Satish vs State of Haryana

Hemant Gupta, J.—This order shall dispose of aforementioned four appeals directed against the judgment of conviction and order of

sentence dated 18.02.2002 and 20.02.2002 respectively rendered by the learned Additional Sessions Judge, Faridabad, whereby the appellants

namely Satish son of Mahavir; Jintnder @ Jitey son of Nathan; Sanjay son of Banwari Lal Gupta; Jitender @ Jitan son of Phirey and Vicky @

Vikash son of Satish were convicted for the offences punishable under Sections 148 and 302 read with Section 149, IPC and sentenced to

undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- each. CRA No. 368-DB of 2002 filed by Sandeep Gupta stands accepted

vide separate order of today itself, in view of the report received that he was juvenile on the date of commission of offence. Therefore, the

remaining appeals are being taken up for decision together.

The prosecution case was set in motion on the statement of Vikramjit Singh, brother of the deceased Pritpal Singh, made to SI Vishnu Dutt,

P.S. Central, Faridabad on 10.09.1999 at about 12.30 a.m. (mid night). In his statement (Ex. PC), Vikramjit Singh stated that they are three

brothers. Eldest is Amarjeet Singh, then he himself and next was Pritpal Singh. Pritpal Singh was studying in 10+2. It is stated that 4/5 days earlier,

there was an altercation and Sandeep Gupta son of Suresh Chand Gupta, resident of H. No. 802, Sector 37, Faridabad as well as his friends

Vicky Vidhuri, Jitender alias Jitan, Jitey, Satish and Sanjay had beaten his brother Pritpal Singh. Thereafter, he and his family members summoned

Sandeep Gupta and his friends and got the matter patched tip with his brother Pritpal Singh. On 08.09.1999, his brother Pritpal Singh told him that

Sandeep Gupta and his friends have stated to him that they have not entered into any compromise and they must take revenge. He further stated

that today at about 10.00 p.m., he and his brother Pritpal Singh were going to their residence in Sector 16, Faridabad and when they reached near

the Community Hall on the road leading to the Police Station, they noticed that Sandeep Gupta and his aforesaid five friends were standing near

the park. On seeing them, Sandeep Gupta raised a lalkara that Pritpal Singh got the matter forcibly compromised on that day and that he be taught

a lesson. On this, Jitender alias Jitan, Satish, Sanjay and Jitey caught hold his brother Pritpal Singh and Sandeep Gupta, who was holding a knife in

his hand, inflicted knife blow on the left thigh of his brother and another blow was inflicted on his left chest. Vicky Vidhuri, who was also holding a

knife in his hand, inflicted knife blow once on the abdomen and twice on the chest. He further stated that when he tried to save his brother and

raised alarm, then the accused persons also inflicted him fist and kick blows. On hearing his noise, Neeraj son of Charan Singh resident of H. No.

208, Sector 15, Faridabad came out from the adjoining kothi. He also raised alarm. In the meanwhile, one or two passers also arrived and on

seeing them, the assailants ran away on their scooter and motorcycle. He and Neeraj supported Pritpal Singh, who had fallen on the ground, as the

blood was oozing out. Due to the injuries with knife, his brother Pritpal Singh died on the spot. He further stated that after leaving Neeraj near the

dead body of his brother, when he was going to the Police Station to inform about this occurrence, SI Vishnu Dutt met him and recorded his

statement Ex. PC.

The police proceedings are to the effect that on hearing noise outside the Police Station on the road, SI Vishnu Dutt accompanied with ASI

Suraj Bhan, Constables Rajbir Singh and Bhag Dal came out from the Police Station and were going towards the Community Centre, Sector 15,

Faridabad, when outside the gate of Police Station Vikramjit Singh met him and got recorded his statement (Ex. PC). On the basis of such

statement, FIR Ex. PC/2 was lodged.

Thereafter, SI Vishnu Dutt - the Investigating Officer, went to the spot and prepared rough site plan (Ex. PN). He also lifted the blood stained

earth and taken into possession vide memo Ex. PO. After preparing inquest report (Ex. PJ), he sent the dead body of Pritpal Singh for post-

mortem examination. As per column No. 16 in the inquest report i.e. ''Is the body wall nourished and vigorous or amacious ted and weak'', the

response is that the deceased was a strong man and against column No. 3 i.e. ''Date and hour of discovery of death'' the response is that

09.09.1999 at about 10.00 p.m. He also recorded the statements of the witnesses. All the accused were arrested on the same day i.e. 10.9.1999

at about 5.00 p.m. During interrogation on 11.09.1999, accused Vicky, Jitender alias Jitey and Jitender alias Jitan and Sandeep suffered disclosure

statements Ex. PD, Ex. PE, Ex. PF and Ex. PG respectively. In pursuance of disclosure statement Ex. PG of Sandeep, one knife from the dicky of

scooter bearing No. HR 51 9442 was recovered. The knife and the scooter were taken into possession vide recovery memo Ex. PG/1. In

pursuance of the disclosure statement of Vicky (Ex. PD), one knife was also recovered from his house and the same was taken into possession

vide memo Ex. PD/1. Similarly, in pursuance of the disclosure statements of Jitender alias Jitey and Jitender alias Jitan (Exs. PE and PF

respectively), one scooter No. DL 38 M 8220 and one motor cycle No. DL 38 M 1394 were recovered from their respective houses and taken

into possession vide recovery memos Exs. PE/1 and PF/1 respectively. After completing the other necessary formalities, all the accused were

made to stand trial.

To prove its case, the prosecution has examined PW-7 Dr. Sudhir Khurana; PW-10 Dr. S.K. Mittal, PW-4 Vikramjit Singh and PW-11 apart

from examining other witnesses of formal nature.

PW-7 Dr. Sudhir Khurana, who has conducted post-mortem examination on the dead body of Pritpal Singh on 10.09.1999 at about 10.00

a.m., found the following injuries:

Incised wound 3 c.m. x 1 c.m. x peritoneum deep 2 c.m. below umbilicus on the abdomen. Margins were inverted and there are gaping in the

middle.

Incised wound 3� c.m. x 3/4 c.m. x bone deep on the lateral aspect of left thigh.

On dissection, femoral vein was found to be cut, but not through and through.

There was a contusion 2� c.m. x 1/2 c.m. on the right side of chest in the centre. It was reddish in colour.

Contusion 2 c.m. x 1 c.m. on the left lower part of the chest.

Contusion on the nose with blood in the nostrils.

He deposed that the stomach contained semi digested food and the cause of death in his opinion was due to shock and hemorrhage. All the

injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. He also proved the Post Mortem Report as

Ex. PI. He deposed that he also handed over the wearings of the deceased to the police.

PW-10 is Dr. S.K. Mittal, who medico legally examined Vikramjit Singh, brother of the deceased and author of FIR on 10.09.1999. In the

medico legal examination, no external injury was observed through the chest was reported to be slightly tender. He proved the medico legal report

as Ex. PM.

PW-4 is Vikramjit Singh, brother of the deceased and author of FIR, on whose statement the prosecution case was set in motion. While

appearing in the witness box, PW-4 Vikramjit Singh supported the prosecution story in its entirety. Apart from reiterating the version given by him

in his statement Ex. PC, he deposed that after leaving Neeraj near the dead body of Pritpal Singh, he left for the Police Station and when he

reached near the Police Station, the accused were seen coming from a gali. On seeing them, he took shelter in a gali nearby and remained hidden

there for quite sometime. Thereafter, he mustered courage and started for the Police Station. He further deposed that the accused namely Vicky

Vidhuri; Jitender alias Jitey; Jitender alias Jitan and Sandeep Gupta were interrogated in his presence and they suffered disclosure statements and in

pursuance of such disclosure statements got recovered the articles from the disclosed places. In his cross-examination on 27.08.2001, he stated

that the scooter and knife were recovered from accused Sandeep on 14.09.1999 around 11.00/12.00 in the morning and that one Constable

brought that scooter to the police station. He further stated that the recovery of motor cycle was effected from Jitender alias Jitan on the same day

around 1.00 or 2.00 p.m. in the area of Village Prehladpur. On the same day, scooter was recovered from Jitender alias Jitey. In further cross-

examination on 08.05.2000, he stated that the deceased was student of 12th class, whereas he himself was studying in B.A. final. None of the

accused were studying either with the deceased or with him and that none of them except Sandeep Gupta is resident of Sector 17, Faridabad,

which is at a distance of 5/6 kms. from Sector 15, Faridabad. In respect of previous incident, he stated that the same has not taken place in his

presence, therefore, he cannot tell the name of any person with whom said incident had taken place. Compromise of that dispute was effected by

him and his brother Amarjeet in the market of Sector 15 on the next day. Sandeep Gupta had stated on that day that they will meet him in the

market on the next day. Compromise was to the effect that in future the deceased was not to be beaten. He further stated that he and the deceased

came to Gulati Book Stall for purchasing book at about 7.30 p.m. and after making enquiries about the book, they were loitering in the market.

The book of accounts was to be purchased by the deceased. He further stated that the incident took place about 100/200 yards away from the

Police Station Central, Faridabad and that some persons were going on the road at that time, but none was present in the park. There were

electric lights near the place of incident. He had seen the accused persons from the distance of 5/7 paces and that lalkara was raised by Sandeep

accused from that distance. All the 4/5 accused took his brother in their grip and the injuries were caused by all the accused. He did not notice that

the clothes of any accused, who were holding his brother, have got blood stained. He made attempts to rescue his brother, but was given slaps and

fist blows. He did not receive any injury which could bleed. His clothes had got blood stained while he was taking care of his brother and that such

clothes have been given to the police by him on that very night. He stated that he remained hidden for about 1/1� hours in the gali and did not

mention the factum of hiding in the FIR. He denied the suggestion that it was a blind murder and also denied that due to suspicion and enmity,

accused have been falsely involved by him.

PW-11 SI Vishnu Dutt is the Investigating Officer, who deposed with regard to the investigations carried out by him.

The prosecution agency also tendered into evidence the report of the Forensic Science Laboratory (Ex. PP). As per the said report, blood

was detected on blood stained earth, shirt, pant, knives. However, in serological analysis report (Ex. PQ), human blood was reported on Blood

stained earth, shirt and pants, whereas in respect of two knives, the report was materially disintegrated.

After concluding the prosecution evidence, the accused were confronted with the incriminating circumstances appearing against them in the

prosecution evidence while recording their statements u/s 313, Cr.P.C. All the accused denied the prosecution allegations and asserted that it is a

false case and that witnesses have deposed falsely and that they are innocent.

After considering the entire evidence on record, the learned trial Court found that the delay in lodging of FIR or sending the same to the Illaqa

Magistrate is not fatal. The trial Court round that there was dispute between the deceased and the accused and that complainant has explained the

delay in lodging of FIR. The court found that the discrepancy in the oral testimony and the injuries found is not material, as it is possible that the

knife blow might not have hit with so force, so as to cause sharp cuts and those blows may have caused the contusions. The court also found that

recoveries of knives on the basis of disclosure statements after three days of the same are of no consequence. While examining the common object

of unlawful assembly, the court found that the accused formed unlawful assembly, as two of them were armed with deadly weapons. After

returning such findings, the trial Court convicted and sentenced the appellants, as mentioned above.

Before this Court, learned counsel for the appellants have vehemently argued that the place of occurrence is only 100 yards from the Police

Station, but still the Police has taken 2� hours in lodging of FIR. Such time has been utilized by the prosecution to cast the net wide and to

introduce PW-4 Vikramjit Singh, brother of the deceased, as a false witness. Had PW-4 Vikramjit Singh present at the time of occurrence, he

would have also suffered injuries, as the accused were said to be armed with knives? Therefore, the presence of PW-4 Vikramjit Singh at the time

of occurrence is doubtful. It is also contended that as per PW-4 Vikramjit Singh, there were two knife blows on the chest of the deceased, but as

per medical evidence, there are only contusions. Therefore, the falsehood in the statement of this witness is writ large. Had he seen the occurrence,

he would have deposed the manner of causing injuries in a more cogent and reliable manner? It is also argued that none of the independent

witnesses have been examined, who have witnessed either the disclosure statements or the recoveries pursuant of such statements. Therefore, the

prosecution case is wholly based upon the statement of PW-4 Vikramjit Singh, brother of the deceased. It is also argued that as per the affidavit

Ex. PK of HC Mukhtiar Singh, only motor-cycle was deposited with the Malkhana. There is no explanation as to what happened to the Scooters.

Therefore, the recoveries allegedly attributed to the appellants are not believable. It is also argued that there is no motive in respect of causing of

injuries on the person of the deceased.

On the other hand, Mr. Mohunta pointed out that the statement of sole eyewitness is reliable and is sufficient to maintain the conviction of the

appellants. It is also argued that the identity of none of the accused is disputed in the cross-examination of PW-4 Vikramjit Singh. In fact, the

suggestion given to the said witness is that of previous enmity. The statement of PW-4 Vikramjit Singh is of truthful witness, as he has rightly

deposed that he cannot depose in respect of the nature of occurrence, which took place 4/5 days earlier, as he was not present. In the lengthy

cross-examination conducted on different dates, the accused have not been able to shatter the testimony of PW-4 Vikramjit Singh either in respect

of identity of the accused or the place and manner of occurrence.

Having heard learned counsel for the parties and after going through the record with their assistance, we find that the prosecution has been able

to prove the charges against the appellants beyond any reasonable doubt.

Ex. PK is the affidavit of HC Mukhtiar Singh, Mohrir Malkhana, Police Station Central, Faridabad. He deposed with regard to the case

property in the malkhana. He deposed that motor-cycle was deposited with him, which has been released on sapurdari. HC Mukhtiar Singh

appeared as PW-8. No cross-examination was conducted in respect of non-deposit of scooters recovered in pursuance of the disclosure

statements on 14.09.1999. In fact, no cross-examination at all was conducted. On the other hand, PW-11 SI Vishnu Dutt - the Investigating

Officer has deposed about the recovery of scooters in pursuance of the disclosure statements, but no cross-examination has been conducted in

respect of recovery of such scooters to this witness also. Therefore, the argument at this stage that the prosecution has not proved the recoveries

of scooters and deposit thereof in the malkhana, is of no consequence.

Coming to the testimony of PW-4 Vikramjit Singh, it appears that he and his brother Pritpal Singh (deceased) went to market at about 7.30

p.m. for the purchase of accounts book and were loitering before they decided to proceed to their house around 10.00 p.m. It was at about 10.00

p.m., when the deceased was given injuries by the accused. The lengthy cross-examination conducted on different dates on PW-4 Vikramjit Singh

does not shatter his testimony. The only thing in the FIR and the statement recorded in the Court on oath is that on oath PW-4 Vikramjit Singh

deposed that he hide himself due to fear on seeing the accused. The fact remains that incident occurred at about 10.00 p.m. and the trauma of

occurrence and that of the accused armed with knives is sufficient for a person to lose his senses. Though the Police Station is at a distance of 100

yards, but the fact remains that the sudden occurrence, which led to the death of younger brother of PW-4 Vikramjit Singh, is sufficient to

immobilize the said witness. There is no cross-examination to the effect that the witness was not known to the accused or could not identify any of

them at 10.00 p.m. on the night of 09.09.1999. Since neither the identity of the accused was disputed as is evident from the testimony of the

witness nor the place of occurrence, therefore, the statement of PW-4 Vikramjit Singh cannot be discarded only for the reason that he is brother of

the deceased.

The deceased was resident of Sector 16, Faridabad, which is in the near vicinity of the place of occurrence. The witness is also residing with

the deceased in the said Sector. Therefore, it was natural for the witness and the deceased to return back to their home after they went to market

to purchase book. It is in natural human conduct, which does not create any suspicion when PW-4 Vikramjit Singh deposed that he was along

with his brother at the time of occurrence and saw the accused giving fatal blows on the person of the deceased.

The deceased was 6 feet tall as per the post-mortem report Ex. PI. He was a strong person, as mentioned in the inquest report. The accused

collectively alone could over-power the deceased and also inflict injuries with knife. Therefore, we do not find that the manner of occurrence as

deposed by PW-4 Vikramjit Singh is anyway unreliable.

We do not find any merit in the argument raised that on account of contusions reported in the Post-Mortem Report Ex. PI, the eye-witness

account rendered by PW-4 Vikramjit Singh becomes unbelievable. The nature of injury is dependent upon numerous factors including the part of

weapon which hits the body, the force, the angle at which weapon is used and also the position of the victim. Therefore, it cannot be said as a

matter of rule that the knife blow should lead to incised or stab wound in all circumstances.

We also do not find any merit in the argument raised that the accused had no motive to take life of the deceased. In his earlier statement Ex.

PC and in Court, PW-4 Vikramjit Singh has categorically stated that 4/5 days earlier, there was an altercation between the deceased and Sandeep

Gupta and his friends and that they beaten the deceased. Thereafter, he and his family members summoned Sandeep Gupta and his friends and got

the matter patched up with his brother Pritpal Singh. It was on 08.09.1999, his brother Pritpal Singh told him that Sandeep Gupta and his friends

have stated to him that they have not entered into any compromise and they must take revenge. No cross-examination has been conducted on

PW-4 Vikramjit Singh that he could not identify the accused or the accused were not known to him or the accused were not known to the

deceased. The suggestion of enmity put to PW-4 Vikramjit Singh, in fact, supports the prosecution case. Still further, in a case based upon direct

eye-witness account, the motive pales into insignificance.

The argument that the prosecution has not examined independent witness named in the FIR nor has joined any other independent witness

though the occurrence has taken place near the residential locality is again devoid of merit. Though the association of independent witnesses is a

rule of prudence, but it is also commonly found that apathy of the general public in the process of resolutions of crimes by the prosecution agency.

Therefore, the Court is required to examine the evidence of the prosecution witnesses with more care and caution. Once the prosecution has been

able to prove the commission of crime by the appellants on the basis of eye-witness account rendered by PW-4 Vikramjit Singh, it cannot be said

that non-examination of the independent witnesses is fatal to the prosecution case. The testimony of PW-4 Vikramjit Singh cannot be discarded

only for the reason that he is related to the deceased.

Similarly, the recoveries effected pursuant to the disclosure statements have been proved by PW-4 Vikramjit Singh. The recoveries of motor-

cycle and the scooters from the appellants corroborate the prosecution version that after inflicting injuries they escaped on the motor cycle and

scooters. No special circumstance has been brought on record to show any enmity of the Investigating Officer with the accused or any other

circumstance, which may be relevant to return a finding of false implication. The fact that PW-4 Vikramjit Singh has stood the test of lengthy cross-

examination and the fact that the witness has not been even suggested that the accused could not be identified or that the accused were not known

to the deceased are the relevant factors, on the basis of which the learned trial Court has rightly returned a finding that the accused are guilty of

offence punishable under Sections 148 and 302 read with Section 149, IPC.

Mr. Gill, learned counsel for the appellant Satish in CRA No. 154-DB of 2002 relies upon a judgment reported as Shaji and Others Vs. State

of Kerala, to contend that the prosecution is required to prove common object and that object of the assembly was unlawful. Therefore, merely for

the reason that the appellant was part of the group of which two of the persons had knives with them will not make a ground to implicate the

appellant for an offence punishable u/s 302, IPC.

We do not find any merit in the said argument as well. The Supreme Court has examined Section 149 of the Act in the light of its earlier

judgment in Kuldip Yadav and Others Vs. State of Bihar, , wherein it has been held that the Court must give clear finding regarding nature of

common object and that the object was unlawful and that essential ingredients of Section 149 must be established. The Court observed as under:

Though as per the decision of the Constitution Bench, the prosecution is well within its jurisdiction to establish the charge u/s 149, IPC even

after the acquittal of two members of the unlawful assembly, however, in order to attract Section 149 IPC, it must be shown that the incriminating

act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be

committed in prosecution of the common object......

In the present case, though Sandeep Gupta is a resident of Faridabad, but all other accused are residents of Delhi. The fact that all the accused

assembled together at one place at about 10.00 p.m. without any reason or when two of them armed with deadly weapons i.e. knives conclusively

proves that the object of assembling together was unlawful and also common so as to take life of Pritpal Singh. Therefore, even in the light of the

judgment referred, the prosecution has discharge the onus of proving the common unlawful object.

In view of the above, we have no hesitation to hold that the appellants other than Sandeep Gupta, who is found to be juvenile, are guilty of

offence punishable under Sections 148 and 302 read with Section 149, IPC. Consequently, we do not find any illegality in the findings recorded by

the learned trial Court, which may warrant any interference in the present appeal. Dismissed.