Panchi @Panchpal v. The State (NCT of Delhi)

8) Surgically stapled wound with two pins in situ was present over left side of abdomen, 14 cm from midline of abdomen and 12.[5] cm from anterior superior iliac spine, on opening the wound it was.2.[2] cm x 1 cm x cavity deep and was obliquely placed with a sharp end was on the medial and lower side. The wound runs upwards medially and backwards.

9) Surgically stapled wound with four pins in situ was present over right side of abdomen, 12 cm above right anterior superior iUac spine and 16 cm right from the midline. On opening the wound it was 4 cm x 1 cm x cavity deep with both ends blunt and obliquely placed running medially, backwards and downwards.

10) Lacerated wound 1 cm x 1 cm x skin deep present over right thumb on its proximal end.

11) Surgically sumred wound with two sutures in situ was present over left side of back in para spinal area of lower back 5 cm above gluteal cleft and[2] cm lateral from midpoint of vertebra. On opening the wound it was 2.1cm X 0.[5] cm x cavity deep placed obliquely with both ends blunt and running medially forwards and upwards.

12) Multiple abrasions in an area of 7 cm x 3 cm present over anterior part of chest wall in midline measuring 2 cm x 1 cm to 1 cm x 0.[9] cm, reddish brown in colour.

13) Laparotomy wound, 22 cm long and 7 cm above pubic symphysis with exposed abdominal contents. Internal Injuries:

1) Defect in ribs and chest wall was present corresponding to external injuries no. 3, 4 and 5.

2) Surgically sutured rents in diaphragm on left and right side was present.

3) Lower end of oesophagus showed collection of blood with a laceration.

4) Plural cavity contained about 500 ml of blood tinged fluid.

5) Laceration of right middle lobe of lung and collection of blood of about fist size was present at hilum of lung.

6) Surgically managed arotic repair was present with extravasation of blood.

7) Peritoneal cavity contained about one litre of blood tinged fluid.

8) Stomach was empty. Anterior and posterior wall of stomach showed surgically sutured wound.

9) Small intestine showed multiple laceration.

10) Extravasation of blood in left perinephric area. As per his opinion, death was due to haemorrhagic shock consequent upon multiple injuries to the chest and abdomen by a sharp weapon. All injuries were ante mortem in nature and could be produced by an assault by a knife. PW-1 gave a subsequent opinion upon being shown the alleged weapon of offence and opined that the injuries mentioned in the post mortem report as injuries no. 3-8 could be possible by the blade of the alleged knife; injuries no. 1, 2 and 10 could be possible either by the handle of the knife or any other blunt weapon; injuries nos. 9 and 12 could be possible by some other weapon but possibility of knife could not be ruled out and injury no.14 was a surgical wound. He confirmed that his opinion Ex. PW-1/C was given in relation to the knife of which the sketch was exhibited as Ex. PW-1/B.

(iv) PW-4, Mukesh Kumar deposed that he was sleeping in his house at Sangam Vihar and he heard a noise of quarrel and a boy calling out for help in front of his house. When he opened the main gate, he saw one boy lying in a pool of blood and he made a call to the police from his mobile phone. PW-6, Smt. Soni @Shabana deposed that five years ago she married Shahnawaz, resident of Bhagalpur, Bihar and they have two children from the wedlock. She stated that the deceased used to drive an auto at Sangam Vihar, New Delhi and that Sunny and Ashwani were friends of her husband and used to visit their house often. When she had made the call on that night at about 12 midnight to the deceased, he replied that he would reach after about 5 minutes and had asked her to re-heat the food and told her that he was still at Sangam Vihar and would inform her whenever he leaves for returning home. Thereafter, she had received a call from Sunny from the mobile phone of her husband, informing that her husband had been stabbed and asked her to reach AIIMS Hospital. PW-7, Shamshad Ansari deposed that Shahnawaz was his son and upon reaching AIIMS he had identified the dead body.

(v) PW-9, Dr. Shashi Kant Singh, who had conducted the medical examination of Shahnawaz, exhibited the MLC as Ex. PW-9/B. The MLC stated that Shahnawaz had been received on 30th October, 2013 night at about 02:43 a.m. as a case of assault on multiple sides by knife at Sangam Vihar and had been brought in by the ambulance. The MLC also notes about six stab wounds. PW-27, SI Kishan Gopal, who had reached the spot with PW-25, Constable Bajrang, said that he recorded Sunny‟s statement at AIIMS Hospital and later on that basis, the FIR was registered. When he came back to the place of the incident at about 5:15 a.m., the crime team was present, conducting their investigation. His testimony was corroborated by PW-25, PW-29, PW-12 and other members of the police and crime team.

(vi) PW-30, Ms. Sunita Gupta, the Scientific Officer of Forensic

Science Laboratory (FSL), upon examination of the article seized opined that blood was detected on the dirty baniyan by which PW-3 had tried to secure the wound of the deceased and had been detected with blood group „B‟ which was the same as that of the deceased.

(vii) PW-29, Inspector Shahid Khan had taken over the investigation once the charge of Section 302 IPC had been added post the death of Shahnawaz. Regarding arrest of the accused, he stated that on 01st November, 2013 PW-3 came to the police station early morning and informed that the appellant and his associates were present in pahariwala jungle, Ramleela Ground, K Block, Sangam Vihar, Delhi. PW-29 along with the police team accompanied PW-3 to the above place and they apprehended four persons from the jungle whose names were revealed as Sumit @Akki, the appellant, “K” and “S”. The accused led them to the place of the incident and pointing out memo was prepared. During the investigation, accused Sumit @Akki disclosed that after causing stab injuries by the appellant Panchi, the knife was given to him which he had thrown in the bushes in the jungle behind Ramleela Ground, Sangam Vihar. PW-29 took the accused Sumit @Akki on 02nd November, 2013 to the jungle behind Ramleela Ground and the accused got one buttondar knife recovered from the bushes in the jungle. The knife was found lying in an open condition with some brownish stains and it appeared that the knife had been washed.

(viii) As per the application for a subsequent opinion regarding weapon of offence Ex. PW-29/E the knife in question sealed with the seal of SGV-1-SED was sent for analysis. It was opened by PW-1, the doctor from the FSL and he made a sketch of the knife which was exhibited as EX. PW-1/B showing that the blade of the knife was 15.[2] cm long, maximum width was 2.[4] cm with the blade being single edged and pointed tip and the handle of the knife was 17 cm long and it was a button style knife with decorating tips (pearl type) on the handle. Analysis

6. Having examined the evidence on record and after appreciating the contentions of the counsel for parties, this Court is of the considered view that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt for the commission of offence punishable under Section 302 IPC, for inter alia the following reasons:

(i) The death of the deceased was clearly homicidal in nature as per the post mortem report which notes severe external injuries, mostly stab wounds (detail of the injuries are extracted above in para 5(iii)).

(ii) Before we advert to the testimony of PW-3, the eyewitness, it is necessary to appreciate the context in which the testimony of PW[3] becomes acutely critical.

(iii) First, there is no other eyewitness testimony available to the prosecution. Even though the IO had taken the statement of Ashwani, the boy accompanying PW-3 and Shahnawaz that night, who would have been also an eye witness to the incident, he was reportedly “untraceable” at the time of trial. PW-8, Harish Gupta who was living in the vicinity and could have been a witness was declared hostile by the prosecution.

(iv) Second, the recovery of the alleged weapon, the knife was not through the appellant Panchi but at the instance of Sumit @Akki who stated that after causing stab injury by Panchi, the knife was given to him i.e. Sumit @Akki, which he then threw in the bushes in the jungle behind Ramleela Ground, Sangam Vihar. This disclosure statement has to be dissected into two parts: (1) the mental fact stated by Sumit @Akki that the knife was given to him by Panchi; and (2) the actual recovery of the knife from the place of recovery. While the former would not be admissible as a fact under Section 27 of the Indian Evidence Act, the latter would be. The latter relates to the fact of the knife being discovered while the former does not relate distinctly to the fact of the knife being recovered.

(v) This fine distinction has been extensively articulated and assessed in various judgments of the Hon‟ble Supreme Court, the most notable of them being State (NCT of Delhi) v. Navjot Sandhu @Afsan Guru (2005) 11 SCC 600. The following passages from the said judgment would be instructive in this regard:

122. The approach of the Privy Council in the light of the above exposition of law can best be understood by referring to the statement made by one of the accused to the police officer. It reads thus: (AIR p. 71, para 13) “… About 14 days ago, I, Kottaya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Beddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kottaya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kottaya.” The Privy Council held that: (AIR p. 71, para 14)

There is another important observation at para 11 which needs to be noticed. The Privy Council explained the probative force of the information made admissible under Section 27 in the following words: (AIR p. 71) “Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.”

125. We are of the view that Kottaya case [AIR 1947 PC 67: 48 Cri LJ 533: 74 IA 65] is an authority for the proposition that “discovery of fact” cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.” (emphasis added)

(vi) Therefore, only that part of the disclosure by Sumit @Akki that there was a knife to be recovered from a particular place would be admissible, but not the information that it was given to him by appellant Panchi after the incident to hide. It would, therefore, lead us to the conclusion that there is no incriminating weapon which has been recovered or can be connected to the appellant in this matter.

(vii) Third, PW-3‟s testimony as regards the identification of the knife also needs to be carefully noted. He did state in his statement recorded under Section 164 Cr.P.C. that the knife in the hands of Panchi was a meat cutting butcher‟s knife. In his deposition before the Court when shown the knife which was unsealed and presented to him marked as Mark MO-1, he categorically stated that the knife being shown to him was not the same knife by which injury was caused to injured Shahnawaz. He further specifically added “the knife which was used by the accused was having more long and wide blade than the present one and the end point of that knife was rounded not pointed like the present one. The handle of the knife used in the commission of the offence was shorter in length than the knife mark MO-1. The knife which was used by the accused in the commission of the offence was like the butcher‟s knife which is usually used for cutting meat/chicken”. Earlier in his statement, he had also mentioned that the knife was about 10-11 inch long.

(viii) The issue regarding identification of the knife recovered through the disclosure of Sumit @Akki is further confounded by the testimony of PW-1, the doctor who conducted the post mortem and gave a subsequent opinion on the knife recovered. A perusal of the subsequent opinion on the knife recovered (Ex. PW-1/C) would show that PW-1 was presented with a knife sealed under seal “SGV-1-SED” and had drawn the sketch of the knife, later exhibited as Ex. PW-1/B. This sketch shows that while the handle of the knife was 17 cms, the blade was about 15.[2] cms, it was about 2.[4] cms wide and had a pointed top. When shown, pursuant to unsealing, the sealed knife Mark MO-1 PW-1 stated that “I am not confirmed whether the knife MO-1 is the same knife which was submitted to me by Inspector Shahid Khan for my opinion and on the basis of which I have given my opinion”. Further, he stated that the knife handed over to him by the IO had a different seal whereas, the knife produced in the Court before him had a seal of the Juvenile Justice Board and therefore he was not sure about the identity of the knife but then he said that the knife MO-1 was matching with the sketch Ex. PW- 1/B.

(ix) A holistic review of these two testimonies (PW-3 and PW-1) regarding the knife creates a substantial doubt that the knife recovered was indeed the weapon of offence. However, the knife was recovered at the instance of Sumit @Akki and not appellant Panchi and therefore nothing was available to connect the appellant with the weapon recovered.

(x) This leaves the prosecution to merely rely upon the sole testimony of the eyewitness PW[3], which therefore ought to be of sterling quality, consistent and cogent.

(xi) This Court finds that aside from minor discrepancies, the testimony of PW[3] was credible and unassailable. A careful dissection of his testimony who was presented as a prosecution witness, would show that while there are some inconsistencies in his statements regarding the appellant, however, there are not material enough to discredit his testimony as an eye witness to the incident that night. In this regard the following is noted: (a) In the rukka (Ex. PW-3/A) which was recorded on 30th October, 2013 itself, just after the incident, his statement is recorded that pursuant to the scuffle of the boys with Shahnawaz, the boys who were causing ruckus called out to one “Panchi”. Thereupon, three boys came running from there led by Panchi in the front who had a knife in his hand. He further stated that he knew Panchi from earlier (Panchi ko main pehle se hi janta hun). (b) In his statement recorded under Section 164 Cr.P.C., PW-3 states that after the three or four boys were called by the boys involved in the scuffle, then Panchi came with a “meat kaatne wala chaaku”. Further, he also named another boy as “Akki” who had earlier exhorted Shahnawaz to gamble and later was one of two or three boys who had caught Shahnawaz.

(c) In his deposition before the Trial Court, PW-3 stated that pursuant to the scuffle with an unknown boy, the other boys were called and one of them was called by his name “Panchi”. As regards appellant Panchi, he identified him in Court and stated he had stabbed the deceased. He did state in his cross-examination that he had not met Panchi prior to the incident, nor had ever gambled with him, nor had heard even the voice of Panchi earlier.

(d) It is also noteworthy that it was on PW3‟s instance that the appellant was arrested. The information regarding the presence of Panchi in the Ramleela Maidan led to his arrest was given by PW-3 himself. When he said he did not know Panchi (in his deposition before the court) and if he indeed did (as per the statement in the rukka), it can at best be assumed that he became hostile to that extent at that stage. However, he did identify Panchi as the assailant, in the court. The circumstances regarding the arrest are fully corroborated by the testimony of the police team viz. PW28 SI Vikram, PW17 HC Satya Prakash, PW20 HC Hari Ram, PW21 Ct. Gaurav, PW23 Ct. Rakesh, PW29 Inspector Shahid Khan IO.

(xii) Since the current appeal is focussed on the appellant Panchi,

Sumit @Akki not being an appellant before this Court, PW3‟s testimony regarding appellant Panchi is consistent and cogent and he has not only named the appellant as the assailant in the rukka, but also got him arrested at his instance, and then identified him in court as the assailant.

(xiii) There is nothing in the statement recorded under Section 313

Cr.P.C. to put forward a plea of alibi regarding their presence on the place which would serve to dent the case of the prosecution.

(xiv) As regards the contention of the appellant that the absence of the evidence by the other eyewitness Ashwani, the case of the prosecution could not be sustained, does not appeal to this Court in light of the clear testimony of other eyewitness PW-3. Defective or incomplete investigation cannot serve to acquit the appellant in view of the rest of the evidence, scrutinized independently serves to confirm the conviction. The Hon‟ble Supreme Court in the decision reported as State of M.P. v. Chhaakki Lal (2019) 12 SCC 326 in Paras 34 and 35 held as under:

(xvi) The Division Bench of this Hon‟ble Court in Anurag v. State

2009 SCC OnLine Del 534 has stated in Para 37, as under:

(xvii) Contention of the appellants that this fight was on the spur of the movement and there was no intention to cause death cannot be accepted by this Court looking at the nature of the wounds inflicted by multiple stab injuries on vital parts of the body and the fact that there was no grappling or struggle between the deceased and the appellant. The testimony of PW-3 was clear that the gang of boys rushed towards the deceased who was reluctant to participate in the gambling and the appellant inflicted knife injuries on him. The appellant being in possession and wielding the knife and causing such grave injuries which were ultimately fatal is clearly guilty, as proved beyond reasonable doubt for the offence punishable under Section 302 IPC. This is not a case of causing simple hurt or blunt blow or an injury unintended to cause death. The nature of the injuries itself is evident of the intent to cause death or even intent can be to cause bodily injuries, which is sufficient in the ordinary course of nature to cause death or even knowing that in all probability it will cause death and commits the act without any excuse, while incurring the risk of causing death. Therefore, in fact, the act of the accused would be within the definitional rubric of Section 300 IPC, sufficient to sustain his conviction under Section 302 IPC. Conclusion:

7. In light of the above discussion and analysis, this Court finds that the guilt of the appellant for the murder of the deceased has been proved beyond reasonable doubt and duly supported by evidence on record. Consequently, this Court finds no error in the impugned judgment of conviction and order on sentence by the learned Trial Court.

8. Appeal is accordingly dismissed.

9. Copy of this judgment be uploaded on website and be also sent to Superintendent, Tihar Jail for intimation to the appellant and updation of records.

(ANISH DAYAL) JUDGE (MUKTA GUPTA)

JUDGE OCTOBER 07, 2022