Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 09.07.2015
Pronounced on: 29.07.2015
+ CRL.A. 392/1998
ATAMBIR SINGH @ CHOTA BABLA ..... Appellant
Through: Mr. Vivek Sood, Sr. Advocate
with Mr. M. L. Yadav, Advocate.
versus
STATE OF DELHI …... Respondent
Through: Mr. Varun Goswami, APP.
+ CRL.A. 399/1998
SUKHWANT SINGH ..... Appellant
Through: Mr. N. Hariharan, Sr. Advocate
with Mr. Sarvan S. Chauhan, Mr. Vaibhav
Sharma, Mr. Siddharth S. Yadav, Mr. Varun
Deswal & Mr. Amit S. Chauhan, Advocates.
versus
STATE ..... Respondent
Through: Mr. Varun Goswami, APP.
+ CRL.A. 439/2013
STATE ..... Appellant
Through: Mr. Varun Goswami, APP along
with Inspector Rakesh Kumar, P.S. Adarsh
Nagar.
versus
VIRENDER SINGH ..... Respondent
Through: Mr. Sumeet Verma & Mr. Amit
Kala, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K. GAUBA
MR. JUSTICE R.K. GAUBA
%
1. On 12.06.1995 Jitender Kumar son of Sh. Jagdish, 23 years old R/o
D-301, Janakpuri was brought to Hindu Rao Hospital by PCR officials
(Head Constable Harpal Singh) at about 6:10 PM with stab wounds. He was
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 1 of 33
examined against MLC (Ex.PW-16/A) and given medical treatment. He
succumbed to the injuries during treatment and was declared dead at 0210
hours of 13.06.1995. FIR No.233/95 (Ex.PW-13/A) was registered against
this backdrop in P.S Adarsh Nagar in the course of investigation into which
evidence statedly came to be gathered additionally about the death of
Jitender Kumar being homicidal and about attempt having been made to
commit murder of Mohinder Singh (PW-6) and Rahul (PW-20) in the course
of same occurrence.
2. The appellants Sukhwant Singh @ Babla (accused No.1 in trial Court
record), (Crl.A.No.399/1998), Atambir Singh @ Chota Babla (accused No.2
in trial Court record) (Crl.A.No.392/1998) and Virender Singh @ Jyoti
(accused No. 3 in trial Court record) (respondent in Crl.A.No.439/2013)
were brought to trial on the basis of report of investigation into
aforementioned FIR. They were charged with offences punishable under
Sections 302/34 and 307/34 IPC. The accused No.1 (A-1) also faced
additional charge for offence under Section 27 of Arms Act since the
investigation had statedly showed he had used his licensed fire arm (Pistol)
for firing at PW-6 and PW-20 in an attempt to kill them. All three accused
pleaded not guilty whereupon prosecution was called upon to adduce
evidence. Mid-way the trial, accused No.3 (A-3) Virender jumped bail and
absconded. In due course, he came to be declared a Proclaimed Offender
(PO).
3. The trial against accused No. 1 (A-1) and accused No.2 (A-2) was
concluded and resulted in judgment passed on 20.08.1998 by Sh. G.D.
Dhanuka, Additional Sessions Judge (ASJ) finding both of them guilty as
charged. After they had been convicted, the learned trial Judge passed the
order on sentence on 25.08.1998 awarding imprisonment for life with fine of
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 2 of 33
` 1000/- for the offence punishable under Sections 302/34 IPC (in default of
payment of fine further RI for three months each) and Rigorous
Imprisonment (RI) of seven years with fine of ` 1000/- for the offence
punishable under Sections 307/34 IPC (in default of payment of fine further
RI for three months each) to both convicted persons besides RI for three
years and fine of ` 1000/- (in default payment of fine further RI for three
months) to A-1 for the offence punishable under Section 27 Arms Act.
4. Virender (A-3) was later re-arrested and the trial against him
reopened. In the said proceedings, some of the witnesses were recalled to
give opportunity to him for cross-examination. On conclusion of the said
proceedings, judgment was passed on 28.04.2001 by Sh. L. D. Mual, ASJ,
holding that the prosecution had not been able to prove its case beyond
reasonable doubts and extending the benefit on such account, and thus,
acquitting A-3.
5. A-1 and A-2 are in appeal before this Court, assailing the judgment
dated 20.08.1998 whereby they were convicted, submitting that conclusions
have been drawn only on the basis of testimony of highly interested
witnesses (PW-6 and PW-20) who were not reliable since their presence at
the scene at the time of occurrence is suspect. The State, on the other hand,
is in appeal challenging the judgment dated 28.04.2001 contending that the
evidence adduced has not been properly appreciated and so acquittal of A-3
was incorrect.
6. It must be mentioned here that the trial Court record came to be
misplaced after appeals had been preferred. On direction, the successor
presiding officer of the trial Court(s) has reconstructed the record, to the
extent possible, primarily with the assistance of counsel for the appellants.
The reconstructed record has been received and made available to all sides
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 3 of 33
and with regard to the credibility whereof no dispute has been raised. There
are some documents/proceedings missing but it was confirmed by the
learned counsel on all sides that this has not handicapped them in arguments
nor caused any prejudice to the convicted appellants or the respondent in the
State appeal.
7. Accused No.3 (A-3) jumped bail during hearing on the appeal against
his acquittal. Duress processes have failed to locate him or secure his
presence. Besides issuing necessary directions for he to be traced and
brought to Court, in order not to allow further delay in these matters, on our
directions, the Delhi High Court Legal Services Committee appointed Mr.
Sumeet Verma, Advocate as amicus curiae for assistance on behalf of the
said accused, respondent in Crl.Appeal No.439/2013.
8. We have heard arguments at length and perused the available record.
9. The first information about the occurrence was received in Police
Control Room (PCR) by Head Ct. Usha (PW-12) sometime around 5:47 PM
regarding a quarrel ( Jhagda) at D-40, Bhagat Singh Road, Adarsh Nagar,
Delhi. She passed on this information on the wireless net-work, inter alia,
to District Control Room, North West District, Delhi. The information
reached P.S. Adarsh Nagar (hereinafter referred to as the “Police Station”)
where it came to be logged as D.D. entry No.17/A. A copy of the said D.D.
entry is part of the rukka (Ex.PW-21/C) which would be dispatched at about
08:10 PM by SI Banwari Lal (PW-21) through Ct. Pratap Singh (PW-3), to
the Police Station for registration of FIR. The FIR on its basis was
registered at 08:25 PM (Ex.PW-13/A) by Head Ct. Chet Ram (PW-13),
Duty Officer (DO) at the Police Station at the relevant point of time.
10. The documents leading to the registration of FIR clearly show that no
eye-witness was available till PW-21 (the first Investigating Officer) had
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 4 of 33
dispatched the rukka from the scene of incident (B-42, Bhagat Singh Road,
Adarsh Nagar). The FIR was registered for investigation into offences
under Section 307 IPC and under Section 27 Arms Act on the basis, inter
alia , of the information available at that stage about the injuries suffered by
Jitender Kumar (the deceased) for which he had been taken to Hindu Rao
Hospital (“the Hospital”) by officials of Police Control Room (PCR) and
discovery of a live round of ammunition noticed lying on a sewer lid at
crossing of Bhagat Singh Road and Arya Samaj Road and a spent round of
ammunition found embedded in the rear seat of Maruti Van no. DNB-1350
(“the Maruti Van” hereinafter) having entered the van after creating a hole
near rear dickey.
11. It has been the case of the prosecution that soon after the first
Investigating Officer (the first IO) had sent his rukka to the Police Station
for registration of the FIR, PW-6 and PW-20 came to the scene and
informed him that the incident, in which Jitender Kumar @ Montu had been
injured, had occurred in their presence sometime after 05:30 P.M. on
12.06.1995. They also claimed that in the course of the incident in which A-
1, A-2 and A-3 had participated, the stab injury was inflicted on the person
of Jitender by A-3 with active assistance of the other two and that when both
these witnesses had tried to intervene, A-1, who was carrying a pistol in his
hand, had fired in their direction and, thus, attempting to cause their death.
12. From the narration of the events in the prosecution case, the evidence
led during the trial and the line of cross-examination of the material
witnesses by the defence, certain facts emerge as undisputed and beyond the
pale of any controversy. Before proceeding further, the same may be noted
at this stage.
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 5 of 33
13. A-1 and A-3 are real brothers. Reference has come in the evidence of
a commercial property located in Adarsh Nagar which is owned by A-1 and
A-3. The lower portion of this property is in use as an eating house in the
name and style of Shahi restaurant. It was brought out by the defence itself
during cross-examination of PW-6 that A-2 was working as a manager under
A-1 and A-3 in the said restaurant during the relevant period. The upper
floor portion of the building is used as Alishan Guest House. The place
where Shahi restaurant is located is concededly at a walking distance from
the place of occurrence mentioned earlier. The evidence further shows that
Kushal Cinema in Jehangirpuri, which would also be referred in the
narration, is hardly ten minutes away on foot from the said place.
14. The prosecution concedes that Mohinder Singh (PW-6), Rahul
Maheshwari (PW-20) and Jitender (the deceased) have had involvement in
criminal cases. PW-20 during his cross-examination himself stated that on
12.06.1995, the date of incident, he and the deceased had gone together to
Tis Hazari Courts for appearing in a case pertaining to Police Station
Jehangirpuri in which both of them were co-accused. The cases in which
PW-20 had been involved included two under Section 302 IPC of Police
Station Narela and Jehangirpuri and one under Section 506 IPC of Police
Station Adarsh Nagar. Similarly, PW-6 admitted his involvement in certain
criminal cases including one of murder (he was brought to the Court for
deposition as an under-trial prisoner) and another of Police Station Alipur
involving offence under Arms Act. He admitted his involvement in yet
another case of murder relating to Police Station Jehangirpuri in the past
though he explained he had been since acquitted of that charge.
15. During the course of arguments on the appeals, questions were raised
as to the place of residence of the deceased at the relevant point of time. In
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 6 of 33
the MLC (Ex.PW-16/A) of the deceased, the examining medical officer
(PW-19) had noted two addresses. The first address is described as House
No. D-301, Jehangirpuri and the other as A-118, Mukherjee Nagar. Clearly,
the second address was added later on. The deceased had been brought to
the hospital by Head Constable Harpal Singh of PCR. At the time of arrival
in the hospital at 06:10 P.M., per MLC, the deceased was conscious though
drowsy. PW-19 confirmed that the pulse rate was 126 per minute though
the blood pressure was un-recordable. Apparently, the victim with incised
wound on the left inter-scapular area about three inches long and another
incised wound on the chin one inches long. He was still alive but his
condition would have deteriorated on the way to hospital from scene of
occurrence. All that is shown recovered from his person is cash amount in
the sum of ` 1,802/- which was handed over by the medical officer to the IO
through Duty Constable. In these circumstances, it can safely be inferred
that the two addresses, one of Jehangirpuri and the other of Mukherjee
Nagar, would have been disclosed by the victim (the deceased). It may have
been ascertained from some papers, or corrected subsequently when
relatives or known persons had arrived. The fact that Jehangirpuri address
was the ordinary place of residence of the deceased has come out clearly in
the testimony of PW-6 and PW-20 and stands fully corroborated from the
evidence particularly of Jagdish Lal (PW-2), father of the deceased who
along with Nand Lal (PW-1) had identified the dead body before post-
mortem examination on 13.06.1995. The insertion of another address on the
MLC, we add, would not dispel or negate their affirmative testimonies.
16. That the incident had occurred in front of House No. D-42, Bhagat
Singh Road, Adarsh Nagar, a place depicted in graphic detail in the scaled
site plan Ex.PW-10/A prepared by Sub-Inspector Manohar Lal (PW-10) is
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 7 of 33
proved by material which is beyond reproach. D.D. no. 17-A which is part
of the rukka Ex.PW-21/A refers to this place as the place of occurrence
communicated through PCR network. When the first IO (PW21) arrived at
the said place, he found blood lying at several places. Having learnt that the
injured had been taken to the hospital, he proceeded there, leaving Constable
Pratap Singh (PW-3) behind for guarding the scene. He found victim
Jitender @ Montu admitted with injuries noted as caused by sharp weapon
but unfit for giving any statement. He had not come across any eye-witness
either at the scene or in the hospital. When he returned to the scene of
incident and inspected it closely, he found a live round of ammunition on the
sewer cover and a spent bullet embedded in the rear seat of the Maruti Van
to which reference has already been made. The Van belonged to Ramesh
Chander (PW-24), resident of House No. D-29, Bhagat Singh Road located
close by. PW-4 on his part has confirmed that while sleeping inside the
house, he had heard noise at about 05:00 P.M. or 05:30 P.M. and when he
came out he saw a crowd of persons who had gathered and learnt there that a
firing incident had taken place. PW-4 himself may not have heard the firing
but he confirmed that his car was hit as pallet of a bullet was recovered from
its body, the shot having created a hole. The evidence of PW-21 leaves no
room for doubt that this spent bullet found embedded in the rear seat was a
part of the evidence recovered during the investigation. It may be
mentioned here that the prosecution proved the cartridge found on the sewer
cover as Ex.P-3, described in the evidence as a live cartridge, the same and
the spent bullet recovered from the body of the Van having been seized
formally in the presence of PW-6 and PW-20 vide seizure memos Ex.PW-
6/A and Ex.PW-6/B respectively.
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 8 of 33
17. That Jitender Kumar @ Montu suffered a homicidal death is also a
fact which cannot be disputed. We note the evidence, on basis of which we
thus conclude, hereinafter.
18. The MLC (Ex.PW-16/A) was proved by Dr. N. R. Tuli (PW16) in
absence of its author Dr. Dushyant who had since left the services of the
hospital and whose presence could not be initially procured. Later, Dr.
Dushyant himself appeared as PW19 and proved the MLC that had been
prepared by him. On the basis of such record, it was brought out that
Jitender @ Montu was brought the hospital by the PCR official at 06:10 PM
on 12.06.1995. His medical examination showed that he had suffered
incised wound on the left inter-scapular area of 3 inch long besides incised
wound on the chin of the length of 1 inch. The injuries suffered had been
caused by a sharp edged weapon. Clearly, the victim required medical
attention and aid and so was referred to emergency surgery.
19. Jitender died, during treatment in the hospital, at 02:10 AM on
13.06.1995. The Investigating Officer (PW21) speaking with reference to
DD No.26A (Mark-B) testified to the fact that the intimation about the death
was received in the police station at 02:45 AM on 13.06.1995. The case
was, thereafter, taken over by Inspector Swatantra Kumar (PW18) for
investigation, in the course of which he prepared death report (Ex.PW18/A)
and made a formal request for post-mortem examination of the dead body
through application (Ex.PW18/C). It may be added here that the document
described as brief facts (Ex.PW18/B) is a part of the proceedings drawn by
PW18. Reference would need to be made to this document (Ex.PW18/B),
later in the context of the arguments that have been raised on behalf of three
accused. For present purposes, suffice it to note that the dead body was
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 9 of 33
submitted for post-mortem examination which came to be conducted by
Dr. Alexander (PW7) leading to autopsy report Ex.PW7/A.
20. The post-mortem examination report (Ex.PW-7/A) has been proved
by the autopsy doctor. It noted the following external injuries:
“1. Oblique incised wound on the right infra-mandibular
margin of size 3.2 cms x 17 cm x 2.2 cm. The medial edge is
higher than the lateral edge. Both the edges are acute. Both
the upper and lower margins are sharp. Tailing of the wound
is seen towards the lateral edge. Superiorly the centre of the
wound is 3.5 cms below the level of right angle of mouth. The
medial and lateral edges are 3.3 cms and 3.7 cms below the
level of right angle of mouth respectively. Medially the medial
edge is 1 cm away and lateral edge is 5 cms away from the
median plane, anteriorly respectively. Inferiorly the centre of
the wound is 144 cms above the level of heel.
2. Oblique stab wound on the left lower aspect of back of chest.
Size 10 cms x 3 cms x chest/abdomen cavity deep. The lateral
edge is higher than the medial edge. Both the edges are acute.
Both the upper and lower margins are sharp. Tailing of the
wound seen towards the medial edge. Superiorly the centre of
wound is 34 cms below the level of nape of neck. Medially, the
centre of the wound is 5.5. cms away from the posterior median
plane. The medial edge and the lateral edge are 1.8 cms and
10.4 cms away from the posterior median plane respectively.
Inferiorly the centre of the wound is 102 cms above the level of
left heel. The medial and lateral edges are 100 cms and 104
cms above the level of left heel respectively. The direction of
the wound is downwards medially and anteriorly .”
21. On internal examination, the autopsy doctor, inter-alia , found that :-
“ Peritoneal cavity contains approximately 50 ml. of blood and
blood clots. Stomach contains 200 ml of yellowish semi
digested food particles with smell of alcohol. Small and large
intestines are normal and intact. Liver is pale and intact.
Right kidney is pale and intact. Spleen is pale and intact. Left
kidney is not present (Surgical nephrectomy done). Blood clots
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 10 of 33
are present all around the side of left kidney. All the structures
of pelvis and neck and spine are normal and intact .”
22. The autopsy doctor also noticed that the second stab wound had
th
passed through 11 rib on left side and mid-scapular line into the plural
cavity posterior dome of left side diaphragm and left kidney (size of the
wound being 1.9 cm).
23. The track of the second injury was noted by the autopsy doctor as
under :-
“ Skin-fascia muscles of the left lower aspect of chest -11th rib
of left side had mid-scapular line-into the pleural cavity-
posterior dome of left side diaphragm-left kidney .”
24. In the opinion of PW7, death had occurred due to shock and
haemorrhage resulting from injuries which were found to be consistent with
the history given in the documents submitted prior to the autopsy. The
autopsy doctor opined that both the injuries had been caused by a sharp
edged weapon/object, the second injury being sufficient to cause death in the
ordinary course of nature. The injuries were noted to be of recent origin.
25. The query of the IO about any bullet injury having been sustained by
the deceased was answered in the negative. The autopsy doctor preserved
blood sample which was passed on to the Investigating Officer.
26. It is nobody‟s case that the injuries noted in the autopsy could have
been suffered accidently or were self-inflicted. Given the very nature
thereof, there can be doubt that they were inflicted by the assailant(s)
intentionally. The prosecution relies on the eye-witness account of
Mohinder Singh (PW6) and Rahul Maheshwari (PW20) in this regard. We
need not even refer to such ocular evidence in detail at this stage. The same
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 11 of 33
would need to be discussed, in due course, in the context of questions about
culpability of the three persons brought to trial. Having regard to the part of
the body where the second injury was inflicted, its depth and extent to which
it had caused damage, it is obvious that it was caused either with intention of
causing death or with knowledge that it was likely to cause death within the
mischief of Section 299 of Indian Penal Code and, therefore, we affirm the
findings and the conclusion of the learned trial judge that death of Jitender
@ Montu was a case of culpable homicide.
27. As noted earlier, the appellant Sukhwant Singh @ Babla (A-1) and
respondent Virender Singh @ Jyoti (A-3) are real brothers, both sons of
Balwant Singh. It has been brought out through the testimony, inter-alia , of
SI Banwari Lal (PW21) and Inspector Swatantra Kumar (PW18) that after
the initial intimation, the former had first visited the scene of incident and
then proceeded to the hospital from where he returned to the spot and then
sent his rukka for registration of FIR at 08:10 PM. During his first visit to
the hospital, prior to the sending of rukka , he had been joined by PW18
there at about 07:30 PM. At that time, the members of the family of the
victim (Jitender Kumar @ Montu) had already arrived there. The fact that
the family had learnt about the admission of Jitender Kumar @ Montu in the
hospital in an injured state and had immediately rushed there would find
resonance elsewhere in the evidence, to be specific in the testimony of PW6
& PW20 to which we may revert later.
28. The involvement of the three accused persons, who faced trial, had
figured in the investigation on the same night. This fact came to be brought
out through cross-examination of SI Banwari Lal (PW21) (on 18.02.1998)
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 12 of 33
when it was suggested to him by the defence that the house of A-3 had been
raided during the same night.
29. Be that as it may, it is undisputed that A-1 Sukhwant Singh and A-2
Atambir Singh surrendered themselves before Inspector Swatantra Kumar
(PW18) in the police station at about 06:30 PM on 14.06.1995. The
evidence of SI Radhey Shyam (PW5) and that of Inspector Swatantra Kumar
(PW18) confirms that both of them were formally arrested after personal
search vide memos Ex.PW18/E & Ex.PW18/F. Though reference has come
to the disclosure statement (Ex.PW15/A) and to the pointing out memo
(Ex.PW15/B), statedly prepared during interrogation, the same are rendered
inadmissible for the reason no further fact or physical object could be
discovered in their wake.
30. It is, nonetheless, important to note here that at the time of his
surrender, Sukhwant Singh (A-1) had also produced before the Investigating
Officer (PW18 Inspector Swatantra Kumar), his pistol (Ex.P-1), arms
license (Ex.P-2) and one live cartridge (Ex.P-3). The investigating officer
prepared the sketch of the pistol and live cartridge on a sheet of paper
(Ex.PW5/A), sealed it in a parcel with seal of „SK‟ and took over the said
parcel and the arms license formally vide seizure memo (Ex.PW5/B). It
may be added here that the pistol, thus handed over by A-1 to the IO on
14.06.1995, was a fire arm made in Italy, caliber 7.65, and was held along
with the cartridge of the same bore against arms license issued by competent
authority in the State of Haryana (valid upto 26.12.1996).
31. Though, in the course of investigation at the scene of crime, the IO
took necessary steps of collecting the relevant evidence in the nature of
blood-stains, earth control etc., given the way the case developed eventually,
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 13 of 33
only the seizure of live cartridge (Ex.P-3) from the sewer cover and the
spent bullet from the rear seat of the Maruti Van would be of import. We
would discuss this part of the evidence and its connection with the fire arm
(Ex.P-1) handed over by A-1 Sukhwant Singh to the IO on 14.06.1997 at
appropriate stage in this judgment. It need only be noted here that the said
part of the evidence, sent to Central Forensic Science Laboratory (CFSL)
resulted in a report dated 14.08.1995 confirming that the cartridge described
as live bullet (Ex.P-3) found on the sewer cover, in the opinion of the
ballistics expert, had come out as a projectile, upon being fired through the
pistol of A-1 Sukhwant Singh. Similarly, the fired bullet found embedded in
the rear seat of the Maruti Van, in the opinion of the ballistics expert, had
been fired from the pistol of A-1 Sukhwant Singh.
32. The case of the prosecution rested on the narration of sequence of
events by Mohinder Singh (PW6) & Rahul Maheshwari (PW20) in their
respective statements under Section 161 Cr.P.C recorded on 12.06.1995
after registration of the FIR. The substance of the same may be noted at this
stage.
33. It is stated that Rahul Maheshwari (PW20) accompanied by the
deceased had come to the house of Mohinder Singh (PW6) in village
Bharala on 12.06.1995 whereafter all three of them went to Shahi restaurant
in Adarsh Nagar for lunch. While they were sitting in the restaurant, at the
ground floor, all the three accused came out from the Alishan Guest House
located on the upper floor in the same building. Immediately, A-1 became
abusive towards Mohinder Singh (PW6) and the deceased questioning them
as to how they had dared to come and asked them to leave the place. It is
stated that A-1 also shouted in words to the effect “ tum bade dada bante ho ”
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 14 of 33
and also “ tumhe us din ki nasihat yaad nahi hai hamare samne dadagiri
karnewala bacha nahi hai ”. This led to exchange of hot words between A-
1, on one hand, and Mohinder Singh (PW6) with the deceased, on the other.
It appears that Rahul Maheshwari (PW20) was not privy to the incident
which had been alluded to by A-1 in the above-noted utterance. On his
asking, Mohinder Singh (PW6) told him about some altercation that had
occurred 20-25 days ago involving, inter-alia , A-1 and the deceased.
34. Per the prosecution case, Mohinder Singh (PW6) & Rahul
Maheshwari (PW20) also stated before the IO that both of them, with the
deceased, had come out of Shahi restaurant and on the way in market of
Adarsh Nagar, they took chhole bhatoore from a vendor, followed by visit
to a paan shop (betel shop), but found it closed. It is stated that when the
three of them were standing at the Chowk (scene of crime, referred to
earlier) at about 05:30 PM, the three accused appeared there. A-1 Sukhwant
Singh was armed with the pistol while A-3 Virender was armed with a knife.
It is stated that A-1 Sukhwant Singh exhorted the others “ aaj in teeno ko
chhorna nahi hai, inko inki badtamizi ka maza chakhana hai ”. It is alleged
that upon this exhortation, A-3 wrapped his arms around Jitender @ Montu
(the deceased) from the front side (“ aage se koli bhar li ”) thereby
immobilizing him while A-2 gave a knife blow to him on his waist. The two
witnesses tried to intervene but A-1 aimed his pistol at them and pressed the
trigger. It is stated that sound of “ tick ” was heard, upon which both got
scared and ran away in the direction of Rajan Babu Road. It is further
alleged that A-1 gave a chase to these witnesses (PW6 & PW20) firing at
them again in the pursuit.
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 15 of 33
35. It was further the version of Mohinder Singh (PW6) & Rahul
Maheshwari (PW20) before the IO that both of them had fled away from the
scene to reach Kushal Cinema in Jahangir Puri. Both sat in the vicinity of
Kushal Cinema for about an hour and then went to house of Jitender @
Montu (the deceased) in Jahangir Puri. They found the said house locked
and learnt that the family had gone to Hindu Rao Hospital as their son
(reference to the deceased) had been injured. They then reached Hindu Rao
Hospital where they met members of the family of Jitender @ Montu and
learnt about his status. Later, they returned to the scene of crime and
presented themselves before the IO, offering their version.
36. As noted earlier, the trial had begun jointly against all three accused
on the basis of charge framed. In the course of evidence that was led by the
prosecution, Mohinder Singh (PW6) was examined and cross-examined on
behalf of all three accused. The third accused A-3 jumped bail by the time
the turn of examination of PW20 Rahul Maheshwari came. The trial was,
thus, concluded against A-1 and A-2 leading to the judgment dated
20.08.1998 holding them guilty. Since the presence of A-3 was again
secured later, when the trial against him re-commenced, amongst others,
Rahul Maheshwari (PW20) was recalled and cross-examined further on his
behalf on 23.09.2000.
37. It needs to be mentioned here that at the time of proceedings against
A-1 & A-2, both Mohinder Singh (PW6) & Rahul Maheshwari (PW20) had
deposed generally along the lines of the prosecution case. However, in the
second leg of the proceedings, against A-3, when Rahul Maheshwari
(PW20) was recalled for further cross-examination, he resiled from the
original version and pleaded ignorance about the complicity of the three
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 16 of 33
accused in the crime, taking the extreme position that he was not even
present when the incident occurred since he was at home throughout on
12.06.1995 for the reason the market and traffic were closed due to call for
“ Delhi Bandh ”.
38. One Sessions Court in the judgment 20.08.1998 has relied upon the
testimony of PW6 and PW20 retuning finding of guilty against A-1 and A-2.
In the judgment dated 28.04.2001, another Sessions Court has disbelieved
PW6 holding him not reliable noticing, inter-alia , the version of PW20 in
his cross-examination, after recall.
39. Learned counsel for the accused persons have argued that word of
Mohinder Singh (PW6) or Rahul Maheshwari (PW20) cannot be trusted on
account of their criminal antecedents, reference to which has been made
earlier in this judgment. The prosecution, on the other hand, counters by
pointing out the involvement of A-1 and A-2 in criminal cases arising out of
FIR No.158/90 under Sections 324/34 IPC of Police station Model Town,
FIR No.02/91 under Section 307/34 IPC of Police Station Shalimar Bagh
and FIR No.128/92 under Section 308/34 IPC of Police Station Adarsh
Nagar. In our view, it would not be fair to either side to draw conclusions as
to the veracity of their respective claims with preconceived mind and
predicated by the fact of criminal antecedents. The practice of viewing such
evidence with caution and diligence out of prudence is required and
necessary. [ State of U.P. v. Farid Khan , (2005) 9 SCC 103 and Ramashish
Rai v. Jagdish Singh (2005) 10 SCC 498]. Judicial scrutiny needs to be
objective and, therefore, conclusions must be drawn on the evaluation of the
intrinsic worth of the evidence adduced. The material indicating previous
involvements in criminal cases may suggest the possibility of other persons
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 17 of 33
being inimically placed with desire to cause harm to the victim (Jitender
Kumar @ Montu) or to his associates (PW6 & PW20).
40. It has been argued that Mohinder Singh (PW6) and Rahul
Maheshwari (PW20) are witnesses who are wholly unreliable. The counsel
submitted that it is admitted position that there had been altercation between
the two sides some 20-25 days prior to the date on which Jitender Kumar @
Montu was stabbed. The witnesses and the deceased very well knew that
Shahi restaurant was owned by A-1 and A-3 in which A-2 was employed as
their manager. And yet, these three persons decided to visit the said
restaurant for lunch, as if to dare the other side. This, per the argument,
smacks of intentions which could not be acceptable as normal conduct.
41. On first blush, it does sound odd that the two witnesses accompanied
by the deceased would go for lunch to the restaurant of the accused persons.
Rahul Maheshwari (PW-20) may not have been aware about the quarrel that
took place three weeks ago but since the deceased and Mohinder Singh
(PW-6) were directly involved in the said quarrel, they would have been
slow in coming to the Shahi restaurant. Be that as it may, it was at the worst
an unnecessary provocation. There is no merit in the argument that the
witnesses and the deceased may be harbouring unholy intentions since it has
not been suggested at any stage of the trial that they indulged in any
aggressive posturing.
42. It was submitted that the story narrated by Mohinder Singh (PW6)
and Rahul Maheshwari (PW20) does not appeal to reason as it is not
explained as to how, after both of them with the deceased left Shahi
restaurant and had gone away from the scene, the accused persons could
have known their exact location so as to pursue and attack.
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 18 of 33
43. The evidence has clearly shown that there is not much distance
between Shahi restaurant and the place of occurrence. If the accused
persons had been provoked by the visit of PW-6 and PW-20 accompanied
by the deceased to their restaurant, it was not difficult after they had been
shoed away, to locate their presence in the nearby area, even on foot. The
evidence does not show use of any motor vehicle for transportation. The
question as to how the accused could have known the exact location of the
victim and his associates need not even be answered by the prosecution. It
is a matter of special knowledge of the accused, and accused alone.
44. The counsel further argued that while it may be accepted that
Mohinder Singh (PW6) and Rahul Maheshwari (PW20) had become scared
because of the stabbing by A-3, and firing by A-1, it is inconceivable that
they would not rush to the police, at least to seek protection, if not report the
incident. Instead, it was pointed out, the evidence of these witnesses shows
that they claim to have run upto Kushal Cinema in Jahangir Puri, wasted full
one hour there (in wait for no useful purpose), without making any effort to
make direct contact with the police or with family of the victim, even though
the police post or pickets and facilities for phone calls were available en-
route. It was argued that this conduct is not only unnatural but is indicative
of fear of police and so does not jell with the events that had statedly
occurred.
45. The counsel further submitted that the evidence shows that when
Mohinder Singh (PW6) and Rahul Maheshwari (PW20) had come to the
hospital, after finding the house of the victim in Jahangir Puri locked, they
met his family and the police in the hospital. It is argued that the fact that
Mohinder Singh (PW6) and Rahul Maheshwari (PW20) did not lodge any
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 19 of 33
report with the police about the incident offering their own evidence in
support at such stage shows that possibility cannot be ruled out that these
witnesses have been planted later.
46. Going by the version of PW-6 and PW-20, their close associate had
been seriously wounded by stabbing in their presence. When they had tried
to go to his rescue, one of the assailants (A-1), armed with a pistol, had
aimed the weapon at them and opened fire. They have explained in detail
that, on feeling scared, they ran for their dear life in the direction of Kushal
Cinema in Janakpuri, even while the armed assailant was pursuing them
continuing with the firing. It has been brought out by the defence itself that
PW-6 and PW-20 had been on the wrong side of law in the past. In the
given circumstances, wherein the provocation for the attack appears to have
come, may be unwittingly, from their side, their first concern was to ensure
their own personal safety. We are not inclined to disbelieve their
explanation that it was for these reasons that they waited for about one hour
in the vicinity of Kushal Cinema, doing nothing. With the stabbing and
firing in the back of their mind, they would be first collecting their wits
before moving on first to inform the family of the stabbed victim, following
thereafter to the Hindu Rao Hospital and then on to the scene of incident
offering their own evidence. There is nothing unnatural about this sequence
of events in the aftermath of the crime involved here.
47. It was submitted that there is no explanation as to why Mohinder
Singh (PW6) and Rahul Maheshwari (PW20) did not go to Mukherjee Nagar
house of the deceased which was located close-by and instead chose to
proceed to Jehangirpuri which would be farther in distance.
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 20 of 33
48. There is no merit in the above submission. It has already been noted
by us earlier that the family of Jitender Kumar was living not in Mukherjee
Nagar but in Janakpuri. Therefore, there was no question of the two
witnesses going in the direction of Mukherjee Nagar.
49. In an effort to show that PW6 may not even have witnessed the
incident, it was pointed out that he spoke about the knife blow given to
Jitender Kumar @ Montu by A-3 “on the right side waist” which is contrary
to situs of the fatal stab wound noted in MLC and autopsy report. It was
also submitted that the autopsy report indicates another incised wound on
the mandibular part which is not even affirmed by PW6 and which, given
the part of the body affected, would have been very noticeable to the eye-
witness.
50. Indeed, the stab injury which proved fatal was inflicted on the left
lower aspect of back of chest as noted in the autopsy report by PW-7 which
corresponds to what was recorded in the MLC by PW-19. Statement of PW-
6 about the stab wound on the right side, thus, was not correct. But,
noticeably, PW-20 in his testimony during the trial of the two convicted
appellants had given the correct account coinciding with the medical
evidence. The learned counsel for the State argued that PW-6 may have
been referring to the “right side” relatively, from the perspective of his
position vis-à-vis the deceased/victim. The said possibility apart, the fact
remains that no one questioned PW-6 to seek clarity in the light of the
contents of MLC and autopsy report. The expression “waist” has apparently
been used in English translation for the word “ Qamar ” (in Hindustani). In
our opinion, this discrepancy in mentioning the right flank does not mean
Mohinder Singh (PW-6) could not have witnessed the stabbing. His
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 21 of 33
evidence, corroborated (in first proceedings) by the word of PW-20,
unmistakably shows that when Jitender @ Montu was stabbed by A-2 after
he had been rendered immobilized by A-3 holding him from the front. The
wrong impression carried by PW-6 about the particular side of the body
where stab injury was caused cannot detract us from the conclusion that
stabbing actually took place in his presence.
51. The further defence argument is with reference to the “Brief Facts”
(Ex.PW18/B) prepared by the IO for purposes of death report and
application for post-mortem examination. This document dated 13.06.1995
sets out the background facts on same lines as of rukka /FIR. It makes no
reference to the version added by PW6 & PW20 to the knowledge of the IO.
This, the counsel argued, shows that these witnesses had not come up till
13.06.1995.
52. We are not impressed. The purpose of the document Ex.PW-18/B
was only to bring to the knowledge of the autopsy doctor the requisite
background facts. The facts incorporated in the same were sufficient to
assist in reaching appropriate conclusions as to the cause of death. The
autopsy doctor would not be interested in the identity of the assailants or, for
that matter, of the witnesses to the occurrence. The version of PW-6 and
PW-20 about the events leading to the crime from such document is,
therefore, inconsequential.
53. Learned counsel for the convicted appellants, and amicus curiae for
the acquitted respondent, submitted that the investigation of the case at hand
has not been fair and that the charge has been falsely set up with evidence
that was planted. It was argued that there is no explanation as to how PW20
SI Banwari Lal learnt that the victim had been taken to Hindu Rao Hospital
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 22 of 33
for treatment. HC Harpal Singh of PCR has not been examined. His
testimony only would have shown as to how the name of the victim (Jitender
Kumar @ Montu) and his address came to be ascertained.
54. Of course, the evidence of Head Constable Harpal Singh of PCR
would have brought in better clarity on the aspects pointed out. But, given
the status of the victim (“conscious but drowsy”) as noted in the MLC
recorded at 06:10 P.M., and the proven fact that it was Head Constable
Harpal Singh of PCR who had transported him from the scene to the
hospital, it may be safely concluded that the particulars of the victim would
have been gathered from him by the PCR staff on the way or in the hospital.
Having regard to the nature of injuries suffered, this would be part of the
basic drill of the PCR staff since they would need to bring the particulars of
the victim. Further, as submitted by the learned counsel for the State, the
name of the hospital where the victim had been taken by the PCR was not
difficult to be found out by the IO not only from the PCR but also because it
is the hospital generally allocated for such purposes for the area in question.
55. It was argued that though IO would have reached the scene of incident
soon after 05:30 PM, registration of the FIR was deliberately delayed. The
counsel argued that there is no proof of dispatch or delivery of special report
under Section 157 Cr.P.C. to the concerned Metropolitan Magistrate.
56. We do not find any inordinate or undue delay in the registration of
FIR in the case at hand. The incident came to the notice of the police at
about 05:47 P.M. on 12.06.1995, vide D.D. no. 17-A. The IO first reached
the place where the crime had been committed. After inspecting the scene
and having learnt that the victim had been taken to the hospital, he rushed
there. On finding that the victim was unfit for statement, the IO returned to
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 23 of 33
the scene and prepared his rukka . He dispatched it for registration of FIR at
08:10 P.M. The FIR was registered at 08:25 P.M. Clearly, the FIR was
registered promptly.
57. It was argued that scaled site plan (Ex.PW10/A) does not reflect the
location of the witnesses or the direction in which they had run away from
the scene. The criticism is factually incorrect. The plan does depict not
only the place of occurrence but also the direction in which the witnesses
had run away, pursued by the assailants.
58. It was next submitted that both PW6 and PW20 are on record to state
that when A-1 had pulled the trigger, bullet had not come out of the pistol.
It was further argued that the fact that A-1 had voluntarily surrendered his
licensed fire arm and live cartridge shows that he had no guilty conscience.
The counsel argued that if A-1 was actually armed with pistol, and the
intention was to cause death, it does not sound logical as to why he would
not use such weapon and instead expect his associate (A-3) to use a knife.
This, in the submission of the defence, shows that there was actually no
firing with the weapon.
59. The arguments ignore the evidence adduced by the prosecution
proving beyond doubt that at least two bullets had been fired from the pistol.
One spent bullet was found embedded in the rear seat of the Maruti Van of a
local resident parked near his house. The other, described as “misfired”
bullet, was found on the sewer cover and seized as “live” bullet. When PW6
& PW20 spoke about the bullet not having come out of the pistol, it is
apparent that they are referring to the one which misfired. The cartridge had
been ejected upon the trigger being pulled, but it came out and fell on the
road. This is why PW6 and PW20 further added that they had heard the
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 24 of 33
sound “ tuk ”. The recovery of the live bullet, (misfired one) from the sewer
cover lends credence to their version. From this, we cannot deduce that no
firing took place. Both PW6 and PW20 (in his version prior to recall) spoke
about A-1 giving them a chase and firing during pursuit. The recovery of
the spent cartridge from the Maruti Van provides corroboration to their word
in such regard.
60. There can be no general assumption that if a group of assailants out to
cause harm, is in possession of a fire-arm and a knife, they would invariably
prefer to use the former as weapon of attack. The evidence, ocular as well
as medical, unmistakably shows that knife was actually used to cause
serious injuries on the person of Jitender Kumar @ Montu. The evidence
further shows that the fire-arm was also used. In this context, the spent
cartridge recovered from the body of the Maruti Van stands sufficient
testimony. Since the fire arm was held by A-1 against an arm license, his
name having figured amongst the assailants, he had probably no choice but
to surrender it. The act of surrender of the fire-arm with just one live
cartridge, at the time of his own arrest, cannot demonstrate innocence.
61. The defence has argued that even though SI Banwari Lal (PW20) had
found a live bullet lying on the sewer cover in open and had also discovered
the spent cartridge embedded in the rear seat of the Maruti Van, he did not
take them into his possession immediately.
62. Though PW20 had noticed the live bullet lying on the sewer cover
and also seems to have discovered at that stage the spent cartridge from the
body of the Maruti Van, he did not immediately proceed to effect formal
seizures and, rightly so, because that would a step in investigation. His first
priority was to get the FIR registered. The rukka concludes with request to
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 25 of 33
the police station for the photographer to be arranged. Apparently, the IO
wanted to await the crime team to carry out its task before he started
collecting the evidence from the scene of crime. This would be the correct
and proper approach.
63. It was urged that the CFSL report affirming connection of the said fire
arm with the two projectiles (one live and other a spent cartridge) found at
or about the scene of crime be not believed. In the submission of learned
counsel, the report has been procured. They argued that material on record
shows that PW18 Inspector Swatantra Kumar had arranged for purchase of
five live cartridges of the same bore on 14.07.1995, presumably for the
purpose of getting the fire-arm tested. Though the said five live cartridges
additionally arranged had also been sent to CFSL, there is no clarity as to
status thereof. The argument advanced is that the said five live cartridges
were misused to arrange for a positive report against the accused.
64. It is clear from evidence on record that five cartridges arranged by the
IO were not used in the FSL. The opinion has been given by FSL on the
basis of the live cartridge surrendered by A-1 and seized with pistol.
Therefore, the above submissions are devoid of substance.
65. Learned defence counsel submitted that given the position taken by
Rahul Maheshwari (PW20) after his recall for cross-examination during the
continued trial against A-3, it is not safe to base any conclusions on his
testimony. It was pointed out that PW20 is on record to state that he had
given the earlier testimony (examination-in-chief) under pressure from
police. It was argued that the version of PW20 at that stage showed that he
was not even present when the incident involving stabbing of Jitender
Kumar @ Montu took place and that this would not only render the
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 26 of 33
testimony of other witness (PW6) highly suspect but puncture the
prosecution case beyond repair.
66. The submission is that the reasons why the learned ASJ in the
judgment dated 28.04.2001 ordered acquittal of A-3 cannot be said to be
perverse and it being impermissible for the appellate court to supplant the
view of the trial court with its own conclusions, it would be unfair to permit
the contrary view taken in the judgment dated 20.08.1998 to stand.
67. The defence places reliance on Krishna Govind Patil v. State of
Maharashtra, AIR 1963 SC 1413, to argue that A-3 having been acquitted,
allowing the conviction of A-1 and A-2 to stand would be improper. The
fact situation in the case cited at bar was different from the one before us. In
the said case, three of four accused had been acquitted of the charge under
Section 302 read with Section 34 IPC while the fourth one stood convicted
of the charge under Section 302 read with Section 34 IPC. This, in the facts
of the said case, the Supreme Court ruled, was an impossible position and
“mutually destructive finding” since the allegation of it being an act
committed “conjointly” had been disbelieved.
68. It is well settled and has been the consistent view of the Supreme
Court that in an appeal against acquittal, the appellate court possesses full
and unfettered power to review at large all evidence and to reach the
conclusion that, upon such evidence, the order of acquittal should be
reversed. It is rather under bounden duty to scrutinize the probative
material de novo . Undoubtedly, it must bear in mind that rebuttable
innocence attributed to the accused in the case of acquittal stands on a
weightier footing. In this view, it would be slow in upsetting the findings
returned by the trial court if supported by convincing reasons and
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 27 of 33
comprehensive consideration. If, however, the view taken by the trial court
upon such review, reappreciation and reconsideration of the evidence is
found to be unreasonable or perverse leading to serious illegality, the
appellate court would not hesitate in interfering and reaching its own
conclusion. Thus, if the evidence recorded in the judgment of acquittal
shocks the conscience of the appellate court or shows that norms of legal
process have been disregarded or substantial and great injustice had been
done, the same can be interfered with. [ Surajpal Singh v. State , AIR 1952
SC 52; State of Bombay v. Rusi Mistry , AIR 1960 SC 391; Sanwat Singh v.
State of Rajsthan , AIR 1961 SC 715; Jadunath Singh v. State of U.P. ,
(1971) 3 SCC 577; Damodarprasad Chandrikaprasad v. State of
Maharashtra , (1972) I SCC 107; Shivaji Sahabrao Bodade v. State of
Maharashtra , (1973) 2 SCC 793; Chandrappa v. State of Karnataka (2007)
4 SCC 415; S. Ganesan v. Rama Raghuraman (2011) 2 SCC 83; Jugendra
Singh v. State of U.P. , (2012) 6 SCC 297; State of M. P. v. Dal Singh ,
(2013) 14 SCC 159; and Mritunjoy Biswas v. Pranab Alias Kuti Biswas &
Anr. (2013) 12 SCC Cases 796 ].
69. Upon perusal of the judgment of acquittal, we find that the learned
Additional Sessions Judge has discarded the evidence of PW20 from
consideration mainly on account of somersault at the stage of cross-
examination after recall. This, to our mind, was not a correct approach. It
had to be remembered that PW20 had consistently supported the version of
PW6 in all material particulars throughout the trial against A-1 and A-2. It
was on 23.09.2000, more than five years after the occurrence, that he
changed position in the trial against A-3. Noticeably, there has been no
effort to impeach the testimony of Mohinder Singh (PW6) on the ground
Rahul Maheshwari (PW20) was not with him at the time the incident took
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 28 of 33
place. In our view, the chronology of events itself shows that PW20 had
been won over. In these circumstances, it was not correct to ignore his
earlier testimony on oath which corroborated not only the evidence of PW6,
the other eye witness, but also the other circumstantial evidence. [ Khujji @
Surendra Tiwari v. The State of Madhya Pradesh (1991) 3 SCC 627]
70. Learned Additional Sessions Judge while rejecting the case of
prosecution against A-3 gave importance, in our assessment unduly so, to
the fact that the victim (Jitender Kumar @ Montu) had not indicated the
name of the assailant to the doctor at the time of his MLC. This was not an
appropriate way for appreciating the MLC. The medical officer examining
him would not even be interested in ascertaining the name of assailant. His
focus would be to examine the nature of injury and advice/arrange
appropriate arrangement. Failure, assuming there was one on the part of the
victim, to disclose the name of the assailants to the medical officer would
not result in any doubt as to the veracity of the evidence adduced [ Pattipati
Venkaiah vs. State of Andhra Pradesh, (1985) 4 SCC 80].
71. Learned Additional Sessions Judge in the judgment of acquittal also
made adverse comments against the prosecution on the ground of non-
recovery of the knife and absence of medical opinion as to the possible use
of such weapon. He further observed that there is possibility of PW6 being
under influence of alcohol (“drunk”) at the relevant point of time for the
reason the post-mortem examination report noted recovery of “some
alcoholic substance from the abdomen of the deceased”.
72. We do not agree with the above views of the learned Additional
Sessions Judge. The non-recovery of knife used in the crime is
inconsequential. The medical opinion confirms the ocular evidence about
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 29 of 33
the fatal injury having been caused with sharp cutting instrument. Since the
weapon of offence (knife) itself was not recovered, there could be no
occasion for opinion of the autopsy doctor to be gathered in such respect.
The stab wound was inflicted sometime around 05:30 PM on 12.06.1995.
Death occurred in the hospital at 02:10 AM on 13.06.1995. The post-
mortem examination was conducted from 12:30 PM on 13.06.1995. Smell
of alcohol from the semi-digested food particles found in the stomach
cannot, by itself, lead to the conclusion that the deceased had consumed
alcohol. Alcoholic smell could have come about also for reasons other than
consumption of alcohol. Even if the possibility of consumption of liquor by
PW6 is to be believed, it does not lead to the inference for Mohinder Singh
(PW6) also would have consumed liquor or be under its influence.
73. The evidence adduced by the prosecution in general and the testimony
of Mohinder Singh (PW6) in particular do not suffer from any infirmity.
There is no reason why the eye witness account of Mohinder Singh (PW6)
should be disbelieved. He withstood the cross-examination well. His
evidence has been consistent and received corroboration from the other
evidence on record inclusive of the statement of Rahul Maheshwari (PW20)
during the trial of A-1 & A-2. The contrary version offered by Rahul
Maheshari (PW20) after he was recalled during the trial of A-3 is tainted and
must be discarded.
74. In our considered view, the prosecution has brought home its case
against A-1, A-2 and A-3 beyond pale of all doubts. It stands established
that all the said three persons had pursued the victim (Jitender Kumar @
Montu), Mohinder Singh (PW6) and Rahul Maheshwari (PW20) from Shahi
Restaurant to the place of occurrence, at which stage A-1 was armed with
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 30 of 33
his loaded pistol and A-2 was carrying a knife. It is proved that on the
exhortation of A-1, A-3 blocked the way of the deceased holding him from
the front while A-2 gave a knife blow on his back causing the fatal wound to
which he succumbed later in the hospital.
75. It is not correct to contend that since the injury was caused on the
back in the abdominal region, the case cannot fall in the category of murder.
In the case at hand, the damage that was caused to the insides through the
fatal wound is of import. Pertinent to note here that the second stab injury,
which brought about the fatality, though aimed at the lower back of chest on
the left side was so deep as to cut through the abdominal and pleural cavity
reaching upto the left side diaphragm and harming even the left kidney. The
reliance on judgments in Kandaswamy v. State of Tamil Nadu (2008) 11
SCC 97; Chotte Lal Shrivastva @ Chotte v. State of NCT of Delhi , 2012
LawSuit (Del) 1284; Tamilmani v. The State , 1997 Crl.L.J 144 and Albert
Ezung v. State of NCT of Delhi , 2013 (3) JCC 1695 is misplaced. In the
facts and circumstances proved, there can be no doubt that the stab wound
was caused with intention of causing death. Thus, the prosecution has
proved the death of Jitender Kumar @ Montu to be a case of murder.
76. Learned counsel for A-3 argued that even if the facts narrated by PW6
were to be believed, sharing of common intention to kill cannot be attributed
to him. He argued that requisite mens rea on the part of the said appellant is
missing inasmuch as he is shown by the evidence to have only held the
victim (Jitender Kumar @ Montu) from the front. Similar submissions have
been made on behalf of A-1 on the reasoning that mere exhortation on his
part cannot be used to infer that his design was to get Jitender Kumar @
Montu killed. Reliance is placed on Ajay Sharma v. State of Rajasthan
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 31 of 33
(1999) 1 SCC 174; Ramashish Yadav & Ors. v. State of Bihar , JT 1999 (6)
SC 560; State of U.P. v. Farid Khan & Ors (2005) 9 SCC 103; Paramjit
Singh v. State of Punjab , 2005 SCC (Cri) 1493 and Jaleshwar Singh v. State
of Bihar (2010) 3 SCC (Cri) 969, to submit that Section 34 IPC cannot be
invoked to rope in A-1 or A-3 for the culpability incurred by A-2 by his act
of stabbing Jitender Kumar @ Montu to death.
77. We reject the above noted contentions. It is trite that in order to
attract Section 34 IPC, it is not necessary that each one of the accused must
have assaulted the deceased. It is enough if the evidence shows that they
engaged in acts of commission or omission, may be separate, may be similar
or diverse, in furtherance of a common intention [ Nandu Rastogi @ Nandji
Rastogi vs. State of Bihar, (2002) 8 SCC 9]. In the sequence of events
proved, A-1 led the group armed with a pistol. It is after his exhortation that
A-3 blocked the way of the deceased and held him hostage in his arms
rendering him an easy target for A-2 to inflict the fatal stab wound from
behind. In the course of same transaction, A-1 used the fire arm aiming it at
the two eye witnesses, apparently with an intention to liquidate both of them
as well. Sharing of common intention on the part of all three is writ large.
78. For the foregoing reasons, we conclude that the view taken by the
learned Additional Sessions Judge in the judgment dated 28.04.2001
acquitting A-3 was incorrect and misdirected and, therefore, unsustainable.
In our view, there is no error, illegality or infirmity in the judgment dated
20.08.1998 whereby A-1 and A-2 were found guilty and convicted. Given
the evidence on record, we hold that A-3 was wrongly acquitted.
79. Thus, we find that Crl. Appeal Nos.392/1998 and 399/1998 of
Atambir Singh @ Chota Babla and Sukhwant Singh are devoid of substance.
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 32 of 33
The said appeals are dismissed. The impugned judgment dated 20.08.1998
and order on sentence dated 25.08.1998 stand affirmed.
80. We allow Crl. Appeal No.439/2013 of the State against Virender
Singh. The judgment dated 28.04.2001 of the Additional Sessions Judge
acquitting the respondent in the said appeal, is set aside. He (Virender
Singh) is held guilty and convicted for the offences punishable under
Section 302/34 IPC and under Section 307/34 IPC. We direct that Virender
Singh shall also undergo the sentence awarded against Atambir Singh @
Chota Babla and Sukhwant Singh for the offences punishable under Section
302/34 IPC and Section 307/34 IPC in terms of order on sentence dated
25.08.1998.
81. The three convicts viz. Atambir Singh @ Chota Babla, Sukhwant
Singh and Virender Singh are directed to surrender within 15 days and
undergo sentences awarded against each of them. We direct the learned
Additional Sessions Judge presiding over the trial court (the Successor
Court) and Station House Officer (SHO) of Police Station Adarsh Nagar to
take necessary steps to ensure compliance with above directions in
accordance with law.
R.K.GAUBA
(JUDGE)
SANJIV KHANNA
(JUDGE)
JULY 29, 2015
Ik/mr/ss
Crl.A.Nos.392/1998, 399/1998 & 439/2013 Page 33 of 33