Full Text
Criminal Appeal 471/2012
Through Mr. Jitendra Sethi, Advocate for Sachin and Ms. Inderjeet Sidhu, Advocate for Sunil.
Through Ms. Aashaa Tiwari, APP with Inspector Joginder Singh, PS-Nabi Karim.
Criminal Appeal 403/2012 JAGDISH PARSHAD Appellant
Through Mr. Jitendra Sethi, Advocate,
HON'BLE MR. JUSTICE ASHUTOSH KUMAR SANJIV KHANNA. J.
For detailed order see Crl.A. 469/2012 titled Mukesh Kumar
Vs. State, NCT ofDelhi pronounced today.
(SANJIV KHANNA)
JUDGE
(ASHUTOSH KUMAR)
JUDGE
May22"'',2015/NA 2015:DHC:10912-DB HIGH COURT OF DELHI
Crinriinal Appeal 469/2012
Through Mr. JitencJra Sethi, Advocate, v e r s u s
T hrough Ms. Aashaa ~ri wari, APR with Inspector Joginder Singh, PS-N abi Karim.
Criminal Appeal 471/2012 SACHiN AND ANR ..... Appel iant
Through Mr. Jitendra Sethi, Advocate
•Tor Sachin and Ms. Inderjeet Sldhu, Advocate tor Sun iI.
Criminal Appeal 403/2012 JAGDISH PARSHAD Appeiiant
Throug h Mr J itendra Sethi, Advocate. v e r s u s
Cr, A No3.469/2012, 471/2012 & 403/2012 Peg. 1 or 32
HON'BLE MR. JUSTICE ASHUTOSH KUMAR SANJ IV KHANNA, J.
This common judQmient will dispose o"r the a"rorementioned appeais filed by Mukesh Kumar, Sachin, Sunil and Jagdish Parshad.
The appeals impugn
JUDGMENT
Case No.55/10 arising out of charge sheet -filed in FIR No.177/2006, Police Station Nabi Karim and relate to the homicidal death of Anil
@ Pangey.
2. The appellants have been convicted under Section 302 read with Sect ion 149 of the Indian Penal Code, 1860 (I PC, for short), apart from Secti on 147/148 of the IPC, By the impugned order on sentence dated 14 Marcin, 2012, the appellants have been sentenced to undergo imprisonment for life for the offence under Section 302/149 IPC, to pay a fine of Rs.[2] lacs each and in default of payment of fine, to further undergo simple imprisonment for three years, Cumulative fine of Rs.[8] lacs has been directed to be paid to the legal heirs of tine deceased Anil Pangey as compensation. For the offence under Section 147/148 IPC, the appellants have been Cr-i A Nos.469/2012, 471/2012 & 403/2012 sentenced to rigorous imprisonment or one year eacl-i. The sentences, it was observed, would run concurrently and benefit of Section 428 of tine Code or Criminal Procedure, 1973 (Cr.P.C,, for short) has been granted.
3. The impugned j udgment also acguits Praveen Kumar, Shanky and VjjQy VickV' Neither the State nor the victim has preferred any appeal against their acquittal. As per the prosecution version, another person, R (name withheld) was also involved in tl~ie commission o"F the offence, but being a Juvenile, he was tried under the provi;3ions of the Juvenile Justice (Care and Protection of ChiIdren) Act, 2000, 0 ne Naresh was also charge sheeted, but had died during the pendency of the trial and the proceedings against him liave abated.
4. On tlie question of homicidal death suffered by An i1@ Pangey, Dr, C.S. Aarthy (PW23) has deposed that on 6 June, 2006, at about 10 P.M., injured A nil @ Pangey was brought to the casualty ward by his paternal eiunt (fciua), namely, Draupati (PW[1]) with alleged history of assault by l<;nown persons. The irijured was unconscious and tiiere were stab wounds over the lower left chest, CLW of 4 cm X 1 cm over right arm and CLW of 5 cm X 1 cm over parietal region or scalp. These facts were duly recorded In the MLC, marked Ex. PW23/A. Cr, A Nos,469/2012, 471/2012 & 403/2012 Page 3 or 32 The injuries were fresh and caused by a sharp oloject, After receiving first aid, the irijured was referred to tine surgery department. Post mortem of tine deceased was conducted by Dr. Sharbana Kumar Nayak (PW[3]), who testified tiiat Anil Pangey had succumbed to his irxi uries on 6'" June, 2006, at 11.30 P.M. On examination, he noticed the •rollowing external injuries."
1. Incised wound oT s i.e 4.6c.m X 1 cm part thickness oT skull situated aimost Inori zonta I 1y over the middie or posterior Trontal region 11 cm behind the giabelia. Marg in of tl'ie would (sfc, wound) are round regular and right end is round lying little bit anteriorly than the Ie1"t 5 end 3 cm right to the leTt end or anterior margin or the wound, one lacerated wound or si^-e 3cm X 0.[5] C.m. X scalp deep extends anterio.'ly to the right side, the anterior end ling 9 cm behiind medial end of' right eyeb'^ow.
2. Stitclned Incised wound or 6 cm long containing 3 black colour silk sutures situated almost horizontally on the outer aspect or right arm, 15 cm below the right acromial tip. On removal or sutures wound margines are round regular, anterior end is acute whereas posterior end is superricial (skin deep) ror 1,[5] c.m. Rest part or the wound is muscle deep.
3. Abrasion of" size 1.[5] c.m. x 1 cm situated over the tip or right shou Ider.
4. Abras ion of Sii-e 1.[5] cm x 1 cm situated over the right shoulder blade 1.[5] c.m medial to the previous Irxiury.
5. incised would of" six (sic, si^e) 1.[5] cm. 0.[4] cm. X0.[3] c.m. (subcutaneous tissue deep) situated horizontally on the right side Tront of abdomen 10.[5] c.m. above and 4 cm awov rrom the umbilicus (sic, umbificus).
6. Stitched n~'dline incised wound or 16 cm long conta ining 7 black colour silk stitches on the rront oT abdomen Just above unblicus (sic, umbificusj. From the upper end the woundj another stitched incised wound or 11 cm long extends downward and to the left along with Cm a Nos.469/201 2, 471/2012 & 403/2012 Page 4 or 32 subcostal margin containing 4 blacic colour silk stitches. The lower end of extended Incised would lies 16 c.m below the left nipple and 7 cm left lateral to thie mid line. On removal or stitcl-Tes, the wounds are found abdominal cavity deepj.
7. Stitciies stab wound of 4.[2] c.m. long containing 3 blacl< colour siil< stitches situated almost \/ertically on the left side anterior lateral aspect of chest 114 cm above the left [~,eel and 12 cm leTt later'al to thie midline. On removal oT stitchies ttie margins of upper end or the wound is found irregular and surrounded bv abrasion of 0,[2] c.m. width. The lower end of the wound is round acute whereas rest of" the wound margins are found regular. Left margin of he (sic, th&) wound 0.[5] cm above the lower end show an extension of incision for 0.[3] c.m. in a downward and outward direction with acute ending. The wound is found abdominal ca\/ity dCCp. PW[3] has also given details oT the internal examination. He opined that the cause 01" death was haemorrhage and shock as a result or ' ' T multiple injuries including spleen Injuries. I he injuries were ante mortem in nature. External injury No.6 and absence of" spleen were due to surgical intervention. External irijury Nos.1, 2, 5 and 7 toget|-ier and external injury no.f with correspond ing internal Injuries individually, were fatal and in ordinary course of nature would have caused death, 6, On the Question of involvement of the appellants, the prosecution primarily relies upon the testimony of E)raupati (PW[1]), who is stated to be an eye witness. Reliance is also placed on the Cr, A Nos 459/2012, 471/2012 & 403/2012 P.ge 5 of 32 testimony of Premwati (PW[5]) and Chankey (PW[8]), brother of the deceased An iI @ Pangey. 7, Draupati (PWl's) exaininatioil-i n-chief was recorded on three dates, \/i[7]. 19 February, 2007, 18'" February, 2008 and 2 Apri[1], 2008, She was cross-examined on 2"^ April, 2008 and recalled for further cross'examinat' on which was conducted on 13'" March, 2009 and 4'" May, 2009. Learned counsels for the appellants are right in tineir submission that the exam 1nation" i n'ch ief and cross'exami nation should be conducted without time-gap and delay. Fiowever, two facts are noticeable. While adjourning exam inati on" in"ch ief on 19- February, 2007 and on 18"^ February, 2008, the court has recorded tinat PW-1 was not -feeling well. SecondlVi the appellants thennsel\/es were responsible "Tor the acljournnnent, which was sought and granted on 2"'^ April, 2008, on account of the fact that one of the accused on bail was absent. I he cross-examination on I 13^" March, 2009, deferred at the request of some of the accused. Including the appe IIants" Mukesh, Sachin and Jagdish Parshad.
8. We Shall, while inquiring Into and scrutinizing the deposition of Draupati (PW[1]), examine the question of purported improvements or discrepancies in her testimony and decipher and highlight what is acceptable and should be treated as the true and correct version given Cr, A Nos.469/2012, 471/2012 & 403/2012 by Draupati (PW[1]). In her deposition on 19 FetDruar^/, 2007, Draupati (PW[1]) had testified." "The 5 persons who camenear us were Jagdish @ Jaggi, buneel, Mul<esh, Shanl<y and Sunny, present in the court, (correctiy identified) and ail Of them were armed. Accused Jagdish Parshad @ Jaggi was having a knife in his hand, accused Suneel was having a hockey in his hand, accused Sunny was having a cricket stump {kill/) in his hand and Shanky was having dsnda in his hand and accused Ravi was having a darati in his hand (the tool used to cut grass). The other name of accused Sunny is Sachin. 1 do not know the names of accused persons who were standing at some distance from our house, however, they are present in the court today except accused R who is facing trial in the Juvenile Court. The witness has pointed towards accused Parveen, Vicky and Naresh. Again said, accused Naresh was also amongst those persons who came near us. Accused Vikcy was having danda in his hand. All the 5 persons named above who had come towards us asked An 1I@ Pange about the whereabouts of his brother, namely, Bunty. Accused Suneel gave hockey blow on the head of ^ Anil@Pange and he became unconscious. \ Thereafter, accused Suneel gave l<nife blows on the hands of A niI@Pange. Thereafter, accused Naresii gave knife blow on the stomach of Anil@Pange." in her deposition recorded on 18"^ February, 2008, Draupati (PW[1] ) had stated." "...Five persons reached there from the side of Chhota Mand 1r at about 9 9.30P.M. Anil@Pange was also sitting with us. Those persons asked the whereabouts of Bunty who was the brother of a Anil. Those persons took some steps towards us and they talked"MAARDO ISKO". The accused Mukesh present in the court today gave Hockey blow to Anil. Accused Naresh, Sunil and Sachin were having knife in their hands who gave knife blows on the stomach, arms, and on the shoulder of" Anil. Accused Naresh, Sunil and Sachin are present in the court today, correctly identified. The accused Jagdish also accompanied them. When the accused persons gave the above said blows I took out a thapki [slnotha) which was lying near me and threw away on the accused persons...." ^ 1n the exam[1] nation"in~ch ief conducted on 2"^ April, 2008, Draupati: (PW[1]) had averred." "...Accused Mukesh gave hockey blow on the head of the deceased. Accused Naresh and Sachin were armed with knifes who gave blows of the same to the deceased, Others were having dandas. Accused persons namely Jagdish@Jagg 1, Mukesh, Sunil, Naresh, Sachin, Salim, Shanky and R, (witness correctly identified each accused), are present in the court today. Aga in said R is in children court while Praveen is ^ present in the court. They are the persons who attacked the deceased in my presence."
9. \Ne have intentionally quoted the deposition of Draupati (PW[1]) recorded in her exam 1hation" in"ch ief on ir April, 2007, 18'^ February, 2008 and 2"^ Apri \, 2008, so that the alleged Inconsistency" and "improvement" can be examined and understood. In her first deposition, Draupati (PW[1]) had initially identified the five assailants as Jagdish Parshad, Sunil, Mukesh, Sachin @ Sunny and one Cr, ANo[3],469/2012, 471/2012 &403/2012 ' Page 8or32 Shanky. She immediately rectified her deposition and implicated Naresh (since deceased) as amongst the five persons. Sunil, she averred, had given the inockey blow and, thereafter, a knife blow, Naresh (since expired) had also given a l<nife blow on the stomach of Anil @ Pange. Draupati (PW[1]) has asserted that Jagdish Parshad had a knife, Sunil had a hockey and Sachin @ Sunny had a cricket stump. She claimed that Shanky was carrying a danda. The said Shanky, as noticed above, has been acquitted. PW[1] claimed that another person R (Juvenile) had a darati. Draupati (PW[1]) in her examination in chief" recorded on 18^'^ February, 2008, claimed that Mukesh had given hockey blows and that Naresh (since deceased), Sunil and Sachin were having knife in their hands and had given knife blows. Draupati (PW[1]) implicated the appe[1] anfjagd ish Parshad, stating that he had acrompanied them but did not attribute any actual act to him ^ for the injuries caused to Anil @ Pange. Similarly, in her deposition recorded on 2"^ April, 2008, PW[1] had stated that Mukesh had given inockey blows, Naresh (since deceased), Sachin, who were armed with knife inad given knife blows whi le others were having dandas.
10. lat is discernible and apparent to us from the deposition of Draupati (PW-1) Is the certainty and certitude as to the presence of Mukesh, Sunil and Sachin in the group of five or four persons who Cr, A No..469/2012, 471/2012 & 403/2012 r assaulted the deceased. She had on each occasion taken the name o1^ appel lant-JagdIsh Parshad as a member or the group of -Tive or -four, but had also referred to Shanky, Naresh (since deceased) and R (juvenile). Ir we add Naresh (since deceased), Shanky and R (juvenile) to the "Tour appellants, the total number or assailants would be seven. Draupati (PW[1]) is also the complainant and her statement Ex. PVV1/DA made to SI Surya Prakash (PW22), was the first statement made immediately arter the occurrence, at about 12.40 A.M. onT'Mune, 2006. In the said statement, she had referred to the presence or Premwati (PW[5]) and that An1I @ Pange was sitting and conversing with thenn. At about 9.30 P.M., rour or rive boys, including Mukesh, Sachin (Sunny) and Sunil, who were residing in their neighbourhood, came there. There were two more boys with them whom she did not identiry by name, but claimed that she would be able to recognise them ir they are shown to her. Thus, in Ex. PW1/DA, PW[1] had identiried and named the appellants Mukesh, Sachin (Sunny) and Sunil, but it is apparent that the other two were not identiried by their names, inrerence being that PW[1] did not know them. Ex. PW1/DA records that Mukesh had enquired rrom An iI@ Pangey about Bunty and on getting a non'conri rmatory response, had hit him on the head with a hockey stick stating that ir Cr, A No..469/2012, 471/2012.& 403/2012. Peg. 10 of 32 Bunty was not available, he (AnM@Pangey) should be taken to task, Suni! had stabbed Anil with a knife in his stomach and Sachin @ Sunny had stabbed him with a knife on his hand. AniI@ Pange -fel I down, The assailants, thereafter, ran away, She has referred to the earlier incident at 6,30 P,M, as the cause or reason for the said assault. Thus, when we examine and read Ex. PW1/DA, it is confirmed and affirmed that, at the earliest and first opportunity, Draupati (PW-1) l|^ had specifically identified Mukesh, SuniI and Sachin as the perpetrators, Two others were also present but WCrCll t identified by thei r names, Ex, PW1/DA refers to the name of the father of Mukesh, Suni I and Sachin as Mohan Lai, which Is correct. Conspicuously, name of Jagdish Parshad is not mentioned. It also transpires that Jagdish Parshad is not a young boy of the same age as Mukesh, Sunli or Sachin. Appellant~Jagdi3h Parshad was about 48 years old on 10 October, 2011, when his statement under Section 313 Cr,P,C, was recorded, whereas Sachin, Mukesh and Sunli were between the age group of 26-32 years at that time. Jagdish Parshad is the father of Shanky, who has been acquitted by the trial court. It Is apparent to us that there is some d-iscrepancy and uncertainty as to the identity of other persons who had accompanied Mukesh, Sunli and Sachin and were the participants present In the group of five or four assailants. Cn A No[3],469/201 2, 471/2012 & 403/2012 Pa^e 11 or 32 -4 V Except -for the presence or Mukesh, Sunil and Sachin@ Sunny, presence of others including Jagdish Parshad is, therefore, debatable and uncertain, Therefore, we would require corroboration, before accepting the involx/ement of Jagdish Parshad. Draupati (PW[1]) had propounded the two group catharsis, one group whi.ch came forward and the other which remained in the background and this assertion was the foundation for the prosecution of Praveen Kumar, Shanky and ViJay @ Vicky. Howe\/er, the trial court did not accept the two groups version and, as noted above, it has acquitted Prax/een Kumar, Shan ky and Vu ay @ V icky. 11, The second eye witness is Premwati (PW[5]), Her examination" in"chief was f^i rst recorded on 4 September, 2008, In the said examination, she testified that on 6"^ J une, 2006, at about 8.30 or 9 P.M. she was sitting on a cot in front of her inouse with Draupati (PW[1]) and they were talking to each other. In the meanwhile^ An iIPange came there, sat on the same cot and started speaking to them. At about 9.30 P.M., the accused persons (which would mean reference to the four appellants, Naresh (since deceased), Praveen Kumar, Shanky and Vjjay (who hax/e been acquitted) came there. Except for Naresh (since deceased), whom she correctly identified, Premwati (PW[5]) could not name the other accused, including the four Cr, A No.:469/2012, 471/2012 & 403/2012 Page 12 or 32 •i ' i a appellants. She asserted that the accused were armed with knife, deindas and hockies, but she was unable to recollect and associate the weapon with each accused, An 1l@Pange was given blows with knife, dandas and hockies. Alarm was raised, but before people could react, the accused persons escaped towards Gail No. 9. Premwatl (PW[5]) was cross~exam ined on 7 JulVi 2009 In her cross"exam 1nation, she deposed that a mob had come to kill An1l@ Pange, son of her sister. She was present at the place of occurrence but could not state as to who had inflicted injuries upon Anil@Pange since she had fainted on seeing the mob. Further, there was darkness as the street light was not working. On being cross~exam 1 ned by the Add itiona I Public Prosecutor, PW[5] denied that she had named Sachin, Mukesh, Sunil, Jagdish Parshad and others in the court on 4 September, 2008. She claimed that her deposition of T July, 2009 was correct and whatever was deposed on 4 September; 2008 was untrue. Voluntarily, she added that some persons had assaulted Ani |(@Pange and caused injuries upon him with knife and dandas and that she had not seen who had assaulted Anll'S'Pange as there was a big mob. Whil e being cross~exam i ned, she voluntarily declared that she was an illiterate lady aged sixty years and on the said date, her husband was seriously
111. Cm a No..469/201 2, 471/2012 & 403/2012 Pege 13 or 32
12. On reading the deposition or Premwati (PW[5]), it is lucid that in ^th her first version i.e. her examination in chief recorded on t- September, 2008, PW[5], without naming, had identified the four appellants. She had certainly deposed that she knew that they had come to the spot. At the same time, she had also referred to tine presence of Praveen Kumar, Shanky, Vijay and Naresh (since deceased). She did not differentiate or refer to two groups as has ^ been deposed to and stated by Draupati (P\A/1). We have already referred to the first statement of Draupati (PW[1]) (Ex. PWI/D/^). Thesaid statement does not mention about the presence of two groups or the faotum that a group of four persons had stayed back at a distance and the second group consisting of five boys had come forward and assaulted Anil @Pa nge. In these ci rcumstances, we would hold that Premwati (PW[5]) has partly corroborated the statement of Draupati -y' (PW[1]) to the extent of involvement of Mukesh, Sunil and Sachin @ Sunny, tlnat they were the persons who were present at the place of occurrence and had assaulted the deceased Anil@Pange.
13. The prosecution has also relied upon and claimed that Chankey (PW[8]) was the third eye~witness. In the impug nedJ udg ment, the trial court has observed that the deposition of PW[8] (brother of deceased Anil@Pange), was weak and quite suspicious, after, notic[1] ng the fact Cr, A Nos.469/2012, 471/2012 & 403/2012 14 or32 that neither had he tal<en the iriJured Anil@Pange to the hospital nor had he informed the police. Moreover, he had not met the police at the spot. It is also recorded that Chankey (PW[8]), in his cross" examination, had accepted tine suggestion that the accused, including the -four appellants, had already fled away -from the spot by the time he came down -from his room. Yet, the trial court has observed that PW8's testimony is not totally redundant as he had seen the accused, including the four appellants assemble close to the spot at 9.15 P.M. with the weapons of offence, winich were used in the occurrence. Trial Court observed that his testimony would be relevant because lie. had seen the accused, including the four appellants, minutes before the assault.. We would observe and hold that the testimony of Chanl<ey (PW[8]) IS not reliable and credible for the reasons rightly recorded by the trial court. However, we would also disbelieve and [ ^ discard PW8's assertion that he had seen the accused, including the appellants, before the occurrence while returning from work. In his cross"exam inat[1] on, PW[8] had stated that he had heard the noisC SaVe me save me" (^baclneio tDscl-iao) and, thereafter, had rushed to the place of occurrence. Initially, he claimed that he had seen the IrTjured lying and became perplexed and, therefore, did not run after the accused and had called out his elder brother Sunii. Subsequently, when cross" Cr, A Nos.469/2012, 471/2012 5; 403/2012 Page 15 or 32 exam ined, PW-8 accepted that wt'on he reached the spot, Anil@Pange had already been removed to the hospital. PW[8] accepted that he did not accompany Anil'SPahQe to the hospital and did not Inform the police as well. On further cross-examination, he accepted as correct the suggestion that the accused had already fled from the spot by the time he came down. He denied the suggestion that he had seen Anil@Pange going to tine hospital with Rfajesh ^ (PW[6]), P remwati(PW[5]) and Draupati (PW[1]). H eaccepted as correct that he was Informed by his uncie that the injured had been taken to the hospital about ten minutes back and thereafter, he and Sunil proceeded to the hospital, His clothes were not blood-stained, though he claimed that his hands had blood-stains. Noticeably, Draupati (PW[1]) and Premwati (PW[5]) have not deposed and affirmed about the presence of Chankey (PW[8]) at the spot, 14, What is also noticeable Is that R^'esh (PW[6]), brother of Chankey (PW[8]) and the deceased Anil@PanQe, had stated that on 6 June, 2006, at about 9,30 P,M„ he was present on the first floor of his house and had heard some noise in the street (ga//). He saw that An ii@ Pange had been, injured and was lying on the cot, Premwati (PW[5]) and Draupati (PW[1]) were present in the street making hue and cry, Draupati (PW[1] ) and Premwati (PW[5]), at that time, had told him Cr, A No..469/2012, 471/2012 & 403/2012 Page 16 or 32 V that sons and family members of Taro and Heero had given beating to Anil@Pange with knife, hockey and dsnda and had run away from the spot, Rajesh (PW[6]) had brought a cycle rickshaw and had taken Anil@Pange to the hospital with the help of Premwatl (PW[5]) and Draupati (PWl). Rejesh (PW[6]) has not deposed and affirmed about the presence of Chankev (PW[8]) at the place of incident.
15. At this stage, we would like to deal with contentions raised on behalf of the appe IIants-M ukesh, Sunil and Sachin, to r^ect the prosecution case against them, to disbelieve Draupati (PW-1) and to reject the reliance placed on the parftesti mony of Premwatl (PW[5]). Similarly, contentions in alternative have also been raised on behalf of the appel lant-JagdIsh Parshad.
16. he first submission made on behalf of the appellants was that ^ Draupati (PWl), on 13"^ March, 2009, in her cross-examination on beha If of Vijay @ Vicky and Naresh (since deceased), had stated that her first statement was recorded in the hospital on une, 2006, at •
9.30 P.M. It has been submitted that in spite of the said assertion, the Add Itiona I Publ Ic Prosecutor did not re'examine PWl and, therefore, the said statement of PW[1] should be treated as correct. It is not possible to accept this argument. The MLC (Ex. PW23/A) of the Cr, A No[3].469/2012, 471/2012 & 403/2012 Peg. 17 or 32 « cJeceasod was recorded on 6"'June, 2006, at 10 P.M. Anil Pangey, thereafter, died at about 11.30 P.M. on the same day. This minor mistake or error in the oral deposition as to the time when statement of PW[1] was recorded would not overthrow and set at naught the entire prosecution case. Perfection and eidetic recollection should not be expected and is not required. Human imperfections and fallibilities, which occur when a person recalls and reminisces, are natural and normal. There is ample evidence, which we have referred to and will be referring to subsequently, to show that the statement (Ex. PW1/DA) of DraupatI (PW[1]) as to the factuhn of occurrence, which was subsequently recorded as the FIR (Ex. PW27/A), was made at 12.30 A.M., on 7 June, 2006. We have the testimonies of SI Surya Prakash (PW22) and Insp. Jogender Singh (PW26) to the said effect. It may be noticed that Draupati (PW[1]) was iIIiterate. Thus, ^ PW[1], in her cross"examinati on on 13"^ March, 2009, was unable to recollect the exact time of recording of her statement (EX. PW1/DA), It is noticeable that in her cross~exam Ination on 4^^ May, 2009, PW[1] had stated that she could not tell the time when Ex. PW1/DA was recorded. However, PW[1] has been unambiguous and categorical about the three appellants (Mukesh, Sunil and Sachin) in her cross" exarri inat ion on 13"-' March, 2009, Si mllarly, the contention of the Cr. A Nc.s,469/2012, 471/2012 & 403/2012 Peg. 18 or 32 % I r b appel lants that PW[1] has stated that her statement (Ex. PW1/DA) was recorded in the police station, would not affect the prosecution case in view of the time gap, imperfections and vulnerabilities associated witin human memory and the factum that PW[1] was an iI1iterate person.
17. Learned counsel for the appellants have referred to the fact that in Ex. PW1/DA, the name of Mohan Lai, father of the appellants Mukesh, SaChin and Sunil is nrientioned. PW[1] voluntarily stated that the said accused persons had disclosed the name of their father and, therefore, she had mentioned the same in her statement. Undisputed position is that the appellant Mukesh, Sachin and Sunil had not been detained or arrested when Ex.PW1//DA was recorded. Tine said assertion of PW[1] is obviously incorrect and should be r^ected. On this aspect, we wouid like to state that PW[1] has deposed that she knew the accused person, i.e. the persons who had assaulted Anil Pange, as already noted in the MLC (Ex.PW23/A). The statement of Draupati (PW[1]) (Ex.PW1/DA) was recorded past midnight at about
12.15 A.M. By that time, several others including the relatives of the deceased Anil Pangey had reached the hospital. There is ample evidence to show that these persons knew the parentage and other details of the assailants. We do not think that reference to parentage C,, A No«.469/2012, 471/2012 & 403/2012 Pag« 19 of 32 of the assailants i.e. the three appellants would Justify r^'ection of the eye witness testimony or is a valid ground to question the identity of the three appel lants~Mukesh, Sunil and Sachin as mentioned in Ex. PW1/DA. As to the presence ol^familv rnembers, we would like to make reference to the cross~exanni nation of Chankey (PW[8]) on 3 Novernberj 2009, wherein he had asserted that, at the time or death o'T Anil Pangevj Sunil, PW[8] S elder brother, Vu ay Kumar (PW[2]), wino had Identified the dead body of Anil (S* Pangey, Rajesh (PW[6]); Draupati (PW[1])I Premwati (PW[5]); Roshan, PW8's Chacha; Pappy bhai, Nil<l<l bfna/, Mukesh bhsu', Ashok bheai, Lale Cbacha, Kammo Cbetcbi', and other relatives were present in the hospital. SI Surya Prakash (PW22) also stated that 5-7 relatives of the deceased were present in the hospital.
18. We have already referred to and elucidated why testimony of Draupati (PW"1 ) identifying and naming the appellants Mukesh, Sunil anri Sachin should be accepted. The contention that the version of Premwati (PW[5]) IS at variance witii the testimony of Draupati (PW[1]) has been rejected. We reiterate that on the question of Involvement of the three appellants, we are Inclined to accept the version given by Premwati (PW[5]) to the extent it relates to the presence of Draupati (PW[1]) at the place of occurrence. The fact that C,-, A N„».469/2012, 471/2012 5 403/2012 Pe^^e 20 or 32 Premwati (PW[5]) was not able to identify the appeiiants by name would not negate or toppie the prosecution case. PW[5] did state that she did not l<now the assaiiants except Naresh (who has died). Further, the occurrence in question had taken place about 3 years before the date of iner examination in the court. She was an iiiiterate lady of about 60 years of age. She has deposed that her husband was ailing. It is obvious that she was under pressure and constraint. The deposition of PW[5] does emphaticallv support the prosecution version \ I about the presence o-f Draupati (PW[1]) at the place of occurrence and that she had seen the occurrence. This fact is also asserted and corroborated by Rajesh (PW[6]).
19. At this stage, it would be appropriate to refer to the site plan (Ex. PW26/A), which was proved by Insp. Jogender Singh (PW26), and scaled site plan (Ex.PW10/DA) proved by Ct. Rajesh Kumar i ' (PW10). The site plan (Ex.PW26/A) indicates a cluster of small tenements bearing the same house number, i.e. 8004/10, where the deceased Anil @ Pangey, Draupati (PW[1]), Premwati (PW[5]) and several others used to reside. These were like one room dwelling units with adjoining wajls without any gap/distance between them. In places where there is cl.ustei—living in small tenements, whenever violence or occurrence of such nature takes place, neighbours do tend Cr, A Nob.469/201 2, 471/2012 & 403/2012 I !.r to cor-ne out immediately. Reaction could, in many cases, be instantaneous and without any time gap, but this does not mean that each one in the neighbourhood, would has/e seen the accused. Two neighbours Draupati (PW[1]) and Premwati (PW[5]) have deposed. Rc^-esh (PW[6]) was present, but by the time he came down, the perpetrators had fled. The contention that the other neighbour did not Join has to be rejected. The prosecution evidence cannot be disbelieved for this reason.
20. R^j esh (PW[6]) has also affirmed the presence of Draupati (PWl) and Premwati (PW[5]) and that they had raised a clamour. They 1nformed PW[6] that family members of Heero and Taro had given beatings to Anil @ Pangey with l<nife, lathi, dandas and hocl<ey. On the same day, earlier at about 6 P.M.,, quarrel had taken place between Bunty, brother of the deceased Anil Pangey, and the assailants, He asserted that the accused including the appellants were the family members of Heero and Taro. In the cross-examination, PW[6] reiterated that Taio and Heero were sisters and he knew tlnem as they used to reside near his house. He had been residing there for the last 20 years. The contention of the appellants that the alleged blood " stained shirt of Rajesh (PW[6]) was not sei:?:ed, would not shake the prosecution version. It would be illusory and unwise to r^ect and discard Line testimonv Rajesln (PW[6]) for tin is Iapse or failure on part of the Inx/estiQati ng authorities.
21. On tine Question of any earlier figlnt and quarrel, in the evening at about 6 P.M.. on 6 June, 2006, we have the deposition of HC Satbir Singh (PW28). On 6^" June, 2006, at 6.17 P.M., PW28 was marked DD No. 40E regarding quarrel at House No. MHC-82, Yog maya Moha1Ia, Nab i Karim. PW28 along with Ct. Raj Kumar, on reaching the spot, had learnt that the Injured had been taken to the Lady Hard Inge Med ica I Cyo IISQe and I Iosp ita I. PW28 went there and collected the MLCs Of Heero and Taro. He had recorded the statement of Heero and FIR No. 176/06 under Sections 325/341/506 IPG was registered. The aforesaid FIR and other documents have not been brought on record, but according to us, this would not be a ground to ignore and not accept ocular testimony of Rajesh (PW[6]) and HO Satb 1 r Singh (PW28). Testlmony of" Rajesh (PW[6]) and HC Satbir Singh (P\/V28) indicate and establish the propelling cause and the motive behind the fatal attack on A nil Pangey. The attack was in ret&illation for the injuries caused to Heero and Taro. It is proved beyond doubt and an accepted position, that the appellants herein are family members emd are related to Heero and Taro. Cr, A No..469/2012, 471/2012 & 403/2012 Pag. 23 or 32
22. Now, we would like to take on record anotlner corroborative and sLjpporting evidence, wliici-i would show that Draupati (PWI ) had taken Anil @ Pangey to the hospital. We would refer to the two chunnis, Exs.P[1] and P[2], which were tied around the waist/stomach of Anil. As per the CFSL report (Ex.PW26/0), blood was found on Ex.ld and Ex.2, i.e. the two dupattss/chunnis. As per the serological examination, human blood of 'AB' group was found on the clothes worn by the deceased and on Ex.2. Human blood was detected on c/upsttBi (Ex.ld), but blood group could not be ascertained for want of reaction (see report, Ex. PW26/P).
23. Head Constable Mahesh (PW30) has testified that on 6 June, 2006, at about 9.30 or 9.45 P.M., he had received information that a person named Anil @ Pangey had been stabbed by someone. PW30 recorded the said information in the PGR form and flashed the message through the Communication Branch. AS I Iqbal Singh (PW18) has deposed that DD No. 51B (Ex.PW22/A) was marked to him and that he along with Ct. Rc3j pai (PW[9]) had reached the house of Anil at 8004, Gali No.10, Multani Dhanda, Nabl Karim. In the meantime, SI Surya Pral<ash (PW22) and Insp. Jogender Singh (PW26) reached the spot and were informed that the iru'ured had been taken to the hospital, ASl Igbal Singh (PWI 8) and Insp. Jogende Cr, A Nos.469/2012, 471/2012 & 403/2012 Page 24 or 32 r \h Singh (PW26) left for the hospital leaving Ct. R^'esh (PW10) and Raj paI (PW[9]) at the spot. SI Surya Prakash (PW22) recorded the statement of Draupati (P\A/1), prepared rukka and handed over the same to ASI Iqbal Singh (PW18) for registration of FIR, Thereafter, ASI Iqbal Singh (PW18) left for the police station, got the FIR registered and came back at the spot, where he met SI s urya Prakash (PW22) met Insp. Jogender Singh (PW26) and handed o\/er the copv o-f FIR to inim. In the cross"exam inati on, PW18 reiterated that he had reached the police station with the rukka at about 12,35 A,M, and had reached the spot after recording the FIR at about 1,45 A,M, 24, SI Surya Prakash (PW22) has affirmed and supported the prosecution case. He had first proceeded to the spot and then to the hospital, where he had recorded the statement of Draupati (PW-1), aunt of the deceased Ani I @ Pangey, He had collected the MLC of the injured Anil @ Pangey (Ex,PW23/A), After Anil @ Pangev was, declared dead by the doctors, SI R;ajesh came to the hospital with DD, No,24A, (Ex,PW22/B) regarding death of Anil @ Pangey, The.doctor had handed over the clothes of the deceased to him, which •were seized and sealed by him vide seizure memo, Ex,PW22/C and Ex,PW22/E), Rukka was prepared and handed over to ASI Iqbal Singh (PW18) for registration of FIR, who later came to the spot with Cr, A Nob.469/201 2, 471/2012 5 403/2012 Page 25 or 32 the copy o1^ the FIR. Crime team had also reached the spot and had cut the Niwar (plastic pstti) or the cot, which was seized vide seizure memo, Ex,PW11/A. He has also deposed as to the two chunn/s, Exs. P[1] and P[2], which were ta\<en into possession and seized -from Draupati (PW[1]). In the cross"exam ination, PW22 has stated that he had reached the spot o"F occurrence at about 10 P.M., but at that time he did not meet any eye witness. 25, Inspector Jogender Singh's (PW26) deposition is identical and he has referred to the l^actum that statement of Draupati (PW[1]), a relative o1^ An iI Pangey was recorded in the hospital by SI Surya Prakash (PW22), who had also prepared the rukka. Thereafter, ASI Ipba1SiHQt~i (PW18) had gone to the police station along with rukks and the FIR was registered. He had prepared the unsealed site plan (Ex.PW26/A), conducted inquest proceedings, filled up Form No.25,35 and prepared brief" facts (Ex.PW26/C). 26, From the aforesaid testimonies and e\/icience, it is apparent that the contenti on of the appe i[1] ants that the FIR is ante~timed is untenable and baseless. We notice that the FIR (Ex,PW27/A) has the endorsement of the Add itlona I Ch ief Metropolitan Magistrate tlnat he had received the same at his residence at Guiabi Bagh on Junej Cm a No..469/201 2, 471/2012 & 403/2012 2006 at 9.55 A.M. The factum that the FIR (Ex.PW27/A) was duly sent to the authorities is also recorded in the computer version o-f the sei Id FIR placed on record.
27. T he contention of the appellants that the aforesaid police officers had never reached the hospital till 11,30 P.M. or even thereafter, relying upon DD Entry No. 24A marl<ed Ex.PW22/B IS unacceptable and merits r^ectlon. The said DD entry was recorded at
11.50 P.M., on 6^'^ June, 2006, at police station NabI Karim. The said entry does mention that a police officer should be sent to the hospital, but this does not mean that no police officer was already present In the hospitaI. SI Surya PraKash (PW22) has stated that SI R^esh had met him in the hospital along with DD Entry No.24A (Ex.PW22/B). HC Jai Singh (PW-1 5) has stated that in the Intervening night of 6 ( and 7 June, 2006, he was posted at the mortuary of Lady HardInge Medical College and Hospital. On that day, SI R^esh had met him and dead body of Anil @ Pangey was preserved.
28. Learned counsel for the appellants has laid considerable emphasis on the fact that SI Rajesh was not cited and produced as a witness. SI Rajesh was cited as a witness but did not depose. We do not think that ' failure to record deposition of SI Rajesh would C.-, A Nos.469/2012, 471/2012 & 403/2012 Pago 27 or 32 materially af-fect tine prosecution case, so as to disbelieve the prosecution es/idence on record. 29, From the aforesaid discussion, it is apparent tinat the prosecution version has to primarily rely upon the testimony of Dropati (PW[1]), Contrary to the complaint (Ex.PW1/DA), which made reference to Mukesh, Sachin @ Sunny and Sunil and one or two others, PW[1] had tried to implicate as many as 9 persons in two groups of 5 and 4 persons all belonging or connected with the family of Taro and Heero. Resultantly, Sections 147/148 IRC were also invoked and as noticed above, the appellants have been also convicted under Sections 147/148 IPC and convicted for rigorous imprisonment for one year. The trial court had acquitted Pra\/een Kumar, Shiankv anc[3] Vijay @ Vicky. Naresh who was charge-sheeted had died during the course of proceedings and one R(name withheld) being ajuvenile was dealt with under the Juvenile Justice (Care and Protection of children) Act, 2000,
30. We have also referred to the testimony of Prem Wati (PW[5]) and observed that we would believe the testimony only to the extent of involvement of Mukesh, Sunil and Sachin @ Sunny noticing her statement recorded on 4'" September, 2008 and then on 7"' July, 2009, Cr, ANos.469/2012, 471 /2012 &403/2012 P-s- 28 of 32 We have partly accepted the testimony o'T PremwatI (PW[6]) -for upholding convicting of Mukesh, Sunll and Sachin f© Sunny.
31. We have r^'ectecl the testimonv Chanki (PW[8]) on the ground that he was not an' oye'wltness and his assertion as to unlawful assembly prior to the occurrence Is unbelievable and untrustworthy. We have, therefore, proceeded with caution and care to ensure that no"one is falsely Implicated and have sustained the conviction of Mukesh, Sunil and Sachin (Sunny) who were named at the very Instance of Draupati (PW[1]) as recorded In Ex.PW1/DA. The appellant Jagdish Parshad wouid be entitled to benefit of doubt and hence his appeal is allowed and his conviction and sentence are set aside.
32. This brings us to the Question of sentence. In paragraph 2 above, we have noticed that the appellants Mukesh, Sachin @Sunny and Sunil have been convicted under Sections 147/148 IPC as well as Sections 302 read with Sections 149 IPG. It was highlighted that In Ex. PW1/DA, Draupatl (PW[1] ) had referred to presence of 4 or 5 persons though she had specifically named Mukesh, Sunil and Sachin @ (Sunny). Ex.PWI/DA does indicate that in addition to the 3 convicted appellants, 2 more persons were present and even if they Cr, ANo..469/2012, 471/2012 &403/2012 29 or32 were not identified or arrested, conviction under Sections 147/148 1PC can be sustained. However, if only one person was present, conviction under Section 147/148 cannot be sustained. We wou Id prefer to rely upon Section 34 IPC in the present case in view of the specific involvement of Mukesh, Sunil and Sachin @ Sunny. They were present at the spot and had inflicted injuries with connmon intention. As noticed above, possibly Section 147/148 IPC were invoked because initially as per the prosecution, possibly 9 persons were the perpetrators and involved in the occurrence. Thus, we would prefer to convert the conviction of the appellants Mukesh, Sunil and Sachin @ Sunny to Section 302 read with Section 34 IPC instead of Secti on 302 read with Section 149 IPC. The 3 appel lants should not be separately punished under Sections 147/148 IPC. We record that the trial court had observed that sentences would run I ^ concurrently, We uphold the trial court order awarding the sentence of imprisonment for life imprisonment. Fine of Rs.[2] lacs stands imposed on the appellants and it has been directed that the amount recovered through the fine would be paid to the legal heirs of the deceased Anil @ Pangey as compensation. In default of payment of fine, the appellants have been directed to undergo simple imprisonment for three years. Considering the facts, we reduce the Cr, A No..469/2012, 471/2012 & 403/2012 <n amount of" fine to Rs.10,000/- eac|-i and in default, t|-ie three convicted appe I i ants slna I I undergo s i mp Ie i mprisonment of one year.
33. We feel that it would be appropriate and proper to direct that tlie convicted appellants Mukesh Kumar, Sunil and Sachin @ Sunny shall pay the compensation of Rs50,000/- eacl-i under Section 357, Cr.P.C. We inave fixed the amount of compensation keeping in view the facts of the case, nature of the crime as well as the capacity of the appellants to pay tine compensation. 34, Appeal filed by Jagdish Parshad (Cri.A. No, 403/2012) is accordingly allowed and his conviction is set aside. Appeals filed by Mukesh Kumar, Sunil and Sachin @ Su nny challenging their conviction under Section 302 IRC are dismissed and they are convicted under Section 302 IPG read with Section 34 IRC instead of Secti OiT 149 IRC. Mukesh Kumar, Sachin @ Sunny and Sunil have not been separately convicted and punished under Section 147/148 IPC. The appellants Mukesh, Sachin @ Sunny and Sunil are sentenced to imprisonment for life under Section 302 IRC. They shal 1 also pa.y a fine of Rs 10,000/- each and in default of payment of fine, they shall undergo simple imprisonment for six months. Appellants Mukesh Kumar, Sunil and Sachin @ Sunny have also been directed Cr, A No„.469/2012, 471/2012 & 403/2012 31 or 32 qv" to pay the amount of Rs 50,000/- each as compensation to the legal Ineirs of Anil Pangey under Section 357, Cr.P.C. Appeals are accordingly disposed of. Trit^l Court Records will be sent back. (SANJIV KHANNA) JUDGE (ASHUTOSH KUMAR) JUDGE May 22'^^ 2015 NA/VKR/KKB