CRL.A./909/2001 of SUNDER LAL Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On : 04.07.2019Judgment Pronounced On : 21.08.2019

CRL.A.909/2001

SUNDER LAL

…. Appellantversus

STATE

.... Respondent

Advocates who appeared in this case:For the AppellantFor the Respondent

: Mr. Akshay Chandra, Advocate: Ms. Radhika Kolluru, APP

CORAM:HON'BLE MR. JUSTICE SIDDHARTH MRIDULHON'BLE MR. JUSTICE BRIJESH SETHI

J U M N T

SIDDHARTH MRIDUL, J.

1.The present appeal instituted under the provision of section374(2) of the Code of Criminal Procedure, 1973 (hereinafter referredto as ‘Cr.P.C’) assails the judgment dated 21.9.2001 and the order onsentence dated 24.9.2001, rendered by learned Additional SessionsJudge, Tis Hazari, Delhi, in Session Case No. 121/1997, titled as‘State vs. Munna & Ors’, emanating from F.I.R No. 222/1997 undersection 302/34 of the Indian Penal Code, 1860 (hereinafter referred to

as ‘IPC’) registered at Police Station Jahangirpuri; whereby theappellant, Sunder Lal, was convicted for the offence under Section302 IPC read with Section 34 IPC and sentenced to undergoimprisonment for life along with fine of Rs. 2000/-. In default of thepayment of fine, the appellant has been sentenced to further undergo afurther rigorous imprisonment of 2 months. The benefit of section428, Cr.P.C, has been granted to the appellant.

2.The case of the prosecution as elaborated by the learned Trial

Court is briefly encapsulated as follow: -

“ On 23.4.97 wireless operator gave an information that ladyconstable Prabha had given wireless message that knife wasinflicted on one person in juuggies at A-1 Block, Jahangir Puri,Shiva Marker, Mangal Bazar Road. The same was recorded asDD No. 60B. The said information was conveyed to Inspectorand inspector reached at the spot viz opposite A-1 Market nearjhuggi. He found HC Govind Singh and constable Dhirajpresent at the spot ad one person wo name and address wasknown as Pardeep Kumar S/o Narain Dsss aged about 35 yearsin dead condition. On inspection of dead body there was sign ofinjury and blood clot with sharp edged weapon on the left sideof body and injury and clot of blood on the right side ear of thebody and blood was ossing from on both the said injuries. Thedeceased was wearing pant of kathai colour, underwear (Katch)of blue colour. There was torn baniyan and without chappal inhis legs/ there was one leg of cot towards head of the deadbody. The head of the dead body was towards southern sideand legs were on northern side. Smt. Munni Devi was presentat the spot and her statement was recorded. In her statementSmt. Munni Devi stated that at about 8 P.M. on 23.4.97 shewas sitting on cot in front of her jhuggi, her son Ajit aged 8years and Dalip aged 10 years were coming from Mangal Bazarroad. After seeing Jagran when they reached at jhuggi near parkin front of A-1 market her neighbor Rashid S/o Munna @ Totalconstable Prabha had given wireless message that knife wasinflicted on one person in juuggies at A-1 Block, Jahangir Puri,Shiva Marker, Mangal Bazar Road. The same was recorded asDD No. 60B. The said information was conveyed to Inspectorand inspector reached at the spot viz opposite A-1 Market nearjhuggi. He found HC Govind Singh and constable Dhirajpresent at the spot ad one person wo name and address wasknown as Pardeep Kumar S/o Narain Dsss aged about 35 yearsin dead condition. On inspection of dead body there was sign ofinjury and blood clot with sharp edged weapon on the left sideof body and injury and clot of blood on the right side ear of thebody and blood was ossing from on both the said injuries. Thedeceased was wearing pant of kathai colour, underwear (Katch)of blue colour. There was torn baniyan and without chappal inhis legs/ there was one leg of cot towards head of the deadbody. The head of the dead body was towards southern sideand legs were on northern side. Smt. Munni Devi was presentat the spot and her statement was recorded. In her statementSmt. Munni Devi stated that at about 8 P.M. on 23.4.97 shewas sitting on cot in front of her jhuggi, her son Ajit aged 8years and Dalip aged 10 years were coming from Mangal Bazarroad. After seeing Jagran when they reached at jhuggi near parkin front of A-1 market her neighbor Rashid S/o Munna @ Totalhad caught hold her son Dalip and started beating him. Shestood up and tried to rescue her son. In the meantime, Rani W/oMunna also came and caught hold her hairs and startedquarrelling with her. After hearing noise of the quarrel herhusband Pardeep Kumar also reached there and Munna @Total also came and they started quarrelling, during quarrelwith them, Munna called Anwar and Sunder and went to hisjhuggi and came with churiin his hand and Sunder came withleg of cot and told that they will finish Pradeep. Anwar andRani W/o Munna and her son Rashid gripped her husbandPardeep Kumar and Munna @ Total inflicted knife blow on thechest of her husband Pardeep Kumar and also inflicted on thehead on her right side of her husband and Sunder attacked withleg of cot on her husband Pardeep Kumar as result of whichher husband became in pool of blood and fell down and Sunderleft the spot, after leaving the leg of cod there. Said otherperson also left the spot. Her husband Pardeep Kumar expiredat the spot. Rani W/o Munna, Rashid S/o Munna, Anwar,Sunder and Munna @ Total had caused the deathof herhusband Pardeep Kumar. On the basis of said statement of Smt.Munni Devi ruqqa was prepared and sent to the police stationfor registration of F.I.R and on inspection of the dead body saidinspector investigated the matter and got the site photographed.Site plan was prepared and the exhibits were taken intopossession from the spot. The post mortem was conducted onthe dead body of Pardeep Kumar and after post mortem deadbody was handed over to his heirs on 24.4.97. All the accusedMunna, Anwar and Sunder were arrested. Munna @ Totalmade disclosure statement and got recovered knife and acase u/s 27/25/54/59 Arms Act was registered. Accused Anwarand Sunder Lal made disclosure statement and all the threeaccused pointed out the spot. The statement of witnesses wererecorded and opinion of doctor was obtained. The exhibits weresent to office of F.S.L. the proceedings U/s 82/83 Cr.P.C.against Rani and Rashid were conducted. The names ofaccused Rani and Rashid were mentioned in column No. 2.After completion of investigation challan U/s 302/34 IPC and25/27/54/59 Arms Act was prepared and filed before concernedMetropolitan Magistrate.”

3.Upon completion of investigation, charge-sheet was filed for theoffences punishable under section 302/34 IPC and 25/27/54/59 ArmsAct, 1959 and charges were framed against the appellant undersections 302 read with 34 IPC. The appellant pleaded not guilty andclaimed trial.

4.To establish the case against the appellant, the prosecutionexamined 17 witnesses at trial.examined 17 witnesses at trial.

5.The statement of the appellant under section 313 Cr.P.C. wasrecorded, wherein he denied the case of the prosecution and stated thathe was lifted from his house and falsely implicated in the case. Theappellant did not lead any defence evidence in his support.

6.Broadly speaking, the Trial court convicted the appellant (alongwith his co-accused, Munna) on the statement of the eye witnesses,Smt Munni Devi (hereinafter referred to as ‘PW-1’) and Dalip(hereinafter referred to as ‘PW-4’) coupled with the circumstantialevidence of post mortem report and the report of the Forensic ScienceLaboratory (hereinafter referred to as ‘the FSL’).

7.Mr. Akshay Chandra, learned counsel on behalf of theappellant, asseverated the innocence of the appellant and that theappellant was falsely implicated in the present case. He assails the

impugned judgment of the Trial court on the following grounds:

a. That the trial court erred in convicting the appellant byrelying on the testimonies of PW-1 & PW-4, in as muchas, their testimonies were at variance with the medicalevidence in the present case;relying on the testimonies of PW-1 & PW-4, in as muchas, their testimonies were at variance with the medicalevidence in the present case;

b. That there is contradiction in the statement of PW-1 as

she stated in her testimony in court that Munna exhorted

that ‘Pradeep ka kaam tamaam kar dete hai’, however, in

her complaint given to the police [Ex.PW1/A], she stated

that Sunder gave such exhortation;

c. That there were improvements in the evidence of PW-4 in

his testimony in court, which were not stated by him to thepolice in his statement under section 161 Cr.P.C., tofollowing extent:police in his statement under section 161 Cr.P.C., tofollowing extent:

i.that Rani (wife of the co-accused) held the hair ofhis mother, PW-1,his mother, PW-1,

ii.that Munna stated to Anwar and Sunder that let us

finish-off Pradeep (Pradeep ka aaj kaam tamam kardete hain),dete hain),

iii.that Sunder had struck Pradeep in the head with the

leg of the cot;

d. That PW-1 & PW-4 being the wife of the deceased andthe son of the deceased, respectively, were interestedthe son of the deceased, respectively, were interested

witnesses and as such their testimonies could not beconsidered trustworthy and reliable;considered trustworthy and reliable;

e. That the motive to commit the present offence was notproved in the Trial court as only PW-1 alleged the sameand no other independent witness or evidence wasadduced to establish motive to commit the presentoffence;proved in the Trial court as only PW-1 alleged the sameand no other independent witness or evidence wasadduced to establish motive to commit the presentoffence;

f. That no finding was given by the doctor in the postmortem report that, the deceased was hit in the head withmortem report that, the deceased was hit in the head with

the leg of the cot and as such, the appellant could not have

been said to have caused the death of the deceased inabsence of such finding;absence of such finding;

g. That common intention under section 34 IPC could not beattributed to the appellant, in the absence of finding ofinjury on head of the deceased and that the only actattributed against him was of being called to the spot andgoing to bring the leg of the cot;attributed to the appellant, in the absence of finding ofinjury on head of the deceased and that the only actattributed against him was of being called to the spot andgoing to bring the leg of the cot;

h. That in the testimony of PW-10, the doctor whoconducted the post mortem of the deceased, it was statedthat the cause of death was Cardiac Temponade (heartfailure consequent to injury no. 2) and that in the of postmortem report it was opined that “Skull Bones” and “Baseconducted the post mortem of the deceased, it was statedthat the cause of death was Cardiac Temponade (heartfailure consequent to injury no. 2) and that in the of postmortem report it was opined that “Skull Bones” and “Base

of Skull” were found intact and that therefore, theappellant could not have said to have caused the death ofthe appellant by striking him on the head with the leg ofthe cot.appellant could not have said to have caused the death ofthe appellant by striking him on the head with the leg ofthe cot.

All the above circumstances, it is asserted, render the impugnedjudgment of the Trial court liable to be set aside, qua the appellant.8.To drive home his argument on the unreliability of theprosecution witnesses, learned counsel on behalf of the appellantrelied on the judgment of the Hon’ble Supreme Court of India inThaman Kumar v. State, reported as 2003 6 SCC 380 wherein it wasobserved that:

“The conflict between oral testimony and medical evidence can be ofvaried dimensions and shapes. There may be case where there is totalabsence of injuries which are normally caused by particular weapon.There is another category where though the injuries found on thevictim are of the type which are possible by the weapon of assault, butthe size and dimension of the injuries do not exactly tally with the sizeand dimension of the weapon. The third category can be where theinjuries found on the victim are such which are normally caused by the

weapon of assault but they are not found on that portion of the bodywhere they are deposed to have been caused by the eye-witnesses. Thesame kind of inference cannot be drawn in the three categories ofapparent conflict in oral and medical evidence enumerated above. Inthe first category it may legitimately be inferred that the oral evidenceregarding assault having been made from particular weapon is nottruthful.”

9.Per contra, Ms. Radhika Kolluru, Learned Additional Public

Prosecutor appearing on behalf of the State, assiduously supported theimpugned judgment of the trial court, and asserted that the statementsof PW-1 & PW-4 were creditworthy, reliable and as such, minorvariations in their statements could not discredit them. Ms. Kollurualso pointed out that, both being injured eye witnesses, theirstatements have higher sanctity in law.

10.It is further submitted on behalf of the State that, the appellantwas convicted by the Trial court under section 302 read with section34 IPC; hence, the role of the appellant could not be seen in isolation,but has to be examined in light of the acts and conduct of the otheraccused persons, as well as his own.

11.We have heard counsel appearing on behalf of the parties andperused the evidence on record.

12.To effectively adjudicate the present appeal, it is incumbentupon us to reproduce the entire testimony of PW-1 & PW-4, both of

whom were injured eye-witnesses in the instant case, before the trialcourt. The testimony of PW-1 is as follows:

“®m]Sm ]nÆWm देवीw/o ÿUmY कुमारr/o Jhuggi A1 ]kD¥N जहाँगीरपूरीlUÐamससपथ

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Xxxx by Sh V K Jain Con for accused

जागरणमेरीLnµFm से100-150 कदमDì दूरीपरहोरहाथा| झगड़ा10-20 िमंटतकचला| जबझगड़ाhò5 ]xhÐat केकईलोगमोजूदथािकसीनेभीहमेनबचायामेरेपितकाचारपाईकापावासेएकबारमारावछूरीदोबारमारी| उससमयमुलिजम]nÆWk केभाईबगेराभीरहतेथे| Public केऐसेिकसीआदमीमाँनामनबतासकतीhó2£1 जोमौकेवारदातकेसमयमौजूदथे| ]§ पुिलसÖNteW पैदलगईथी| 10-15 िमंटमेवहाँYhò1I गई|

थानेजानेसेपहले]§Wt telephone 100 नo परकरा| मेराÊ^kW पुिलसनेमौकेपरिलखाथा|मेरेÊ^kW पुिलसनेथाने]¤ निलखा| पुिलसवालेdk³^ केआधेघंटेसेपहलेआगए]§ आजcourt मेसुबह10 बजेआगईथीयहगलतहैDì पुिलसनेमुझेआज³^k Ê^kW देनाहैवहसमझायाथा| पुिलसनेमुझसेपूछताछDì पुिलसनेऔर³^k कारवाईDì ]§ नबतासकतीhó1 | मेरेसामनेदलीपमेरेलड़केकोदोIkN¤ रासीदनेमारेइसdk³^t से15-20 िदनपहलेहमारासुंदरसेझगड़ाhò5 थाखुदकहातबउसनेमुझेVÌDì दीथीDìवमेरेआदमीकोदोमहीने]¤ मारU¤Ft | हमनेसुंदरकेमाँबापकोिशकायतDì थीऔरपुिलस]¤ िशकायतनDì थीयहगलतहैDì मेरेसामनेकोईझगड़ानhò5 यहगलतहै]§oझूठीगवाहीदेरहीhó1 | यहगलतहैDì मू मौकेपरमौजूदनथे|”

13.The testimony of PW-4 is as follows:

“दलीपS/O ÿ]xU age 13 years r/o LnµFm A-1 Market जहाँगीरपूरीlUÐamससपथ

मुझेपताहैDì ]§ अदालत]¤ गवाहीदेनेआयाhó1 ]¤ gkSdé D±k ]¤ पढ़ताhó1 |The witness is able to give answer to question let hisstatement be recorded on oath ]§ जोDhó1Fk g¸I बोलूँगा

23.4.07 को]§ रातके8 बजेमंगलबाज़ार]¤ जागरणदेखकरअपनेघरDì तरफजारहाथा| ]§ Mother Dairy केपासथारानीDì a�Dì वकुछऔर[¸It आरहेथेमेरेहाथरानीDì a�Dì केलगगयारानीDì a�Dì नेमुझेगालीदी|]§Wt उसेगालीदेनेकेिलएमनाकराउसनेअपनेभाईरासीदकोआवाजदीरासीदवहांआगया| रासीदमुझेमारनेलगामेरी]Ì]m मुझेछुड़ानेकेिलएआईमेरी]Ì]m मुझेछुड़ारहीथीतभीरानीवहाँआगई| रानीमेरी]Ì]m सेलड़ाईकरनेलगी| रानीनेमेरी]Ì]m केबालपकड़िलए| इतने]¤ मेरेिपताजीवहांआगए| मूo ]nÆWk हािजरअदालतभीआगया]nÆWk मेरेिपताजीसेलड़नेलगगया|]nÆWk अपनेघरगयावअनवरवसुंदरसेकहाDì ÿUmY काआजकामतमामकरदेतेh§ |]nÆWk चाकूलेकरआयासुंदरकेपासचारपाईकापावाथा| अनवरभीमौजूदथा| रासीदवरानीभीमौजूदथे| मेरेिपताकोरानी, रानीकेलड़केरासीदवअनवरनेपकड़िलया| ]nÆWk

नेमेरेिपताDì छातीपरिसरपरचाकूमारा| सुंदरनेमेरेिपताकेिसरपरचारपाईकापावाoमारामेरेिपताकेखूनबहनेलगािफरवहिगरगए| ]§ मू सुंदरहािजरअदालतकेeWk´Sकरताhó1 |

Xxx by Sh V K Jain Adv

]§ वहांसेअपनेचाचाकेघरचलागयाथा| जब]§ अपनेचाचाकेसाथआधेघÁNtबादआयातोपुिलसमौजूदथीपुिलसनेमेरेसेपूछताछDì थी| पुिलसनेथाना]¤ मेरेसेपूछताछDì थी| अगलेिदनकोभी]§ थानेअगलेिदनगयाथािदन]¤ गयाथा| ]§ थाने]¤आधेGÁNt रहा| ]§ उससेअगलेरोज़भीथानेगयाथा| उसिदनमुझसेकोईपूछताछनDì |25.4.97 कोमेरेकोईÊ^kW नhò> | ]§Wt पुिलसकेमेरीमाँकेबालपकड़नेDì बताईथीconfronted with the statement mark of the witness whereit is not recorded | यहभीपुिलसकोबतायाथाDì दलीपकाकामतमामकरदेतेh§ confronted with mark statement where it is not recorded.oपुिलसकोबतायाथाDì मू सुंदरनेमेरेिपताजीकेिसरपरचारपाईकापावामाराconfronted with mar where not recorded | मेरेसाथमेरीदादीआईहैयहगलतहैDì मेरीदादीनेमुझे]nal�]Ō कोिदखायाहै| झगड़ाकरीबआधेघंटेतकचला| जहांझगड़ाhò5 थावहाँसेहमारीLnµFm काएकिमनटका_kÖSk है| यहसहीहैDìजबझगड़ाhò5 आसपासकेलोग6³DOt होगएथे| 10-20 आदमी6³DOt होगएथे|मुझेनीपतापुिलसनेउनकेÊ^kW िलखे| यहगलतहैDì मूo मौकेपरमौजूदनथे| यहoगलतहैDì कोईझगड़ानhò5 यहगलतहैDì मू हािजरअदालतनेमेरेिपताकोचाकूवहचारपाईकेपावासेनमारा| यहगलतहैDì ]¤ अपनीमाँकेकहनेपरझूठीगवाहीदेरहाhó1 |”

14.From holistic and conjoint reading of the above testimonieswhich are credible and trustworthy and have not been shaken in crossexamination, it is evident that both PW-1 & PW-4 have categoricallytestified that the appellant came to the spot on being called by Munna(co-accused) and exhorted that, “Pradeep ka aaj kaam tamam kar dete

hain”. It is also unequivocally testified that subsequent to the aboveexhortation, the appellant went and brought the leg of the cot, struckthe deceased on his head, consequent upon which, the deceasedcollapsed on the spot.

15.Both, PW-1 & PW-4, are injured eye witnesses. The testimonyof an injured eye witness is kept on higher pedestal and is accorded aspecial status in law as held by the Hon’ble Apex Court inAbdulSayeed vs. State of Madhya Pradesh, reported as (2010) 10 SCC 254,reproduced as follows:

“The law on the point can be summarized to the effect that thetestimony of the injured witness is accorded special status in law.This is as consequence of the fact that the injury to the witness is anin-built guarantee of his presence at the scene of the crime and becausethe witness will not want to let his actual assailant go unpunishedmerely to falsely implicate third party for the commission of theoffence. Thus, the deposition of the injured witness should be reliedupon unless there are strong grounds for rejection of his evidence onthe basis of major contradictions and discrepancies therein.”

16.So far as the argument of existence of contradictions in thetestimony of PW-1, as well as the improvement in the testimony ofPW-4 vis-à-vis his statement under section 161 Cr.P.C is concerned, itis well established by the Hon’ble Supreme Court of India, in catenaof decisions, that, minor discrepancies in the evidence of theeyewitnesses do not shake their trustworthiness. [Ref:Balvir Singh v.

State of Madhya Pradeshreported as (2019 (4) Scale 631)].

17.The further argument made by the counsel on behalf of theappellant that PW-1 & PW-4, being the wife of the deceased and sonof the deceased, respectively, are interested witnesses, does not appealto us. There is clear distinction in law between related witness andan interested witness. The Hon’ble Supreme Court of India inMd.

Rojali Ali v. The State of Assamreported as AIR 2019 SC 1128 held:

“10.As regards the contention that all the eye-witnesses are closerelatives of the deceased, it is by now well-settled that relatedwitnesscannotbesaidtobean ‘interested’ witness merely byvirtue of being relative of the victim. This Court has elucidatedthedifference between ‘interested’ and ‘related’ witnesses in plethora ofcases, stating that witness may be called interested only when he orshe derives some benefit from the result of litigation, which in thecontext of criminal case would mean that the witness has direct orindirect interest in seeing the accused punished due to prior enmity orother reasons, and thus has motive to falsely implicate the accused(for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752;Amit v. State of Uttar Pradesh, (2012) 4 SCC 107; and Gangabhavaniv. Rayapati Venkat Reddy, (2013) 15 SCC 298). Recently, thisdifference was reiterated in Ganapathi v. State of Tamil Nadu, (2018)5 SCC 549, in the following terms, by referring to the three-Judgebench decision in State of Rajasthan v. Kalki (supra):

“14. “Related” is not equivalent to “interested”. witness maybe called “interested” only when he or she derives some benefitfrom the result of litigation; in the decree in civil case, or inseeing an accused person punished. witness who is naturalone and is the only possible eye witness in the circumstances ofa case cannot be said to be “interested” ...”

11. In criminal cases, it is often the case that the offence is witnessedby close relative of the victim, whose presence on the scene of the

offence would be natural. The evidence of such witnesscannotautomatically be discarded by labelling the witness as interested.Indeed, one of the earliest statements with respect to interestedwitnesses in criminal cases was made by this Court in Dalip Singh v.State of Punjab, 1954 SCR 145, wherein this Court observed:

“26. witness is normally to be considered independent unlesshe or she springs from sources which are likely to be tainted andthat usually means unless the witness has cause, such as enmityagainst the accused, towishtoimplicate him falsely.Ordinarily, close relative would be the last to screen the realculprit and falsely implicate an innocent person…”

12. In case of related witness, the Court may not treat his or hertestimony as inherently tainted, and needs to ensure only that theevidence is inherently reliable, probable, cogent and consistent. Wemay refer to the observations of this Court in Jayabalan v. UnionTerritory of Pondicherry, (2010) 1 SCC 199:

“23. We are of the considered view that in cases where theCourt is called upon to deal with the evidence of the interestedwitnesses, the approach of the Court while appreciating theevidence of such witnesses must not be pedantic. The Courtmust be cautious in “appreciating and accepting the evidencegiven by the interested witnesses but the Court must not besuspicious of such evidence. The primary endeavour of theCourt must be to look for consistency. The evidence of awitness cannot be ignored or thrown out solely because it comesfrom the mouth of person who is closely related to thevictim.””

In light of the above and on minute and purposeful reading of

their testimony, PW-1 & PW-4 cannot be termed as interestedwitnesses, nor can their testimony be discarded on that premise.

18.In respect of non-establishment of Motive, it has been held bythe Hon’ble Supreme Court of India that motive, is not sine qua non,

in particular when there is trustworthy direct evidence regardingcommission of crime. It is relevant to point out the judgment inBipin Kumar Mondal v. State of West Bengalreported as (2010) 12

SCC 91:

“19. It is settled legal proposition that even if the absence of motive asalleged is accepted that is of no consequence and pales intoinsignificance when direct evidence establishes the crime. Therefore,in case there is direct trustworthy evidence of witnesses as tocommission of an offence, the motive part loses its significance.Therefore, if the genesis of the motive of the occurrence is not proved,the ocular testimony of the witnesses as to the occurrence could not bediscarded only by the reason of the absence of motive, if otherwise theevidence is worthy of reliance. (Vide Hari Shankar v. State of U.P,(1996) 9 SCC 40; Bikau Pandey and Ors. v. State of Bihar, (2003) 12SCC 616; and Abu Thakir and Ors. v. State of Tamil Nadu, (2010) 5SCC 91).alleged is accepted that is of no consequence and pales intoinsignificance when direct evidence establishes the crime. Therefore,in case there is direct trustworthy evidence of witnesses as tocommission of an offence, the motive part loses its significance.Therefore, if the genesis of the motive of the occurrence is not proved,the ocular testimony of the witnesses as to the occurrence could not bediscarded only by the reason of the absence of motive, if otherwise theevidence is worthy of reliance. (Vide Hari Shankar v. State of U.P,(1996) 9 SCC 40; Bikau Pandey and Ors. v. State of Bihar, (2003) 12SCC 616; and Abu Thakir and Ors. v. State of Tamil Nadu, (2010) 5SCC 91).

20. In case relating to circumstantial evidence, motive does assumegreat importance, but to say that the absence of motive would dislodgethe entire prosecution story is giving this one factor an importancewhich is not due. Motive is in the mind of the accused and can seldombe fathomed with any degree of accuracy.(Vide Ujagar Singh v. Stateof Punjab, (2007) 13 SCC 90).”

19.It is rather noted that PW-1, in her cross-examination, attributed

motive to the appellant by stating that roughly 15 – 20 days prior to thepresent incident, quarrel had taken place with the appellant, whereinhe had threatened to kill the husband of PW-1 (the deceased) in twomonths.

20.We therefore observe that the argument with respect to non-

proving of motive, must also fail in the light of the direct evidenceelaborated herein before.

21.Coming to the aspect of medical evidence and the role of theaccused, it is relevant to examine the post mortem report coupled withthe testimony of Dr. K.L. Sharma, PW-10, the doctor who conductedthe post mortem on the body of the deceased, as well as the factum

that, the appellant acted in furtherance of common intention under

section 34 IPC, along with the co-accused.

22.In the post mortem report, the relevant opinion is as follows:

“External Injuries:

3. Small semilunar abrasion over right side middle of neck 1 c.m.

4. Leniar abrasion vertical over left side axillary fold in front of

it 1 c.m. length.

Internal Injuries:

Head:

a) Scalp tissue: cut in whole thickness upto right temporalmuscle.

OPINION:

-Cause of death is cardiac tamponade consequent to injury No.2,rapidly following injury.rapidly following injury.

-All injuries were antemortem in nature and are inflicted by otherparty.

-Injury No. 2 was sufficient to cause death in the ordinary course ofnature rapidly.nature rapidly.

-Injury No. 1 & 2 are caused by sharp, penetrating cutting weaponwhich is flat and straight weapon. Injury No. 2 & 4 have beencaused during scuffle, with other party.”

23.During the testimony of PW-10 in court, the seal of the FSL,which contained the paya of the cot [Ex. P2], was opened and putspecifically to her, to which she stated that Injury No. 4 as mentionedin the post mortem report, could be caused by the paya [Ex. P2]. It isalso mentioned in the post mortem report that injury No. 2 & 4 werecaused during the scuffle. Therefore, the blow by the leg of the cot hasbeen connected with the injury inflicted upon the deceased during thescuffle.

24.The testimony of PW-10 along with the fact that the head skinwas cut up to right temporal muscle area, shows the intent of theappellant, as well as the nature of the injury inflicted upon thedeceased, at the relevant time.

25.The intent is also unambiguous, in light of the fact that bothPW-1 & PW-4 have testified that the co-accused Munna, stabbed thedeceased with the knife, and the appellant struck the deceased oncewith the leg of the cot, which was brought by him subsequent to theexhortation.

26.The appellant, along with his co-accused, were also convictedunder section 302 read with section 34 IPC, for their common

intention in the present crime. The act of the accused of striking thedeceased with the leg of the cot, contemporaneous with the co-accusedstabbing the accused with the knife, clearly demonstrate the intent androle of the accused in the present crime.

27.We also refer to the observations of the Hon’ble Supreme Court

of India inPalakom Abdul Rahiman v. The Station House Officer

Badiadka Police Station reported as AIR 2019 SC 1891, wherein theeffect of conviction under section 302 read with section 34 IPC, hasbeen observed as follows:

“The application of principles enunciated in Section 34 Indian PenalCode, when an Accused is convicted Under Section 302 read withSection 34 Indian Penal Code, in law means that the Accused is liablefor the act which caused death of the deceased in the same manner asif it was done by him alone. As was observed by this Court in ChintaPulla Reddy and others case (supra), Section 34 is applicable even ifno injury has been caused by the particular Accused himself.”

28.The judgment of the Supreme court of Thaman Kumar v. State(Supra), cited by the counsel for the appellant, as corollary, does notcome to the aid of the appellant, as we do not find any substantialvariation between the medical evidence and ocular evidence, asexamined by us above. Even otherwise, it is settled law that unless theoral evidence is totally irreconcilable with the medical evidence, it hasprimacy. [Ref: Abdul Sayeed (Supra)]

29.We therefore hold that, in light of the medical evidence,statements of PW-1, PW-4 and PW-10 and the common intention ofthe appellant with the co-accused, under section 34 IPC, clearlydemonstrate the guilt of the accused in commission of the presentcrime.

30.As last alternative argument, learned counsel for the appellantmade plea on behalf of the appellant that, the appellant’s convictionmay be converted from one of conviction under section 302 to that ofsection 304 IPC.

31.We are not inclined to accept the same. The Appellant actedconsequent upon the exhortation given by his co-accused, to kill thedeceased, subsequent to which, he went and brought the leg of the cotand struck the deceased on his head with it.The appellant standsconvicted not only for his act, but also in light of the contemporaneousacts of his co-accused. He has acted in furtherance of commonintention along with his co-accused and the intent to cause death of thedeceased is clear.

32.In the present circumstances the case of the appellant, weobserve, do not fall under any of the exceptions provided under section300 IPC, and the conviction of the appellant under section 302 IPC,

resultantly, cannot be converted to that of Section 304 IPC.

33.We consequently, find ourselves in agreement with the findingsreturned by the trial court, which in our considered view, do notwarrant any interference or modification.returned by the trial court, which in our considered view, do notwarrant any interference or modification.

34.Therefore, the judgment dated 21.9.2001 and the order on

sentence dated 24.9.2001, respectively, are upheld and the presentappeal is accordingly dismissed. However, there shall be no order asto costs.appeal is accordingly dismissed. However, there shall be no order asto costs.

35.The appellant’s bail bond stand cancelled and he is directed tosurrender before the jail authorities within 7 days.surrender before the jail authorities within 7 days.

36.The Trial Court Record be sent back forthwith.

37.Copy of the judgement be sent to the Jail Superintendent, TiharJail and also be sent for updation of the records.Jail and also be sent for updation of the records.

SIDDHARTH MRIDUL(JUDGE)

AUGUST 21, 2018dn /ym

BRIJESH SETHI(JUDGE)