Parvinder @ Pinky and Another vs State (NCT of Delhi)

Ajit Bharihoke, J.—This appeal arises out of conviction of appellants Naveen @ Sunny and Parvinder @ Pinky under Sections 302 IPC and 307 IPC both read with Section 34 IPC vide the impugned judgment dated 21.03.1997. The appellants have been sentenced for the offence u/s 302/34 IPC to undergo imprisonment for life and to pay fine of Rs. 2000/- each and in default of payment of fine to undergo RI for further period of one year and for the offence u/s 307/34 IPC, the appellants have been sentenced to undergo RI for seven years and to pay fine of Rs. 1000/- each and in default of payment of fine to undergo RI for further period of six months.

FIR in the instant case was registered at P.S. Chanakya Puri on the basis of statement Ex.PW7/A of the injured witness Dharambir (PW7). Briefly put, case of the prosecution as revealed in the FIR and from the statement of witnesses examined during trial is that on the night of 05.12.1993 at about 10:45 pm, Kadam Singh (PW12) came home and informed PW7 Dharambir that he was beaten by the appellant Naveen @ Sunny and his friends. On this, PW7 Dharambir along with Kadam Singh and his brother Ashok (for short "deceased") went to the house of the appellant bearing No. 10/30, Rashtrapati Bhawan, New Delhi. Sunny and his family members met them outside their house. They confronted the appellant Sunny and sought explanation as to why he had beaten Kadam Singh (PW12). This resulted in heated exchange of words and suddenly appellant Naveen @ Sunny fetched a hockey from his house. Complainant Dharambir caught hold of Sunny. In the meanwhile, appellant Parvinder took out a knife and inflicted a knife blow on the neck of the deceased Ashok, while saying "Dekho Hamari Badmashi Kaise Hoti Hai". After stabbing the deceased, appellant Parvinder then inflicted two knife blows on the abdomen of the complainant Dharambir and a knife blow on his waist. Consequently, the grip of complainant Dharambir loosened and the appellant Sunny hit the complainant with the hockey on his leg. Appellant Parvinder then stabbed Kadam Singh (PW12) with the knife on his leg and shoulder. The incident was witnessed by several persons including PW4 Shiv Kumar.

On the same night at 11:30 pm, Head Constable Virender Singh of PCR conveyed an information to the Police Post South Avenue about some fight going on near Gate No. 35, Block 10, President�s Estate. The information was recorded as DD No. 25 (Ex.PW16/A) at the Police Post and was also conveyed to P.S. Chanakya Puri with a request to send some officer there. Said information was recorded as DD No. 15A (Ex.PW3/A) at P.S. Chanakya Puri and copy of the DD report was entrusted to SI B.K. Singh (PW22) for necessary action. SI B.K. Singh (PW22) reached at the place of occurrence and found that injured persons had already been removed to RML Hospital. He then proceeded to RML Hospital, leaving Constable Rajpal at the spot to protect the scene of crime. By that time, SI R.K. Ranga (PW23) had also reached the Hospital. The MLCs of the three injured persons, namely, the deceased Ashok, Kadam Singh (PW12) and Dharambir (PW7) were collected. The deceased was declared unfit for making statement, whereas the other two injured persons were fit for statement. SI R.K. Ranga (PW23) recorded statement of injured Dharambir Ex.PW7/A and sent it to the Police Station with his endorsement Ex.PW23/A for the registration of the case.

From the Hospital, the Investigating Officer returned to the spot of occurrence along with Shiv Kumar (PW4), brother of the deceased. He prepared the rough site plan Ex.PW23/B of the spot of occurrence and also got the spot photographed. The Investigating Officer also seized the blood-stained earth as well as control earth from the spot of occurrence. He also seized a blood-stained "Citizen" wrist watch Ex.P2 and bloodstained hawai chappal Ex.P1, which were found lying there. Thereafter, SI R.K. Ranga (PW23) proceeded in search of the accused persons and he arrested the appellants on the same night on the pointing of PW4 Shiv Kumar. The Investigating Officer also took into possession the bloodstained clothes of the appellant Parvinder, which he was wearing at the time of his arrest.

The appellants were interrogated and they made respective disclosure statements Exhibits PW4/C and PW4/D. Appellant Parvinder, pursuant to his disclosure statement, got recovered the weapon of offence i.e. kirpan Ex.P3. The sketch of kirpan was prepared, it was converted into a sealed packet and taken into possession vide memo Ex.PW4/H. Appellant Naveen @ Sunny, pursuant to his disclosure statement, got recovered a broken hockey stick Ex.P4 which was seized vide memo Ex.PW2/A. The blood-stained exhibits seized from the spot of occurrence, the kirpan Ex.P3 recovered at the instance of appellant Parvinder and the blood-stained clothes of Parvinder as also the bloodstained clothes of the deceased and his blood sample were sent to CFSL for chemical analysis and as per the report of chemical analysis Ex.PW18/E, human blood was detected on the dagger Ex.P3 but the blood group could not be ascertained.

On completion of the investigation, the appellants were sent for trial. The learned Additional Sessions Judge charged the appellants for the offences punishable u/s 302 IPC read with Section 34 IPC and Section 307 IPC read with Section 34 IPC. Both the appellants pleaded innocence and claimed to be tried.

In order to bring home the guilt of the appellants, prosecution has examined 23 witnesses including the purported eye witnesses PW4 Shiv Kumar, PW6 Taj Mohd, PW7 Dharambir and PW12 Kadam Singh.

The appellants, when examined u/s 313 Cr.P.C., denied the prosecution story and claimed that they have been falsely implicated by the police. They denied the recovery of kirpan Ex.P3 or the hockey at their instance.

The learned Trial Judge, on consideration of the evidence, found the prosecution story reliable. Thus, he found the appellants guilty on both the counts and convicted them u/s 302 IPC and Section 307 IPC read with Section 34 IPC.

Learned Shri Munish Tyagi, advocate on behalf of the appellants submitted that the impugned judgment of the learned Additional Sessions Judge is based upon the wrong appreciation of facts as well as law.

As regards the finding of the learned Additional Sessions Judge on facts, learned Counsel submitted that the appellants have been falsely implicated by the police at the instance of the complainant. He contended that the prosecution case is based upon the so-called eye witness account of the occurrence given by PW4 Shiv Kumar, PW7 Dharambir and PW12 Kadam Singh who are interested witnesses, being the brothers of the deceased. Learned Counsel submitted that the above witnesses are not reliable and worthy of credence also because prosecution has failed to examine even a single eye witness in support of its case despite of the fact that as per the version of PW4, PW7 and PW12 several public persons had collected at the place of incident, which circumstance, learned Counsel submitted, casts a strong doubt against prosecution case and raise a strong possibility of false implication.

This argument is hardly convincing. The law relating to evidentiary value of the testimony of an interested witness is well settled. In the matter of Dalip Singh and Others Vs. State of Punjab, the Supreme Court while dealing with this aspect, inter alia, observed thus:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

In a subsequent judgment, in the matter of Surinder Singh and Another Vs. State of U.P., the Supreme Court, on the issue of the credibility of a related witness observed thus:

Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible.

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance.

From the above enunciated principle of law, it is obvious that the testimony of a related witness cannot be rejected only for the reason of his relationship with the victim and it has to be appreciated like the testimony of any other witness and if on a cautious scrutiny evidence is found reliable, conviction can be based upon such testimony.

Now it is to be seen if the testimony of PW4 Shiv Kumar, PW7 Dharambir and PW12 Kadam Singh satisfies the test of reliability. It is true that the above said witnesses in their respective cross-examinations have admitted that several persons were present at the time of occurrence. PW4 Shiv Kumar has even gone to the extent of naming some of those public persons i.e. Dharampal, Yasin and Sunil. No doubt, the prosecution wittingly or unwittingly has failed to examine any of those public persons to corroborate the version of the above referred witnesses, but this by itself cannot be taken as a reason to discard the testimony of PW4 Shiv Kumar, PW7 Dharambir and PW12 Kadam Singh without undertaking an exercise of analyzing their evidence carefully. On analysis of their testimony, it transpires that this is not a case in which only the deceased Ashok suffered injury which proved to be fatal. From the MLCs Exhibits PW13/B and PW19/B, it is apparent that PW12 Kadam Singh and PW7 Dharambir had also sustained injuries in the occurrence. On perusal of these MLCs, it transpires that both PW12 Kadam Singh and PW7 Dharambir were admitted in the RML Hospital by Head Constable Brij Mohan on 05.12.93 somewhere around 11:25 pm and they had sustained serious injuries caused by a sharp object. Above medical evidence not only establishes their presence at the time of occurrence, but tends to corroborate their testimony as well. We may note that prosecution has examined two independent witnesses, namely PW5 Naresh Kumar and PW6 Taj Mohd. Naresh Kumar (PW5) in his testimony stated that on 05.12.93 at around 11:00 pm, PW4 Shiv Kumar came to his house and told that appellants Pinky and Sunny had given beating to the deceased, PW7 Dharambir and PW12 Kadam Singh. On this, he went to the spot of occurrence in Block No. 10 and found all three of them lying there in injured condition. Similarly, PW6 Taj Mohd, who is a hostile witness, in initial part of his examination-in-chief, has stated that on 05.12.93 at about 11:00 p.m., Shiv Kumar (PW4) and Kadam Singh (PW12) visited his house and told him that their brother has been stabbed with "churri" and he was to be removed to the hospital and thereafter, he took them to the hospital in a TSR. This part of his version has not been challenged by the accused person in cross-examination. Therefore, it is deemed to have been accepted as correct. The above evidence of PW5 Naresh Kumar and PW6 Taj Mohd is relevant, being the evidence relating to the conduct of the eye-witness PW4 Shiv Kumar immediately after the occurrence and lends support to the testimony of PW4 Shiv Kumar, PW7 Dharambir and PW12 Kadam Singh. Thus, under the circumstances, we find no reason to suspect the correctness of testimony of the above three witnesses. Admittedly, above three witnesses are brothers of the deceased and two of them namely PW7 Dharambir and PW12 Kadam Singh had sustained injuries in the occurrence, therefore, under the natural course of circumstances, they would be the last persons to screen the real culprit and falsely implicate the appellants. Thus, we find no reason to suspect their version.

Learned Counsel for the appellants submitted that credibility of PW4 Shiv Kumar, PW7 Dharambir and PW12 Kadam Singh is also suspect because the prosecution evidence about the identity of the weapon used for inflicting injuries on the person of the deceased, PW7 and PW12 is contradictory. Learned Counsel pointed out that as per the complaint Ex.PW7/A, which is the basis of registration of FIR, the weapon of offence was a knife whereas PW7 Dharambir and PW4 Shiv Kumar, in their testimony, have described the weapon of offence as "kirpan". Learned Counsel further submitted that PW12 Kadam Singh has made contradictory statements regarding the identity of the weapon of offence at different stages in his testimony. At one stage, he has described the weapon of offence as "kirpan" while at a later stage, he has referred to the weapon of offence as a knife. From this, learned Counsel for the appellants has urged us to infer that the testimony of the witnesses is not reliable, otherwise, the contradictions regarding the identity of the weapon of offence would not have occurred.

We are not convinced with the argument. The contradiction pointed out by learned Counsel for the appellants with respect to the descriptions of the weapon of offence given by the witnesses is inconsequential and it can be attributed to the lack of capacity of the witnesses to distinguish between a kirpan and a knife, which are sharp cutting weapons. People do tend to loosely refer to a knife as kirpan or kirpan as a knife. This conclusion of ours is substantiated by the fact that PW12 Kadam Singh in his examination-in-chief referred to the weapon of offence as kirpan but in later part of his testimony, he referred to the weapon of offence as a knife. Thus, we find that the appellants cannot take advantage of this minor contradiction in the testimony. Otherwise also, the presence of PW7 and PW12 at the time of occurrence cannot be doubted as they also had sustained injuries, as is apparent from their MLCs Ex.PW13/B and Ex.PW19/B. Thus, we find no reason to doubt the version of above eye witnesses.

Learned Counsel for the appellants further submitted that the prosecution case is doubtful also for the reason that there is total lack of motive on the part of the appellants to cause injury or harm to the deceased or PWs Dharambir and Kadam Singh. No doubt, motive is an important piece of evidence to arrive at a just conclusion in a criminal trial but it is also well settled that lack of motive loses its value and significance if the case is based upon the ocular testimony of the eye witnesses who are found to be reliable and trustworthy. In our discussion above, we have already come to the conclusion that the testimony of above three witnesses is reliable. Therefore, the appellants cannot take advantage of lack of evidence to establish motive for the crime.

In view of the above discussion, we do not find any merit in the submissions of learned Counsel for the appellants with regard to the factual matrix of the case and we find that the learned Trial Court has rightly relied upon the eye witness account of the occurrence given by the above witnesses to hold the appellants guilty of causing injuries with a sharp object, in furtherance of their common intention, on the person of the deceased Ashok Kumar and the witnesses Dharambir (PW7) and Kadam Singh (PW12).

Learned Counsel on behalf of appellant Naveen @ Sunny submitted that his conviction for the offence of murder of Ashok Kumar and for the offence of attempt to commit murder of Dharambir and Kadam Singh under Sections 302 IPC and 307 IPC with the aid of Section 34 IPC is bad in law because the prosecution has failed to establish that he nursed a common intention along with his co-appellant Parvinder to commit the above referred offences. Learned Counsel submitted that as per prosecution case role assigned to appellant Naveen @ Sunny is that pursuant to the heated arguments, he fetched a hockey from his house and assaulted PW7 Dharambir and PW4 Shiv Kumar with the hockey while the co-accused Parvinder took out a kirpan and stabbed the deceased as well as PW7 Dharambir and PW12 Kadam Singh. Apart from that, learned Counsel submitted that there is no evidence to suggest that there was any prior meeting of mind amongst the appellants.

Section 34 of the Indian Penal Code is only a rule of evidence and does not create a substantive offence. It introduces principle of vicarious liability for an offence actually committed by a third person in furtherance of common intention with the accused, who actually had not committed that act. Before a person can be held liable for the acts done by another with the aid of Section 34 IPC, it is incumbent upon the prosecution to establish:

(a) that there was a common intention in the sense of a pre-arranged plan between the two and

(b) that the persons sought to be held vicariously liable had participated in some manner in the act Constituting the offence. Unless common intention and participation are both present, Section 34 cannot come into play.

Thus, in order to succeed, the prosecution was required to establish the above narrated ingredients.

On a conjoint reading of the testimony of PW4 Shiv Kumar, PW7 Dharambir and PW12 Kadam Singh, we find that as per these witnesses, the role played by the appellant Naveen @ Sunny is that he fetched a hockey from his house and assaulted PW4 Shiv Kumar and PW7 Dharambir with that hockey. There is no evidence to show that the appellant Naveen Kumar either exhorted or instigated his co-accused Parvinder by word of mouth or by his actions. As per the testimony of the above three witnesses, the incident took place when they had gone to the house of the appellant to confront Naveen @ Sunny and seek his explanation as to why he had slapped PW12 Kadam Singh near public toilet without any reason. PW7 Dharambir has stated that this resulted in exchange of hot words, which prompted the appellant Naveen @ Sunny to fetch a hockey from his house and use it. The role assigned to the appellant Parvinder is that he took out a "kirpan" and inflicted injuries upon the deceased as well as PW7 Dharambir and PW12 Kadam Singh. From the aforesaid sequence of events, we find it difficult to infer that there was any pre-concert between the appellants to justify an inference that the appellant Naveen @ Sunny shared common intention with his brother Parvinder to cause "kirpan" injuries to the deceased and the witnesses. Thus, we find that the learned Additional Sessions Judge went wrong in invoking Section 34 IPC to foist vicarious liability for the offence u/s 302 IPC and Section 307 IPC upon appellant Naveen @ Sunny for the act actually committed by his co-accused Parvinder without any prior concert between them. Thus, we find it difficult to sustain the conviction of the appellant Naveen @ Sunny for the offence u/s 302 IPC and Section 307 IPC with the aid of Section 34 IPC and, in our considered view, the only offence committed by appellant Naveen @ Sunny is the offence of causing simple injuries to PW7 Dharambir and PW4 Shiv Kumar with hockey stick punishable u/s 323 IPC. Accordingly, we set aside his conviction and sentence for the offences u/s 302 IPC and Section 307 IPC read with Section 34 IPC and convert it into the conviction u/s 323 IPC for which we sentence him to undergo RI for a period of one year and to pay a fine of Rs. 1000/-, in default of payment of find he shall undergo RI for a further period of three months.

On behalf of the appellant Parvinder, learned Counsel submitted that his conviction for the offence of murder u/s 302 IPC is not justified because as per the factual matrix of this case the act committed by the appellant Parvinder falls within Exception 4 to the definition of murder as provided u/s 300 IPC. Learned Counsel submitted that as per the case of prosecution, appellants were not the aggressors and actually it was the deceased and his brothers Dharambir (PW7) and Kadam Singh (PW12) who had approached them, while they were standing in front of their house, with a view to confront the appellant Naveen and seek his explanation as to why he had slapped PW12 Kadam Singh. Learned Counsel submitted that the aforesaid visit of the victim party resulted in exchange of heated words between the parties as a result of which in the heat of moment, the appellant inflicted stab injury on the person of the deceased as well as PW7 Dharambir and PW12 Kadam Singh without any intention to cause death. In view of the aforesaid factual matrix, learned Counsel for the appellant Parvinder has urged us to hold that the act committed by the appellant Parvinder falls within the four corners of Exception 4 to Section 300 IPC, as such at best the appellant is guilty of the offence of culpable homicide not amounting to murder punishable u/s 304 Part II IPC.

We do not find merit in the above argument. Intention of a person is the state of his mind which cannot be easily proved by leading direct evidence. It has to be inferred from the accompanying facts and circumstances such as the gravity of the act committed by the accused, type of weapon used and seat of injuries etc. In the instant case, as per the evidence, the appellant had stabbed the deceased as well as PW7 and PW12 with a "kirpan" as a consequence of some argument when the deceased and the witnesses had approached the younger brother of appellant Parvinder to seek explanation as to why he had slapped PW12 Kadam Singh. There is no evidence on record to suggest that the appellants were assaulted or beaten by the deceased or his brothers nor the appellants have claimed this in their statements u/s 313 Cr.P.C. Thus, in our view, there was no cause or reason for appellant Parvinder @ Pinky to use the "kirpan" and inflict stab injuries on the person of the deceased as well as PW7 Dharambir and PW12 Kadam Singh. Not only this, the appellant Parvinder had inflicted an injury on the vital part of the body of the deceased i.e. his neck with the "kirpan" and he also caused dangerous injuries on the person of PW7 Dharambir and PW12 Kadam Singh, which circumstance leads to one and only inference that appellant Parvinder had inflicted injuries on the person of the deceased as well as PW7 and PW12 with the intention and knowledge to cause such injuries which were likely to cause death in the natural course of circumstances, for which action no explanation is given by the appellant in his statement u/s 313 Cr.P.C. Thus, this is not a case which falls within Exception 4 to Section 300 IPC and we find that learned Trial Court has rightly convicted the appellant Parvinder for the offences punishable u/s 302 and 307 IPC. Therefore, as regards the appellant Parvinder, his appeal is dismissed.

In view of the above discussion, the appeal is partly accepted. The appellant Naveen @ Sunny is in custody. He has already undergone incarceration for a period of more than three years, which is more than the imprisonment awarded to him. He is, therefore, directed to be released forthwith if not required in some other case.

The appeal is disposed of accordingly.