had taken some part or the other during investigation stage. The appellants had claimed that they had been falsely implicated by the police as they were BCs(bad characters) of the area and against them externment orders had also been passed. Accused Harjesh also took the plea that on the day of the incident he was not in Delhi because of his having been externed. Crl.A. Nos. 974 & 979 /2001 9 8. The learned trial Court found the evidence of all the three eye-witnesses wholly reliable and corroborating each other and accepting their version convicted both the accused persons for both the offences for which they were tried. Feeling aggrieved by their conviction and the sentences awarded to them both the convicted accused filed separate appeals which were heard together and since both the appeals arose out of the same judgment of the trial Court the same are now being disposed of by this common judgment. 9. Mr. Anil Soni, Advocate, was appointed as an amicus curiae at the request of both the appellants to argue their appeals. He did not dispute the fact that the deceased Kapil died a homicidal death. This fact is even otherwise fully established from the evidence of the autopsy surgeon (PW-4). The injuries noticed by him on the dead body of the deceased Kapil have already been noticed by us as well as his opinion about the cause of death. Those injuries leave no manner of doubt that the deceased was murdered. Mr. Soni also did not dispute the fact that the injury Crl.A. Nos. 974 & 979 /2001 10 sustained by the mother of the deceased was dangerous in nature, as was opined by PW-22 Dr. Amit Dewan, who had examined her on the day of incident itself. The injury sustained by PW-2 Smt. Santosh Sharma was an „incised wound of 3.5 cm x .5 cm over her ninth rib in the axillary line on the right side‟. 10. Mr. Soni, however, had strongly contended that the prosecution had failed to establish that the deceased Kapil and his mother were stabbed by accused Harjesh @ Sunny and that accused Rajesh @ Hunny @ Munny had facilitated causing of injuries to the deceased by his brother Harjesh by catching hold of the deceased Kapil. He submitted that the evidence of all the three eye witnesses cannot be accepted as they all are family members of the deceased and despite the fact that the incident had allegedly taken place in broad day light in the gali outside the house of the complainant which was in a thickly populated area no independent person had been made a witness by the investigating agency. Mr. Soni had also contended that, in any event, even if it is accepted that the deceased Kapil and his Crl.A. Nos. 974 & 979 /2001 11 mother were actually stabbed by accused Harjesh @ Sunny and that his co-accused brother Rajesh had caught hold of the deceased Kapil still accused Rajesh could not be convicted under Sections 302 with the aid of Section 34 IPC since from the evidence of the eye witnesses of the incident it cannot be said that accused Rajesh and Harjesh had shared common intention to kill the deceased. And as far as Rajesh‟s conviction under Section 307/34 IPC is concerned the same is also not proper since, Mr. Soni submitted, as per the prosecution case Harjesh had suddenly assaulted PW-2 Santosh Sharma when she had tried to ward off the knife attack on her son Kapil and in that process no role had been played by Rajesh at all. Mr. Soni, however, did not dispute that if the incident of stabbing is accepted to have taken place in the manner deposed to by the eye witnesses offence of attempted murder would be made out against accused Harjesh although Mr. Soni continued to maintain his argument that none of the three eye witnesses examined by the prosecution could be relied upon and both the accused deserved to be acquitted. In support of this submission regarding the conviction of appellant–accused Rajesh Crl.A. Nos. 974 & 979 /2001 12 under Sections 302 and 307 IPC with the aid of Section 34 IPC Mr. Soni placed reliance on one judgment of Hon‟ble Supreme Court which is reported as “Ramashish Yadav Vs. State of Bihar”, 1999 (8) SCC 53 . 11. On the other hand, Ms. Richa Kapoor, learned Additional Public Prosecutor for the State while fully supporting the conviction of both the appellants under Sections 302 and 307 IPC contended that there were no infirmities in the evidence of the three eye witnesses of the occurrence and all of them had given truthful version of the incident. She contended that PW-2 Smt. Santosh Sharma had herself sustained dangerous injury in the same incident in which her deceased son Kapil was injured and so her testimony alone was sufficient to convict both the accused persons. It was further contended that although the other two eye- witnesses of the incident were family members of the deceased and the complainant but for that reason alone their evidence cannot be doubted since nothing has been brought on record in their cross-examination from which it could be inferred that they Crl.A. Nos. 974 & 979 /2001 13 had any motive to falsely implicate the appellants. They were natural witnesses of the incident which took place outside their house and father and brother of the deceased had ruled out their absence from their house at the time of the incident which fact was sought to be established during their cross-examination. Regarding the conviction of accused Rajesh under Sections 302 and 307 IPC with the aid of Section 34 IPC learned APP had submitted that since just before the main incident in the gali outside the house of the complainant there was already a quarrel between the appellants and the deceased while they were playing cricket during which Kapil was abused by accused brothers and slapped also by accused Harjesh and after that when the deceased and his brother Anuj were leaving that place both the accused had told the deceased and his brother that they were also following them and in fact both of them had thereafter gone towards the house of the deceased and in the gali Harjesh had stabbed Kapil while Rajesh had caught hold of him and so it was a case of planned assault on the deceased Kapil in furtherance of the common intention of both the accused persons. It was also Crl.A. Nos. 974 & 979 /2001 14 contended that since the mother of the deceased was also stabbed when she had tried to save him from the assault by accused Harjesh while accused Rajesh was still holding Kapil accused Rajesh had also been rightly convicted under Section 307 IPC with the aid of Section 34 IPC. In support of the submission regarding the applicability of Section 34 IPC in respect of accused Rajesh Ms. Kapoor cited four judgments of the Hon‟ble Supreme Court which are reported as “Israr v. State of U.P.”, 2005 (9) SCC 616, “Ramesh Singh @ Photti v. State of A.P.”, (2004) 11 SCC 305, “Sunil Kumar v. The State Govt. of NCT of Delhi”, (2003) 11 SCC 367 and “ Suresh & Ors. v. State of U.P.”, 2001 (3) SCC 673. 12. In order to appreciate the rival submissions regarding the truthfulness of the testimony of the three eye witnesses examined by the prosecution as well as the applicability of Section 34 IPC in respect of appellant–accused Rajesh for the offences of murder and attempt to murder the evidence of the three eye witnesses needs to be noticed. PW-5 Anuj Sharma is the brother of the deceased and an eye witness of the main incident of stabbing as Crl.A. Nos. 974 & 979 /2001 15 well as of the incident which had taken place just before that incident when he alongwith his brother Kapil and others were playing cricket. The relevant part of his testimony is reproduced below:- “The deceased Kapil Sharma was my elder brother. On 12.12.98 I along with Kapil had gone to play cricket in the park in front of our house. We were playing cricket with our friends at about 12.00 noon both the accused present in the court also came there. I knew them as they resided in my locality. Their names are Sunny and Munny. Both the accused told us that they would also play cricket with us. My brother allowed them to play 4-5 balls. Both the accused insisted to play more. Kapil told them to play after the match is over. We were playing match with other boys. On this both the accused started abusing my brother and accused Sunny gave one or two slaps to him. We left the match and returned to our house. Both the accused told us that they were also coming behind us. We had come back at about 12.30 p.m. My parents were at home. I told them about the quarrel between Kapil and accused. On this my father went out of the house. I remained in my house. Kapil had also followed my father. When Kapil also went out behind my father my mother also went behind him. I followed my mother. By the time I reached out of the house, I saw both the accused present in the gali. Accused Sunny was having knife in his hand. Accused Munny caught hold of my brother and when Sunny wanted to give knife blow to my brother, my mother came in between but accused Sunny told her „HAT BURRIYA‟. Immediately after saying this Sunny gave knife blow to my mother which fell on her left side of rib cage. My mother fell down. Accused Sunny thereafter gave blow 4-5 blows of Crl.A. Nos. 974 & 979 /2001 16 knife to my brother while Munny have been keeping him caught hold of. My brother fell down. When I tried to catch the accused persons with my father they threatened us and ran away. My mother called the police on telephone from the shop of Subhash. PCR van came there and took my mother, brother and my father to the hospital. Subsequently I came to know that my brother had succumbed to the injuries. My mother remained in the hospital for about 8-9 days for treatment………………” 13. PW-2 Santosh Sharma is the injured–complainant herself. The relevant part of her testimony in respect of the incident of stabbing is reproduced below: “I have three sons namely Kapil, Vikas and Anuj. Kapil was my eldest son. It was on 12.12.98 when I was present in my house. My husband and my son Anuj were also present. My son Vikas had left the house in the morning to attend the duty. In the morning at about 11 a.m. my sons Kapil and Anuj had gone to play cricket in the park adjoining our house. They came back at about 12 or 12.30 in the noon. On arrival my younger son Anuj told me that a quarrel had taken place between Kapil, my elder son, and Sunny and Munny. Sunny and Munny both are resident of A-79, Shastri Nagar and I knew them as I have been seeing them in the area. My husband was at home at that time. On hearing this, my husband went out of the house to see Sunny and Munny. I followed my husband. My both sons also came behind us. We came down from our house on to the street, both the accused Sunny and Munny present in the court whom I identify also reached there. Accused Sunny was having a knife in his hand. Crl.A. Nos. 974 & 979 /2001 17 Accused Munny caught hold of my son Kapil by both his hands. I stepped forward to separate them. At this Sunny gave a blow of knife on my right side rib and I started bleeding. Accused Sunny thereafter started giving blow of knife to my son Kapil. I went to General Store which is nearby and telephoned the police. My husband and my son had also tried to rescue Kapil but the accused persons continued in their acts. Both the accused had ran away from the spot. Police came there after some time and took Kapil to the hospital. I was also taken to the hospital. My husband had also accompanied with us……………. Later on I came to know that my son Kapil has succumbed to the injuries. Police had met me in the hospital and took/recorded my statement. I have seen my statement which is Ex. PW-2/A which bears my signature at point „A‟. I remained in the hospital for about 8 days for my treatment. When accused Sunny gave a knife blow to my son Kapil he threatened me „HAT JA BURIYA NAHI TO TERA KO BHI JAN SA MAR DOONGA‟ and thereafter they continued beating my son…………………………………………………” In cross-examination on behalf of the accused this witness clarified that when she had intervened to save her son Kapil he had already been given some knife blows. 14. PW-1 Ram Niwas is the father of the deceased Kapil. This is what he deposed about the actual incident:- “After accident I am residing at home because of health problem. I have three sons eldest son Kapil Sharma, then Vikas and Anuj. Crl.A. Nos. 974 & 979 /2001 18 Youngest is in 10th class, Vikas is not employed anywhere. Only my son Kapil was earning member in my family. There is a park near my house. On 12.12.98 my eldest son Kapil and younger son Anuj had gone to adjoining park to play cricket. They returned at about 12.30 p.m. My son Anuj told me that a quarrel taken place between Kapil and one of the accused whose name was not mentioned by him. He told the names of Sunny and Manny was the accused present in the court. I know both the accused as they reside in A-79, Main Road, Shastri Nagar. My son Anuj also told me that both the accused had given threat to Kapil – „EAB EAKAR TERI BEHAN CHODTA HAI‟. I told both my sons to remain at home and I will sort out the matter. While the time I had come out of my house I saw both the accused coming in the street to my house. My sons were also following me. Accused Manni(Rajesh) pointed out to my son Kapil and asked that he should be caught hold of. Thereafter accused Manni caught hold of Kapil with both his hands and accused Sunny gave two blows of knife which was in his hand to Kapil. One blow was given by him to the right back and on the right side of chest. My wife in the meanwhile came down and stretched herself over Kapil who had fallen and asked the accused persons not to kill him. I folded my hands and requested both the accused persons to spare my sons but Sunny abused me by telling „HAT JAI BUDDA NAHI TO TERA KO BHI CHACKU MAR DUGA‟. Accused