CRL.A./302/2015 of ASHOK KUMAR SHARMA & ORS Vs STATE ( NCT OF DELHI)

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : July 30, 2018

CRL.A. 255/2015

PANKAJ SHARMA

..... AppellantMr.Vikram Singh Panwar, Mr.MirzaHasanBegandMr.VikasWalia,Advocates.

Through:

versus

STATE NCT OF DELHI

..... Respondent

Through:

Mr.RajatKatyalandMs.AashaTiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.

Mr.S.S.Gandhi,SeniorAdvocatewithMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.

WITH

CRL.A. 270/2015

MANOJ KUMAR & ANR

..... Appellant

Through:Mr.A.K.Choudhary,Ms.PujaShrivastava and Mr.Anil Choudhary,Advocates for appellant no.1.

Mr.Rajeshwar Singh, Advocate forappellant no.2.

versus

STATE (NCT OF DELHI)

..... Respondent

Through:Mr.RajatKatyalandMs.AashaTiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.Tiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.

Mr.S.S.Gandhi,SeniorAdvocatewithMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.withMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.

WITH

CRL.A. 302/2015

ASHOK KUMAR SHARMA & ORS

..... Appellant

Through:Mr.K.S. Singh, Mr.A.K. Sharma andMr.Priyank, Advocates for appellantno.1. Ms.Rajni Singh, Advocate forappellant no.2. Mr. Anurag Jain, Advfor appellant no.3Mr.Priyank, Advocates for appellantno.1. Ms.Rajni Singh, Advocate forappellant no.2. Mr. Anurag Jain, Advfor appellant no.3

versus

STATE (NCT OF DELHI)

..... Respondent

Through:Mr.RajatKatyalandMs.AashaTiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.

Mr.S.S.Gandhi,SeniorAdvocatewithMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.withMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.

WITH

CRL.A. 312/2015

Crl.A. 255, 270, 302, 312, 329, 418 of 2015

SUNIL KUMAR & ANR

..... AppellantThrough:Mr.SumeetVermaandMs.Preet,Advocates.Advocates.

versus

STATE (THE NCT OF DELHI)

..... Respondent

Through:Mr.RajatKatyalandMs.AashaTiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.Tiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.

Mr.S.S.Gandhi,SeniorAdvocatewithMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.withMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.

WITH

+CRL.A. 329/2015

RAJ KUMAR @ RAJA

..... Appellant

Through:Mr.AnuragJainandMr.AyushiSharma, Advocates.Sharma, Advocates.

versus

STATE (GOVT OF NCT OF DELHI)

..... Respondent

Through:Mr.RajatKatyalandMs.AashaTiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.Tiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.

Mr.S.S.Gandhi,SeniorAdvocatewithMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.withMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.

AND

+CRL.A. 418/2015

KAMAL RAJ SHARMA

Through:versusversus

..... Appellant

Mr.K.Singhal, Advocate.

STATE OF NCT OF DELHI

..... Respondent

Through:Mr.RajatKatyalandMs.AashaTiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.Tiwari, APP for the State with SIManish Tyagi, PS Gandhi Nagar.

Mr.S.S.Gandhi,SeniorAdvocatewithMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.withMr.GaganMinochaandMr.Bhavook Chauhan, Advocates forthe complainant.

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

P.S.TEJI, J.

1.Since all these appeals have been preferred against acommon judgment of conviction dated 24.12.2014 and common orderon sentence dated 07.01.2015, therefore, all these appeals are disposedof by this common judgment.

2.The present appeals have been filed by the above namedappellants, namely, Pankaj Sharma (Crl.A. 255/2015), Manoj Kumar& Rohit Kumar (Crl.A. 270/2015), Ashok Kumar Sharma, Deepak

Sharma & Raj Kumar Nai (Crl.A. 302/2015), Sunil Kumar and AnilKumar (Crl.A. 312/2015), Raj Kumar @ Raja (Crl.A. 329/2015) andKamal Raj Sharma (Crl.A. 418/2015) under Section 374(2) Cr.P.C.against the judgment dated 24.12.2014 vide which they have beenconvicted for the offences punishable under Section 148/452/324/302read with Section 149 IPC. Appellants Raj Kumar @ Raja and Pankajhave also been convicted for the offence punishable under Section 27of the Arms Act. Vide order on sentence dated 07.01.2015, all theappellants have been sentenced to undergo life imprisonment and fineof Rs.1 lakh each and in default of fine, the same has been ordered tobe recovered under Section 421 Cr.P.C. for the offence under Section302 IPC; to undergo rigorous imprisonment for three years and fine ofRs.5,000/- each, in default of payment of fine to further undergosimple imprisonment for six months for the offence punishable underSection 148 IPC; to undergo rigorous imprisonment for three yearsand fine of Rs.10,000/- each, in default of payment of fine to furtherundergo simple imprisonment for eight months for the offencepunishable under Section 324 IPC; to undergo rigorous imprisonmentfor four years and fine of Rs.10,000/- each, in default of payment offine to further undergo simple imprisonment for eight months for theoffence punishable under Section 452 IPC; appellants Raj Kumar @Raja and Pankaj Sharma have been sentenced to undergo rigorousimprisonment for five years and fine of Rs.10,000/- each, in default ofpayment of fine to further undergo simple imprisonment for eightmonths for the offence punishable under Section 27 of the Arms Act.

3.The factual matrix emerging from the record is that on19.12.1997 at about 8.25 p.m., an information was received in thepolice station Gandhi Nagar vide DD No.26A regarding stabbing of aperson at Mandir Wali Gali, Gandhi Nagar.On receipt of suchinformation, SI Amrit Raj along with Ct. Mange Ram reached the spoti.e. House No.1357, Mandir Wali Gali, Gandhi Nagar, Delhi but noeye witness of the incident was found. It was revealed that the injurednamely Keshav Sharma and Dharmendra had been removed to thehospital. At about 8.45 p.m., an information was received from theGTB hospital (DD No.27A) that injured Keshav Ram was declaredbrought dead while injured Dharmendra was under treatment.Thecase FIR was registered under Section 302 IPC. SI Amrit Raj left forthe hospital leaving Ct.Mange Ram at the spot. In GTB Hospital, SISanjay Sinha handed over MLCs of Keshav Ram, Dharmendra andRaj Kumar to SI Amrit Raj.Injured Dharmendra handed over hisblood stained clothes to the police. pullanda containing clothes ofthe deceased was seized.

4.SI Amrit Raj recorded statement of injured Dharmendraunder Section 161 Cr.P.C. in which he stated that on 19.12.1997 atabout 7.30 p.m. he was present at his home. He and his father werewatching TV after having dinner. There was knock on the door, butno one was found when his father went to see. Again, there was aknock on the door upon which his father went to the roof and saw thataccused Raja was running away after hitting the door with his leg.When there was another knock on the door for the third time,

Dharmender went to the roof and found five boys namely Pankaj,Rohit, Manoj, Amit and Anil. In the meanwhile, accused Rajainflicted injury on his left buttock with knife. When Dharmenderraised an alarm, he was pounced by the accused persons and wasgiven injuries on his nose and left shoulder. He tried to free himselfand on hearing his cries, his father came on the roof. Accused Rajagave knife blow on the abdomen of his father. Accused Anil, Sunil,Rohit, Manoj, Raj Kumar Nai and Babloo started beating his father.Accused Manoj, Amit and Rohit escaped by climbing down the wall.Accused Ashok, Kamal and Deepak had pounced upon his father,whereas accused Sunil and Anil were giving him beatings. AccusedDeepak, Ashok and Pankaj-who were having knives, were inflictinginjuries to his father from left side. Accused Raj Kumar and Kamalwere beating his father with iron rods. Due to the injuries sustained,his father fell on the roof and the accused persons fled from theadjacent roof. He also stated that Kaushalya, Kamlesh, Saroj and JileSingh were standing at the door of this house and were creatingruckus. Nobody came to their rescue.

5.Dharmender rushed to the house of his sister Sunita atGeeta Colony, and brought her on his motorcycle. Dharmender andhis sisters took their father to GTB Hospital in TSR, where his fatherwas declared dead. He also stated that the accused persons hadquarreled with them for the reason that complaint case filed by hisfather was fixed before the court in the morning on the same day,wherein accused persons had appeared. In the court, his father met

Crl.A. 255, 270, 302, 312, 329, 418 of 2015

Darshan Singh Bahl, Dr. Kaushal, Ashok, Ashu and Saroj and had atalk for compromise. There was bickering between his father andSaroj, Ashu and Ashok, and; his father was chased by Ashu andAshok while returning.

6.The IO prepared the site plan and collected exhibits fromthe spot.Body of the deceased was sent for post mortem on20.12.1997 at 11.15 AM.As per post mortem report Ex. PW-8/A,there were 15 injuries on the person of the deceased including 5 incisewounds/stab wounds. The injuries found on the body of the deceasedby the examining doctor were the following:

“1.Incised wound 4cm x 0.2 x 1 cm present overright side of scalp placed 7cms over right ear and15cms above right eyebrow.

2.Red linear abrasion 6cm x 0.1cm over left side offorehead placed 7cms to left of midline startingfrom outer angle of left eye.

3.Red abrasion 1.5cm x 1cm over right side of chinplaced 1.5cms to the right of midline and 2cmsbelow lower lip.

4.Incised wound 6.5cm x 0.1cm x 0.1cms presentover outer border of right forearm7cms belowelbow joint.

5.Red linear abrasion 7cm x 0.1cms over outeraspect of right forearm starting from elbow joint.

6.Red abrasion 7cm x 1.5cm present over inneraspect of right arm starting from elbow joint.

7. Incised stab wound 4cm x 0.2cm present overouter and posterior aspect of left arm. 14cmsbelow top of shoulder. It is spindle shaped withclean cut margins and one angle of the woundbeing more acute than the other. On dissection thetrack of the wound is going anterior, medially andupward entering the axillary region and cuttingthe axillary blood vessels. Depth of wound is14cms. Hemorrhages and extravasations of bloodpresent along track of the wound.

8.Red abrasion 0.8cms x 0.8cms over dorsalsurface of left thumb on the Inter phalangeal joint.

9.Red abrasion 2cm x 1cm over inner aspect of leftforearm placed 6cms above the wrist joint.

10.Incised stab wound 5.5cm x 0.5cms over outeraspect of left thigh placed 16cms below hip bone.It is spindle shaped with clear cut margins, andone angle of the wound being more acute than theother. It has inverted edges. On dissection thetrack of the wound is going medially, anteriorlyand upwards and made exit wound of 1.3cms x0.5cms over front of left thigh, 2cm below inguinalcrease and 13cms to left of sacrotal sac. It haswith clean cut everted edges. Depth of wound is12cms and no major blood vessels have been cut.

11.Red abrasion 1.5cms x 1.5cms over front of leftleg placed 12cms below the left knee.

12. Red abrasion 1.5cms x 0.7cms over outeraspect of left leg placed 13cms above ankle joint.

13.Red abrasion 5cm x 4 cm over back of rightside of abdomen placed 6cms to the right ofmidline and just above the hip bone.

14. Lacerated stab wound 1.5cm x 1cm withirregular margins present over right inguinal area4cms to the right of penis. On dissection, the trackof the wound is going upwards, medially andposterior for depth of 6cms. It was the softtissues throughout and no major blood vesselswere cut.

15. Incised stab wound 4.5cms x 0,3cms presentover right buttock placed 5cms to the right ofgluteal cleft and 20cms below top of hip bone. Ondissection, the track of the wound is goingdownwards laterally and anteriorly for depth of10.5cms. No major blood vessels have been cut.”

The opinion regarding the cause of death of the deceasedis recorded as follows:

“The time since death was about 2/3 of day. Thecause of death was haemorrhagic shock due toantemortem stab injuries involving the axillarybloodvessels.InjuryNo.7wassufficienttoindependently cause death in the ordinary courseof nature.”

Further investigation of the case was conducted by Insp.Manmohan Sharma PW-20. Accused Kamal Raj, Deepak Sharma andRaj Kumar @ Raja were arrested on 22.12.1997. At the instance ofaccused Raja, one dagger was recovered from Thokar No.18, YamunaPushta.

Initially the police filed the charge sheet against accused Kamal Raj,Deepak Sharma and Raj Kumar @ Raja on 10.03.1998, but furtherinvestigation was conducted in the case by Insp.Satyaveer Singh,DIU.Thereafter, supplementary charge sheet was filed against 7

Crl.A. 255, 270, 302, 312, 329, 418 of 2015

more accused, namely, Sushil, Anil, Raj Kumar Nai, Ashok Sharma,Rohit Gupta, Manoj and Amit.Thereafter, accused Pankaj wasarrested and supplementary charge sheet was filed against him.ChargesunderSection147/148/149/324/452/307/302IPCand27/54/59 Arms Act were framed to which the accused persons pleadednot guilty and claimed trial.7.To prove its case, the prosecution had examined 30witnesses, Dharmender Sharma (PW1), Smt.Saroj Sharma (PW2),Sunita (PW3) being star witnesses of the case.

8.After completion of prosecution evidence, statements ofthe accused persons under Section 313 Cr.P.C. were recorded inwhich they claimed innocence and denied the entire case of theprosecution.Accused persons examined defence witnesses in theirdefence.

9.On appreciation of evidence and material brought onrecord, the trial court convicted the appellants for the offencescharged against them passed the order on sentence. Feeling aggrievedof the same, the appellants have preferred the instant appeals.

Submissions on behalf of the accused Sunil & Anil

10.Learned counsel for the appellants Sunil and Anil haveargued that the dispute was between deceased Keshav Ram and hisson Kamal who is also co-convict in the present case.PW1admitted in his cross-examination that civil dispute was going on

Crl.A. 255, 270, 302, 312, 329, 418 of 2015

between his family and family of accused Kamal regarding the housein which he along with his deceased father were staying, and thatthere was no motive for appellants to murder the deceased.PW1-Dharmender is the alleged eye witness who is also the son of thedeceased. PW5-Manoj Kumar is another son of the deceased. It wassubmitted that as per DD No.26A (Ex.PW21/A), the first informationwas given to the police at 8.25 p.m. regarding stabbing of person,whereas as per DD No.25A (Ex.PW6/DA) information was given tothe police at 8.20 p.m. by the convict Raj Kumar Sharma @ Raja tothe effect that he had quarrel with deceased Keshav Ram,Dharmender and Manoj due to which he received head injury.However, this information was not auctioned by the police. In thisregard, he refers to the testimony of PW27-Insp.Amrit Raj, who statedduring his cross-examination that deceased Keshav Ram was notarrested by him under Section 107/151 Cr.P.C. and he did not takeopinion from the doctor about the injuries received by accused RajKumar @ Raja. He also did not take the opinion of doctor whethersuch injuries were self inflicted or caused by someone. He could notsay whether any cognizable offence was made out from the MLC ofaccused Raj Kumar @ Raja.He could not say whether Raja hadreceived 8-9 stitches on his head. He stated that he did not register thecase, as he had no statement of accused Raj Kumar @ Raja. Ld.counsel submits that statement of the injured eye witness Dharmender(PW1) was recorded under Section 161 Cr.P.C. vide PW-1/D1 (PW-1/DA-1) which was reproduced in the charge sheet and on comparisonof thee two accounts, some improvement can be noticed. Ld. Counsel

submits that in his testimony PW1 deposed that deceased had dinnerat about 7.30 p.m. and he died at about 8 p.m. is falsified by the factthat postmortem revealed that only digested food was found in thestomach of the deceased.

11.Ld. Counsel submits that PW1 stated that he had receivedtwo knife blows, but his MLC shows that he received only one knifeinjury. It was further submitted that PW1 had not given the route hehad taken to go to his sister’s house, and he has not explained why hehad gone to pick up his sister rather than rushing to the hospital withthe deceased. PW1 further stated that in his statement to the policedated 23.01.1998, that while they were going to the hospital byscooter, SHO Manmohan Sharma came there and he asked that hisfather be taken to GTB Hospital. It is further argued that PW1 has notexplained as to why he had not taken his father to nearby nursinghome, and instead gone to GTB Hospital, which was at far off place.In his cross examination on behalf of accused Sunil and Anil, PW1stated that his first statement was recorded in the police station, whilethe second one was recorded in his house, whereas PW27-Insp.AmritRaj stated that the statement of PW1-Dharmender was recorded in thehospital. Thus, the recording of the initial statement at the claimedtime and place is itself doubtful. It was submitted that as per site planEx.PW15/A,(also marked Z-1) accused Sunil was standing with aniron rod, but PW1 had stated that he did not tell the police thataccused Sunil was having an iron rod while he was standing at theplace “I” as shown in the site plan.

12.Ld. counsel submits that PW27-Insp. Amrit Raj statedthat the investigation of the case remained with him till 6.00 p.m. on20.12.1997, and thereafter it was taken over by Insp. ManmohanSharma PW-20. Attention of this Court was drawn to the statement ofPW27-Insp.Amrit Raj, to the effect that fluid was applied on thestatements of Dharmender PW1, Sunita PW3, Manoj PW5 and SarojPW2 recorded under Section 161 Cr.P.C.It is further submitted thatduring the testimony of PW1, Court observation was recorded that inthe original statement under Section 161 Cr.P.C. of PW1, eraser fluidwas used and signatures have been put thereupon. He submits thatserious doubt arises whether the statements under Section 161 Cr.P.C.were even in existence on 19.12.1997, and the use of eraser fluidshowsthatsecondIOhadchangedthesignatures.PW20-Insp.Manmohan Sharma had stated that he did not record thestatement of any witness, nor statement of any witness was recordedin his presence on 22.12.1997.It is further argued that the brief factsof the case were recorded by the IO vide Ex.PW27/B1, but no fact asmentioned in the statement of PW1 recorded under Section 161Cr.P.C. came in it.

13.It is further submitted that in the death report Ex.PW1/B,no opinion regarding the use of any weapon has been given, withwhich the injuries were allegedly caused to the deceased. The MLCEx.PW7/A of the injured Dharmender was prepared by Dr.B.D. Singh(PW7) who stated that there was no injury on the person of the patienton the face and ankle as are described by PW1. PW1 later alleged

that Anil possessed punch in his hand, whereas no injury ondeceased is attributable to punch. It is further argued that in thestatement of Saroj Ex.PW24/DX1, there is no mention of the names ofthe appellants Sunil and Anil as the assailants.

14.It is further submitted that the appellant Sunil had takenthe plea of alibi that on the day of the incident, he along with hisfather had gone to Village Khatola, District Gurgaon, Haryana topurchase buffalo. They reached there at about 5 p.m. and stayed inthe said village for the whole night. It is further argued that DW4-LuvKush Aggarwal was examined as defence witness to establish the alibiof accused Anil that on the day of incident, appellant Anil was presentwith DW4 from 6.00-6.30 p.m. at his house as they were watching acricket match uptill 10.30-11.00 p.m. DW4 further deposed that onthat day father of Anil asked DW4 to take care of Anil as he wasgoing along with Sunil to purchase buffalo. In between, Anil hadgone to his home to sell milk at about 7-7.15 p.m. and came back afterabout 2-3 minutes. Similarly, DW7-Virender Singh was examined toestablish that he purchased the milk from appellant Anil and he statedthat on 19.12.1997 at about 7.00-7.15 p.m. He had gone to the houseof Anil to purchase milk. At that time, Anil was not present at hishouse. His mother told him that he was sitting in the house of Babli inthe adjacent house. He went to the house of Babli and called Anil.Anil came with him to his house, gave him milk and thereafter, hewent back to the house of Babli to watch cricket match.

15.It is further submitted that as per the Scaled site plan i.e.,Ex.PW15/A, the only role assigned to appellant Sunil is that he wasstanding with iron rod. Ld. counsel submits that appellant Anil andSunil were arrested after about one year without any explanation byprosecution. PW24 I.O. Inspector Satyaveer Singh had deposed thataccused Anil and Sunil were not arrested by him immediately after theinterrogation done by him on 27-2-1998 and that they were arrestedon 07-12-1998. It is submitted that appellants Anil and Sunil were noteven arrayed as accused persons in the First Chargesheet dated 10-3-1998 which was filed against only three accused persons i.e. RajKumar @ Raja, Kamal and Deepak. It is submitted that none of thethreeinvestigatingofficersbelievedthestatementsofPW1Dharmender, wherein he named as many as 12 assailants and,therefore, the First Chargesheet dated 10-3-1998 was filed againstonly three accused persons, even though the statement of PW1Dharmender mentioned all the accused- including the appellants.

16.In the alternate, it is submitted that only the case ofcommission of culpable homicide not amounting to murder is madeout against the main accused Raj Kumar @ Raja, as the injury on thearm of the deceased was the cause of his death.It is furthersubmitted that the appellants Sunil and Anil had no knowledge thattheir co-accused would cause any fatal injury to the deceased.Therefore, Section 149 IPC has been wrongly invoked in the presentcase. Ld. Counsel submits that otherwise also, there is no evidence tosuggest that the common object of the accused persons was to commit

murder of deceased, or that it was in the knowledge of appellants thatone of the accused persons would cause the fatal injury on the left armof the deceased. It is submitted that the law on Section 149 IPC issettled by various judgments of the Supreme Court of India, includingKuldip Yadav Vs. State of Bihar [(2011) 5SCC 324], wherein theSupreme Court held as follows:

“ It is not the intention of legislature in enacting Section 149 torender every member of unlawful assembly liable to punishmentfor every offence committed by one or more of its members. Inorder to attract Section 149, it must be shown that theincriminating act was done to accomplish the common objectof unlawful assembly and it must be within the knowledge ofother members as one likely to be committed in prosecution ofthe common object”(emphasis supplied)

17.Reliance is also placed upon the following judgments ofthe Supreme Court dealing with Section 149 IPC:-

i.Veeran & Ors. Vs. State of U.P. [AIR 2011 SC 1655]

ii.Manoj alias Bhau and ors. Vs. State of Maharashtra[AIR 1999 SC 1620]

iii.Bharat Soni etc. Vs. State of Chhatisgarh [2013(1) JCC579]

iv.Najabhai Desurbhai Wagh Vs. Valerabhai DeganbhaiVagh [(2017) 3 SCC 261]

v.Mummidi Hemadri and Ors. Vs. State of AndhraPradesh [2007(4) SCALE 431]

Submissions on behalf of the accused Kamal Raj

18.On behalf of the appellant Kamal Raj, it is argued that inhis statement Ex.PW1/A regarding identification of the dead body,PW1-Dharmender stated that some persons had killed his father, buthe had not named the appellant Kamal Raj in the same.It issubmitted that PW27-Insp.Amrit Raj– who had recorded the statementof PW1, PW2 & PW3, had stated that during the course ofinvestigation, it did not come to his knowledge that there was anydispute between the brothers over the house in question.Even thename of Kamal Raj did not figure in the investigation done by PW27.

19.It is submitted that the mother of the deceased, namely,Kasturi Devi had given complaints (Mark X) dated 16.12.1996, andEx.DX dated 09.01.1997 to various authorities against deceasedKeshav Ram and his sons regarding causing trouble in the lives of theapplicant, her husband and others.Similarly, complaints Ex.DX1dated 18.03.1997 and Ex.DX2 were made by the wife of the appellantKamal against her in-laws i.e. deceased Keshav Ram (father-in-law),Smt.Saroj (mother-in-law) and Dharmender and Manoj (brothers-in-law) with regard to beating and harassment. It is further submitted thattwo complaints Ex.PW1/X and Ex.PW1/Y were made by the deceasedagainst some of the appellants, but the name of the appellant-Kamal

did not figure in it. Thus, there was motive for the complainant PW-1to falsely implicate the appellant in the death of his father.

20.He submits that the house in question was given to theappellant Kamal by his grandfather by the virtue of Will (Mark Y)dated 15.04.1997, and General Power of Attorney (Mark X) dated15.04.1997 was executed in favour of the appellant Kamal with regardto property in question.It is submitted that the appellant Kamal hadno motive to kill his own father, for the reason, that the owner of theproperty was his grandfather Nand Kishore Sharma, who hadexecuted Will and Power of Attorney in favour of the appellant-Kamal, and deceased was not the owner of the property. It is alsosubmitted that the appellant had instituted suit for the said property.The appellant had invoked the legal remedy to get his propertyvacated, and there was no reason to eliminate his own father due tothe civil dispute.

21.It is further argued that there are serious contradictions/improvements in the testimony of PW2-Saroj Sharma inasmuch, as, inher statement made before the Court she stated that she saw that theaccused Raj Kumar Nai and Kamal were giving beatings to herhusband with iron rod, but when she was confronted with herstatement Ex.PW2/DB recorded under Section 161 Cr.P.C., it wasfound that nothing as such was mentioned therein.Rather, it wasmentioned that she had not seen anyone on the roof.Even PW24Inspector Satyabir Singh during his cross examination stated that PW2stated that she could not see any of the assailants. Similarly, serious

contradictions in the statement of PW3-Smt.Sunita have been pointedout. It is submitted that she had stated that she had heard the accusedpersons telling accused Kamal that on that day they would kill KeshavRam (deceased) and his children, but the said fact did not findmention in her statement under Section 161 Cr.P.C. Ex.PW3/DA. Shedid not react to the said information allegedly desired by her, as anynormal human being would.She neither informed PW-1, or thedeceased, or the police about the same as soon as she learnt of the socalled plan, to avert it being put into action.

22.In similar fashion, it is submitted that the testimony ofPW1-Dharmender is not true when his testimony is contrasted withhis statement recorded under Section 161 Cr.P.C. Ex.PW1/D1 and histestimony is full of improvements. The statement of PW1 recordedunder Section 161 Cr.P.C. allegedly on 19.12.1997- Ex.PW1/D-1 isabsolutely silent about the alleged story of gathering of appellant withother person before the incident.However, another statement(without any date) (Ex. PW1/DX1) records everything which wasmissing in previous statement. Since this statement is undated, it isdifficult to presume as to when it would have been recorded.However, reasonable inference may be drawn that the saidstatements were recorded with an ulterior motive to falsely implicatethe present appellant. Ld. counsel submits that in his testimony PW1stated that when his sister Sunita was leaving his house, she told ‘us’that in front of the shop of Kamal, Raja, Pankaj, Ashok, Deepak, JileSingh were standing and they were talking to each other and she also

told that they were saying that today they would run after killingKeshav Ram, his wife and children and they further asked Kamal tolook thereafter. This statement of PW-1 is unbelievable as there isnothing to show that he, or his other family members i.e., the deceasedand his mother reacted to the said information by taking anypreventive measures, or informing the police.

23.Ld. Counsel points out that PW-1 in his testimony statedthat on the roof he found five persons namely, Pankaj, Rohit, Manoj,Amit and Anil. In the meantime, accused Raja inflicted at his left sidebuttock with some sharp edged weapon and Anil closed his mouthwith one of his hands. Thereafter, accused Pankaj inflicted knifeinjury above his ankle. Accused Rohit, Manoj and Amit caught holdhim (daboch liya). These accused persons caught his hands and hair;and thereafter caused injuries on his forehead, nose, ears, and on rightshoulder. He tried his best to get himself released from the clutches ofthe accused persons.On his crying, his father came at the roof torescue him. When his father was coming on the roof, (again said) hisfather had already come on the roof, then, accused Raja inflicted knifeinjury below the abdomen of his father. Then, accused namely, Anil,Sunil, Raj Kumar, Sudhir, Rohit, Manoj pounced towards his fatherand they started beating his father. Then, accused Ashok, Deepak andKamal caught held of his father (daboch liya) and accused Anil, Suniland Sudhir started inflicting injuries with knives/ khanjars on hisfather. Accused Deepak and Ashok were inflicting injuries on the leftside shoulder of his father. Then, he also noticed that accused Pankaj

also inflicted knife injuries on the hip of his father. Kamal and RajKumar also started causing injuries on the head of his father with ironrods. Ld. Counsel submits that these allegations were not stated byhim in Ex.PW1/D1.

24.It is further submitted that PW1 has taken contradictorystands with respect to his statements recorded by the police. It ispointed out that in his cross on behalf of accused Ashok and Deepakdated 02.11.2000, PW-1 stated that his first statement was recorded on19.12.1997 in GTB hospital by the IO. This statement was recorded atabout 10.15 PM. SI Amrit Raj recorded his statement at his instance.He also stated that he had signed his statement which was in writing.But, no such document was found on record. However, Ex.PW24/DX2 was brought on record, which was PW-1’s signedstatement dated 19.12.1997 recorded by PW-27, SI Amrit Raj. Ld.Counsel points to the cross examination of PW-1 on behalf of accusedSunil and Anil dated 05.07.2001, wherein he stated that his firststatement was recorded by the police in the police station and thesecond was recorded in his house on the same date. Ld Counsel refersto the cross examination of PW-1 on behalf of accused Raj Kumar @Raja dated 05.07.2001, wherein he stated that IO Amrit Raj hadwritten his second statement dated 19.12.17. Insp. Manmohan did notwrite that statement as suggested. Probably the statement was gotwritten through someone else by Amrit Raj. The court made anobservation that in the original statement dated 19.12.1997, after usingeraser, signatures have been put thereupon. Ld Counsel points out that

upon cross examination by accused Raj Kumar @Raja on 11.10.2001,PW-1 stated that on 20.12.1997 his statement was not recorded in theinquest proceedings. He further stated that he made statement on19.12.1997 naming the assailants to the police and denied thesuggestion that he was not aware of the name of the assailants on20.12.1997; and yet on 11.10.2001, he stated that his statement wasrecorded after the identification of the dead body and the statementrecorded was Ex. PW-1/DA1.

25.Ld.CounselsubmitsthatPW20-Insp.ManmohanSharma had stated that upon verification of the version of the witnessPW1, the same was not corroborated by any person from the locality.It is further argued that the DD entry lodged by accused Raja was notenquired into by the IO, nor were the facts regarding the allegedclimbing of the accused persons from the neighbourhood onto theterrace of the house of the deceased got verified. It was not verifiedwhether the neighbours were accomplice in the commission of thecrime, since the accused could not have climbed onto the neighbour’sterrace without their knowledge and consent.

26.It is further argued that PW1 had not disclosed in histestimony, as to what was the object of the accused in causing injuryto him and his father, and if his testimony is to be believed, he couldnot explain as to why he was left alive when his father was fatallyinjured.

27.It is further argued that PW1 had the motive to falselyimplicate the appellant Kamal in the present case, as he was awarethat the GPA/Will of the house in question was in favour of accusedKamal, and in quarrel, PW1 and Kamal were sent to lock up in theproceedings under Section 107/151 Cr.P.C. In the cross examinationon behalf of the accused Amit and Manoj dated 4.05.2001, PW1 hadadmitted the pendency of civil dispute with regard to house inquestion between his father and accused Kamal.

28.In support of the above submissions, judgment in thecase of Rajesh @ Kalia v. State (Crl.A. 285/1998, delivered by thisCourt on 15.07.2014) has been relied upon and more particularly para11 and 12 are emphasized, in which it was observed that an accusedmay adduce the evidence in support of his plea directly, or rely on theprosecution case.It was also observed that the plea taken by theaccused can be considered by the court relying on the probabilitiesand the circumstances of the case.

29.Next judgment relied upon is in the case of Deny Bora v.State of Assam (2014) 14 SCC 22 in support of the contention that thecourt is required first to assess the trustworthiness of the witness, andif the court finds the evidence adduced worthy of being relied on, thenthe testimony has to be accepted and acted upon, though, there may beother witnesses available who could also have been examined butwere not examined.Reliance is also placed upon Syed Ibrahim v.State of A.P. (2006) 10 SCC 601, in which it was observed that it isthe duty of the court to separate the grain from the chaff. Where chaff

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can be separated from the grain, it would be open to the court toconvict an accused, notwithstanding the fact that evidence has beenfound to be deficient, or to be not wholly credible.It has to beappraised in each case as to what extent the evidence is worthy ofacceptance, and merely because in some respects the court considersthe same to be insufficient for placing reliance on the testimony of awitness, it does not necessarily follow as matter of law that it mustbe disregarded in all respect as well.

30.In Rabibul v. State 2014 SCC OnLine Del 2214 it wasobserved that where two eye witnesses have spoken half truth, and inview of their conduct and the fact that even the appellant had receivedan injury which required stitches to be put, the Court gave the benefitof doubt to the appellant with respect to the offence committed. In thecase of Sahib Singh v. State of Haryana (1997) 7 SCC 231, it wasobserved that enmity has always the potential of making man stoopto the lowest level of inhumanity.It was further observed that nothaving seen as to what had happened, and who had killed their father,the three brothers thought of involving the appellant in the case so thathe may be removed from the scene and lodged in the jail as they-onaccount of the enmity, were highly interested in securing hisconviction and to achieve the said object, they did not shudder inlying before the Court. In the case of Bajwa and others v. State ofU.P. (1973) 1 SCC 714, it was observed that, no doubt, theprosecution witnesses claiming to have seen the occurrence havenamed all the appellants and the approver has even named those

acquitted by the High Court, but in the view of the Supreme Court itwould be safe only to convict those who are stated to have takenactive part and about whose identity there can be no reasonable doubt.In the case of Dinesh Kumar @ Kalu v. State Govt. of NCT of Delhi(Crl.A. 901/2013 decided by this Court on 24.09.2014) it wasobserved that the tendency to add fringes and embroidery of untruth tothe truth is not uncommon, and thus lies the task with the Court toseparate the grain from the chaff.

31.Ld. Counsel, in the alternative, submits that the appellanthas been wrongly implicated under section 149 IPC. He submits thatthe prosecution had failed to prove that the common object of theassembly was to kill the deceased. Ld. Counsel places reliance onAllauddin Mian and others v. State of Bihar (1989) 3 SCC 5,Rajendra Shantaram Todankar v. State of Maharashtra and others(2003) 2 SCC 257, Maiyadin and others v. Stae 1973 Cri.L.J. 1203,Najabhai Desurbhai Wagh v. Valerabhai Duganbhai Vagh andothers (2017) 3 SCC 261 and Sarwan Singh and others v. State ofPunjab (1978) 4 SCC 111, wherein it was observed that in order tofasten vicarious responsibility on any member of an unlawfulassembly, the prosecution must prove that the act constituting theoffence was done in prosecution of the common object of thatassembly, or the act done is such as the members of that assemblyknew to be likely to be committed in prosecution of the commonobject of that assembly. However, the prosecution has not dischargedthis burden.32.It is submitted that even if this court upholds theconviction of the accused persons under section 149 IPC, no offencewhatsoever, punishable under section 302 IPC is made out. It is notthe case of the prosecution that the accused persons had gathered andcome to the house of the deceased to kill the deceased only. Rather itis the case of the prosecution that PW-1 was given beatings. They didnot target the deceased. He got embroiled only when he came up tothe terrace. It is apparent that the accused persons did not make sure tokill PW-1. The deceased had come in between, and if the MLC ofaccused Raj Kumar @Raja is taken into consideration, it would beapparent that some kind of scuffle/fight had taken place. Theprosecution has also not come with true story, and there is somethingmore than what was unfolded by the prosecution and, therefore, thiscourt has to consider the possible probabilities. The DD no. 27A (Ex.PW-21/B) and MLC of accused Raj Kumar @Raja are undisputed.The injured witness has not explained the injuries on the body of theaccused Raj Kumar @Raja. The injuries on the body of the deceasedare result of fight. The incident has been committed in the heat ofthe moment, and no undue advantage has been taken. The offence, atthe most, is punishable under section 304 part II of IPC, as theintention to commit the offence of murder is absent. It is thus prayedthat the appellant is innocent and he be given the benefit of doubt.

Submissions on behalf of the accused Pankaj Sharma

33.On behalf of the appellant Pankaj Sharma, it is arguedthat there are several material contradictions in the testimony of PW1,

PW2, PW3 and PW27. Ld. Counsel submits that the presence of PW-1 on the terrace is doubtful, and he is planted witness. Ld. Counselsubmits that the testimony of PW-1 is full of contradictions andimprovements. He points towards the examination in chief of PW-1wherein he had stated that accused Ashok, Deepak and Kamal caughthold of his father (daboch liya) and accused Anil, Sunil and Sudhirstarted inflicting injuries with knives/ khanjars on his father. AccusedDeepak and Ashok were inflicting injuries on the left side shoulder ofhis father. Then, he also noticed that accused Pankaj also inflictedknife injuries on the hip of his father. Kamal and Raj Kumar Nai alsostarted causing injuries on the head of his father with iron rods. Ld.Counsel points to the cross examination of PW-1 on behalf of Ashokand Deepak dated 12.02.2001, wherein he stated that he told thepolice that accused Deepak and Ashok were inflicting injuries on theleft side of the shoulder of his father in the statement dated 19.12.1997which was written by the IO. This witness was confronted with hisstatement, where it was written “Ashok, Kamal, Deepak ne pitaji kodaboch rakha tha Sunil Anil maar rahe the Deepak, Ashok bahi tarafpeeche se Pankaj pitaji par waar kar rahe the”. Thereafter again on07.03.2001, PW1 states that the statement made by him before thedistrict crime cell was correct which he had read ‘surserelee’. He didtell the district crime cell in his statement that his father was giveninjuries on his left side/shoulder by accused Ashok and Deepak, butthe writer of the statement told that he had already told these facts inhis earlier statement; and on 03.05.2001, he stated that he saw hisfather when he was already attacked with the knife. His father did not

fall down the roof as he was grabbed by Deepak Kamal and Ashokfrom behind. When his father was caught and held up by the accused,he was standing at distance of 15 feet. The three accused personsnamely Deepak, Kamal and Ashok were not having anything in theirhands. His father had already sustained injuries before he was caughtheld of by the three accused persons. All the three accused had caughtheld of his father from behind. On the left side Ashok was there, in themiddle Kamal was catching hold of his father.

34.Ld. Counsel submits that the injury attributed to theappellant Pankaj Sharma is on the ankle of PW1, but the same has notbeen found in his MLC (Ex. PW-7/A). It is further argued that as perEx. PW-8/B, which is the opinion of PW-8, Dr. Anil Kohli regardingthe weapon of offence, though injury no.15 is attributed to theappellant, but no weapon has been recovered from him.The saidinjury could be possible by the knife allegedly used and got recoveredby the accused Raj Kumar @Raja. It is submitted that there was aninjury on the hip of the deceased, but the same could not have beeninflicted as the deceased was allegedly held by accused Deepak,Kamal and Ashok from the back. It is further submitted that it has notbeen explained by the prosecution, as to how, the appellant reachedthe roof when the height of the balcony was about 15 feet.

35.Ld. Counsel points out that as per DD No. 25A, Ex.PW6/DA, information was received by Police through accused RajKumar @Raja regarding the incident. Thereafter, vide DD No. 26A(Ex. PW21/A). the Police was informed at 8:25 PM that one man had

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been attacked by knife. Thereafter, vide Ex. PW 21/B. DD No. 27A,another information was received at 08:45 PM by the police fromGTB Hospital regarding the injured being brought to the hospital. Hesubmits that the time of occurrence has been noted by the IO as beingabout 07:30 PM on 19.12.1997. Ld. Counsel points towards the cross-examination of PW-21, who authored the said exhibits, wherein hehas stated that DD No. 25A and DD No. 29A are in differenthandwritings. It is true that DD No. 5A(DD No. 25A) and DD No.29A are not signed by me and name of the duty officer is notmentioned in those DDs.

36.To substantiate his plea of alibi, the appellant Pankaj hadexamined DW5 Rajesh Umare, who had deposed that as per record,on 19.12.1997 one Pankaj Kumar Sharma sold his motorcycle bearingno.DL 4SD 8310 to one Mr.Larry Eastwood. DW6-Ram Niwas statedthat in the month of March-April, 1997, Pankaj Sharma went toMumbai to work in the film industry. DW10-Gauri Charan BhagwanDas Dubey had deposed that accused Pankaj was known to him as hewas working at Centaur Hotel, Juhu Beach, Mumbai as life guardfor three months i.e. between 07.10.1997 to 07.01.1998. DW10 gavea written undertaking to Pankaj Sharma to hand over his bike toMr.Larry Eastwood under assurance that the remaining amount of5000 rupees would be paid to him on 19.12.1997. Thus, the appellantclaims that he was present at Mumbai at the relevant time.

37.In support of the above contentions raised, judgments inthe case of Jayanti Bhai Bhenkaarbhal v. State of Gujarat (2002) 8

SCC 165 and Kamlesh Prabhudas Tanna and another v. State ofGujarat (2013) 15 SCC 263 have been relied upon, in which it wasobserved that once the prosecution succeeds in discharging its burden,then it is incumbent on the accused-who takes the plea of alibi, toprove it with certainty so as to exclude the possibility of his presenceat the place and time of occurrence. If the evidence adduced by theaccused is of such quality, and of such standard that the Court mayentertain some reasonable doubt regarding his presence at the placeand time of occurrence, the Court would evaluate the prosecutionevidence to see if the evidence adduced on behalf of the prosecutionleaves any slot available to fit therein the defense of alibi. It was alsoobserved that it is the sacrosanct duty of the appellate court to besatisfied that the guilt of the accused has been established beyond allreasonable doubt after proper reassessment, re-appreciation and re-scrutiny of the material on record.

Submissions on behalf of the accused Raj Kumar @ Raja

38.On behalf of the appellant Raj Kumar Sharma @ Raja, itis argued that there was dispute between accused Kamal Sharma andhis deceased father regarding the house in question which is of 180yards and whose owner was Sh.N.K. Sharma, father of the deceased.Sh.N.K. Sharma had prepared will dated 15.04.1997 (Mark Y) infavour of accused Kamal Sharma vide which the house in questionwas given to Kamal.One GPA (Mark X) was also prepared bySh.N.K. Sharma in favour of Kamal and the mother of the deceasedmade several complaints (Ex.DX, Ex. DX3, Mark ‘D’) against her

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deceased son with regard to harassment meted out to them.Theappellant Raja had no interest in the property in question and it wasonly accused Kamal Sharma who was interested in the property, sothere was no motive in causing alleged injury to the deceased. Theappellant Raja is living in the neighborhood and was just watching thefight between the deceased and accused Kamal Raj Sharma and therewas nothing unusual about it.

39.It is further argued that the recovery of the knife vide Ex.PW-6/E at the behest of the appellant on 23.12.1997 is doubtful.There are contradictions in the testimony of witnesses, moreparticularly PW20-Insp.Manmohan Sharma who stated that accusedRaj Kumar @Raja was arrested on 22.12.1997 based on the disclosurestatement of accused Deepak and Kamal. Ld. Counsel submits thatthis fact was not stated in the disclosure statement of Deepak andKamal. In his cross examination PW-20 had stated that disclosurestatement of accused Kamal and Deepak vide Ex. PW-6/B wasrecorded on 22.12.1997. He did not recollect if any disclosurestatement of accused Kamal and Deepak was recorded on 23.12.1997.Accused Raj Kumar @Raja was arrested prior to recording of Ex.PW-6/B.

40.It is further argued that one DD No.25A (Ex. PW-6/DA)was lodged by accused Raja at 8.20 p.m. on 19.12.1997 to the effectthat he had quarrel with the deceased and his family members,thereafter the appellant was medically examined on 20.12.1997 asadmitted by PW-20 Insp. Manmohan Sharma. It is apparent that

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appellant was not arrested in the manner alleged by the prosecutionand no recovery was effected from him.

41.Ld. Counsel submits that DD No.26A was lodged at 8.25p.m. regarding stabbing of person. DD No.27A was lodged at 8:45PM with regard to the information that the deceased was brought deadto the hospital. Ld. Counsel submits that the time of occurance ismentioned in DD No. 27A, and there is no explanation as to how theIO found out about the time of occurance. No name of any of theaccused was mentioned in the brief facts prepared by the IO. Even theMLC of the deceased (Ex. PW-9/A) shows that he was brought withthe history of stabbing by ‘some persons’.It is submitted that thenature of injuries sustained by the deceased were not known initially,and it was only after the receipt of his postmortem report that an anti-dated statement of PW1-Dharmender was recorded in which thespecific injuries were attributed to the accused persons.It issubmitted that the statement of PW1 under Section 161 Cr.P.C. wasrecorded subsequently, as is evident from the fact that the statementshave been tampered with. Eraser/white fluid had been applied overthe name of the police officer who recorded the statement and SIAmrit Raj signed over the fluid/eraser.

42.Ld. Counsel submits that the fatal knife injury is notattributed to the appellant. However, the said injury was primarily intheleftarm(shoulder/upperarm)ofthedeceasedandnotdirected/aimed at any vital part of the body.The intention of theattacker could not have been to cause the death of the deceased

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because, had it been so, the attacker would have given direct knifeblow on vital part of the body. Ld. Counsel submits that even if thecase of the prosecution is taken at the highest and accepted as thegospel truth, even then only case under Section 304 IPC can bepressed against the present appellant, and not under Section 302 IPCas it is amply clear from the facts and circumstances, and nature ofinjuries received by the deceased, that there was no common object tokill the deceased. Even the Ld. Trial Court has observed that apreplanned intention to murder deceased Kesho Ram was absent.Further, the Ld. Trial Court has observed that it is ready to assumethat the accused persons may not be having the intention to kill KeshoRam.

Submissions on behalf of the accused Raj Kumar Nai

43.On behalf of the appellant Raj Kumar Nai, Ld. Counselsubmits that initially police did not find anything against appellant RajKumar Nai, and he was not charge sheeted by the police in the maincharge sheet. However, he was arrayed as an accused only in thesupplementary charge sheet later on. It is argued that there was noallegation against the accused that he was involved in any disputewith the family of the deceased. Ld. Counsel submits that on perusalof Ex. PW-1/D2, Ex. PW-1/X and Ex. PW-1/Y, which are documentson record produced to highlight the dispute between the deceased andhis neighbors; in none of them, the appellant is cited as rival party.He is not stake holder in the property occupied by the deceased,regarding which he was having dispute with his son Kamal Sharma.

There was no motive with the appellant in causing any injury to eitherthe deceased, or the injured.It is alleged against him that he wascarrying an iron rod and gave blow on the head of the deceased, butthe post mortem report does not show any head injury, nor any suchiron rod was recovered from the appellant. He submits that it wasnever the case of the prosecution that the appellant was carrying anyknife.It is argued that the appellant was not member of anyunlawful assembly on the day of incident, and nothing has come onrecord to show what the object of the unlawful assembly was. As perthe postmortem report (Ex. PW-8/A) of the deceased, there was onlyone fatal injury, thus, it cannot be said that the common object of theassembly was to cause the death of the deceased.

Submissions on behalf of the accused Deepak

44.On behalf of the appellant Deepak, it is argued that theinjury attributed to the appellant is on the hip of the deceased, whereasthe fatal injury was injury no.7 as per the postmortem report (Ex. PW-8/A). It is further argued that as per the impugned judgment, the causeof death of the deceased was excessive bleeding. It is submitted thatas per the death report (Ex. PW-1/B), postmortem report (Ex. PW-8/A) and testimony of PW-8 Dr. Anil Kohli, the dead body wasnaked. However, it is not explained where the clothes went. Even, noexplanation came on record as to why the dead body of the deceasedwas brought to the hospital in naked condition.

45.It is submitted that PW-1, PW-3 and PW5 are notcredible witnesses inasmuch, as, in his cross-examination but RajKumar, Pankaj, Anil & Sunil dated 28.03.2005, PW-5 stated that hisgrandfather Nand Kishore Sharma died on 20.12.1997, but his deathcertificate (Mark D1) shows that he died on 30.12.1997. Whereas,PW1 stated that Nand Kishore died on 01.10.1997, and PW3 statedthat he died on 30.12.1999. There is contradiction in the testimony ofPW5 as he stated that the deceased died in the morning, but as per theprosecution case, the deceased died in the evening at about 7.30 p.m.Two pyjamas were seized by the police and sent to FSL, which showthat one pyjama had no reaction for blood, and the other pyjama washaving reaction of human blood of ‘A’ group. It is submitted that theappellant Deepak is the nephew of the deceased, and there was nocomplaint by the deceased against Deepak that he had threatened him.

46.Ld. Counsel submits that as per the MLC of PW-1, (Ex.PW-7/A) dated 19.12.1997 at 08:30 PM, and testimony of PW-7,there was no injury on the face and ankle of PW-1 and the nature ofinjuries was simple. Ld. Counsel submits that the version of PW-1,PW-2 and PW-3 with respect to the incident is contradictory,inasmuch,as,PW-1DharmenderSharmadeposedthaton19.12.1997, he along with his father Sh. Keshav Ram Sharma werepresent at their house at about 07:30 PM. He stated that they werewatching TV after taking their meals. Whereas, PW-2 Saroj Sharmadeposed that she was preparing food at 07:30 PM on 19.12.1997. Ld.Counsel submits that the conduct of PW-2 is unnatural inasmuch, as,

she stated that the SHO of Gandhi Nagar was known to her at the timeof the incident. LD. Counsel questions as to why then did she not statethe names of accused to the SHO, who was known to her. Ld. Counselsubmits that PW-1 had already sustained injuries prior to the incidentas is evident from the testimony of PW-2 Saroj Sharma and PW-5Manoj Sharma. Ld. Counsel submits that the appellant has beenfalsely implicated and the involvement of PW1 in the incident cannotbe ruled out. Ld. Counsel submits that PW-1 was already in an injuredcondition prior to the incident in question. She refers to crossexamination of PW-2 on behalf of Amit and Manoj dated 1.03.2002,wherein she stated that Dharmender did not go to his work on the dayof incident because he was having injuries on his person because ofdispute earlier to the incident. PW-5 Manoj too states similarly.

47.To substantiate his plea of alibi, appellant DeepakexaminedDW11-Dr.V.K.Chaudhary,S.M.O.underCMOSaharanpur, U.P. who had produced Ex. DW-11/A- the medicalcertificate of Deepak Sharma.DW11 deposed that as per indoortreatment of Deepak, he came to the hospital on 17.12.1997 at 1.00p.m. with the complaint of diarrhea, vomiting and dehydration withback pain.He was admitted in the hospital upto 20.12.1997.Heproved the treatment slip of Deepak as Ex.DW11/B.

Submissions on behalf of the accused Ashok

48.The appellant Ashok, disputes the place of occurrence. Itis submitted that the photographs taken of the spot do not depict the

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correct picture. PW-27 Amrit Raj had stated that photographs weretaken by the private photographer- PW-4, who failed to give the houseno. of the place of occurrence and the crime team did not reach thespot. It is submitted that the blood stained earth was lifted from thespot vide ‘Mark Z’, but the same has not been relied upon by theprosecution. It is further submitted that the story put forth by theprosecution is highly improbable, for the reason that no footprintswere found in the blood found on the terrace, or on the staircase, whenit is the case of the prosecution itself that the deceased was broughtfrom the roof through stairs after the alleged incident.

Submissions on behalf of the accused Manoj

49.On behalf of the appellant Manoj, it is argued that theDD No.26A (Ex. PW 21/A)regarding stabbing of person was gotlodged and then DD No.27A was got lodged regarding bringing of thedeceased in the hospital who was declared dead. It is argued that inDD No.27A, the time of incident is mentioned as 7.30 p.m., but it hasnot been explained as to how the time of occurrence was recorded as7.30 p.m when the IO had not found any eye witness at the spot. It isfurther submitted that this is case where the investigation has beendone in shoddy manner. Ld. Counsel submits that the site plan (Ex.PW-1/DB) is wholly inadequate, as no dimensions have been showntherein. The TSR driver- of the vehicle in which the deceased wastaken to the hospital, has not been examined by the prosecution. Eventhe TSR or the motorcycle of PW-1 Dharmender were not examinedto draw blood samples from the same. It is further submitted that theFSL report shows that there is delay of sending samples to thelaboratory, as it is the case of the prosecution itself that the incidenthad taken place on 19.12.1997 and the samples were sent to the FSLon 05.02.1998. The FSL report shows that only blood on the pyjamaof PW1-Dharmender matched, but the blood of the deceased did notmatch. It is further submitted that there is doubt about the recoveryof dagger from accused Raja inasmuch, as, two sketches of the daggerwere prepared vide Ex. PW-6/D and PW-8/B and the pullanda was intorn condition as is evident from the testimony of PW-6. It is furtherargued that undigested food was found in the postmortem report (Ex.P-8/A) of the deceased, which belied the time of death attributed bythe prosecution. It is further submitted that PW1 did not disclose thename of any person/ accused in his MLC (Ex. P-7/A), which createsdoubt about the involvement of the accused. It is further argued thatin the complaint filed by PW1-Dharmender dated 10.01.1998 (Ex.PW-1/Z), name of the appellant Manoj Kumar is not mentioned.

50.It is further submitted that if the version of PW3-Sunita isto be believed-that she had heard the accused persons planning toeliminate the family of the deceased, then her first reaction would beto come back to the house of her father and to inform them, but shehad not done so, which creates doubt about the story. It is submittedthat the conduct of PW1 is unnatural, as he had not taken his father tothe nearby hospital. Rather took him to GTB Hospital which was at afar off place. Ld. Counsel submits that the presence of PW-2 SarojSharma at the place of the occurrence is doubtful. He submits that the

police did not find any witness at the home of the deceased as per theDD, and no blood stained clothes of PW-2 have been seized by thepolice. For his alibi, accused Manoj produced Ex. DW-1/A- copy ofletter from Deepak Gupta and examined DW-2 Hari Om Gupta toprove that he was working in Noida from 15.12.1997 to 26.12.1997and his working hours were from 10:00 AM to 08:30 PM.

Submissions on behalf of the accused Rohit

51.On behalf of the appellant Rohit, it is argued that thename of the appellant was not mentioned in the earlier statement madeby PW1 under section 161 Cr.P.C. PW1 in his testimony before theCourt attributed the role to the appellant Rohit, as the person who hadcaught held of the deceased and then given beatings to him. But in hiscross-examination, PW-1 has admitted that accused Rohit wasunarmed. Ld. Counsel submits that accused Rohit was not present atthe spot at the relevant time and he has been falsely implicated byPW-1. Ld. Counsel submits that even in the version of PW-3, that sheheard some accused plotting against the deceased and his family,appellant Rohit was not named therein. Ld. Counsel submits that mostof the witnesses have not stated anything against accused Rohit,including the main witnesses like PW-3, PW-4 and PW-5.

52.To prove his plea of alibi, the appellant examined DW9-Jitender Kumar Varshney, who deposed that appellant Rohit Gupta ishis brother-in-law.On 03.12.1997, first baby boy was born to thewife of DW9 in Malti Bai Hospital, Chitnish at Thane West,

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Maharashtra.On 14.12.1997, Rohit Gupta came to his house andbrought gift.On 17.12.1997, Namkaran ceremony of son of DW9was celebrated.On 18.12.1997, Rohit Gupta suffered pain in hisstomach.DW9 took Rohit Gupta to civil hospital, Ulhar Nagar,Thane, Maharashtra where he was treated and was advised to comeregularly for two days. Appellant produced Ex. DW-12/A, medicalrecords to this effect by DW12-Gopal Pandit Puranik, Junior Clerk atRegional Mental Hospital Thane, Mumbai, Maharashtra. He wasagain taken to the hospital on 19.12.1997 and 20.12.1997. He provedthe OPD card of the hospital as Mark DW9/P2.

Submissions on behalf of the State

53.Mr. Rajat Katyal, Ld.APP for the State argued that DDNo.25A Ex.PW6/DA was recorded on 19.12.1997 at 8:20 PM on theinformation of the accused Raj Kumar @Raja; and his MLC thoughnot exhibited, is on record which shows that he had received injurieson his head. But another information regarding the incident wasreported at 8.25 PM vide DD No.26A (Ex.PW21/A) to the effect thata person had been stabbed and it was assigned to PW-27 Amrit Raj.The injured Dharmender PW-1 was medically examined vide MLCEx.PW7/A at 8.30 PM, and the deceased was examined vide MLC(Ex.PW9/A). They were brought to the hospital by Sunita. Ld.Counsel points that both the MLCs are consecutively numbered (88and 89).

54.Mr. Katyal submits that the rukka Ex.PW27/A wasprepared at 9.30 p.m. by SI Amrit Raj on the basis of which FIR wasregistered at 10.30 p.m. vide DD No.29A (Ex.PW21/C). He submitsthat the statements of Dharmender PW-1, Saroj PW-2 and Sunita PW-3 were recorded on 19.12.1997 and Ex.PW24/DX2 is the signedstatement of PW1 dated 19.12.1997 which was recorded at about10.30 p.m. He submits that this injured eye witness has specificallynamed the 12 accused and detailed their roles in his first statementitself. The statement recorded by SI Amrit Raj dated 19.12.1997 undersection 161 Cr.P.C. vide Ex. PW-1/D1 (also Ex. PW-1/DA1) is alsoon similar lines. It is submitted that the rukka was sent at 9.30 p.m. on19.12.1997 and by that time the statement of injured Dharmender wasnot recorded. The statement was recorded later on at about 10.30 PM,but the FIR was already registered on the MLC of the deceased that hehad been declared dead. The investigation was done on 19.12.1997and 20.12.1997. On 21.12.1997, no investigation was done as it was aSunday and then the investigation was transferred to Insp. ManmohanSharma PW-20 who arrested the accused Kamal, Deepak, Raj Kumar@ Raja who were searched vide Ex. PW-10/A, Ex. PW10/B and Ex.PW-10/C respectively; and recovery of dagger was affected at theinstance of accused Raja vide Ex. PW-6/E.

55.Ld. Counsel submits that on 31.08.2000, order on chargewas passed against 10 accused. Thereafter accused Pankaj wasarrested on 2.09.2002 and charge sheet against him dated 27.09.2002was filed and received on 17.12.2002 by ASJ and order on charge was

passed against him on 22.08.2003. Thereafter, on the complaint of thecomplainant dated 10.01.1998 vide Ex. PW-1/Z, the investigation ofthe case was transferred to Crime Cell on 19.01.1998, East Delhi andInsp. Satyaveer PW-24 recorded the statement of Dharmender underSection 161 Cr.P.C. on 23.01.1998 vide Ex.PW1/DX1. Thereafter afourth statement of Dharmender was recorded under section 161Cr.P.C. on 27.02.1998. On 19.03.1998 charge sheet was filed againstaccused Raj Kumar @ Raja, Kamal and Deepak. On 7.12.1998 sevenmore accused- Rajkumar Nai, Rohit, Manoj, Anil, Sunil, Ashok,Pankaj were arrested. One Sudhir was declared proclaimed offender.

56.Ld. APP submits that different statements of PW-1 wererecorded at different times, but PW-1 has consistently stated withregard to the incident, and minor contradictions/ exaggerations do notgo to the root of the matter. Ld. APP submits that PW-1 has takendifferent stands with respect to where his first statement was recordedby the police, but he has consistently stated that the first statementwas recorded on 19.12.1997.

57.Ld. APP thereafter points towards the testimony of PW-27 Insp. Amrit Raj on the issue of the first statement of PW-1,wherein he has stated that he recorded the statement of PW-1 u/s 161Cr.P.C. and also of Ct. Devender and SI Sanjay Sinha. He furtherstated that he recorded the supplementary statement of PW-1Dharmender and also the statements of PW-2 Saroj, PW-3 Sunita,PW-11 Ct. Charan Singh and PW-13 HC. Mange Ram. In his crossfor accused Deepak and Kamal dated 18.03.2010, PW-27 stated that

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he reached the hospital at 9.45-10 PM. He recorded the statement ofDharmendra at about 10.15 PM. In the cross for accued Raja, Pankaj,Sunil, Anil, Amit and Manoj dated 1.11.2010, he denied thesuggestion that the statement of PW-1 was not recorded by him in thehospital. Ld. Counsel submits that PW-21 was questioned on the samedate of cross examination with respect to the eraser fluid, wherein hestated that he had not applied the same, nor was it done in hispresence. He then voluntarily stated that someone else had signed bymistake on point ‘A’ where he had to sign, and after the fluid wasapplied, he signed at point ‘A’. He further stated that he had askedsomebody to apply fluid at point ‘A’, but he could not remember thename of the person. No note was given for applying the fluid in thestatements. He further stated that the signatures have been put by himwith pen in original, and not as carbon copy. Likewise, PW-27 gaveevasive answers for other questions regarding the application of eraserfluid. In his cross on 3.02.2011, he stated that Dharmendra PW-1 hadgiven one signed statement in writing to him in the hospital which wasnot written by this witness. He further stated that he had applied eraserfluid on the statement of PW-2 Saroj and PW-3 Sunita in the house atthe time of recording their statement at about 11.30 PM which werewritten on his dictation by SI Ram Sewak. Further, again he statedthat the statement of PW-2 and PW-3 were not recorded by him butthe same were produced before him by Insp. Manmohan SharmaSHO, at the place of incident at about 11.30 PM on 19.12.1997. In hiscross on 18.04.2011, he stated that the statement of PW-1 was handedover to him by SI Sanjay and he had handed over all relevant papers

on the next day to Insp. Manmohan Sharma, but he did not knowspecifically whether statement of PW-1 was also included in thosepapers.He further stated that he had not kept the said statement withhim. PW-1 had also signed on the same. SI Sanjay had completed thestatement of PW-1 between 10.15 to 10.30 PM.

58.Ld. APP submits that SHO was present at the hospitaland at the spot at the time of conducting investigation as per thetestimony of PW-1, PW-6, PW-11, PW-20, PW-27 and PW-28. Ld.APP further submits that although, apparently, the fluid was appliedon the statements recorded on 19.12.1997, yet they have been appliedonly on the signatures and not on the date recorded in the documentwhich is clearly 19.12.1997.

59.It is submitted that the investigation conducted was fair-as suggested by the accused during the cross-examination of PW3-Sunita dated 31.03.2004, wherein suggestion was put to her, and shedenied the suggestion that she or her brother lodged false complaintsevenagainstthefairinvestigationbeingconductedbytheinvestigating agency when the same was not going in their favour.Similar was the stand taken by PW1-Dharmender, who got theinvestigation transferred. Ld. Counsel submits that the conduct of thesubsequent IO is suspect, since PW2-Saroj Sharma claimed herself tobe the eye witness of the incident, but in her testimony she did notclaim to be eye witness to the stabbing. Ld Counsel submits that PW-2 is natural eye witness at the said place, and nothing has come in

the cross examination to doubt the testimony this witness with respectto the incident in question.

60.Ld. APP submits that the accused had motive to committhe offence as the deceased had already made complaints against someof the accused, who used to trespass into their house and threaten thefamily to vacate the property. One such complaint was dated13.06.1997 Ex.PW1/X against some of the accused persons and theywere summoned in the court for 19.12.1997.Ex.PW1/Y is also acomplaint dated 2.11.1996 against the accused Raj Kumar @ Raja,Pankaj and Kaushalya Devi by the deceased in which they weresummoned for 06.12.1997.Ld. APP submits that Nand KishoreSharma (father of deceased) executed will (Mark Y) dated15.04.1997 in which he stated that the said property in dispute was hisself acquired property, to be devolved upon accused Kamal Sharma.PW-1 in his testimony has, however, stated that he was not aware ofthe will in favour of Kamal till 6.06.1998, when case was filed byKamal. Ld. APP submits that the report of the Local CommissionerEx. PW-1/D2 (Mark Z) in the case filed by accused Kamal againstPW1-Dharmender, showsthat Dharmender had stated that theproperty was the deceased’s self acquired property.

61.Ld. APP submits that PW-1 in his cross examination hasstated that his family had altercations with the family of accused RajKumar @ Nai since they used to throw empty bottles andobjectionable items in the deceased’s house. He points out that mostaccused also stated in their statements under section 313 Cr.P.C. that

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the main dispute was between the deceased and accused Kamalregarding the property in question.

62.Ld. APP further submits that PW-1 during his testimonyhad stated that deceased was having property dispute with theaccused persons, and he had given several complaints against them inthe Court and on the day of the incident, he met some of the accusedin the court complex also, where quarrel between them had takenplace. It is submitted that the conduct of accused Kamal is not naturalas, being son of the deceased Keshav Ram, he had not gone tohospital to see his father after his death.

63.Ld. APP further submits that the place of incident hasbeen proved by the testimony of PW-21 HC Khushi Ram, in whosehandwriting DD No. 25A, DD No. 26A, DD No. 27A and DD No.29A were noted; and PW-27 Insp. Amrit Raj, to whom the case wasinitially assigned; both of whom stated the place of incident to be inMandir Wali Gali. PW-11 Ct. Charan Singh and PW-13 HC MangeRam also deposed on similar lines.

64.Mr. Katyal further submits that PW1, PW2 and PW3 arereliable witnesses and their testimony along with postmortem reportof the deceased is sufficient to convict the appellants. In support ofthis contention, reliance has been placed on Tahsildar Singh andAnother v. State of U.P. AIR 1959 SC 1012, Appabhai and Anotherv. State of Gujarat 1988 (Supp) SCC 241, Babasaheb Apparao Patilv. State of Maharashtra (2008) 17 SCC 425 and Bharwada

Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217.Ld.APP further argued that PW3-Sunita deposed about the stabbing ofher father on the basis of information derived contemporaneouslyfrom her brother PW1. Therefore, by virtue of Section 6, 7 and 8 ofthe Evidence Act, her statement is relevant regarding the statement ofPW3, to the effect that she heard the accused saying that they wouldfinish the deceased that day, Mr. Katyal submits that the saidstatement of PW3 has not been relied upon by the prosecution or bythe Trial Court.

65.So far the plea of alibi taken by accused Raja isconcerned, it is argued that there was no DD entry by 8.15 p.m. Eventhere was no question of picking up of DW3, or accused Raja by thepolice, at 8.15 p.m. DW3 had not stated anything about sustaininginjury by accused Raja. Thus, the plea taken is totally false.Insupport of this contention, reliance has been placed on Rajesh Kumarv. Dharamvir (1974) 4 SCC 493. It is further submitted that the pleaof alibi taken by the other accused persons were false and the samehave duly been rejected by the trial court.The prosecution hassuccessfully established its case against the accused persons and thereis no infirmity or illegality in the judgment of conviction. In supportof the contentions raised, reliance has been placed on State ofMadhya Pradesh v. Ramesh and Another (2011) 4 SCC 786,Ramachandran and other v. State of Kerala (2011) 9 SCC 257,YunisaliasKariyav.StateofM.P.(2003)1SCC425,Gangabhavani v. Rayapati Venkat Reddy and others (2013) 15 SCC

298, Sanjeev Kumar Gupta v. State of Uttar Pradesh (2015 ) 11 SCC69 and State of Gujarat v. Naginbhai Dhulabhai Patel and others(1983) 3 SCC 316.

66.We now proceed to take note of the statements of thematerial witnesses in the case.

67.PW1-DharmenderSharmahaddeposedthaton19.12.1997, he along with his father Keshav Ram Sharma was presentat his house at about 7.30 p.m. They were watching TV after takingmeals. His father was telling him about the complaint case filed byhis father against Kaushalya Devi, Raj Kumar @ Raja, Pankaj, JileSingh, Anil and Sunil S/o Jile Singh which was pending in the Court.On that day, the said case was fixed for hearing. Raj Kumar @ Raja,Ashok, Sunil, Anil, Jile Singh and Kaushalya Devi were present in theCourt on that day.His father also told PW1 that MLA DarshanKumar Behl and Dr.Kaushal had talk with him for compromise onbehalf of the accused persons. He also told PW1 that Saroj, Ashokand Ashu had verbal altercation with him outside the court on thatday. Ashok, Ashu, Smt.Saroj etc. threatened his father and asked himto tender apology in writing as well as to withdraw the complaintcase. Those persons asked the father of PW1 to vacate the house andto shift somewhere else. His father came back to house along withSunita, sister of PW1 at about 6.20 p.m. When his sister was leavingthe house, she told them that in front of the shop of Kamal- Raja,Pankaj, Ashok, Deepak and Jile Singh were standing and they weresaying that they would kill Keshav Ram, his wife and children that

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day. Kamal was the real brother of PW1. The shop of Kamal was gotclosed by those persons who were standing in front of the shop. Afterabout 20 minutes, PW1 heard the knocking “khat khat” at the door ofhis house.His father went to see who was there but there was noresponse. After sometime, again, sound of “khat khat” at the door washeard. His father went to the roof to see who was knocking at thedoor. His father saw the accused Raja was running away after hittingthe door. His father wanted to call the police but realized that thetelephone line was out of order. After one and half minute, againsound of “khat khat” at the door was heard and it was like being hitwith solid object. PW1 went to the roof where he found five personsnamely Pankaj, Rohit, Manoj, Anil and Amit. Accused Raja inflictedinjury at his left side buttock with some sharp edged weapon. AccusedAnil closed the mouth of PW1 with one of his hands; accused Pankajinflicted knife injury above his ankle; accused Rohit, Manoj and Amitcaught held of him with hands and hair, and caused injuries on hisforehead, nose, ears and right shoulders. On hearing the cries of PW1,his father came at the roof to save him. Accused Raja inflicted knifeinjury below the abdomen of his father;accused Anil, Sunil, RajKumar Nai, Sudhir, Rohit and Manoj Nai pounced towards the fatherand started beating him; accused Ashok, Deepak and Kamal caughtheld of his father; accused Sunil and Sudhir started inflicting injurieswith knives on his father; accused Deepak and Ashok inflicted injurieson the left shoulder of his father; accused Pankaj inflicted knife injuryon the hip of his father; accused Kamal and Raj Kumar Nai causedinjury on the head of his father with iron rods. Due to the injuries

sustained, his father fell down. Accused persons ran away by jumpingfrom adjacent roof. His mother Saroj Sharma also came at the roof.PW1 cried for help but nobody came as Kaushalya, Smt. Saroj, JileSingh, Kamlesh and Sri Kishan Gupta were present at the door of hishouse. Kaushalya was the mother of the accused Raja and Pankaj.Saroj was the mother of the accused Sudhir. PW1 left his mother atthe spot and went to the house of his sister and came along with her.PW1 and Sunita removed their father Keshav Ram to GTB Hospital,where his father was declared dead. PW1 was medically examined inthe hospital. The motive for killing his father and causing injuries toPW1 was to grab their house. Police met him in the hospital and hisstatement was recorded. Police seized his T-Shirt, one Pajami and onehalf pant alongwith clothes of his father. He identified his Pajami asEx. P1, his half Pant as Ex. P2 and T-Shirt as Ex.P3 in the Court. Healso identified Shirt Ex. P4, Pyjama Ex. P5 and Underwear Ex. P6 asthat of his father. He also stated that he identified the dead body of hisfather in the mortuary on 20.12.1997 vide Ex.PW1/A and identifiedDeath Report Ex.PW1/B.

68.PW2 Smt. Saroj Sharma has deposed that on 19.12.1997at about 07:30 PM she was preparing food in the kitchen. There was asound of knocking on the main gate and when again the knockingsound came, her husband went upstairs and saw the accused Raja givea leg blow on the door and ran away. For the third time again, therewas sound of knocking on the door, her son went upstairs and on theroof, he was caught held by accused Manoj Nai, Rohit, Amit, Anil,

Pankaj and Raja. They started beating Dharmender. Her husband wentupstairs and PW2 also followed him to the roof where she sawaccused Manoj Nai, Amit, and Rohit beating Dharmender. AccusedRaja, Pankaj, Anil, Sunil, Ashok, Deepak and Sudhir were givingknife blows to her husband. Accused Raj Kumar Nai and Kamal werebeating her husband with iron rods. She became nervous and shoutedfor help. Accused persons went down from the side of the nearby roofof her house. In the street, Kamlesh, Kaushalya, Saroj, Jile Singh andSri Krishan were shouting and making noise. Thereafter, Dharmenderwent to call his sister on motor-cycle. Her husband becameunconscious. Dharmender brought three wheeler scooter alongwithSunita and took their father to the hospital. His daughter came backand told that her father had been declared dead in the hospital. PW2called her younger son from the shop who left for hospital. Policerecorded her statement twice.

69.PW3-Sunita had deposed that on 19.12.1997, she came atthe residence of her parents along with her father at about 6.20 p.m.When she was going to her residence at about 8 p.m., she saw somepersons talking with one Kamal at the right corner of the main gate.Accused Raja, Pankaj, Deepak, Ashok and Zile Singh were tellingKamal Singh that on that day they would kill Keshav Ram and hischildren. On hearing the same, PW3 went inside the house and toldthe same to her father and brother.After sometime, the shop ofKamal was closed. PW3 went to her residence Geeta Colony at about7 p.m. She reached at her residence at 7.45 p.m. At that time, her

brother Dharmender came to her house and told that he and his fatherhad been stabbed with knife. PW3 was called to come downstairs.Dharmender came on his bike and was bleeding from his left foot.PW3 sat on the bike and immediately reached at the residence of herfather. She saw her father in injured condition and removed her fatherand brother in TSR to GTB Hospital.On the way, her brotherDharmender told her that accused persons had stabbed his father witha knife. Her father was declared dead in the hospital. PW3 furtherdeposed that her father was always apprehending danger to his lifeand that is why he had got private security guard.On 19.12.1997,there was hearing in the Court regarding the complaint lodged byher father.

70.The deceased was declared dead by Dr.B.D. Singh(PW9) who medically examined the deceased on 19.12.1997 at about8.30 p.m. The alleged history given was stabbing by someone and onexamination, PW9 found four injuries on the person of the deceasedand he was declared dead vide MLC Ex.PW9/A. The postmortem onthe dead body of the deceased was conducted by PW8 Dr.Anil Kohli.15 ante mortem injuries were found on the body of the deceased andthe cause of the death was hemorrhagic shock due to antemortem stabinjuries involving the axillary blood vessels. PW8 gave the opinionthat injury no.7 i.e. incised stab wound measuring4 cm X 0.2 cm overouter and posterior aspect of left arm, 14 cm below the top of shoulderwas sufficient independently to cause death in ordinary course of

nature. The depth of the wound was 14 cms. The postmortem reportwas proved as Ex.PW8/A.

71.As per the MLC Ex.PW9/A and the postmortem reportEx.PW8/A, it stands duly established that the death of the deceasedwas due to stab wound and it was homicidal death.

72.PW2, wife of the deceased corroborated the testimony ofPW1 while deposing that her son Dharmender (PW1) was caught holdby accused Manoj Nai, Rohit, Amit, Anil, Pankaj and Raja on the roofand they gave beatings to him. Her husband went upstairs and PW2also followed him to the roof where she saw accused Raja, Pankaj,Anil, Sunil, Ashok, Deepak and Sudhir giving knife blows to herhusband. Accused Raj Kumar Nai and Kamal were beating herhusband with iron rods. In the street, Kamlesh, Kaushalya, Saroj, ZileSingh and Sri Krishan were shouting and making noise thereafter,Dharmender went to call his sister on motor-cycle. Her husbandbecame unconscious. Dharmender brought three wheeler scooterand alongwith Sunita took their father to the hospital.

73.A perusal of DD No.26A Ex.PW21/A shows that theinformation regarding stabbing of person in Mandir Wali Gali,Gandhi Nagar was given to the police which was marked to PW27-SIAmrit Raj. PW27 deposed that on receipt of said DD, he along withCt.Mange Ram (PW-13) reached the spot and in the meanwhile DDNo.27A was received with the information that the deceased wasdeclared dead in the hospital and injured Dharmender was admitted to

the hospital. PW27 reached GTB hospital and then came back to thespot where the photographs of the spot were taken and exhibits werelifted.

74.The testimony of PW1 has been challenged by theappellants on various counts– that the same is not trustworthy and hisconduct was not natural. It is argued on behalf of the appellants thatPW1 stated that he had received two knife blows, but his MLC showsthat he received only one knife injury; PW1 had not given the route hehad taken to go his sister’s house; PW1 admitted that civil disputewas going on between his family and family of accused Kamal; PW1had not explained as to why he had not taken his father to nearbynursing home instead of GTB Hospital which was at far off place;PW1 stated that his first statement was recorded in the police stationwhile the second one was recorded in his house, whereas PW27-Insp.Amrit Raj stated that the statement of PW1 was recorded in thehospital; PW1 had stated that he did not tell the police that accusedSunil was having iron rod; PW1-Dharmender is untrue when histestimony is confronted with his statement recorded under Section 161Cr.P.C.; PW1 could not explain as to why he was left alive when thedeceased was fatally injured; PW1 stated that his statement recordedby the police was unsigned, but this fact has been negated bystatement Ex.PW24/DX1 which is his signed statement; PW1 hadmotive to falsely implicate appellant Kamal in the present case, as hewas aware that GPA of the house in question was in favour of accusedKamal and that in quarrel, PW1 and Kamal were sent to lock up in

the proceedings under Section 107/151 Cr.P.C.; only injury attributedto appellant Pankaj Sharma is on the ankle of PW1 but the same hasnot been found in his MLC; there was an injury on the hip of thedeceased, but the same could not have been inflicted as the deceasedwas held by accused Deepak, Kamal and Ashok from the back; DDNo.25A was got lodged by accused Raja at 8.20 p.m. on 19.12.1997 tothe effect that he was having quarrel with the deceased and hisfamily members but the said fact has not been investigated by the IOand the possibility of false implication cannot be ruled out; TSRdriver was not examined nor the TSR was examined to draw bloodsamples from the same; motorcycle of PW1-Dharmender had also notbeen examined; in the initial statement PW1 did not disclose the nameof any of the accused which creates doubt about the story of theprosecution and false implication of the appellants.75.We have carefully scrutinized the testimony of PW1-Dharmender.Thoughitisapparentthattherearecertaincontradictions and discrepancies in his statement, but in ourconsidered opinion the same are not material and cannot be made thebasis to discard the entire testimony of the witness. PW1 has admittedthat complaint case was filed by his deceased father against some ofthe accused persons and the same was fixed before the Court in themorning of the date of the incident. It has also come in the evidencethat accused Kamal Raj Sharma was having Will and GPA in hisfavour executed by his grandfather with regard to the house where thedeceased and his family were residing.Apparently, there was

dispute with regard to possession of the house in question which wasin possession of the deceased, and Kamal Raj Sharma was seeking itspossession. It is also apparent that PW1 deposed that he received twoknife blows, but his MLC shows that he received only single knifeblow near his thigh portion. Though it is apparent from his testimonythat nursing home was situated near the house of the deceased butstill he was taken to GTB Hospital by PW1 and his sister PW3, butthe said fact cannot be said to be doubtful, as it is quite natural that inview of the gravity of the injuries that the deceased received, he wastaken to bigger and better hospital, rather than nursing home.

76.So far as the contention of the accused Raj Kumar @Raja with regard to lodging of DD No.25A recorded at 8.20 p.m. andfailure to carry out investigation on the allegations of accused Raja isconcerned, the IO had stated that though it came to his knowledge thataccused Raja had sustained injuries, but since his statement was notavailable with him, he did not inquire into the facts of him sustaininginjuries.However, this information given by Raj Kumar @ Rajaleaves no room for doubt that he was very much present when theincident took place.

77.The other contention raised by the learned counsel for theappellants is that there is doubt about the recording of statements ofDharmender,Sunita,ManojandSaroj,Ex.PW27/DA1toEx.PW27/DA4, as it has come in the statement of the IO that eraserfluid at point ‘A’ was applied on all these statements. It is argued thatthe said statements are ante-dated and the same have been prepared at

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later stage at the instructions of the complainant to use the sameagainst the appellants. The IO (PW27) had clarified that he had notapplied the eraser fluid at point ‘A’ on the statements, nor it wasapplied in his presence.He further stated that somebody else hadsigned by mistake on point ‘A’ where PW27 had to sign, and after theeraser fluid was applied, PW27 signed at point ‘A’. He had stated thathe had somebody to apply the eraser fluid at point ‘A’ but he did notremember his name.

78.We have gone through the statements of Sunita, Saroj,DharmenderKumarandManojKumarEx.PW27/DA1toEx.PW27/DA4 respectively, on which– as per the defence, at point‘A’ fluid was applied and then PW27 had signed on it.Theclarification regarding applying of fluid has been given by the IOhimself– that it was earlier signed by somebody else by mistake, andthen eraser fluid was applied and then PW27 signed on the same.This explanation in our view is just and sufficient and no doubt can becast upon the same.Even otherwise, there was nothing new ordifferent recorded in the statements from what was recorded earlier byPW-1 in his statement recorded under Section 161 Cr.P.C.Thus,there is no basis to claim that by recording these statements i.e.,Ex.PW27/DA1 to Ex. PW27/DA4, the complainant and his familymembers sought to falsely implicate the accused as an afterthought.In our view, this submission of the appellants is merely red hearing.

79.The appellant Raj Kumar @ Raja to prove his plea ofalibi, had examined DW3-Pramod Sharma who deposed that on

19.12.1997 at about 08.15 p.m., he came out of his house and metaccused Raja in the street. In the meantime, police came there andasked them to come to police station. On the next day morning, DW3and other persons were allowed to leave the police station, butaccused Raja was detained.He knew about the murder of KeshavRam, resident of the same street.

80.The plea of defence taken by the accused Raj Kumar @Raja is that on the day of incident he himself visited the police stationand got lodged DD No.25A at about 08.20 p.m. against the deceasedand his sons (PW1 & PW5) and then he was taken to hospital formedical examination.The said plea taken by the accused Rajafalsifies the testimony of DW3-Pramod Sharma. DW3 had stated thaton the day of incident at about 8.15 p.m., when he and accused Rajawere present in the street, they were asked by the police to come tothe police station. They reached the police station and on the nextmorning DW3 was allowed to leave, but accused Raja was detainedby the police. If the statement of DW3 is believed to be correct, thenthe plea taken by the accused Raja is contradicted that he himself wentto the police station to lodge the DD No.25A at about 8.20 p.m. Thus,there is no truth in the plea of alibi taken by the accused Raj Kumar @Raja.

81.To prove his plea of alibi, accused Manoj had examinedDW1-Deepak Kumar, and DW2-Hari Om Gupta. DW1 had deposedthat he knew accused Manoj as he used to learn electric work underhim. Manoj worked with DW1 from 15.12.1997 to 26.12.1997 and

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the time of work was from 10 AM to 8.30 p.m. Two other boys wereworking for DW1, namely, Hari Om and Vijay. DW1 further statedthat father of Manoj obtained signature of DW1 on document statingthat it was written in it that Manoj had worked under DW1. Similarly,DW2-Hari Om Gupta stated that he knew Manoj since the year 1995-96. Manoj used to do the work of electrician and was residing in thesame gali.He also knew Deepak Gupta, who used to be hiscontractor.Accused Manoj worked with him from 1996 to 2000under Deepak Gupta.They used to work under Deepak Gupta atNoida from 10 a.m. to 8.30 p.m.

82.The accused Manoj has taken the plea that on the day ofthe incident, he was not present at the spot. This plea of the accusedManoj has been falsified by the eye witnesses PW1 and PW2 to theeffect, that accused Manoj was present at the roof and caused injuriesto PW1 and the deceased.It is apparent from the record that theaccused Manoj had not taken such plea of alibi during theexamination of prosecution witnesses and this plea was taken for thefirst time during the recording of his statement under Section 313Cr.P.C.Even otherwise, no record was produced by the allegedcontractor DW1-Deepak to show that either accused Manoj, or DW2-Hari Om Gupta, ever worked under him or that the accused waspresent at his work place on the day of incident. Thus, the accusedManoj has failed to substantiate his plea of alibi in the absence of anyconvincing evidence.

83.To prove his plea of alibi, accused Rohit Gupta examinedDW9-Jitender Varshney and DW12-Gopal Pandit. DW9 deposed thathe was the brother-in-law (jija) of accused Rohit.Wife of DW9delivered baby boy on 03.12.1997 in Thane and Rohit came to hishouse on 14.12.1997 with gifts. On 18.12.1997, Rohit had pain inhis stomach and was taken to hospital. He was treated in OPD and heagain visited hospital on 19.12.1997 and 20.12.1997 to takemedicines.DW9 came to know about the arrest of accused Rohitafter 4-5 days.

84.The conduct of DW9 does not inspire confidence of thisCourt, for the reasons that had it been so– that accused Rohit hadtaken medical treatment from the hospital at Thane during the relevantperiod, it would be quite natural for DW9 to come to Delhi to informthe police and concerned authorities regarding the presence of accusedRohit during the relevant time at Thane.

85.DW12-Gopal Pandit, Junior Clerk, Regional MentalHospital, Thane brought OPD register and medicine distributionregister.He proved the OPD card of Rohit as Ex.DW12/A.It isworthwhile to mention that the address of Rohit is not mentioned inEx.DW12/A. Even the name of the patient had been mentioned asRohit Kr S Gupta. It is not pleaded by the accused Rohit Gupta he isalso known by the name of Rohit Kr S Gupta. Even such plea hadnot been raised by the accused in his statement under Section 313Cr.P.C. It appears that the plea of alibi taken by the accused Rohit

Gupta is an afterthought, just to raise the plea, and there is noconvincing or concrete proof to believe the same.

86.Accused Anil, to prove his plea of alibi, had examinedDW4-Luv Kush Aggarwal and DW7-Virender Singh.DW4 haddeposed that on 19.12.1997, he and Anil were watching cricketmatch in his house and Anil went to his house at about 7-7.15 p.m. togive milk to someone and he came back within 2-3 minutes. Father ofAnil asked DW4 to take care of Anil as he was going to purchase abuffalo along with accused Sunil. DW7 had deposed that he was alsoa neighbor of the accused Anil, and on 19.12.1997 at 7.15 p.m., hevisited the house of accused Anil to purchase milk and came to knowthat Anil was in the house of DW4. Anil came and gave milk andthen went back. DW7 was also told that accused Sunil had gone topurchase Buffalo. Accused Sunil had taken the plea of alibi that onthe day of incident, he was at Village Khatoli, District Gurgaon topurchase buffalo.

87.After going through the evidence of DW4 and DW7, weare not convinced with the plea of alibi taken by the accused Anil andSunil, for the reasons that there is no sufficient or cogent evidence tobelieve the same. This defence was not taken by these accused till therecording of the statements under Section 313 Cr.P.C. and not put tothe material prosecution witness. Secondly, the prosecution witnessesPW1 and PW2 have specifically deposed that accused Anil and Sunilwere present at their roof on the date and time of the incident and theycaused injuries to PW1 and the deceased. The presence of accused

Anil and Sunil at the spot at the time of incident has duly beenestablished and the plea of alibi taken by the accused persons does notinspire confidence of this Court.

88.The accused Pankaj Sharma had taken the plea of alibithat on the day of incident he was present at Mumbai regarding thesale of his motorcycle. To prove the same, he had examined DW5-Rajesh Umare who had produced the sale and purchase register ofvehicles from RTO, Mumbai (West) as Ex.DW5/A.As perEx.DW5/A, accused Pankaj Sharma sold his motorcycle to oneMr.Larry Eastwood. But DW5 demolished the defence of the accusedby stating that transferor may send his signature on slip of transferof vehicle, and presence of transferor was not mandatory. He couldnot say with certainty that accused Pankaj put his signature whilebeing personally present in the office.It is also apparent from therecord that the signature of Pankaj appeared on slip.It is highlyimprobable that person, present in person, would sign on sliprather than in the register itself, which creates doubt about thepresence of accused Pankaj Sharma at Mumbai on the day of theincident.Other witnesses examined by the accused i.e. DW6-RamNiwas and DW10-Gauri Charan are also of no consequence, for thereasons that DW6 had not given the specific dates when Pankajremained in Mumbai as he simply stated that Pankaj went to Mumbaiin March-April, 1997. DW10 had not proved on record any documentto show that accused Pankaj was working in the Club of CentaurHotel, Juhu, Mumbai on the day of the incident. In the absence of anyconvincing evidence, we are unable to accept the plea of alibi raisedby the accused Pankaj Sharma.

89.It is argued on behalf of the appellants that there is noscope to invoke the provision of Section 149 IPC in the present case.It is submitted that the appellants, except the appellant Kamal RajSharma, had no reason to commit any offence as only the appellantKamal Raj was having dispute with his deceased father with regardto house in question in which the deceased along with his family wasresiding.

90.It is submitted on behalf of the appellant Kamal Raj thathis grandfather had executed Will and General Power of Attorney inhis favour with regard to the house in question, but his father i.e.deceased Keshav Ram was not handing over the possession of thesame to the appellant Kamal Raj. The appellant had already availedof his legal remedy, and there was no reason for the appellant KamalRaj to take the law in his own hands, much less to fatally attack hisfather or injure his brother. In support of these contentions reliancehas been placed on Allauddin Mian and others v. State of Bihar(1989) 3 SCC 5, Rajendra Shantaram Todankar v. State ofMaharashtra and others (2003) 2 SCC 257, Maiyadin and others v.State 1973 Cri.L.J. 1203, Najabhai Desurbhai Wagh v. ValerabhaiDeganbhai Vagh and others (2017) 3 SCC 261 and Sarwan Singhand others v. State of Punjab (1978) 4 SCC 111 in which it wasobserved that in order to fasten vicarious responsibility on anymember of an unlawful assembly, the prosecution must prove that the

act constituting an offence was done in prosecution of the commonobject of that assembly, or the act done is such as the members of thatassembly knew to be likely to be committed in prosecution of thecommon object of that assembly.

91.We have gone through the prosecution evidence in theform of testimony of PW1-Dharmender Sharma (injured as well asson of the deceased), PW-2 Smt.Saroj Sharma (wife of the deceased),PW-3 Sunita (daughter of the deceased) and PW5-Manoj Sharma(another son of the deceased). The testimony of PW1 has duly beencorroboratedbyPW2-Smt.SarojSharma.PW3-Sunitaalsocorroborated that on the day of incident, at about 7.45 p.m., herbrother Dharmender came to her house and told that he and his fatherwere stabbed with knife.PW3 sat on the bike of Dharmender andreached at the residence of her father.She saw her father in acritically injured condition and removed her father and brother toGTB Hospital in TSR.On the way, Dharmender told PW3 thataccused persons had stabbed her father with knife.

92.From the testimony of above prosecution witnesses (PW1& PW2) who are either the injured or the eye witnesses to theincident, it is established beyond reasonable doubt that on the day ofincident, all the appellants were present on the roof of the house of thedeceased. It is not in dispute that the house in which the incident hadtaken place was in possession of the deceased and his family memberson the day of incident. It has come in the evidence of PW1 and PW2that the door of their house was knocked three times on the day of

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incident. On the second knocking of the door, deceased went upstairsand saw accused Raja hitting the same. When door was hit for thethird time, PW1-Dharmender went to the roof where he was firstlycaught hold by five accused persons Pankaj, Rohit, Manoj, Amit andAnil and then he was physically assaulted by accused Raja, Anil,Pankaj, Rohit, Manoj and Amit. When his father came on the roof, hewas also assaulted by the all the accused persons/appellants. Similarstatement has been made by PW2-Smt.Saroj Sharma that when herson (PW1) went upstairs, he was caught hold by the accused personsand was assaulted and when her deceased husband went upstairs, hewas also assaulted by the accused persons. So, from the testimony ofPW1 and PW2, it has duly been proved that on the day of the incident,all the appellants committed the offence of criminal trespass into thehouse of the deceased after preparation to assault the deceased and hisson, PW1-Dharmender.It has also come in evidence of PW1 andPW2 that all the accused persons were present at the roof of the houseof the deceased and at that time they were armed with knives/daggersand iron rods, which clearly makes out case of the prosecution underSection 149 of the IPC as the ingredients of Section 141 IPC haveduly been fulfilled against the appellants.

93.The MLC Ex.PW7/A of the injured Dharmender (PW1)shows that he was assaulted by sharp edged weapon on his glutealregion. It is further apparent from the MLC that the nature of injurywas opined to be simple in nature. As it has already been observedthat an unlawful assembly was formed by the appellants while

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entering into the house of the deceased and causing injuries to himand PW1, it is imperative to hold every member of such an unlawfulassembly guilty for causing hurt to PW1-Dharmender with dangerousweapon (as reflected in the MLC Ex.PW7/A that injury was caused bya sharp edged weapon) as it is punishable under Section 324 IPC.Therefore, in our considered opinion, the conviction of the appellantsunder Section 148, 452 and 324 with the aid of Section 149 IPCdeserves to be upheld.

94.Next point of consideration is whether all the appellantsare guilty of committing the death or murder of the deceased with theaid of Section 149 IPC, or any one of them- or some of them, areguilty for the said offence. It is argued on behalf of the appellants thatthough no case is made out against them, but if for the sake ofarguments the case of the prosecution is accepted to be true, all theappellants-except accused Raja, were not armed with any deadlyweapon so as to support the charge under Section 302 read with 149IPC.

95.It has come in the evidence of PW1, PW2, PW3 andPW5 that dispute between the deceased and accused persons was inexistence and, on the day of the incident, in the morning case wasfixed before the Court where hot exchange of words between theaccused side and deceased had taken place.PW1 has specificallystated that his deceased father had lodged complaint case againstKaushalya Devi, Raj Kumar @ Raja, Pankaj, Jile Singh, Anil andSunil which was fixed on 19.12.1997 in Karkardooma Courts where

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some of the accused persons were present. His father told him thatSaroj, Ashok and Ashu had heated arguments with him outside theCourt on that day and they threatened his father to withdraw thecomplaint case.Those persons also asked his father to vacate thehouse and to shift somewhere else along with his family.

96.From the testimony of PW1 and PW3, it is apparent thatsome dispute was pending between the deceased and the accused side.It has also come on record that Will (Ex.DX5 or Mark Y) andGeneral Power of Attorney (Ex.DX4 or MARK X) was executed bylate Sh.Nand Kishore in favour of accused Kamal Raj Sharma withregard to the property in question.

97.As discussed above, we are of the view that the object ofthe unlawful assembly was to commit house trespass, and not tocommit the murder of the deceased. It is apparent from the record thatthe accused persons– except accused Raja and Pankaj, are not claimedto have been armed with any deadly weapon. The eye witnesses havestated that accused Raja and Pankaj were armed with knives.Therecovery of knife was effected at the instance of accused Raja videpointing out-cum-seizure memo Ex.PW6/E.Accused Raja hasclaimed that no such knife was recovered at his instance, and that itwas planted one. To prove the recovery of knife Ex.P1, PW6-Insp.Ram Sewak deposed that on 22.12.1998, he joined the investigationwith Insp. Manmohan Sharma. On that day, accused Raj Kumar @Raja was arrested at about 7.30 p.m.Accused Raja made hisdisclosure statement Ex.PW6/A and in pursuance of the same, on

23.12.1998, he led the police party to Thokar no.18, Yamuna Pushtaand from there he got recovered one dagger. Its sketch Ex.PW6/Dwas prepared and the same was seized vide memo Ex.PW6/E. PW6identified the said knife as Ex.P1. The statement of PW6 has dulybeen corroborated by PW20-Insp. Manmohan Sharma.There isnothing to disbelieve the testimony of PW6 and PW20 with regard toarrest of the accused Raja, recovery of knife at his instance, and thedocuments prepared in this regard. The appellant has thus failed toput any dent to the testimony of PW6 and PW20 with regard torecovery of knife at the instance of accused Raja.

98.In so far as other contentions raised by the learnedcounsels for the appellants are concerned– with regard to flaw in theinvestigation and the contradictions/discrepancies in the testimony ofwitnesses, we are of the view that the same are immaterial and do notgo to the root of the case. Though there are some minor defects in theinvestigation, but the same are not material and in no way affect thecredibility of the witnesses and the case of the prosecution cannot bediscarded only on the basis of such flaws. In similar circumstances,the Supreme Court in the case of State of U.P. vs. Naresh and Ors.MANU/SC/0228/2011 observed that :

“25.Inallcriminalcases,normaldiscrepancies are bound to occur in thedepositions of witnesses due to normalerrors of observation, namely, errors ofmemory due to lapse of time or due tomental disposition such as shock and horroratthetimeofoccurrence.Wherethe

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omissionsamounttoacontradiction,creatingaseriousdoubtaboutthetruthfulnessofthewitnessandotherwitnesses also make material improvementwhile deposing in the court, such evidencecannot be safe to rely upon. However, minorcontradictions,inconsistencies,embellishments or improvements on trivialmatters which do not affect the core of theprosecution case, should not be made aground on which the evidence can berejected in its entirety. The court has to formits opinion about the credibility of thewitness and record finding as to whetherhisdepositioninspiresconfidence."Exaggerations per se do not render theevidence brittle. But it can be one of thefactors to test credibility of the prosecutionversion, when the entire evidence is put in acrucible for being tested on the touchstoneof credibility."

99.So far as the use of knives by both the accused RajKumar @ Raja and Pankaj is concerned, it has come in the testimonyof PW1 that at that time both these accused were armed with knives.PW1 specifically deposed that he was hit with sharp edged weaponon his buttock by accused Raj Kumar @ Raja, whereas accusedPankaj inflicted knife injury above his ankle. He also deposed thatwhen his father came on the roof, he was given knife blow below hisabdomen and accused Pankaj also inflicted knife injuries on the hip ofhis father. The postmortem report Ex.PW8/A further corroborates thetestimony of PW1 that his father had received stab wound on hisbuttock region.Thus, the testimony of PW1 duly corroborated by

post mortem report Ex.PW8/A of the deceased clearly proves thatboth accused Raj Kumar @ Raja and Pankaj were armed with knivesat the time of incident with which PW1 and deceased were assaulted.

100.Though, it is apparent that there was series of litigationbetween the deceased and accused persons, but there is no evidenceon record that on the day of the incident, the appellants trespassed intothe house of the deceased with the object to commit his murder. Theevidence brought on record by the prosecution clearly makes out acase against the appellants for unlawful assembly for trespassing intothe house of the appellants with weapons and to assault the deceasedand PW1, but there is no evidence to connect any of the appellantswith the object of unlawful assembly to commit the murder of thedeceased.

101.So far as the injuries caused to the deceased is concerned,his post mortem report Ex.PW8/A shows that he had received as manyas 15 injuries on his person. The injury no.7 was incised stab woundmeasuring 4 cm x 0.2 cm over left arm. As per the opinion of thedoctor, cause of death was haemorrhagic shock due to antemortemstab injury involving the axillary blood vessels.Injury no.7 wasopined to be sufficient to independently cause death in ordinarycourse of nature. Perusal of postmortem report of the deceased clearlyshows that injury no.7 was the main injury which was opined by thedoctor to be the cause of death of the deceased.

102.In similar circumstances, the Supreme Court in the caseof Litta Singh and Anr. Vs. State of Rajasthan AIR 2013 SC 2554observed that :

“20. After analyzing the entire evidence, it isevidently clear that the occurrence tookplacesuddenlyandtherewasnopremeditation on the part of the appellants.There is no evidence that the appellantsmade special preparation for assaulting thedeceased with the intent to kill him. There isno dispute that the appellants assaulteddeceasedinsuchamannerthatthedeceased suffered grievous injuries whichwere sufficient to cause death, but we areconvinced that the injury was not intendedby the appellants to kill the deceased.

21. In the facts and circumstances of thecase, in our considered opinion, the instantcase falls Under Section 304 Part II IndianPenal Code as stated above. Although theappellants had no intention to cause deathbut it can safely be inferred that theappellants knew that such bodily injury waslikely to cause death, hence the appellantsareguiltyofculpablehomicidenotamounting to murder and are liable to bepunished Under Section 304 Part II IndianPenal Code.”

103.Further in Vijay Pandurang Thakre and Ors. Vs. Stateof Maharashtra AIR 2017 SC 897, it was observed that :

“18. No doubt, in the scuffle that took place,one blow came to be inflicted on the head ofAshok which injury proved fatal. However,

this by itself cannot be the reason toconclude that there was any intention tocommit his murder. If 30 persons hadattacked the members of Deshmukh Group,there are no injuries on the vital parts ofother persons who got injured in the saidepisode. Ashok also suffered only one injuryon his head and no other injury is on vitalpart of his body. Had there been anycommon objective to cause murder of themembers of Deshmukh Group, there wouldhave been many injuries on deceased Ashokas well as other injured persons on the vitalparts of their body. On the contrary, it hascome on record that the injuries suffered byother persons are on their back or lowerlimbs i.e. legs etc.

19. We, thus, hold that there was nopreconceived common object of eliminatingthe members of Deshmukh family and groupand the assembly was not acquired with anydeadly weapons either, as held by the HighCourt. Even the High Court has not pointedout any such evidence. These findings arehereby set aside. The conviction of theAppellants Under Section 302 Indian PenalCode is converted into Section 304-II IndianPenal Code for which the Appellants aresentenced for rigorous imprisonment ofseven years each. We were informed that alltheAppellantshavealreadyundergonesentence of seven years or more. If that iscorrect, these Appellants shall be releasedforthwith, if not required in any other case.”

104.In view of the aforementioned discussion, facts andcircumstances of the present case, we are of the considered view that

the act of the accused Raj Kumar @ Raja does not fall within thescope of Section 302 IPC. Rather, it is apparent that he was havingknowledge that causing such an injury might result into death of thedeceased. So, the appellant Raj Kumar @ Raja is convicted for thecommission of offence under Section 304 Part-II IPC for commissionof culpable homicide not amounting to murder, as the prosecution hasfailed to show that he had any intention to cause death of thedeceased. Thus, we are not in agreement with the trial Court that theappellants are liable to be convicted under Section 302 IPC read withSection 149 IPC, and they deserve acquittal for the said offence.

105.Consequently, the conviction of all the appellants underSection 148, 324 and 452 IPC is upheld. Conviction of the appellantsRaj Kumar @ Raja and Pankaj under Section 27 of the Arms Act isalso upheld.

106.The appellants are acquitted for the offence underSection 302 IPC. However, the appellant Raj Kumar @ Raja isconvicted under Section 304 Part-II IPC.

107.The sentences awarded to the appellants under Section148 and 324 IPC are upheld. The sentence awarded to the appellantsRaj Kumar @ Raja and Pankaj for the offence under Section 27 of theArms Act is also upheld.The sentence of the appellants for theoffence punishable under Section 452 IPC is modified to the extent ofrigorous imprisonment for seven years with fine of Rs.10,000/- eachand in default of payment of fine to further undergo simple

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imprisonment for one year.The appellant Raj Kumar @ Raja issentenced to undergo rigorous imprisonment for 10 years with fine ofRs.1 lakh for the offence under Section 304 Part-II IPC, and in defaultof payment of fine to further undergo imprisonment for one year. Theappellants would be entitled for benefit under Section 428 Cr.P.C.

108.The instant appeals are disposed of accordingly.

P.S. TEJI, J

VIPIN SANGHI, J

JULY 30, 2018