CRL.A./1397/2013 of SUBHASH Vs STATE NCT OF DELHI

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.APPEAL No.1397/2013

Date of Decision : 23[rd]August, 2016

SUBHASH

ThroughMs.Saahila Lamba, Adv.

..... Appellant

versus

STATE GOVT. OF NCT OF DELHI..... RespondentThroughMr.Amit Chadha, AdditionalPublic Prosecutor for the State.

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1.The present appeal has been preferred by the appellant underSection 374 (2) of the Criminal Procedure Code, 1973 (Cr.P.C.) againstthe judgment and order dated 4[th]July, 2012 passed by learned AdditionalSessions Judge-II, North-West, Rohini Courts, in Sessions Case No.98/11emanating from FIR No.312/08 registered at Police Station ShalimarBagh whereby the appellant was held guilty and convicted under Section304 Part (I) & 323 of the Indian Penal Code (IPC) and vide order dated7[th]July, 2012, the appellant was imposed the sentence of rigorousimprisonment for ten years along with fine of Rs.50,000/- and in defaultof payment of fine, further three months simple imprisonment for theoffence punishable under Section 304 Part (I) of the IPC and further the

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appellant was sentenced for period of one year for the offencepunishable under Section 323 of the IPC.

2.A thumbnail sketch of the facts of the case is that on 5[th]June, 2008at 10.00 p.m., quarrel took place at CA Block Jhuggis, between thedeceased Yashwant@Jaswant Meena and Pramod@Natu who used to runjuice rehri. Pramod@Natu allegedly refused to give juice to the deceasedYashwant@Jaswant Meena and his friend Pradeep Kumar pursuant towhich there arose verbal altercation in which the victims tauntinglyreferred him as Bihari. At the time of verbal altercation between Natuand Yashwant@Jaswant Meena, one other person namely Subhash(appellant herein) who was also standing at the juice rehri, also joinedand later on ran towards the Jhuggi cluster and called out his otherassociates who duly armed with dandas and wooden fatta, reached thespot after some time. Thereafter, the said persons started beatingYashwant@Jaswant Meena with dandas and wooden fatta and also gaveleg and fist blows to Yashwant@Jaswant Meena.Mr.Pradeep Kumarfurther informed the Police that upon his intervention, the said boys alsogave beatings to him which resulted in injuries to him. It transpires fromthe record that Yashwant@Jaswant Meena tried to run towards the side ofthe road to save himself but one of the assailants chased him and gavehim blow on his head with the help of wooden fatta by which JaswantMeena fell down on which the other assailant gave beatings to him by leg

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and fist blows.

3.Learned counsel for the petitioner has further submitted that theaccused Subhash had stated in his statement that he was innocent and hadno role to play in the alleged incident in any manner.He furthersubmitted in his statement that he was poor labourer and was residingalong with his family in Jhuggi and was never involved in anti-socialactivities. He had further stated that police officials came to his houseand forcibly took him to Police Station Shalimar Bagh where he was keptin wrongful confinement and was beaten up mercilessly much prior to 9[th]June, 2008 i.e. the alleged date of his apprehension.The accused hadalso stated that he was shown to various public persons there and manyother persons were also kept in wrongful confinement besides him andthey were also beaten up. According to the appellant, the police officialslet him go after taking money and thereafter falsely implicated him in thepresent case.

4.Learned counsel for the appellant has vehemently submitted that inview of the above mentioned statement of the appellant, he was thus keptin wrongful confinement and beaten up mercilessly much prior to thealleged date of his apprehension.She has further stated that nothingincriminating was recovered from the possession of the appellant or at hisinstance.

5.Learned counsel for the petitioner has further submitted that the

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Trial Court failed to appreciate the fact that the incident occurred in theheat of passion upon certain quarrel without premeditation and that thesame was without motive or intention, which certainly cannot be termedas culpable homicide amounting to murder.Reliance is placed on thepronouncement of the Supreme Court in Rajender Vs. State (2000) 4SCC 298 to the effect that the occasion must be sudden and not as cloakfor pre-existing malice. It is only an unpremeditated assault committed inthe heat of passion upon sudden quarrel. It is also alleged that as perthe case of the prosecution, the accused persons did not exchange anycommon intention prior to the commission of offence and the weapon ofoffence is only lathi and, therefore, presumption cannot be laid againstthe appellant that he was aware of the intention of the co-accused personsor exchanged any common intention within the spur of moment at thetime of incident or that he was under any knowledge that the blunt impacton the head will result into death of the deceased.

6.Learned counsel for the appellant has further submitted that thelearned Trial Court had failed to appreciate the fact that PW-7 had failedto depose before the Court about the registration number of motor cycleand number and names of boys who gave beatings to him before hisescaping from the spot.It is also submitted that the prosecution hadfailed to get the length, breadth and width of the wooden fattas and lathisalleged to be used in the incident in question.

7.It is next alleged that the Trial Court did not appreciate the fact thatthe investigating officer had failed to get the statement of eye-witness i.e.PW 14 Pradeep Kumar on the same day of incident so as to prepare thesaid witness on its own tricks and tactics. It is also submitted that thelearned Trial Court did not appreciate the fact that PW-7 Pradeep Kumar,on the one hand explained by pointing towards the accused that thesepersonshelddanda,fattaetc.forbeatingthedeceasedYashwant@Jaswant Meena, on the other hand in his cross-examination,he had admitted that he did not see the incident. It is also submitted thatthe statement of PW-14 was recorded by the police on the next day ofincident and the possibility of tutoring the witness by the police officialscannot be ruled out as the police officials had reached at BSA Hospitalbut they did not try to record the statement of the said witness in thehospital itself.

8.Learned counsel for the appellant has further alleged that thelearned Trial Court failed to appreciate the fact that the charges as framedunder Section 302/34 are not made out against the present appellant and,therefore, wrongly convicted the appellant under Section 304 IPC bytaking the aid of Section 34 of the IPC.It is added that to convict aperson by taking the aid of Section 34 of the IPC, it is necessary on thepart of the prosecution to prove that the act was done in furtherance ofcommon intention either pre decided or within the spur of moment.

9.The arguments of defence counsels is to the effect that therecoveries have been planted upon the accused since despite the secretinformation and prior information, no public witness had been joined andhence no reliance can be placed on the testimony of police witnessesregarding the recoveries. It is also argued that there is nothing on recordto suggest that all the accused have shared common intention to kill thedeceased.

10.It is next contended by learned counsel for the appellant that theTrial Court ignored the cardinal rule of evidence to the effect that aperson cannot be held guilty on mere probabilities. Evidence of witnessor circumstances surrounding the incident should, in definite tendencyand unerringly, point towards the guilt of the accused.

11.Learned counsel for the petitioner has further submitted that thepetitioner is first time offender and is not involved in any other case. It isalso submitted that the petitioner is young boy and is helping hand inhis family and that at the time of incident, he was in early twenties. It isalso submitted that keeping in view the fact that the petitioner has alreadyundergone sufficient period of judicial custody, lenient view may betaken against him.

12.Onthebasisofthe statementgivenby PradeepKumar,investigation commenced, on 9[th]June, 2008, the accused Brijesh Kumarwas apprehended and arrested pursuant to secret information received.

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Thereafter, at the behest of accused Brijesh Kumar, the other accusedpersons namely Subhash Kumar, Putul Kumar and Vipin Kumar werealso got arrested.Pursuant to their disclosure statement, the accusedSubhash and Brijesh got recovered danda and fatta used in thecommission of offence from the bushes near canal. Test IdentificationParade (TIP) of the petitioner was conducted on 12[th]June, 2008 in whichhe was identified by PW 7 Pradeep Kumar.Thereafter efforts weremade to trace out the accused Pramod@Natu and process under sections82/83 of the Code of Criminal Procedure was issued against him. Theaccused Pramod@Natu got recovered the wooden Musli used in the juicemachinewiththehelpofwhichheinflictedinjuriesuponYashwant@Jaswant Meena.

13.After completion of investigations, charge sheet was filed againstall the accused persons before the Court.

14.Learned Additional Public Prosecutor on the other hand, hassubmitted that keeping in view the nature of the allegations involved andthe fact that young person of only 24 years of age had lost his life bythe act of the appellant/accused that too by casual reference to aparticular region by young boy, the petitioner does not deserve anyleniency.

15.I have heard learned counsel for the parties at length; gone throughthe available records and the judgments cited by learned counsel for the

appellant. So far as the present appeal is concerned, which was movedby Subhash, this Court will keep its findings confined to appellant-Subhash alone.As regards the role attributed to Subhash in thecommission of crime, it has come in evidence that it was he who joinedthe altercation. The accused Subhash after the quarrel, immediately ranaway from the spot to the jhuggi cluster and called the others from theirjhuggi. He along with the others then came back to the spot with dandawith which he gave beatings to the deceased Yashwant@Jaswant andalso to Pradeep (inured).In his disclosure statement, the accusedSubhash disclosed that he could get recovered the weapon of offence i.e.danda. The accused Subhash was apprehended and arrested on 9[th]June,2008.So far as recovery of weapon of offence i.e. danda is concerned,the accsued Subhash also led the police party near the canal in the bushesfrom where he got recovered one wooden danda after lifting it from thebushes which was taken into possession vide memo Ex.PW20/E. So faras the statement of the eye witness Pradeep Kumar, PW 7 is concerned,the relevant portion of the same reads as under:-“xxx I identify the accused Subhash present in theCourt and he was having danda in his hand andinflicted injuries to Yashwant@Jaswant and me.Iidentified the accused Subhash in Tihar Jail duringTIP proceedings. ”

15.That on 08.07.2008, he along with NareshKumar, brother of the deceased came to Rohini courtand when the case was called, he saw accused Putul,

Vipin, Brijesh and Subhash, who were in custody ofthe police, then he identified them and investigatingofficer recorded his statement.”

16.So far as medical evidence is concerned, the same establishes the

commission of crime in the manner narrated. The relevant portion of thetestimony of Dr.Kulbhushan Goel, PW 1, reads as under:-

“Injuries No.1 and 2 were caused by blunt force impactand the cause of death was brain compression as aresult of cranio-cerebral damage.

Thewitnesshasfurtherprovedthaton04.09.2008,InspectorPuranChandtenderedanapplication along with sealed packet inscription ofwhich was PC regarding opinion of weapon of offence.According to him, on opening the packet, it was foundto contain one wooden Musli used in fruit juicemachine to press the fruits.He has proved havingdrawn the rough sketch of the object and gave hisopinion that the injury No.1 mentioned in post-mortemreport Ex.PW1/A was possible by this weapon orsimilar type of such weapon which opinion and roughsketch of the weapon is Ex.PW1/C. He has correctlyidentifiedtheweaponofoffencei.e.theMusliexamined by him which is Ex.P1.”

17.The act of the accused Subhash reflects that he acted in consortium

withotherco-accusedincontinuingtorunafterthedeceasedYashwant@Jaswant when he was moving away from the spot to savehimself and then they inflicted injuries on the head of the deceased,which conduct has rightly brought the case within the purview of Part – 1

of Section 304 of the Indian Penal Code.The common intention

between the accused developed at the spot of the incident itself which is

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indicated from the fact that when the deceased Yashwant@JaswantMeena and injured Pradeep ran from the spot in order to save themselves,the accused followed them while co-accused Brijesh gave fatta blow onthe head of the deceased as result of which the deceased fell down afterrunning for about 15 steps, in the meanwhile, all the other accusedincluding the petitioner also reached there and again gave fists, legs,danda, fatta and musli blows to the deceased. From the testimony of PW7 Pradeep Kumar, it has been established that all the accused includingthe petitioner acted in consortium in commission of crime therebyproving their common intention.

18.The chain of events thus clearly establishes involvement of thepetitioner in the commission of crime.

19.The prosecution appears to have rightly proved the identity of theaccused as well as the manner in which the commission of crime tookplace not to mention the investigation conducted; documents in supportas well as the medical evidence.The evidences which the prosecutionwitnesses have tendered, appear to be trustworthy.

20.So far as the ground taken by the petitioner that he has beenwrongly implicated in the present case is concerned, the same cannot beconsidered as correct inasmuch as the accused/petitioner has notsuggested any reason as to why he has been falsely implicated in thepresent case.

21.The recovery of weapon of offence i.e. danda (Ex.P-2) which wasused by the accused Subhash in inflicting injuries to the deceased and PW7 Pradeep Kumar, has also been duly established in the present case.Witness PW 7 in his testimony duly identified the said danda as Ex.P-2and stated that it was the same wooden danda which was used by accusedSubhash for inflicting injuries to him and deceased Yashwant@Jaswant.

22.Learned counsel for the appellant has contended that no suchrecovery was effected either from the person of the appellant or at hisinstance and that such recovery was planted upon the appellant. Even nopublic witness was made part of the said recovery.

23.It is part of evidence that wooden danda Exh.P-2 was got recoveredby the appellant from the bushes near canal in pursuance of hisdisclosure statement. It is settled law that disclosure statement made byan accused before police officer cannot be read in evidence against himbut the part of his disclosure which led to recovery and that too from aconspicuous place is admissible in law as per Section 27 of the EvidenceAct. In similar situation, Hon’ble Apex Court in the case of DhananjayChatterjee Alias Dhana vs State Of W.B. (1994) 2 SCC 220, held asunder:-

“2. “........Though, the entire statement made by theappellant before the police is inadmissible in evidencebeing hit by Sections 25 and 26 of the Evidence Actbut that part of his statement which led to thediscovery of the shirt and the pant is clearly admissibleappellant before the police is inadmissible in evidencebeing hit by Sections 25 and 26 of the Evidence Actbut that part of his statement which led to thediscovery of the shirt and the pant is clearly admissible

under Section 27 of the Evidence Act. We disregardthe inadmissible part of the statement and take noteonly of that part of his statement which distinctlyrelates to the discovery of the articles pursuant to thedisclosure statement made by the appellant as it is onlyso much of the statement made by person accused ofan offence while in custody of police officer, whetherit is confessional or not, as relates distinctly to the factdiscovered which is capable of being proved andadmitted into evidence. The discovery of the fact inthis connection includes the discovery of an objectfound, the place from which it is produced and theknowledge of the accused as to its existence.”

24.The ratio of law settled in Dhananjay Chatterjee Alias Dhana

(supra) has been followed in Nisar Khan @ Guddu And Ors. Vs. State

Of Uttaranchal (2006) 9 SCC 386, in which it was held as under:-

“6. Regarding the second contention that the recoveryof arms has not been proved by the prosecution hasalso no substance. It is evidence on record that theaccused were arrested on 17.12.1999 and pursuant toa disclosure statement made by them, the arms sererecovered from the bank of Gaula river where thesehave been hidden under the sand and covered by thestones. All the arms were recovered as pointed out byeach accused hidden under the stones. The High Courtfell in error in holding that the recovery has not beenproved as these were recovered from place which isfrequented by the public. This finding of the HighCourt is contrary to the evidence on record. It is nowwell settled principle of law that the recovery pursuantto the disclosure statement made by the accusedunder Section 27 of the Evidence Act is admissible inevidence. In Dhananjoy Chatterjee alias Dhana v.State of West Bengal , it is held that entire statementmade by an accused person before the police isinadmissibleinevidencebeinghitbySections25 and 26 but that part of his statement which led tothe discovery of the articles is clearly admissibleunder Section 27 of the Act. It is also held that theCourt must disregard the inadmissible part of thestatement and take note only of that part of hisstatement which distinctly relates to the discovery ofthe articles pursuant to the disclosure statement madeby the accused. It is further held that the discovery ofthe fact in this connection includes the discovery of anobject found, the place from which it is produced andthe knowledge of the accused as to its existence.”

25.So far as the contention of the petitioner to the effect that therewere certain lacunae in the manner the prosecution had proceeded with, isconcerned, the same cannot be taken into consideration inasmuch as it iswell settled law that certain technical defects in the prosecution cannotdiscard the case of the prosecution in toto.In C. Muniappan & Ors. vs.State of Tamil Nadu, JT 2010 (9) SC 95, it has been held that there maybe highly defective investigation in case. However, it is to be examinedas to whether there is any lapse by the I.O. and whether due to such lapseany benefit should be given to the accused. The law on this issue is wellsettled that the certain defects in the investigation by itself cannot be aground for acquittal. If primacy is given to such designed or negligentinvestigations or to the omissions or lapses by perfunctory investigation,the faithandconfidenceof thepeople inthecriminaljusticeadministration would be eroded. Where there has been negligence on thepart of the investigating agency or omissions, etc. which resulted indefective investigation, there is legal obligation on the part of the courtto examine the prosecution evidence de hors such lapses, carefully,

to find out whether the said evidence is reliable or not and to what extentit is reliable and as to whether such lapses affected the object of findingout the truth. Therefore, the investigation is not the solitary area forjudicial scrutiny in criminal trial. The conclusion of the trial in the casecannot be allowed to depend solely on the probity of investigation.Theobservation has been made in Chandra Kanth Lakshmi v. State ofMaharashtra, AIR 1974 SC 220; Karnel Singh v. State of MadhyaPradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, AIR1998 SC 1850; Paras Yadav v. State of Bihar, AIR 1999 SC 644; Stateof Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185;Amar Singh v.Balwinder Singh, AIR 2003 SC 1164; Allarakha K. Mansuri v. State ofGujarat, AIR 2002 SC 1051 and Ram Bali v. State of U.P., AIR 2004SC 2329).

26.It is heartening to observe that people are becoming more impatientand egoistic these days and are losing their temperament over pettyissues. This is the reason behind commission of many crimes these days.Who could possibly imagine that denial of giving glass of juice couldresult into murder of twenty four years old boy.This madness isunacceptable. The petitioner, therefore, deserves no mercy.

27.I, therefore, do not find any illegality, incorrectness, perversity ordiversity in the impugned order dated 4[th]July, 2012 passed by learnedAdditional Sessions Judge-II, North-West, Rohini Courts, in Sessions

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Case No.98/11 pertaining to FIR No.312/08 registered at Police Station

Shalimar Bagh.

28.Consequently, the present appeal is dismissed.

AUGUST 23[rd], 2016aa

(P.S.TEJI)JUDGE