KAMAL & ANR vs STATE & ANR

The above captioned two appeals arise out of common impugned judgment of 28th November, 2016, vide which both the appellants have been

held guilty of the offence under Section 302/34 of IPC and vide impugned order of 30th November, 2016, they have been sentenced to

imprisonment for life and fine with default clause.

Since these two appeals arise out of common impugned judgment and order, therefore, with the consent of counsel representing both the sides,

these appeals have been heard together and are being disposed of by this common judgment.

The substratum of the prosecution case, as noticed in the impugned judgment, is as under:-

Case of the prosecution is that on 10.12.2013 at about 8:00 pm. Surender Nagar (the complainant) came to Shani Bazar, Near Government

School in his vehicle to collect the fare of his vehicle and once he reached Kirari Road, he saw his nephew Satish who was sitting on his

motorcycle no.DL4SBT-2806 and was talking to Kamlesh w/o Kamal. The moment he parked his vehicle in front of meat shop and came out, he

noticed that Kamal (the accused no.2/husband of Kamlesh) and one more boy attacked upon Satish. Accused no.2 was carrying a knife in his

hand and gave the knife blows on the stomach and thigh of Satish. The boy who accompanied the accused no.1 put his hand on the chick of Satish

and inflicted blow with some sharp object. To save himself, Satish ran towards the market and fell down unconsciously. The complainant raised

alarm. In the meantime, two police officials, who were patrolling in the area came on foot at the spot. The complainant along with the said police

officials apprehended the accused no.2 and his associate. The complainant pulled the knife from the hand of the accused no.2. On inquiry, name of

second boy came to know as Rahul (the accused no.1). Ct. Nausahd Ali removed Satish in the hospital in an auto rickshaw (TSR) where he was

declared dead

During trial, prosecution has relied upon evidence of complainant - Surender Nagar (PW25), who happens to have witnessed this incident, the

medical evidence and the other evidence on record. Injured Satish was medically examined by Dr. Ankur Jain and MLC prepared by him is

proved by Dr. Gupta (PW17). Dr. Manoj Dhingra (PW18) had conducted post mortem on the body of deceased and post mortem report

prepared by him has been proved by Dr. Vivek Rawat (PW22).

Prosecution has relied upon evidence of Nodal Officers- PW14 and PW15 and ''Call Detail Record'' of mobile phones of deceased and that of

Kamlesh, wife of appellant-Kamal. Madhu (PW20), sister of deceased, in her evidence has asserted that mobile phone No. 9716375206

belonged to her but it was being used by the deceased. It has come in the evidence of Nodal Officer Chander Shekhar (PW15) that mobile No.

9818251808 was in the name of Mrs. Raj (PW21), mother-in-law of appellant- Kamal. Prosecution has relied upon ''Call Detail Record'' (EX

PW14/C) to show that on 9th and 10th December, 2013, various calls were made from mobile No.9716375206 (which was with the deceased)

on mobile No.9818251808, which was issued in the name of Mrs. Raj (PW21), mother-in-law of appellant-Kamal, who has deposed that she

had given this mobile number to her daughter Kamlesh (PW26) for her personal use. The forensic evidence on record reveals that the recovered

knife (Ex-1) was blood stained.

Though it is the prosecution case that there were illicit relations between Kamlesh -wife of appellant- Kamal and the deceased but Kamlesh

(PW26), has not supported the prosecution case. However, trial court has relied upon deposition of eye witness-Surender Nagar (PW25),

medical evidence and the other evidence on record to hold that both the appellants are guilty of commission of offences in question.

Both the appellants in their statements under Section 313 of Cr.P.C. have denied the prosecution case but have not chosen to lead any evidence

in their defence.

The challenge to the impugned judgment and the order on sentence by learned counsel for appellants is on the ground that the fatal injury

suffered by deceased- Satish was on his thigh and as per ocular version, this injury has not been attributed to any of appellants/ accused persons. It

is pointed out that the injury on the thigh of deceased alone was found to be fatal.

Learned counsel for appellant- Kamal submits that apart from evidence of Surender Nagar (PW25), this incident was witnessed by one Suresh

and he has not been got examined by prosecution and Kamlesh (PW26) has turned hostile to the prosecution case. It is submitted that the solitary

evidence of Surender Nagar (PW25) cannot be relied upon for the reason that his conduct is unnatural. It is next submitted that although this

witness-Surender Nagar (PW25) had overpowered the appellants, but he had not sustained any injury and he had not accompanied his nephew

Satish to the hospital and had remained at the spot. It is further submitted by counsel for appellant-Kamal that though it is the prosecution case that

appellant-accused was arrested from the spot but as per their Arrest Memo, they were arrested at 03:00 a.m. on 11th December, 2013 and not

on the day of incident i.e. on 10th December, 2013.

On behalf of appellant- Deepak @ Rahul, learned counsel for appellant submits that even if the prosecution case is taken as it is, still no motive

can be attributed to appellant - Deepak @ Rahul and that this appellant had not facilitated the offence of murder and only simple injuries have been

attributed to him and that the blood on the blade did not match with the blood of the deceased and so, Deepak @ Rahul?s conviction ought to be

altered from Section 302/34 of IPC to Section 323/34 of IPC. It is submitted that appellant- Deepak @ Rahul has already undergone sentence of

four years, out of the sentence awarded to him and so, the sentence awarded to him deserves to be reduced to the period already undergone by

him.

Upon hearing and on perusal of evidence on record, we find that the sole testimony of eye witness-Surender Nagar (PW25) cannot be

discarded merely because he has not sustained any injury while overpowering the appellants or that he had not accompanied his nephew to the

hospital and because on these aspects, this witness has not been cross-examined. Had there been cross-examination of this witness on these

aspects, perhaps a plausible answer could have been given by this witness (PW25). We have meticulously analyzed the evidence of eye witness-

Surender Nagar (PW25) and we find that his presence on the spot cannot be doubted and that his conduct is quite natural. Merely because

corroborative evidence of Suresh, who was also present at the time of this incident, is not forthcoming, would not be a ground to discard the

otherwise reliable evidence of Surender Nagar (PW25). In a case of eye witness account, the evidence of motive pales into insignificance and so,

hostility of Kamlesh (PW 26) to the prosecution case does not in any way demolish the otherwise reliable prosecution version. The ocular version

reveals that this incident was witnessed by eye witness-Surender Nagar (PW25) from a little distance and so, this witness is not required to

graphically disclose as to how many blows exactly were inflicted by appellant- Kamal on the person of deceased. The medical evidence reveals

that five injuries were sustained by the deceased which are as under:-

Stab wound over right thigh medical aspect. 3cm X 2 cm.

Stab wound over abdomen above umbilicus right side. 2cm X 1.5 cm.

Stab wound over abdomen above umbilicus left side. 3cm X 2 cm.

Incised wound over right side of face. 5 cm X 0.5 cm.

Incised wound over left side of face. 6 cm X 0.2 cm and 3cm X 0.2 cm.

The injury on the thigh of deceased has been opined to be fatal and the ocular version reveals that this injury was also inflicted by appellant-

Kamal while giving multiple blows to the deceased. So far as appellant- Deepak @ Rahul is concerned, the evidence on record is clear that only

two injuries on the cheeks of deceased are attributed to him. Although there is nothing on record to show that these two injuries on the cheeks of

deceased were of simple nature but even if it is taken that the two injuries attributed to appellant - Deepak @ Rahul were of grievous nature, still

these two injuries on the cheek of deceased have not proved to be fatal.

The discrepancy pointed out in the prosecution case regarding the time of arrest of accused does not in any way cause dent to the prosecution

case for the reason that though appellants were apprehended on the spot but after spot proceedings, they were formally arrested and it is for this

reason that arrest of appellant is shown to be at 03:00 a.m. on the night intervening 10th and 11th December, 2013.

Upon indepth appreciation of evidence on record, we are of the considered opinion that the deposition of eye witness-Surender Nagar

(PW25) remains unshaken and infact it firmly establishes the prosecution case. The sequence of events reveals that the prosecution version is

consistent and reliable and there is no basis to hold that appellant- Kamal had no intention to cause death of the deceased. Infact, appellant-

Kamal had inflicted multiple grievous injuries to the deceased and the grievous injury on the thigh of the deceased proved to be fatal. It cannot be

inferred that the incident in question took place on the spur of moment. The complicity of appellant -Kamal in intentionally causing death of Satish

is established, which justifies the sentence awarded to him.

So far as appellant - Deepak @ Rahul is concerned, we find that he had no intention or knowledge that by inflicting two blows on the cheek of

deceased, it would result in causing death of Satish. It is also not the prosecution case that Satish had died due to two blows on cheek of deceased

attributed to appellant- Deepak @ Rahul or that appellant Deepak @ Rahul had shared intention of main accused to cause death of Satish. Thus, it

cannot be said that appellant- Deepak @ Rahul had any intention/knowledge to cause death of Satish. The offence committed by appellant-

Deepak @ Rahul comes within the ambit of Section 325 of IPC, which is punishable with imprisonment upto seven years and fine.

Consequentially, while upholding the conviction and sentence awarded to appellant -Kamal, the conviction of appellant- Deepak @ Rahul is

altered from Section 302 of IPC to Section 325 of IPC and he is accordingly sentenced to rigorous imprisonment for five years with fine of

Rs.15,000/- and in default thereof, to undergo simple imprisonment of three months.

The above captioned two appeals are disposed of in the aforesaid terms.