Full Text
CRL.A. 1005/2013
JUDGMENT
Through: Mr.Harit Chhabra, Advocate
Through: Mr.Sunil Sharma, APP for the State
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S. SISTANI, J. (ORAL)
1. Present appeal has been filed by the appellant under Section 374 of the Code of Criminal Procedure read with Section 482 of the Code of Criminal Procedure for setting aside the judgment dated 12.7.2013 and order on sentence dated 16.7.2013 passed by learned Additional Sessions Judge, Rohini Courts, Delhi, in case FIR No.1674/06 registered under Sections 302/397/34 IPC at Police Station Sultan Puri, by which the appellant has been convicted to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code with fine of Rs.5,000/- and in default of payment of fine to undergo further simple imprisonment for six months. The appellant was further directed to undergo Rigorous Imprisonment for the period of seven years with fine of Rs.3,000/- for the offence punishable under Section 397 of the Indian Penal Code and in default of payment of fine Simple Imprisonment for 2015:DHC:1105 three months. It was directed that both the sentences would run concurrently and benefit of section 428 was given to the appellant.
2. The case of the prosecution, as noticed by the trial court in its judgment dated 12.7.2013, is as under:
3. Counsel for the appellant submits that the trial court has erred in convicting the appellant herein, as there are material contradictions in the testimony of the witnesses. The impugned judgment is based on surmises and conjectures; and the prosecution has been miserably failed to prove the chain of events and circumstances against the appellant herein. It is also the case of the appellant that the trial court has failed to appreciate that the so called material witnesses PW-3 and PW-6 are relatives of the deceased and being interested witnesses their testimonies cannot be believed. It is also submitted that the prosecution has failed to join any independent witness in the recovery proceedings, although it was a thickly populated area and public persons were present. It is also submitted that the testimony of the witnesses do not inspire confidence. The weapon of offence has not been proved; moreover, the appellant was not visible at the place where the alleged crime took place, as it was Winter season and was dark at night. The case against the appellant has been fabricated and he has been wrongly implicated.
4. It has also been submitted that there were five other persons in the house whose evidence was not recorded; the recovery made at the instance of the appellant is not trustworthy and reliable. Counsel for the appellant also submits that although the co-accused had named the appellant herein, but the prosecution has failed to establish that he is the correct Parween, as it is submitted that some other Parween may have committed the crime with the co-accused.
5. Learned APP for the State submits that the prosecution has been able to establish it case beyond any shadow of doubt; and the appellant was named by the co-accused; he was correctly identified by the two witnesses. It is not the case of the appellant that there was any enmity between him and the witnesses, neither any suggestion to this effect was put during the cross examination.
6. As far as the submissions made by counsel for the appellant that the identity of the appellant has not been established, learned APP for the State submits that this submission is without any force, as no such suggestion was put during cross-examination and it is merely an afterthought.
7. Learned APP for the State also submits that the appellant had refused the TIP; the ear rings were recovered based on the disclosure statement made by him and based on the ocular evidence of the two witnesses. Hence, the appellant has been rightly convicted.
8. Before the rival submissions of counsel for the parties can be considered, we may notice that an alternate argument has been raised by counsel for the appellant that even otherwise at best a case under Section 304 Part-I of IPC would be made out against the appellant, as the present appellant did not inflict any injury on the victim, and the role attributed to him is that he closed the mouth of the victim; and no conspiracy has been proved.
9. As per the evidence of PW-3 (the husband of the deceased), he was residing on the first of the house at house No.PII/484, Sultanpuri, Delhi; he was married to the deceased; on the fateful night of 18.10.2006 he along with his parents, sister and cousin brother, Vijay were watching T.V. while his wife had gone on the roof to sleep. Between 12:30 and 12:45 at night he heard noise of his wife, upon which he immediately came out of the room with Vijay and saw two boys present in the roof; one of them had gagged the mouth of his wife and the other was holding the brick in his hand with which he had hit on the head of the victim. PW-3 has also testified that he and his cousin (Vijay) went to save her; one of the assailants ran away from the roof through the stairs; the person, who had hit his wife with the brick was apprehended and beaten up by the neighbours and he disclosed his name as Krishan. This witness identified Krishan in the court. This witness removed his wife to Sanjay Gandhi Memorial Hospital in a TSR; he noticed that his wife’s ear rings were missing; at the hospital his wife was declared brought dead. The person who was apprehended disclosed the name of the other boy as Parween, the appellant hearing. PW-3, identified the appellant in the court as the person, who had gagged the mouth of his wife. He also identified the ear rings of his wife and also the blood stained clothes of his wife, the gadda and the brick used for the commission of offence.
10. During cross examination PW-3 has deposed that there was an electric bulb on the side of the roof and the light was coming from the said bulb; also during cross-examination this witness has detailed that when he was climbing the stairs first of all, the appellant herein (Parween) came down from the stair and pushed him and escaped and behind him accused Krishan was coming down from the stair, who was apprehended by him and his cousin (Vijay).
11. PW-6, Vijay Kumar, the cousin of PW-3 has also testified on the lines of PW-3. He testified that about 12:30 to 12:45 at night he heard cries of Pinki, after which her husband (PW-3) went towards roof; he followed him; they saw two boys present on the roof; one of the boys had gagged the mouth of the victim and the other boy had brick in his hand and he had hit Pinki with it. He identified the boy, who had hit with brick and also identified the appellant herein as the person, who had gagged the mouth of the victim. He also testified that the accused, Krishna was apprehended at the spot; and several persons of the locality were gathered and Krishna was beaten by the public.
12. We may notice that during the cross-examination this witness (PW-6) has testified that it was dark in the night and he had not noticed any electric bulb or any light near the roof or near about the roof. PW-5, Harpal Singh, who was one of the neighbours has testified that he had heard noise in the night intervening 18-19.10.2006; he reached the house of Deepak, (PW-3), where Deepak and his cousin had caught hold a person, whose name was later on revealed as Krishan. This witness has testified that he had made a PCR call from his mobile No.9891162402. This witness had made some improvements in his examination-in-chief with respect to his role, while apprehending Krishan; and during cross-examination he testified that he had heard noise of Chor Chor. He denied the suggestion that there was darkness at the spot of the incident. PW-7 (Dr.Brijesh Singh), who was posted at Sanjay Gandhi Memorial has testified that on 19.10.2006 at about 1:35 a.m. patient was brought to the hospital by her husband with alleged history of physical assault (hit by blunt object). He found lacerated bone over left temporoparietal region extending upto occipital region (size 14 cm x 1 cm) and thereafter he referred the patient to surgical department for opinion. This witness has proved the MLC Ex. PW-7/A. PW-7 could not specify the exact weapon with which the injury was caused, however testified that it was a blunt weapon.
13. PW-2, Dr. V.K. Jha (MO Sanjay Gandhi Memorial Hospital) conducted the post mortem on the dead body and he testified that on external examination he found (i) a sutured wound over left temporoparietal region of deceased which was 17 cm in length and (ii) bruised left eye. This witness has also testified that on internal examination, he noticed that (i) Head – Scalp tissues had sub scalp haemotoma on left front temporoparietal region and (ii) there was a fracture of left temporal occipital bone with subdural hemorrhage and subarachnoid hemorrhage over left front temporoparietal region. This witness has also testified that he opined that the cause of death of deceased was coma as a result of head injury inflicted by other party and that the said head injury was sufficient to cause death in ordinary course of nature and that all injuries were ante mortem in nature.
14. PW-10 ASI Ranbir Singh deposed that on 19.10.2006 on receipt of DD No.7B regarding apprehension of theft, he along with PW-12 (Ct. Biri Singh) reached the spot and came to know that no incident of apprehension of theft had happened.
15. PW-26 (Inspector Ranvir Singh) has inter alia testified that on 26.10.2006 the accused Krishan was taken out from the lock-up of the Police Station; he led the police party comprising of PW-26, PW-14 (Constable Satbir), PW-22 (Constable Pawan Kumar) to Mangol puri in search of Parween (appellant herein); they got him arrested vide arrest memo Ex.PW-14/B; his person search was conducted vide personal search memo Ex.14/C; body inspection vide Ex.PW-26/E. This witness has also testified that during the course of interrogation the appellant made a disclosure statement Ex.PW-14/A; the appellant was kept in muffled face; he led the police party to his house and got recovered two ear rings which were kept under mattress; the ear rings were taken into possession vide seizure memo Ex.-14/D. This witness has also testified that the appellant had refused to participate in TIP proceedings.
16. DW-1, Smt.Rekha one of the neighbours of the appellant has testified that on 19.10.2006 at about 5:00 a.m. four police officials came in civil dress and enquired from her about the house of Parween; the police officials went to the house of the present appellant (Parween), wherein he was found sleeping; the police officials arrested the appellant (Parween)..
17. DW-2, Anand, another neighbour has also testified that on 19.10.2006 at about 5:00 a.m. he had heard some noise; he found four police officials and DW-1 present; those officials taken away, the Parween; however during the cross-examination, this witness has testified that he was not a summoned witness and DW-1, Rekha had told him about the fact that the Parween had been taken away by the police officials.
18. We find that the evidence of PW-3 and PW-6 to be trustworthy, reliable and consistent in terms of the date and time of the incident. It is proved that the family was watching television and the victim had gone to sleep on the roof; it is consistent that both the witnesses had seen two boys and the witnesses have identified the present appellant, as the person, who had gagged the mouth and the other boy, Krishan, who had hit the deceased with the brick. Testimony of both these witnesses is consistent with regard to how one (the appellant herein) had slipped out and the other was apprehended and was given beating by the neighbours. The evidence finds corroboration from the testimony of PW-5, who was a neighbor and the one who had informed the police through his own cell phone.
19. Counsel for the appellant has urged that it was unclear as to whether the appellant was the same Parween, who was named by the co-accused. This argument is firstly an afterthought, as no suggestion was put to any of the witnesses, moreover, this argument is without any force, as based on the disclosure statement of the present appellant the ear-rings of the victim, which were robbed, were recovered.
20. There is no force in the submissions made by counsel for the appellant that there are material contradictions with regard to the evidence of PW-3, the husband of the deceased and PW-6, Vijay (cousin of the husband of the deceased). No material contradiction has been pointed out to us either. There is also no force in the submission of counsel for the appellant that the testimony of PW-3 and PW-6 should be discarded, as they are interested witnesses, as it has been repeatedly held that the evidence of interested witnesses can be relied upon, provided they are trustworthy and reliable, but with caution.
21. It would be worthwhile to reproduce herein the observations of this Court in Crl.A.No.470/2003, Harish Vs. The State, reported at 2008 (147) DLT 608; 2008 (2) AD (Delhi) 405 particularly paragraphs 41 and 42, where the law laid down by the Apex Court with regard to admissibility of testimony of partisan/interested witness has been relied upon:
42. Similar view has also been expressed in the case of State of Punjab Vs. Karnail Singh, reported at AIR 2003 Supreme Court 3613:-
8. We may also observe that the ground that the witnesses being close relatives and consequently being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh and others v. The State of Punjab (AIR 1953 SC 364) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:- “We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in – Rajasthan', (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.”
9. Again in Masalti and others v. The State of U.P. (AIR 1965 SC 202) this Court observed: (pp. 209-210 para 14): “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses......... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”
10. To the same effect is the decision in State of Punjab v. Jagbir Singh, (AIR 1973 SC 2407) and Lehna v. State of Haryana, (2002 (3) SCC 76). As observed by this Court in State of Rajasthan V. Smt. Kalki and another, (AIR 1981 SC 1390), normal discrepancies in evidence are those who are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those who are not normal, and not expected of a normal person. Courts have to lable the category to which a discrepancy may be categorized. While normal discrepancies do so. These aspects were highlighted in Krishna Mochi and others v. State of Bihar etc. (JT 2002 (4) SC 186).”
22. Another argument which has been raised by counsel for the appellant is that the recovery cannot be relied upon, as no independent witness was involved at the time of recovery. We may notice that PW-26 has specifically testified that during his cross-examination that he had asked pubic witnesses to join investigation at the time of recovery of ear-rings at the instance of the appellant, but none had agreed and in fact whoever were called by him left the place without disclosing their names and addresses.
23. In the case of Kalpnath Rai Vs. State reported at AIR 1998 (SC) 201, wherein it was observed: “There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during the raid would cast an added duty on the court to adopt greater care while scrutinizing the evidence of the police officers. If the evidence of the police officer is found acceptable, it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined.”
24. To say that the appellant was identified for the first time in the court and thus it cannot be said that he was duly identified as the person, who was present at the spot is also not acceptable, as the appellant himself had refused to participate in the TIP proceedings and thus the identification of the appellant for the first time in the court can be relied upon. [See Munna Vs. State reported at AIR 2003 SC 2805]
25. Section 304 of the Indian Penal Code, reads as under:
26. In Rajendra Singh Vs. State of Bihar, reported at AIR 2000 SC 1779 it has been held that: “In order to bring the case within Exception 4 to Section 300 of Indian Penal Code all the following conditions have to be fulfilled, namely, (1) The act must be committed without premeditation in a sudden fight in the heat of passion; (2) when there was a sudden quarrel; (3) without the offender taking undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual conduct or exchanging of blows on each other. When the deceased was armed and did not cause any injury to the accused even following a sudden quarrel and the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted” – In Kikar Singh Vs. State of Rajasthan AIR 1993 SC 2426, it was held that: “If the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that giving the blows with the knowledge that they were likely to cause death, he had taken undue advantage.
14. Considering the background facts in the light of the principle set out above, the inevitable conclusion is that Exception 4 to Section 300 IPC is applicable and the offence is relatable to Section 304 Part I and not Section 302 IPC. That being, so the conviction is altered. Custodial sentence of 10 years would meet the ends of justice.
15. The appeal is allowed to the aforesaid extent.”
27. In the case of Litta Singh & Anr. Vs. State of Rajasthan reported at 2013 Crl.L.J. 3321, a case where the injuries had been caused with use of lathi and sickle. It was held that the accused was liable to be convicted under Section 304 Part-II IPC and not for murder. The court took into account based on the testimony of the witnesses that the accused persons did not intend to cause death and also when the persons reached the place the accused persons ran away. Paragraphs 18 to 21 of the judgments are reproduced below:
Part II IPC as stated above. Although the appellants had no intention to cause death but it can safely be inferred that the appellants knew that such bodily injury was likely to cause death, hence the appellants are guilty of culpable homicide not amounting to murder and are liable to be punished under Section 304 Part II IPC.”
28. In the case of Vineet Kumar Chauhan Vs. State of Uttar Pradesh, reported at (2009) 1 SCC (Crl.) 915, wherein the Supreme Court held that the appellant was guilty of culpable homicide not amounting to murder. The Supreme Court took into account that there was no enmity between the parties nor that the appellant had pre-meditated the crime of murder. The Supreme Court also took into account that the appellant would have had knowledge that use of revolver was likely to cause death. The appellant was held guilty of culpable homicide not amounting to murder under Section 304 Part II IPC and sentenced to five years rigorous imprisonment. Paragraphs 17 and 18 of the judgments read as under:
29. In the case of Naimuddin Vs. State of West Bengal reported at 2009 [4] JCC 3058, the Apex Court in appeal convicted the appellant under Section 304 Part-II and conviction under section 302 IPC was set aside. Relevant portion of the judgment reads as under:
30. In the case of Gudu Ram Vs. State of Himachal Pradesh reported at 2013 Crl.L.J. 481, the accused had hit the deceased on the head by a wooden bat. The conviction of the appellant under Section 302 IPC was set aside by the Apex Court and the appellant was convicted for the offence under second part of Section 304 IPC. Relevant paragraphs of the judgment are reproduced below:
31. Applying the law laid down by the Apex Court to the facts of this case and having regard to the evidence of the witnesses, it is firmly established that the prime objective of the appellant was to committee theft and in the process ear rings of the deceased were removed and only when victim made a noise the appellant gagged her mouth and the co-accused hit a brick on her head thus it cannot be said that the act committed is with premeditation. It is also not the case of the prosecution that the accused had carried brick to hit the deceased on her head. Thus, it can be said that when the deceased made a noise the present appellant gagged her mouth to silence her.
32. In the light of the above circumstances, we are of the view that the submissions of counsel for the appellant are without any merit, however, we are inclined to accept the alternate argument of counsel for the appellant and hold that the present appellant is liable to be convicted under Section 304 Part-I IPC and not under section 302 IPC, having regard to the above factors. The order of sentence is modified to the period already undergone, which is about 8 years and two months. Accordingly, the appeal is partly allowed.
G. S. SISTANI, J