Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.APPEAL No.1397/2013
rd
Date of Decision : 23 August, 2016
SUBHASH ..... Appellant
Through Ms.Saahila Lamba, Adv.
versus
STATE GOVT. OF NCT OF DELHI ..... Respondent
Through Mr.Amit Chadha, Additional
Public Prosecutor for the State.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. The present appeal has been preferred by the appellant under
Section 374 (2) of the Criminal Procedure Code, 1973 (Cr.P.C.) against
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the judgment and order dated 4 July, 2012 passed by learned Additional
Sessions Judge-II, North-West, Rohini Courts, in Sessions Case No.98/11
emanating from FIR No.312/08 registered at Police Station Shalimar
Bagh whereby the appellant was held guilty and convicted under Section
304 Part (I) & 323 of the Indian Penal Code (IPC) and vide order dated
th
7 July, 2012, the appellant was imposed the sentence of rigorous
imprisonment for ten years along with fine of Rs.50,000/- and in default
of payment of fine, further three months simple imprisonment for the
offence punishable under Section 304 Part (I) of the IPC and further the
Crl.A. No.1397/2013 Page 1 of 15
appellant was sentenced for a period of one year for the offence
punishable under Section 323 of the IPC.
th
2. A thumbnail sketch of the facts of the case is that on 5 June, 2008
at 10.00 p.m., a quarrel took place at CA Block Jhuggis, between the
deceased Yashwant@Jaswant Meena and Pramod@Natu who used to run
juice rehri. Pramod@Natu allegedly refused to give juice to the deceased
Yashwant@Jaswant Meena and his friend Pradeep Kumar pursuant to
which there arose a verbal altercation in which the victims tauntingly
referred him as Bihari. At the time of verbal altercation between Natu
and Yashwant@Jaswant Meena, one other person namely Subhash
(appellant herein) who was also standing at the juice rehri, also joined
and later on ran towards the Jhuggi cluster and called out his other
associates who duly armed with dandas and wooden fatta, reached the
spot after some time. Thereafter, the said persons started beating
Yashwant@Jaswant Meena with dandas and wooden fatta and also gave
leg and fist blows to Yashwant@Jaswant Meena. Mr.Pradeep Kumar
further informed the Police that upon his intervention, the said boys also
gave beatings to him which resulted in injuries to him. It transpires from
the record that Yashwant@Jaswant Meena tried to run towards the side of
the road to save himself but one of the assailants chased him and gave
him a blow on his head with the help of a wooden fatta by which Jaswant
Meena fell down on which the other assailant gave beatings to him by leg
Crl.A. No.1397/2013 Page 2 of 15
and fist blows.
3. Learned counsel for the petitioner has further submitted that the
accused Subhash had stated in his statement that he was innocent and had
no role to play in the alleged incident in any manner. He further
submitted in his statement that he was a poor labourer and was residing
along with his family in Jhuggi and was never involved in anti-social
activities. He had further stated that police officials came to his house
and forcibly took him to Police Station Shalimar Bagh where he was kept
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in wrongful confinement and was beaten up mercilessly much prior to 9
June, 2008 i.e. the alleged date of his apprehension. The accused had
also stated that he was shown to various public persons there and many
other persons were also kept in wrongful confinement besides him and
they were also beaten up. According to the appellant, the police officials
let him go after taking money and thereafter falsely implicated him in the
present case.
4. Learned counsel for the appellant has vehemently submitted that in
view of the above mentioned statement of the appellant, he was thus kept
in wrongful confinement and beaten up mercilessly much prior to the
alleged date of his apprehension. She has further stated that nothing
incriminating was recovered from the possession of the appellant or at his
instance.
5. Learned counsel for the petitioner has further submitted that the
Crl.A. No.1397/2013 Page 3 of 15
Trial Court failed to appreciate the fact that the incident occurred in the
heat of passion upon certain quarrel without premeditation and that the
same was without motive or intention, which certainly cannot be termed
as culpable homicide amounting to murder. Reliance is placed on the
pronouncement of the Supreme Court in Rajender Vs. State (2000) 4
SCC 298 to the effect that the occasion must be sudden and not as cloak
for pre-existing malice. It is only an unpremeditated assault committed in
the heat of passion upon a sudden quarrel. It is also alleged that as per
the case of the prosecution, the accused persons did not exchange any
common intention prior to the commission of offence and the weapon of
offence is only a lathi and, therefore, presumption cannot be laid against
the appellant that he was aware of the intention of the co-accused persons
or exchanged any common intention within the spur of moment at the
time of incident or that he was under any knowledge that the blunt impact
on the head will result into death of the deceased.
6. Learned counsel for the appellant has further submitted that the
learned Trial Court had failed to appreciate the fact that PW-7 had failed
to depose before the Court about the registration number of motor cycle
and number and names of boys who gave beatings to him before his
escaping from the spot. It is also submitted that the prosecution had
failed to get the length, breadth and width of the wooden fattas and lathis
alleged to be used in the incident in question.
Crl.A. No.1397/2013 Page 4 of 15
7. It is next alleged that the Trial Court did not appreciate the fact that
the investigating officer had failed to get the statement of eye-witness i.e.
PW 14 Pradeep Kumar on the same day of incident so as to prepare the
said witness on its own tricks and tactics. It is also submitted that the
learned Trial Court did not appreciate the fact that PW-7 Pradeep Kumar,
on the one hand explained by pointing towards the accused that these
persons held danda, fatta etc. for beating the deceased
Yashwant@Jaswant Meena, on the other hand in his cross-examination,
he had admitted that he did not see the incident. It is also submitted that
the statement of PW-14 was recorded by the police on the next day of
incident and the possibility of tutoring the witness by the police officials
cannot be ruled out as the police officials had reached at BSA Hospital
but they did not try to record the statement of the said witness in the
hospital itself.
8. Learned counsel for the appellant has further alleged that the
learned Trial Court failed to appreciate the fact that the charges as framed
under Section 302/34 are not made out against the present appellant and,
therefore, wrongly convicted the appellant under Section 304 IPC by
taking the aid of Section 34 of the IPC. It is added that to convict a
person by taking the aid of Section 34 of the IPC, it is necessary on the
part of the prosecution to prove that the act was done in furtherance of
common intention either pre decided or within the spur of moment.
Crl.A. No.1397/2013 Page 5 of 15
9. The arguments of defence counsels is to the effect that the
recoveries have been planted upon the accused since despite the secret
information and prior information, no public witness had been joined and
hence no reliance can be placed on the testimony of police witnesses
regarding the recoveries. It is also argued that there is nothing on record
to suggest that all the accused have shared common intention to kill the
deceased.
10. It is next contended by learned counsel for the appellant that the
Trial Court ignored the cardinal rule of evidence to the effect that a
person cannot be held guilty on mere probabilities. Evidence of witness
or circumstances surrounding the incident should, in a definite tendency
and unerringly, point towards the guilt of the accused.
11. Learned counsel for the petitioner has further submitted that the
petitioner is first time offender and is not involved in any other case. It is
also submitted that the petitioner is a young boy and is helping hand in
his family and that at the time of incident, he was in early twenties. It is
also submitted that keeping in view the fact that the petitioner has already
undergone sufficient period of judicial custody, a lenient view may be
taken against him.
12. On the basis of the statement given by Pradeep Kumar,
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investigation commenced, on 9 June, 2008, the accused Brijesh Kumar
was apprehended and arrested pursuant to secret information received.
Crl.A. No.1397/2013 Page 6 of 15
Thereafter, at the behest of accused Brijesh Kumar, the other accused
persons namely Subhash Kumar, Putul Kumar and Vipin Kumar were
also got arrested. Pursuant to their disclosure statement, the accused
Subhash and Brijesh got recovered danda and a fatta used in the
commission of offence from the bushes near a canal. Test Identification
th
Parade (TIP) of the petitioner was conducted on 12 June, 2008 in which
he was identified by PW 7 Pradeep Kumar. Thereafter efforts were
made to trace out the accused Pramod@Natu and process under sections
82/83 of the Code of Criminal Procedure was issued against him. The
accused Pramod@Natu got recovered the wooden Musli used in the juice
machine with the help of which he inflicted injuries upon
Yashwant@Jaswant Meena.
13. After completion of investigations, charge sheet was filed against
all the accused persons before the Court.
14. Learned Additional Public Prosecutor on the other hand, has
submitted that keeping in view the nature of the allegations involved and
the fact that a young person of only 24 years of age had lost his life by
the act of the appellant/accused that too by a casual reference to a
particular region by a young boy, the petitioner does not deserve any
leniency.
15. I have heard learned counsel for the parties at length; gone through
the available records and the judgments cited by learned counsel for the
Crl.A. No.1397/2013 Page 7 of 15
appellant. So far as the present appeal is concerned, which was moved
by Subhash, this Court will keep its findings confined to appellant-
Subhash alone. As regards the role attributed to Subhash in the
commission of crime, it has come in evidence that it was he who joined
the altercation. The accused Subhash after the quarrel, immediately ran
away from the spot to the jhuggi cluster and called the others from their
jhuggi. He along with the others then came back to the spot with danda
with which he gave beatings to the deceased Yashwant@Jaswant and
also to Pradeep (inured). In his disclosure statement, the accused
Subhash disclosed that he could get recovered the weapon of offence i.e.
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danda. The accused Subhash was apprehended and arrested on 9 June,
2008. So far as recovery of weapon of offence i.e. danda is concerned,
the accsued Subhash also led the police party near the canal in the bushes
from where he got recovered one wooden danda after lifting it from the
bushes which was taken into possession vide memo Ex.PW20/E. So far
as the statement of the eye witness Pradeep Kumar, PW 7 is concerned,
the relevant portion of the same reads as under:-
“xxx I identify the accused Subhash present in the
Court and he was having a danda in his hand and
inflicted injuries to Yashwant@Jaswant and me. I
identified the accused Subhash in Tihar Jail during
TIP proceedings. ”
15. That on 08.07.2008, he along with Naresh
Kumar, brother of the deceased came to Rohini court
and when the case was called, he saw accused Putul,
Crl.A. No.1397/2013 Page 8 of 15
Vipin, Brijesh and Subhash, who were in custody of
the police, then he identified them and investigating
officer recorded his statement.”
16. So far as medical evidence is concerned, the same establishes the
commission of crime in the manner narrated. The relevant portion of the
testimony of Dr.Kulbhushan Goel, PW 1, reads as under:-
“Injuries No.1 and 2 were caused by blunt force impact
and the cause of death was brain compression as a
result of cranio-cerebral damage.
The witness has further proved that on
04.09.2008, Inspector Puran Chand tendered an
application along with a sealed packet inscription of
which was PC regarding opinion of weapon of offence.
According to him, on opening the packet, it was found
to contain one wooden Musli used in fruit juice
machine to press the fruits. He has proved having
drawn the rough sketch of the object and gave his
opinion that the injury No.1 mentioned in post-mortem
report Ex.PW1/A was possible by this weapon or
similar type of such weapon which opinion and rough
sketch of the weapon is Ex.PW1/C. He has correctly
identified the weapon of offence i.e. the Musli
examined by him which is Ex.P1.”
17. The act of the accused Subhash reflects that he acted in consortium
with other co-accused in continuing to run after the deceased
Yashwant@Jaswant when he was moving away from the spot to save
himself and then they inflicted injuries on the head of the deceased,
which conduct has rightly brought the case within the purview of Part – 1
of Section 304 of the Indian Penal Code. The common intention
between the accused developed at the spot of the incident itself which is
Crl.A. No.1397/2013 Page 9 of 15
indicated from the fact that when the deceased Yashwant@Jaswant
Meena and injured Pradeep ran from the spot in order to save themselves,
the accused followed them while co-accused Brijesh gave a fatta blow on
the head of the deceased as a result of which the deceased fell down after
running for about 15 steps, in the meanwhile, all the other accused
including the petitioner also reached there and again gave fists, legs,
danda, fatta and musli blows to the deceased. From the testimony of PW
7 Pradeep Kumar, it has been established that all the accused including
the petitioner acted in consortium in commission of crime thereby
proving their common intention.
18. The chain of events thus clearly establishes involvement of the
petitioner in the commission of crime.
19. The prosecution appears to have rightly proved the identity of the
accused as well as the manner in which the commission of crime took
place not to mention the investigation conducted; documents in support
as well as the medical evidence. The evidences which the prosecution
witnesses have tendered, appear to be trustworthy.
20. So far as the ground taken by the petitioner that he has been
wrongly implicated in the present case is concerned, the same cannot be
considered as correct inasmuch as the accused/petitioner has not
suggested any reason as to why he has been falsely implicated in the
present case.
Crl.A. No.1397/2013 Page 10 of 15
21. The recovery of weapon of offence i.e. danda (Ex.P-2) which was
used by the accused Subhash in inflicting injuries to the deceased and PW
7 Pradeep Kumar, has also been duly established in the present case.
Witness PW 7 in his testimony duly identified the said danda as Ex.P-2
and stated that it was the same wooden danda which was used by accused
Subhash for inflicting injuries to him and deceased Yashwant@Jaswant.
22. Learned counsel for the appellant has contended that no such
recovery was effected either from the person of the appellant or at his
instance and that such recovery was planted upon the appellant. Even no
public witness was made part of the said recovery.
23. It is part of evidence that wooden danda Exh.P-2 was got recovered
by the appellant from the bushes near a canal in pursuance of his
disclosure statement. It is a settled law that disclosure statement made by
an accused before a police officer cannot be read in evidence against him
but the part of his disclosure which led to recovery and that too from a
conspicuous place is admissible in law as per Section 27 of the Evidence
Act. In similar situation, Hon’ble Apex Court in the case of Dhananjay
Chatterjee Alias Dhana vs State Of W.B. (1994) 2 SCC 220 , held as
under:-
“2. “........Though, the entire statement made by the
appellant before the police is inadmissible in evidence
being hit by Sections 25 and 26 of the Evidence Act
but that part of his statement which led to the
discovery of the shirt and the pant is clearly admissible
Crl.A. No.1397/2013 Page 11 of 15
under Section 27 of the Evidence Act. We disregard
the inadmissible part of the statement and take note
only of that part of his statement which distinctly
relates to the discovery of the articles pursuant to the
disclosure statement made by the appellant as it is only
so much of the statement made by a person accused of
an offence while in custody of a police officer, whether
it is confessional or not, as relates distinctly to the fact
discovered which is capable of being proved and
admitted into evidence. The discovery of the fact in
this connection includes the discovery of an object
found, the place from which it is produced and the
knowledge of the accused as to its existence.”
24. The ratio of law settled in Dhananjay Chatterjee Alias Dhana
(supra) has been followed in Nisar Khan @ Guddu And Ors. Vs. State
Of Uttaranchal (2006) 9 SCC 386 , in which it was held as under:-
“6. Regarding the second contention that the recovery
of arms has not been proved by the prosecution has
also no substance. It is evidence on record that the
accused were arrested on 17.12.1999 and pursuant to
a disclosure statement made by them, the arms sere
recovered from the bank of Gaula river where these
have been hidden under the sand and covered by the
stones. All the arms were recovered as pointed out by
each accused hidden under the stones. The High Court
fell in error in holding that the recovery has not been
proved as these were recovered from a place which is
frequented by the public. This finding of the High
Court is contrary to the evidence on record. It is now
well settled principle of law that the recovery pursuant
to the disclosure statement made by the accused
under Section 27 of the Evidence Act is admissible in
evidence. In Dhananjoy Chatterjee alias Dhana v.
State of West Bengal , it is held that entire statement
made by an accused person before the police is
inadmissible in evidence being hit bySections
25 and 26 but that part of his statement which led to
the discovery of the articles is clearly admissible
under Section 27 of the Act. It is also held that the
Crl.A. No.1397/2013 Page 12 of 15
Court must disregard the inadmissible part of the
statement and take note only of that part of his
statement which distinctly relates to the discovery of
the articles pursuant to the disclosure statement made
by the accused. It is further held that the discovery of
the fact in this connection includes the discovery of an
object found, the place from which it is produced and
the knowledge of the accused as to its existence.”
25. So far as the contention of the petitioner to the effect that there
were certain lacunae in the manner the prosecution had proceeded with, is
concerned, the same cannot be taken into consideration inasmuch as it is
well settled law that certain technical defects in the prosecution cannot
discard the case of the prosecution in toto. In C. Muniappan & Ors. vs.
State of Tamil Nadu, JT 2010 (9) SC 95 , it has been held that there may
be highly defective investigation in a case. However, it is to be examined
as to whether there is any lapse by the I.O. and whether due to such lapse
any benefit should be given to the accused. The law on this issue is well
settled that the certain defects in the investigation by itself cannot be a
ground for acquittal. If primacy is given to such designed or negligent
investigations or to the omissions or lapses by perfunctory investigation,
the faith and confidence of the people in the criminal justice
administration would be eroded. Where there has been negligence on the
part of the investigating agency or omissions, etc. which resulted in
defective investigation, there is a legal obligation on the part of the court
to examine the prosecution evidence de hors such lapses, carefully,
Crl.A. No.1397/2013 Page 13 of 15
to find out whether the said evidence is reliable or not and to what extent
it is reliable and as to whether such lapses affected the object of finding
out the truth. Therefore, the investigation is not the solitary area for
judicial scrutiny in a criminal trial. The conclusion of the trial in the case
cannot be allowed to depend solely on the probity of investigation. The
observation has been made in Chandra Kanth Lakshmi v. State of
Maharashtra, AIR 1974 SC 220 ; Karnel Singh v. State of Madhya
Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, AIR
1998 SC 1850; Paras Yadav v. State of Bihar, AIR 1999 SC 644; State
of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185;Amar Singh v.
Balwinder Singh, AIR 2003 SC 1164; Allarakha K. Mansuri v. State of
Gujarat, AIR 2002 SC 1051 and Ram Bali v. State of U.P., AIR 2004
SC 2329).
26. It is heartening to observe that people are becoming more impatient
and egoistic these days and are losing their temperament over petty
issues. This is the reason behind commission of many crimes these days.
Who could possibly imagine that denial of giving a glass of juice could
result into murder of twenty four years old boy. This madness is
unacceptable. The petitioner, therefore, deserves no mercy.
27. I, therefore, do not find any illegality, incorrectness, perversity or
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diversity in the impugned order dated 4 July, 2012 passed by learned
Additional Sessions Judge-II, North-West, Rohini Courts, in Sessions
Crl.A. No.1397/2013 Page 14 of 15
Case No.98/11 pertaining to FIR No.312/08 registered at Police Station
Shalimar Bagh.
28. Consequently, the present appeal is dismissed.
(P.S.TEJI)
JUDGE
rd
AUGUST 23 , 2016
aa
Crl.A. No.1397/2013 Page 15 of 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.APPEAL No.1397/2013
rd
Date of Decision : 23 August, 2016
SUBHASH ..... Appellant
Through Ms.Saahila Lamba, Adv.
versus
STATE GOVT. OF NCT OF DELHI ..... Respondent
Through Mr.Amit Chadha, Additional
Public Prosecutor for the State.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. The present appeal has been preferred by the appellant under
Section 374 (2) of the Criminal Procedure Code, 1973 (Cr.P.C.) against
th
the judgment and order dated 4 July, 2012 passed by learned Additional
Sessions Judge-II, North-West, Rohini Courts, in Sessions Case No.98/11
emanating from FIR No.312/08 registered at Police Station Shalimar
Bagh whereby the appellant was held guilty and convicted under Section
304 Part (I) & 323 of the Indian Penal Code (IPC) and vide order dated
th
7 July, 2012, the appellant was imposed the sentence of rigorous
imprisonment for ten years along with fine of Rs.50,000/- and in default
of payment of fine, further three months simple imprisonment for the
offence punishable under Section 304 Part (I) of the IPC and further the
Crl.A. No.1397/2013 Page 1 of 15
appellant was sentenced for a period of one year for the offence
punishable under Section 323 of the IPC.
th
2. A thumbnail sketch of the facts of the case is that on 5 June, 2008
at 10.00 p.m., a quarrel took place at CA Block Jhuggis, between the
deceased Yashwant@Jaswant Meena and Pramod@Natu who used to run
juice rehri. Pramod@Natu allegedly refused to give juice to the deceased
Yashwant@Jaswant Meena and his friend Pradeep Kumar pursuant to
which there arose a verbal altercation in which the victims tauntingly
referred him as Bihari. At the time of verbal altercation between Natu
and Yashwant@Jaswant Meena, one other person namely Subhash
(appellant herein) who was also standing at the juice rehri, also joined
and later on ran towards the Jhuggi cluster and called out his other
associates who duly armed with dandas and wooden fatta, reached the
spot after some time. Thereafter, the said persons started beating
Yashwant@Jaswant Meena with dandas and wooden fatta and also gave
leg and fist blows to Yashwant@Jaswant Meena. Mr.Pradeep Kumar
further informed the Police that upon his intervention, the said boys also
gave beatings to him which resulted in injuries to him. It transpires from
the record that Yashwant@Jaswant Meena tried to run towards the side of
the road to save himself but one of the assailants chased him and gave
him a blow on his head with the help of a wooden fatta by which Jaswant
Meena fell down on which the other assailant gave beatings to him by leg
Crl.A. No.1397/2013 Page 2 of 15
and fist blows.
3. Learned counsel for the petitioner has further submitted that the
accused Subhash had stated in his statement that he was innocent and had
no role to play in the alleged incident in any manner. He further
submitted in his statement that he was a poor labourer and was residing
along with his family in Jhuggi and was never involved in anti-social
activities. He had further stated that police officials came to his house
and forcibly took him to Police Station Shalimar Bagh where he was kept
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in wrongful confinement and was beaten up mercilessly much prior to 9
June, 2008 i.e. the alleged date of his apprehension. The accused had
also stated that he was shown to various public persons there and many
other persons were also kept in wrongful confinement besides him and
they were also beaten up. According to the appellant, the police officials
let him go after taking money and thereafter falsely implicated him in the
present case.
4. Learned counsel for the appellant has vehemently submitted that in
view of the above mentioned statement of the appellant, he was thus kept
in wrongful confinement and beaten up mercilessly much prior to the
alleged date of his apprehension. She has further stated that nothing
incriminating was recovered from the possession of the appellant or at his
instance.
5. Learned counsel for the petitioner has further submitted that the
Crl.A. No.1397/2013 Page 3 of 15
Trial Court failed to appreciate the fact that the incident occurred in the
heat of passion upon certain quarrel without premeditation and that the
same was without motive or intention, which certainly cannot be termed
as culpable homicide amounting to murder. Reliance is placed on the
pronouncement of the Supreme Court in Rajender Vs. State (2000) 4
SCC 298 to the effect that the occasion must be sudden and not as cloak
for pre-existing malice. It is only an unpremeditated assault committed in
the heat of passion upon a sudden quarrel. It is also alleged that as per
the case of the prosecution, the accused persons did not exchange any
common intention prior to the commission of offence and the weapon of
offence is only a lathi and, therefore, presumption cannot be laid against
the appellant that he was aware of the intention of the co-accused persons
or exchanged any common intention within the spur of moment at the
time of incident or that he was under any knowledge that the blunt impact
on the head will result into death of the deceased.
6. Learned counsel for the appellant has further submitted that the
learned Trial Court had failed to appreciate the fact that PW-7 had failed
to depose before the Court about the registration number of motor cycle
and number and names of boys who gave beatings to him before his
escaping from the spot. It is also submitted that the prosecution had
failed to get the length, breadth and width of the wooden fattas and lathis
alleged to be used in the incident in question.
Crl.A. No.1397/2013 Page 4 of 15
7. It is next alleged that the Trial Court did not appreciate the fact that
the investigating officer had failed to get the statement of eye-witness i.e.
PW 14 Pradeep Kumar on the same day of incident so as to prepare the
said witness on its own tricks and tactics. It is also submitted that the
learned Trial Court did not appreciate the fact that PW-7 Pradeep Kumar,
on the one hand explained by pointing towards the accused that these
persons held danda, fatta etc. for beating the deceased
Yashwant@Jaswant Meena, on the other hand in his cross-examination,
he had admitted that he did not see the incident. It is also submitted that
the statement of PW-14 was recorded by the police on the next day of
incident and the possibility of tutoring the witness by the police officials
cannot be ruled out as the police officials had reached at BSA Hospital
but they did not try to record the statement of the said witness in the
hospital itself.
8. Learned counsel for the appellant has further alleged that the
learned Trial Court failed to appreciate the fact that the charges as framed
under Section 302/34 are not made out against the present appellant and,
therefore, wrongly convicted the appellant under Section 304 IPC by
taking the aid of Section 34 of the IPC. It is added that to convict a
person by taking the aid of Section 34 of the IPC, it is necessary on the
part of the prosecution to prove that the act was done in furtherance of
common intention either pre decided or within the spur of moment.
Crl.A. No.1397/2013 Page 5 of 15
9. The arguments of defence counsels is to the effect that the
recoveries have been planted upon the accused since despite the secret
information and prior information, no public witness had been joined and
hence no reliance can be placed on the testimony of police witnesses
regarding the recoveries. It is also argued that there is nothing on record
to suggest that all the accused have shared common intention to kill the
deceased.
10. It is next contended by learned counsel for the appellant that the
Trial Court ignored the cardinal rule of evidence to the effect that a
person cannot be held guilty on mere probabilities. Evidence of witness
or circumstances surrounding the incident should, in a definite tendency
and unerringly, point towards the guilt of the accused.
11. Learned counsel for the petitioner has further submitted that the
petitioner is first time offender and is not involved in any other case. It is
also submitted that the petitioner is a young boy and is helping hand in
his family and that at the time of incident, he was in early twenties. It is
also submitted that keeping in view the fact that the petitioner has already
undergone sufficient period of judicial custody, a lenient view may be
taken against him.
12. On the basis of the statement given by Pradeep Kumar,
th
investigation commenced, on 9 June, 2008, the accused Brijesh Kumar
was apprehended and arrested pursuant to secret information received.
Crl.A. No.1397/2013 Page 6 of 15
Thereafter, at the behest of accused Brijesh Kumar, the other accused
persons namely Subhash Kumar, Putul Kumar and Vipin Kumar were
also got arrested. Pursuant to their disclosure statement, the accused
Subhash and Brijesh got recovered danda and a fatta used in the
commission of offence from the bushes near a canal. Test Identification
th
Parade (TIP) of the petitioner was conducted on 12 June, 2008 in which
he was identified by PW 7 Pradeep Kumar. Thereafter efforts were
made to trace out the accused Pramod@Natu and process under sections
82/83 of the Code of Criminal Procedure was issued against him. The
accused Pramod@Natu got recovered the wooden Musli used in the juice
machine with the help of which he inflicted injuries upon
Yashwant@Jaswant Meena.
13. After completion of investigations, charge sheet was filed against
all the accused persons before the Court.
14. Learned Additional Public Prosecutor on the other hand, has
submitted that keeping in view the nature of the allegations involved and
the fact that a young person of only 24 years of age had lost his life by
the act of the appellant/accused that too by a casual reference to a
particular region by a young boy, the petitioner does not deserve any
leniency.
15. I have heard learned counsel for the parties at length; gone through
the available records and the judgments cited by learned counsel for the
Crl.A. No.1397/2013 Page 7 of 15
appellant. So far as the present appeal is concerned, which was moved
by Subhash, this Court will keep its findings confined to appellant-
Subhash alone. As regards the role attributed to Subhash in the
commission of crime, it has come in evidence that it was he who joined
the altercation. The accused Subhash after the quarrel, immediately ran
away from the spot to the jhuggi cluster and called the others from their
jhuggi. He along with the others then came back to the spot with danda
with which he gave beatings to the deceased Yashwant@Jaswant and
also to Pradeep (inured). In his disclosure statement, the accused
Subhash disclosed that he could get recovered the weapon of offence i.e.
th
danda. The accused Subhash was apprehended and arrested on 9 June,
2008. So far as recovery of weapon of offence i.e. danda is concerned,
the accsued Subhash also led the police party near the canal in the bushes
from where he got recovered one wooden danda after lifting it from the
bushes which was taken into possession vide memo Ex.PW20/E. So far
as the statement of the eye witness Pradeep Kumar, PW 7 is concerned,
the relevant portion of the same reads as under:-
“xxx I identify the accused Subhash present in the
Court and he was having a danda in his hand and
inflicted injuries to Yashwant@Jaswant and me. I
identified the accused Subhash in Tihar Jail during
TIP proceedings. ”
15. That on 08.07.2008, he along with Naresh
Kumar, brother of the deceased came to Rohini court
and when the case was called, he saw accused Putul,
Crl.A. No.1397/2013 Page 8 of 15
Vipin, Brijesh and Subhash, who were in custody of
the police, then he identified them and investigating
officer recorded his statement.”
16. So far as medical evidence is concerned, the same establishes the
commission of crime in the manner narrated. The relevant portion of the
testimony of Dr.Kulbhushan Goel, PW 1, reads as under:-
“Injuries No.1 and 2 were caused by blunt force impact
and the cause of death was brain compression as a
result of cranio-cerebral damage.
The witness has further proved that on
04.09.2008, Inspector Puran Chand tendered an
application along with a sealed packet inscription of
which was PC regarding opinion of weapon of offence.
According to him, on opening the packet, it was found
to contain one wooden Musli used in fruit juice
machine to press the fruits. He has proved having
drawn the rough sketch of the object and gave his
opinion that the injury No.1 mentioned in post-mortem
report Ex.PW1/A was possible by this weapon or
similar type of such weapon which opinion and rough
sketch of the weapon is Ex.PW1/C. He has correctly
identified the weapon of offence i.e. the Musli
examined by him which is Ex.P1.”
17. The act of the accused Subhash reflects that he acted in consortium
with other co-accused in continuing to run after the deceased
Yashwant@Jaswant when he was moving away from the spot to save
himself and then they inflicted injuries on the head of the deceased,
which conduct has rightly brought the case within the purview of Part – 1
of Section 304 of the Indian Penal Code. The common intention
between the accused developed at the spot of the incident itself which is
Crl.A. No.1397/2013 Page 9 of 15
indicated from the fact that when the deceased Yashwant@Jaswant
Meena and injured Pradeep ran from the spot in order to save themselves,
the accused followed them while co-accused Brijesh gave a fatta blow on
the head of the deceased as a result of which the deceased fell down after
running for about 15 steps, in the meanwhile, all the other accused
including the petitioner also reached there and again gave fists, legs,
danda, fatta and musli blows to the deceased. From the testimony of PW
7 Pradeep Kumar, it has been established that all the accused including
the petitioner acted in consortium in commission of crime thereby
proving their common intention.
18. The chain of events thus clearly establishes involvement of the
petitioner in the commission of crime.
19. The prosecution appears to have rightly proved the identity of the
accused as well as the manner in which the commission of crime took
place not to mention the investigation conducted; documents in support
as well as the medical evidence. The evidences which the prosecution
witnesses have tendered, appear to be trustworthy.
20. So far as the ground taken by the petitioner that he has been
wrongly implicated in the present case is concerned, the same cannot be
considered as correct inasmuch as the accused/petitioner has not
suggested any reason as to why he has been falsely implicated in the
present case.
Crl.A. No.1397/2013 Page 10 of 15
21. The recovery of weapon of offence i.e. danda (Ex.P-2) which was
used by the accused Subhash in inflicting injuries to the deceased and PW
7 Pradeep Kumar, has also been duly established in the present case.
Witness PW 7 in his testimony duly identified the said danda as Ex.P-2
and stated that it was the same wooden danda which was used by accused
Subhash for inflicting injuries to him and deceased Yashwant@Jaswant.
22. Learned counsel for the appellant has contended that no such
recovery was effected either from the person of the appellant or at his
instance and that such recovery was planted upon the appellant. Even no
public witness was made part of the said recovery.
23. It is part of evidence that wooden danda Exh.P-2 was got recovered
by the appellant from the bushes near a canal in pursuance of his
disclosure statement. It is a settled law that disclosure statement made by
an accused before a police officer cannot be read in evidence against him
but the part of his disclosure which led to recovery and that too from a
conspicuous place is admissible in law as per Section 27 of the Evidence
Act. In similar situation, Hon’ble Apex Court in the case of Dhananjay
Chatterjee Alias Dhana vs State Of W.B. (1994) 2 SCC 220 , held as
under:-
“2. “........Though, the entire statement made by the
appellant before the police is inadmissible in evidence
being hit by Sections 25 and 26 of the Evidence Act
but that part of his statement which led to the
discovery of the shirt and the pant is clearly admissible
Crl.A. No.1397/2013 Page 11 of 15
under Section 27 of the Evidence Act. We disregard
the inadmissible part of the statement and take note
only of that part of his statement which distinctly
relates to the discovery of the articles pursuant to the
disclosure statement made by the appellant as it is only
so much of the statement made by a person accused of
an offence while in custody of a police officer, whether
it is confessional or not, as relates distinctly to the fact
discovered which is capable of being proved and
admitted into evidence. The discovery of the fact in
this connection includes the discovery of an object
found, the place from which it is produced and the
knowledge of the accused as to its existence.”
24. The ratio of law settled in Dhananjay Chatterjee Alias Dhana
(supra) has been followed in Nisar Khan @ Guddu And Ors. Vs. State
Of Uttaranchal (2006) 9 SCC 386 , in which it was held as under:-
“6. Regarding the second contention that the recovery
of arms has not been proved by the prosecution has
also no substance. It is evidence on record that the
accused were arrested on 17.12.1999 and pursuant to
a disclosure statement made by them, the arms sere
recovered from the bank of Gaula river where these
have been hidden under the sand and covered by the
stones. All the arms were recovered as pointed out by
each accused hidden under the stones. The High Court
fell in error in holding that the recovery has not been
proved as these were recovered from a place which is
frequented by the public. This finding of the High
Court is contrary to the evidence on record. It is now
well settled principle of law that the recovery pursuant
to the disclosure statement made by the accused
under Section 27 of the Evidence Act is admissible in
evidence. In Dhananjoy Chatterjee alias Dhana v.
State of West Bengal , it is held that entire statement
made by an accused person before the police is
inadmissible in evidence being hit bySections
25 and 26 but that part of his statement which led to
the discovery of the articles is clearly admissible
under Section 27 of the Act. It is also held that the
Crl.A. No.1397/2013 Page 12 of 15
Court must disregard the inadmissible part of the
statement and take note only of that part of his
statement which distinctly relates to the discovery of
the articles pursuant to the disclosure statement made
by the accused. It is further held that the discovery of
the fact in this connection includes the discovery of an
object found, the place from which it is produced and
the knowledge of the accused as to its existence.”
25. So far as the contention of the petitioner to the effect that there
were certain lacunae in the manner the prosecution had proceeded with, is
concerned, the same cannot be taken into consideration inasmuch as it is
well settled law that certain technical defects in the prosecution cannot
discard the case of the prosecution in toto. In C. Muniappan & Ors. vs.
State of Tamil Nadu, JT 2010 (9) SC 95 , it has been held that there may
be highly defective investigation in a case. However, it is to be examined
as to whether there is any lapse by the I.O. and whether due to such lapse
any benefit should be given to the accused. The law on this issue is well
settled that the certain defects in the investigation by itself cannot be a
ground for acquittal. If primacy is given to such designed or negligent
investigations or to the omissions or lapses by perfunctory investigation,
the faith and confidence of the people in the criminal justice
administration would be eroded. Where there has been negligence on the
part of the investigating agency or omissions, etc. which resulted in
defective investigation, there is a legal obligation on the part of the court
to examine the prosecution evidence de hors such lapses, carefully,
Crl.A. No.1397/2013 Page 13 of 15
to find out whether the said evidence is reliable or not and to what extent
it is reliable and as to whether such lapses affected the object of finding
out the truth. Therefore, the investigation is not the solitary area for
judicial scrutiny in a criminal trial. The conclusion of the trial in the case
cannot be allowed to depend solely on the probity of investigation. The
observation has been made in Chandra Kanth Lakshmi v. State of
Maharashtra, AIR 1974 SC 220 ; Karnel Singh v. State of Madhya
Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, AIR
1998 SC 1850; Paras Yadav v. State of Bihar, AIR 1999 SC 644; State
of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185;Amar Singh v.
Balwinder Singh, AIR 2003 SC 1164; Allarakha K. Mansuri v. State of
Gujarat, AIR 2002 SC 1051 and Ram Bali v. State of U.P., AIR 2004
SC 2329).
26. It is heartening to observe that people are becoming more impatient
and egoistic these days and are losing their temperament over petty
issues. This is the reason behind commission of many crimes these days.
Who could possibly imagine that denial of giving a glass of juice could
result into murder of twenty four years old boy. This madness is
unacceptable. The petitioner, therefore, deserves no mercy.
27. I, therefore, do not find any illegality, incorrectness, perversity or
th
diversity in the impugned order dated 4 July, 2012 passed by learned
Additional Sessions Judge-II, North-West, Rohini Courts, in Sessions
Crl.A. No.1397/2013 Page 14 of 15
Case No.98/11 pertaining to FIR No.312/08 registered at Police Station
Shalimar Bagh.
28. Consequently, the present appeal is dismissed.
(P.S.TEJI)
JUDGE
rd
AUGUST 23 , 2016
aa
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