Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Judgment reserved on : 28 March, 2012
th
% Judgment delivered on : 30 March, 2012
+ CRL.APPEALS - 193,301,302,303 & 683/2009.
CRL.A. 193/2009
SEEMA
CRL.A. 301/2009
RAGHUNATH @ NANHA BACHCHA
CRL.A. 302/2009
SONI @ NATUL
CRL.A. 303/2009
HARI NATH @ BADA BACHCHA
CRL.A. 683/2009
RAGHUNATH @ NANHA BACHCHA .....Appellants
versus
STATE (NCT) OF DELHI .....Respondent in all Appeals.
Appearance : Mr.Pramod Kumar Dubey with Mr.Amit Singh
Rathore, Advocates for Appellants in Crl.A.193,
302 & 303/2009.
Mr.Ajay Verma with Mr.Gaurav Bhattacharya,
Advocate for Appellant in Crl.A.301 &
683/2009.
Ms.Richa Kapoor, APP on behalf of the State in
all the Appeals.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE S.P.GARG
Crl.A.- 193, 301,302, 303 & 683/2009 Page 1 of 21
S.P.GARG, J.
1. The appellants Raghunath @ Nanha Bachcha (A-1), Hari
Nath @ Bada Bachcha (A-2), Soni @ Natul (A-3) and Seema (A-4) have
preferred the present appeals against the judgment dated 14.01.2009 and
order on sentence dated 16.01.2009 of Ld.ASJ in SC No.37/2006 by
which they were convicted for committing the offences punishable under
Sections 302/307/34 IPC and sentenced to undergo imprisonment for life
with fine.
2. The prosecution alleges that on 17.11.2005 at 9.00 A.M.
Daily Diary (DD) Entry No.19-B (Ex.PW-10/A) was recorded by
Const.Mukesh Kumar at police station Model Town, on getting
information from Const.Jai Singh, PCR that an individual has been
stabbed in a quarrel at house No.203, Gur Mandi, G.T.Karnal main road.
The investigation was assigned to ASI A.A.Khan, who, with
Const.Rakesh Kumar reached the spot. PW-21 Insp.Hira Lal also reached
the spot and came to know that the injured had already been taken to
Hindu Rao Hospital. On reaching there, PW-21 collected the MLC of
Ravi Panchal who had been declared ‘brought dead’. Injured Arjun
Panchal (PW-3) was declared fit to make a statement and Insp.Hira Lal
recorded his statement. PW-3 stated that on 14.11.2005 at about 4/5 P.M.
A-1 had teased his wife Durgesh and sister Meenu. On that day i.e.
17.11.2005 at about 8.00 or 8.20 A.M. when A-1 was going in front of
their house, his brother Ravi Panchal (since deceased) enquired from him
(A-1) why he had teased Durgesh and Meenu. On that, A-1 became
furious, slapped his brother Ravi Panchal and went to his house
threatening that he would ‘return’ soon. PW-3 further stated that soon
Crl.A.- 193, 301,302, 303 & 683/2009 Page 2 of 21
thereafter, A-1returned with his elder brother A-2, A-3 and sister A-4,
armed with a churi in his right hand. A-1 stabbed him with that churi on
his chest immediately as a result of which he fell down at the spot. Before
he could get up, A-3 and A-4 caught-hold of him. In the meantime, when
his brother Ravi Panchal rushed to save him, A-2 caught-hold of him and
A-1 stabbed him with the churi . Ravi Panchal fell down, bleeding
profusely. On their raising alarm, A-1 to A-4 started pelting stones at
them. The police reached the spot upon hearing the noise and succeeded
in apprehending A-1, A-2 and A-4 at the spot. A-3 fled from the spot.
3. Insp.Hira Lal made his endorsement upon the statement and
sent the rukka at about 11.30 A.M. for registering the case under Section
302/307/34 IPC. On reaching the spot, Insp.Hira Lal (IO) prepared the site
plan at the pointing out of Harish Panchal; seized his blood stained pant;
seized the blood sample, earth sample and also prepared the necessary
seizure memos. He summoned the crime team and got the crime scene
photographed. During the course of investigation, he prepared the inquest
papers and sent the dead body for post-mortem. Dr.M.K.Panigrahi
conducted the post-mortem of the body. The IO sent the exhibits to CFSL
and collected its report. He arrested A-1, A-2 and A-4 at the spot and set
out to apprehend A-3 but he could not be traced. Subsequently, A-3
surrendered in the Court and was arrested. After completion of the
investigations, A-1 to A-4 were charge-sheeted for committing the
aforesaid offences and were duly charged and brought to trial.
4. During the proceedings before the Trial Court, the
prosecution examined twenty-two witnesses. After considering them and
the materials placed on record, the Court convicted the appellants.
Crl.A.- 193, 301,302, 303 & 683/2009 Page 3 of 21
5. It is argued on behalf of the appellants that the Trial Court
did not appreciate the evidence in its true perspective and fell into grave
error in relying upon the testimonies of PWs 3,4,6,7 and 8 without
corroboration. He further contended that all these witnesses were close
relatives of the deceased and were interested witnesses, as against the
accused and the Trial Court failed to examine their depositions with due
care or caution and blindly relied on them. No independent public witness
was associated by the prosecution during the entire investigation though
the incident took place in a residential colony. The Trial Court ignored the
vital improvements made by the witnesses in their depositions. They
contradicted each other about the role played by the accused in the
incident and narrated contradictory and inconsistent versions. The arrest
of A-1 at the spot was highly doubtful as no weapon allegedly used by
him was recovered. The prosecution failed to prove that the accused
shared any common intention to commit the crime. A-1 was injured in the
attack and the doctor opined that the nature of injuries were ‘grievous’.
Non-explanation of the said injuries by the prosecution is a material
circumstance ignored by the Trial Court and substantiates accused’s
defence that the complainant was the aggressor and had caused injuries to
him. The allegation of teasing A-1’s wife and sister are motivated and no
complaint was ever lodged by them. A-3 was even not present in Delhi on
the date of the incident and had gone to Bala Ji for treatment. The Trial
Court did not consider the cogent testimonies of DW-1 and DW-2 on this
aspect. The accused had categorically claimed that Ravi Panchal had
sustained injuries due to fall on the Aara (Saw). Counsel further argued
that even if the prosecution case is taken at its face value, Section 302 IPC
Crl.A.- 193, 301,302, 303 & 683/2009 Page 4 of 21
was not attracted. The alleged stabbing incident took place suddenly
without pre meditation and A-1 in a fit of rage inflicted a single blow
when the deceased scolded him without any rhyme or reason.
6. On the other hand, Ld.APP supported the judgment and
urged that it did not call for any interference. The incident was witnessed
by PWs. 3, 4, 6, 7, 8; PW-3 himself sustained grievous injuries with a
sharp object in the occurrence. He further stated that the rukka recorded
soon after the incident, in which the accused were named and specific role
was attributed to each ruling out any manipulation. All the accused, urged
the counsel, committed Ravi Panchal’s murder in furtherance of their
common intention. They all actively participated in the crime. They all
had come together from their house after due deliberations pursuant to A-
1’s threat to return soon. A-2 to A-4 were aware that A-1 was armed with
a deadly weapon. Intention to murder was apparent, when the accused
inflicted forceful blows on a vital part of the body of the deceased and that
of PW-3 (Arjun Panchal), causing Ravi’s instantaneous death at the spot.
It is an error to reject the evidence of eye witnesses on the ground they are
related to the deceased. There is no reason to disbelieve them because
they are natural eye witnesses and had no ulterior motive to falsely
implicate the accused. Relationship is not a factor to affect the credibility
of a witness. Ld.APP further contended that where all the witnesses gave a
consistent account of the happening which was sufficient in itself to
convict, it was immaterial that there were slight discrepancies or
improvements in their testimonies. Such discrepancies in matters of detail
as to the number of blows or which accused caught-hold of whom could
occur, even in the evidence of truthful witnesses. Such variations creep in
Crl.A.- 193, 301,302, 303 & 683/2009 Page 5 of 21
because there are always natural differences in the faculties of different
individuals in the matter of observation, perception and memorization of
such details.
7. We have considered the submissions of the parties and have
scrutinised the Trial Court records. Before we enter into the merits of the
case, it is desirable to highlight that the homicidal death of Ravi Panchal is
not under challenge. It is also not in controversy that A-1, A-2 and A-4
were apprehended at the spot. The accused did not dispute the injuries
sustained by A-3. Their only plea is that they were not the perpetrators of
the crime.
8. According to the prosecution, PWs. 3, 4, 6, 7 and 8 were
material eye witnesses present at the spot when the incident occurred. The
Trial Court also heavily relied upon their depositions to base its
conviction. The counsel vehemently emphasized that the prosecution did
not produce any independent witness for proving its case. PWs. 3, 4, 6, 7
and 8 being relatives of the deceased were interested witnesses and no
reliance could be placed on their testimonies without independent
corroboration.
9. So far as the legal position for appreciating the evidence of
such witnesses is concerned, it will suffice to mention that the law was
laid down by the Supreme Court in ‘ Dilip Singh and others v. State of
Punjab‟ AIR 1953 SC 364 in which it has been held as under :
“A witness is normally to be considered independent unless he
or she springs from sources which are likely to be tainted and
cause, such as enmity against the accused, to wish to implicate
him falsely. Ordinarily, a close relation would be the last to
screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is personal
Crl.A.- 193, 301,302, 303 & 683/2009 Page 6 of 21
cause for enmity, that there is a tendency to drag in an
innocent person against whom a witness has a grudge along
with the guilty, but foundation must be laid for such a criticism
and the mere fact of relationship, far from being a foundation
is often a sure guarantee of truth. However, we are not
attempting any sweeping generalization. Each case must be
judged on its own facts. Our observations are only made to
combat what is so often put forward in cases before us as a
general rule of prudence. There is no such general rule. Each
case must be limited to and be governed by its own facts.”
10. The view has been followed by the Supreme Court in its
subsequent judgments namely ‘ Gulichand and others v. State of
Rajasthan‟ (AIR 1974 SC 276) and ‘ Kalegura Padma Rao and another
v.State of Andhra Pradesh‟ AIR 2007 SC 1299.
11. Coming to the factual aspect, apparently the incident took
place at about 8.00 or 8.30 A.M. DD No.19-B (Ex.PW-10/A) was
recorded at 9.00 A.M. on the information given by the PCR regarding the
stabbing incident and the investigation was assigned to ASI A.A.Khan.
Insp.Hira Lal (PW-21) also reached the hospital and prepared the rukka
(Ex.PW-21/A) on the statement of PW-3 Arjun Panchal (Ex.PW-3/A) and
sent it for registering the case at 11.30 A.M., within 3 hours of the
incident. There was no delay in registering the FIR, thus, excluding any
possibility of fabrication or concoctation of a false story. In the statement
Ex.PW-3/A, PW-3 gave a vivid description of the occurrence and named
the accused for inflicting the injuries to him and to his deceased brother. A
specific role was assigned to each accused in the commission of the crime.
He also narrated the genesis of altercation i.e. altercation on molestation
of Durgesh and Meenu by A-1.
Crl.A.- 193, 301,302, 303 & 683/2009 Page 7 of 21
12. The presence of PW-3 at the spot is not in controversy. He
himself sustained ‘grievous’ injuries in the incident. Injuries on the person
of a witness ensure his presence at the time and place of the occurrence
and the evidence has a ring of truth. Being an injured witness, his
testimony inspires more confidence. Minor contradictions/improvements
on trivial matters cannot render an injured witness’s deposition
untrustworthy. The law on this aspect has been detailed in the latest
judgment State of Uttar Pradesh vs. Naresh and ors. (2011) 4 Supreme
Court Cases 324 as under :
“27. The evidence of an injured witness must be given due
weightage being a stamped witness, thus, his presence cannot
be doubted. His statement is generally considered to be very
reliable and it is unlikely that he has spared the actual
assailant in order to falsely implicate someone else. The
testimony of an injured witness has its own relevancy and
efficacy as he has sustained injuries at the time and place of
occurrence and this lends support to his testimony that he was
present during the occurrence. Thus, the testimony of an
injured witness is accorded a special status in law. The witness
would not like or want to let his actual assailant go
unpunished merely to implicate a third person falsely for the
commission of the offence. Thus, the evidence of the injured
witness should be relied upon unless there are grounds for the
rejection of his evidence on the basis of major contradictions
and discrepancies therein. (Vide Jarnail Singh v. State of
Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v.
State of M.P.)”
13. Similarly in another case Abdul Sayed vs. State of Madhya
Pradesh (2010) 10 Supreme Court Cases 259, Supreme Court laid down :
“28. The question of the weight to be attached to the evidence
of a witness that was himself injured in the course of the
Crl.A.- 193, 301,302, 303 & 683/2009 Page 8 of 21
occurrence has been extensively discussed by this Court.
Where a witness to the occurrence has himself been injured in
the incident, the testimony of such a witness is generally
considered to be very reliable, as he is a witness that comes
with a built-in guarantee of his presence at the scene of the
crime and is unlikely to spare his actual assailant(s) in order
to falsely implicate someone. “Convincing evidence is required
to discredit an injured witness.” [Vide Ramlagan Singh v.
State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh
v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v.
State of Maharashtra, Bhag Singh, Mohar v. State of U.P.
(SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu
v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of
A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in
Jarnail Singh v. State of Punjab, where this Court reiterated
the special evidentiary status accorded to the testimony of an
injured accused and relying on its earlier judgments held as
under: (SCC pp. 726-27, paras 28-29)
“28. Darshan Singh (PW 4) was an injured witness. He
had been examined by the doctor. His testimony could
not be brushed aside lightly. He had given full details of
the incident as he was present at the time when the
assailants reached the tubewell. In Shivalingappa
Kallayanappa v. State of Karnataka this Court has held
that the deposition of the injured witness should be
relied upon unless there are strong grounds for
rejection of his evidence on the basis of major
contradictions and discrepancies, for the reason that
his presence on the scene stands established in case it is
proved that he suffered the injury during the said
incident.
29. In State of U.P. v. Kishan Chand a similar view has
been reiterated observing that the testimony of a
stamped witness has its own relevance and efficacy.
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The fact that the witness sustained injuries at the time
and place of occurrence, lends support to his testimony
that he was present during the occurrence. In case the
injured witness is subjected to lengthy cross-
examination and nothing can be elicited to discard his
testimony, it should be relied upon (vide Krishan v.
State of Haryana). Thus, we are of the considered
opinion that evidence of Darshan Singh (PW 4) has
rightly been relied upon by the courts below.”
30. The law on the point can be summarised to the effect that
the testimony of the injured witness is accorded a special status
in law. This is as a consequence of the fact that the injury to the
witness is an inbuilt guarantee of his presence at the scene of
the crime and because the witness will not want to let his actual
assailant go unpunished merely to falsely implicate a third
party for the commission of the offence. Thus, the deposition of
the injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the basis of
major contradictions and discrepancies therein.”
14. Similarly, presence of PWs. 4, 6, 7 and 8 at the spot was
quite natural and probable as they were the residents of the house in front
of which the incident took place. The accused did not challenge their
presence in their cross-examination. Since all these witnesses are closely
related to the injured and deceased, their evidence requires deeper scrutiny
to ascertain the role played by each accused in the incident due to
tendency of such witnesses to exaggerate or add facts. Where there is a
melee, and a large number of assailants are involved and a number of
witnesses claim to have seen the occurrence at different stages, and where
the evidence is undoubtedly partisan, the distinct possibility of innocent
persons being falsely included along with the guilty cannot be easily ruled
out. In such scuffles when more than one persons give blows to the
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victims at one and the same time, it is impossible to particularise the
blows. The evidence of such witnesses cannot be rejected in toto and can
be considered if it is otherwise acceptable.
15. In the case of „State of U.P. vs. Shankar‟ AIR 1981 SC 897,
Supreme Court observed that appreciation of evidence is a very different
and delicate task. A testimony without a fringes or embroidery of untruth
is rare. The Court can reject it only when it is tainted to the core, that is,
where falsehood and truth are inextricably interwined. If this is not so the
Court must separate the grain from the chaff.
16. To ascertain the culpability of A-1, the prosecution has
produced convincing evidence to establish his guilt beyond reasonable
doubt. He was named in the statement Ex.PW-3/A which formed the basis
of rukka (Ex.PW-21/A) and FIR. PW-3 in his earliest version given to the
police assigned specific role to A-1 in inflicting injuries to him with a
churi soon on reaching the spot. He further stated that when his brother
Ravi Panchal came to rescue him, A-1 also stabbed him with the said
churi . Since the FIR was registered promptly within three hours without
any delay, there was no possibility of manipulation of a false story. While
appearing as PW-3 he proved the version given by him to the police
without variation and deposed that A-1 brought A-2 to A-4 and was armed
with a knife meant for slaughtering purposes. He further stated that A-1
gave a blow with knife on his chest and when his brother Ravi Panchal
came to save him, he also gave a knife blow on his chest. His brother Ravi
Panchal fell down on the ground on receiving the stab injuries. Despite
lengthy cross-examination, A-1 failed to elicit any contradiction or
discrepancy regarding the role assigned to him. All the material facts
Crl.A.- 193, 301,302, 303 & 683/2009 Page 11 of 21
spoken in examination-in-chief remained unshaken. A-1 did not deny his
presence at the spot in the cross-examination. No ulterior motive was
attributed to PW-3 for falsely implicating him in the incident.
17. PW-8 Harish Panchal, a child witness aged 13 years (son of
the deceased Ravi Panchal) fully corroborated PW-3, and named A-1 to
have caused stab injuries to his father and uncle Arjun Panchal. The entire
testimony of this witness on this aspect remained unchallenged and
nothing emerged to doubt his presence and credibility.
18. On similar lines, PW-4 Seema , PW-6 Krishna Devi (wife of
the deceased), PW-7 Ms.Durgesh (PW-3’s wife) all accused A-1 for
inflicting stab injuries to PW-3, and deceased Ravi Panchal. There are no
discrepancies in their statements about the role assigned to A-1. They all
spoke in one voice that it was A-1 who was armed with the weapon of
offence and he inflicted fatal blows to Ravi Panchal and attempted to
murder PW-3 (Arjun Panchal) by causing grievous injuries on the vital
part of his body. In the absence of any prior enmity, all these witnesses are
not expected to tell a lie to screen the actual culprit. Nothing was
suggested to these witnesses if they were not present at the spot and had
not witnessed the occurrence.
19. Ocular testimonies of all these eye witnesses are in
consonance with medical evidence and there is no conflict whatsoever
between the two. The Trial Court was fully justified to put reliance on the
testimony of these witnesses to convict A-1 for the commission of offence
under Section 302/307 IPC and we find no infirmity in the findings of the
Trial Court in this regard.
Crl.A.- 193, 301,302, 303 & 683/2009 Page 12 of 21
20. As regards motive, it is well established that if the
prosecution case is fully established by reliable ocular evidence coupled
with medical evidence, the issue of motive loses practically all relevance.
We find the ocular evidence led in support of the prosecution case is
wholly reliable and see no reason to discard it. The submission, therefore,
that the A-1 had no motive for the commission of crime is not of any
significance.
21. The prosecution proved that on 14.11.2005 A-1 had teased
Ms.Durgesh (PW-7) which was resented by her family members. On the
fateful day, when A-1 was going that way, Ravi Panchal challenged him
for teasing his sister and sister-in-law. Exchange of abuses triggered the
altercation. It was immediate impelling motive on the part of the accused
to commit the crime. Instead of mending his ways or feeling remorse, A-1
got enraged and brought his family members to execute the threat held out
earlier. It is highly unbelievable that PW-7 Ms.Durgesh would falsely
allege the teasing.
22. So far as A-2, A-3 and A-4 are concerned, their presence
with A-1 at the place of occurrence is not under doubt. All the material
prosecution witnesses have spoken their presence as they accompanied A-
1 after the initial altercation between A-1 and the deceased. But the
prosecution witnesses have contradicted each other about the role played
by each of them in the incident. There are material discrepancies and
contradictions which go to the root of the case and make their testimony,
to that extent, unreliable. Since all these witnesses have given different
versions regarding their participation in the crime, the Court is unable to
ascertain the exact role played by each of them to infer their complicity in
Crl.A.- 193, 301,302, 303 & 683/2009 Page 13 of 21
the crime. In the statement (Ex.PW-3/A), PW-3 Arjun Panchal named
only A-1 who stabbed him with a churi soon after reaching the spot. He
further stated that before he could manage or control himself, he was
caught-hold by A-3 and A-4 and when his brother Ravi Panchal came out
to save him, A-2 caught-hold of him and A-1 stabbed him with a knife. In
the examination-in-chief before Court PW-3 proved the version given to
the police but added that he could not rescue his brother Ravi as A-3 and
A-4 had caught-hold of him. In the cross-examination, he reiterated that
he had stated in his statement recorded under Section 161 Cr.P.C. to the
police, that he could not rescue his brother as A-3 and A-4 had caught-
hold of him. He was confronted with the statement Ex.PW-3/A where this
fact was not find mention. The witness, thus made improvements to his
deposition before the Court that due to A-3 and A-4 (having caught-hold
of him) he could not save his brother Ravi Panchal. This improvement, in
our view, cannot be considered to ascertain the complicity of A-3 and A-4
in the stabbing incident. A-3 and A-4 had no occasion to catch-hold of
PW-3 Arjun Panchal as, according to the prosecution itself, A-1 had
already stabbed him before the arrival of Ravi Panchal and he (PW-3) had
fallen down on the ground.
23. PW-4 Meenu, deceased’s sister introduced another version in
this regard. The Trial Court records contains her statement recorded under
Section 161 Cr.P.C. where she had stated that A-1 stabbed her brother
Arjun Panchal (PW-3) as a result of which he fell down and started raising
alarm. On that, A-2, A-3 and A-4 started giving kicks and fist blows to
him (PW-3) and when her elder brother Ravi Panchal came out of the
house, A-2 and A-3 caught-hold him and A-1 stabbed him with a churi . In
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her deposition before the Court, she deviated from her earlier version
recorded under Section 161 Cr.P.C. and deposed that A-1 attacked her
brother Arjun Panchal (PW-3) who was standing outside. On hearing his
cries, they all went out and when her brother Ravi Panchal went to rescue
him (PW-3), A-2, A-3 and A-4 caught-hold of PW-3 and A-1 gave a churi
blow on his person. In response to a Court question, she replied that A-2,
A-3 and A-4 had also given blows to her brother Arjun with fists and legs.
She is silent if any of these accused caught-hold of Ravi Panchal when A-
1 inflicted fatal blow to him.
24. Another version was given by PW-6 Ms.Krishna Devi (wife
of the deceased). She merely named A-1 as having stabbed Arjun and
Ravi Panchal. She did not assign any role to A-2, A-3 or A-4 as
facilitators of the crime. She did not attribute any overt act to them.
Ld.APP cross-examined her after seeking permission of the Court as she
turned hostile. In the cross-examination by APP, she admitted that A-2
had caught-hold of her husband and A-1 had given a dagger blow on his
chest. Nothing was asked from the witness by APP if A-3 and A-4 had
caught-hold of PW-3 Arjun Panchal to restrain from rescuing his brother,
from A-1. No clarification was sought from her in the cross-examination
why she did not assign this role to A-2 earlier in her examination-in-chief.
PW-6 did not assign any role whatsoever to A-3 and A-4 in the incident,
though in her statement recorded under Section 161 Cr.P.C. she had
accused them of having caught-hold of PW-3 while A-1 was stabbing the
deceased.
25. PW-7, PW-3’s wife Ms.Durgesh in her statement recorded
under section 161 Cr.P.C. Ex.PW-7/DA had assigned no role to A-3 and
Crl.A.- 193, 301,302, 303 & 683/2009 Page 15 of 21
A-4 and had accused A-2 as having caught-hold the deceased while being
stabbed by A-1. However, before the Court she did not support the version
recorded under Section 161 Cr.P.C. and narrated a different story stating
that A-2, A-3 and A-4 had caught-hold of her husband (PW-3) and A-1
gave a churi blow on his chest. She further stated that when her brother-
in-law (Ravi Panchal) tried to save PW-3 (Arjun Panchal), A-1 gave churi
blow on his chest. She did not assign any role to A-2 that he had caught-
hold the deceased when was being stabbed by A-1.
26. A close scrutiny of the testimonies of all these crucial eye
witnesses reveal that they made improvements in their statements before
the Court and the versions stated by them did not find mention in their
statements recorded under Section 161 Cr.P.C. They have contradicted
each other and have assigned different role or no role whatsoever to A-2
to A-4 in the crime. The Court is in a dilemma as to which of the
statement is to be considered to find out the exact role of these accused.
For the appreciation of evidence in such a complex case cast a duty on the
Court to sift the testimonies carefully and decide which part of it is
reliable and which is not to be assured of the role attributed to an
individual offender. Where eye witnesses do not give accurate versions
their evidence becomes seriously discrepant in material points.
Undoubtedly, none of these accused was armed with any weapon
whatsoever. There are no allegations if any of them exhorted A-1 to inflict
fatal blows to the deceased or to PW-3. The medical evidence does not
depict any such injuries on the deceased or PW-3, allegedly given to them
due to kicks and fists blows or pelting of stones. No such stone was
recovered from the place of occurrence. The mere presence of A-2 to A-4
Crl.A.- 193, 301,302, 303 & 683/2009 Page 16 of 21
at the spot with A-1 without any overt act is insufficient to hold that they
shared common intention with A-1 to cause fatal injuries to the deceased
or to PW-3.
27. It is well settled that although a man may be present when a
crime is committed, if he takes no part in it and does not act in concert
with those who commit it, he will not be held liable merely because he did
not endeavour to prevent it, or to apprehend the offender. All those
present do not necessarily assist or participate by their presence in every
act which is done in their presence, nor are they consequently liable to be
punished as offenders. There must be community of design to make the
person present liable. The facts that the accused were together at the time
of the incident and ran away together is not conclusive evidence of
common intention in the absence of any more positive evidence. The
mere circumstance of a person being present on an unlawful occasion
does not, therefore, raise a presumption of that person’s complicity in an
offence then committed.
28. It was only A-1 who nurtured a grudge and had motive to
retaliate, and to accomplish that, he inflicted the fatal injuries. A-2 to A-4
being A-1’s close relative accompanied him due to the earlier altercation
in which A-1 was rebuked for teasing the ladies of the complainant party.
The incident in question had taken place within 5 or 7 minutes of the first
altercation. There was least possibility of A-2 to A-4 to plan the crime
during this short period. The evidence and circumstances, discussed above
unmistakably lead to the conclusion that there was no union of minds of
the accused (A-2 to A-4) to commit the offences to hold them liable
jointly for the criminal act committed by A-1. Benefit of doubt deserves to
Crl.A.- 193, 301,302, 303 & 683/2009 Page 17 of 21
be given to them (A-2 to A-4) because the prosecution failed to adduce
cogent, reliable and trustworthy evidence to establish their involvement in
the crime, beyond reasonable doubt.
29. This takes us to the alternative plea taken by the counsel that
even assuming the case to be true, the matter would still not fall within the
definition of murder but would be culpable homicide not amounting to
murder punishable under Section 304 part-I IPC, as the incident took
place suddenly and only a single stab blow was inflicted. A-1 did not take
undue advantage and did not repeat stab blow on the vital part of the
body. We are not persuaded by this submission. A-1 had come armed with
a deadly weapon along with his family members to retaliate and to
execute the threat extended by him after the deceased rebuked him for
teasing their ladies. Without having any conversation or pleading his
innocence, soon after reaching, A-1 stabbed PW-3 in the chest with a
sharp weapon. It did not deter him and when the deceased Ravi Panchal
went to save his brother PW-3 (Arjun Panchal), A-1 without wasting any
time and without any provocation inflicted a forceful stab blow on his
vital organ causing his instant death exhibiting his intention to cause the
death of the victim. It is to be noted that deceased Ravi Panchal was
unarmed even at that time knowing that A-1 had already caused injuries to
his brother (PW-3). There was no reasonable excuse for A-1 to stab him.
The law on this aspect has been detailed by Supreme Court in the
judgment ‘ Bhagwan Bahadure vs. State of Maharashtra‟ (2007) 14 SCC
728 as under :
“XXXX XXXX XXXX
Keeping the aforesaid legal principles in view, the factual
position is to be examined. It cannot be said as a rule of
Crl.A.- 193, 301,302, 303 & 683/2009 Page 18 of 21
universal application that whenever one blow is given Section
302 IPC is rules out. It would depend upon the facts of each
case. The weapon used, size of weapon, place where the
assault took place, background facts leading to the assault,
part of the body where the blow was given are some of the
factors to be considered.”
30. In another case ‘ State of Rajasthan vs. Dhool Singh‟ (2004)
12 SCC 546, Supreme Court observed :
“XXXX XXXX XXXX
13. In regard to the finding of the High Court that the
prosecution has not even established that the respondent
herein had acted with an intention of causing death of the
deceased, we must note that the same is based on the fact that
the respondent had dealt a single blow which according to the
High Court took the act of the respondent totally outside the
scope of Exception I to Section 300 IPC. Here again we
cannot agree with the finding of the High Court. The number
of injuries is irrelevant. It is not always the determining factor
in ascertaining the intention. It is the nature of injury, the part
of body where it is caused, the weapon used in causing such
injury which are the indicators of the fact whether the
respondent caused the death of the deceased with an intention
of causing death or not. In the instant case it is true that the
respondent had dealt one single blow with a sword which is a
sharp-edged weapon measuring about 3 ft in length on a vital
part of the body, namely, the neck. This act of the respondent
though solitary in number had severed sternocleidal muscle,
external jugular vein, internal jugular vein and common
carotid artery completely leading to almost instantaneous
death. Any reasonable person with any stretch of imagination
can come to the conclusion that such injury on such a vital
part of the body with a sharp-edged weapon would cause
death. Such an injury in our opinion not only exhibits the
intention of the attacker in causing the death of the victim but
also the knowledge of the attacker as to the likely
consequence of such attack which could be none other than
Crl.A.- 193, 301,302, 303 & 683/2009 Page 19 of 21
causing the death of the victim. The reasoning of the High
Court as to the intention and knowledge of the respondent in
attacking and causing death of the victim, therefore, is wholly
erroneous and cannot be sustained.”
31. In the present case, as per post-mortem report Ex.PW-5/A
external injury No.1 i.e. “ stab wound size 3 cm X 1.7 cm, vertically placed
over the left side of the chest 6 cm below and 1 cm lateral to the left nipple
and 123 cm above the left heel with lower end acute angel. A portion of
the left lung is protruded out through the wound” was described ante-
mortem, recent in nature, caused by thrusting of the sharp pointed end of a
weapon and sufficient to cause death in ordinary course of nature. PW-5
(Dr.M.K.Panigrahi) further noted in the post-mortem report that :
“On dissection of the external injury No.1- The stab wound
after piercing the skin and subcutanious tissues, vertically cut
th
the 6 rib (left) into two pieces at the level of 11 cm away from
the xyphisternum. Then it enters into the left plural cavity and
cut the anterior edge of the lower border of the upper lobe of
left lung measuring about 1.5 cm long. Then it pierces through
the left side of the pericardium to enter into the pericardial sac
and then pierces the post lateral wall of the left ventricle at the
level of 2 cm above the apex of the heart to end in the left
ventricle. The cut on the heart measuring about 5 cm long and
cleanly cut,”
These observations of the doctor reflect the force with
which the deceased was stabbed.
32. The failure to recover the weapon of offence in the present
case is of no consequence as all the prosecution witnesses categorically
deposed that both PW-3 and deceased Ravi Panchal were stabbed with a
sharp object used for slaughtering pigs. The prosecution has explained
Crl.A.- 193, 301,302, 303 & 683/2009 Page 20 of 21
that A-1 managed to hand over the weapon of offence to A-3 who fled the
spot; this possibility in our view cannot be ruled out.
33. In the light of above discussion, we are of the opinion that so
far as A-1 (Raghunath @ Nanha Bachcha) is concerned; no interference in
the impugned judgment by which he was convicted under Section 302/307
IPC is called for. The findings of the Trial Court against A-1 are therefore
confirmed.
34. The prosecution has failed to establish the guilt of the
accused A-2 (Hari Nath @ Bada Bachcha), A-3 (Soni @ Natul) and A-4
Seema in the crime beyond reasonable doubt. In our view, the impugned
judgment whereby they were convicted with the aid of Section 34 IPC
cannot be sustained. They deserve benefit of doubt and are acquitted.
Their bail bonds and surety bonds stand discharged.
35. Accordingly Criminal Appeal Nos. 193/2009, 302/2009,
303/2009 are allowed and Criminal Appeal Nos. 301/2009 and 683/2009
are dismissed in the above terms.
(S.P.GARG)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
MARCH 30, 2012
tr
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