HUMESH Vs. STATE

JUDGEMENT

(1.) These appeals assail the impugned judgment dtd. 27/7/2019 passed by the learned Trial Court convicting appellants Humesh @ Babu @ Murari, Parveen @ Naveen @ Vikky and Amit guilty for offence under Sec. 302/34 IPC and in addition convicting Parveen for offence under Sec. 27 of the Arms Act and Amit for offence punishable under Sec. 174A (Part I) IPC. The appeals further assail the order on sentence dtd. 31/7/2019 sentencing the three appellants Umesh, Parveen and Amit for life imprisonment for the offence punishable under Sec. 302/34 IPC and a fine of Rs.10,000.00 each (RI for six months in default of payment of fine), and sentencing Parveen to rigorous imprisonment for three years for offence punishable under sec. 27 of the Arms Act and a fine of Rs.2000.00 (RI for six months in default of payment of fine) and sentencing Amit for simple imprisonment for 3 years for offence punishable under Sec. 174A(Part I). All sentences were to run concurrently. Incident

(2.) As per the case of the prosecution, on 4/10/2010 at 9.50 p.m. a PCR call was recorded vide DD No. 41A regarding stabbing of a person near House No. 470 near Dayama Dispensary, Chandan Vihar which was received at PS Nihal Vihar, Delhi. On receipt of the information IO, Inspector Jai Singh (PW-38) along with PW-3 Ct. Sunil Kumar and others reached the crime scene spot where they met PW-29 SI Bhanwar Singh, PW-32 HC Diwan Singh and PW-14 Ct. Sushil Kumar. Bloodstained clothes and pair of bloodstained slippers were found on the spot and the IO came to know that the injured has been shifted to Global Hospital, Paschim Vihar by his family members. On visiting the hospital, the IO found that one Om Prakash aged 38 years resident of B-26, Amibka Enclave, Nihal Vihar, Delhi was found to be admitted with history of assault and stab injuries. His MLC (Ex. PW-20/A) was prepared, and the deceased was declared brought dead by the doctors. The dead body was sent to the mortuary and post mortem was conducted at about 11.00 a.m. on 5/10/2010 at Sanjay Gandhi Memorial Hospital and the post mortem report (Ex PW-24/A) was prepared. The IO recorded the statement of the brother of deceased, Sunder Lal Chauhan (PW-11) who stated that on 4/10/2010 at about 9.30 p.m., after having dinner along with the deceased and PW-7 Naresh Dayama, they came out of the shop of Rinku at B-470, Chandan Vihar, when the three appellants came carrying knives and sharp edged weapons. Parveen caught hold of the deceased and all of them attacked several times with knives and other weapons saying that they would teach him a lesson. The deceased fell on ground and when the complainant tried to save him, the appellants pushed him and fled away from the spot on motorcycles. PW-11 mentioned to the police that the deceased had started his new cable work after leaving the company and friendship of the appellants, who used to quarrel with him and demand money. Based on the complaint, FIR No. 211/2010 was registered under Sec. 302/34 IPC against all three appellants. The crime team inspected the spot, site plan was prepared, exhibits were lifted, statements of the witnesses were recorded under Sec. 161 Cr.P.C. and search of the appellants commenced. Appellant Parveen was arrested from Paschim Vihar, and at his instance, the weapon of offence (knife) and his clothes were recovered. Thereafter, appellant Humesh was arrested on 6/11/2010 and at his instance bloodstained clothes which he was wearing at the time of offence were recovered. Additionally, accused Ravinder @ Arjun who had been arrested in some other case was arrested on 15/12/2010 and at his instance a bloodstained knife from Najafgarh drain was recovered. He also disclosed that one Raju Beniwal @ Ganja lodged in Tihar Jail had abetted to kill the deceased because of an old rivalry with the deceased. Appellant Amit could not be traced and bailable warrants were issued against him. Chargesheet was prepared against Parveen, Humesh and Ravinder and filed in learned Trial Court. Appellant Amit could not be arrested despite efforts and was declared proclaimed offender (PO). Later, the IO also filed supplementary charge sheet against appellant Amit before the learned Trial Court. Charges were framed against the appellants and in addition Ravinder. All of them pleaded not guilty and claimed trial. Later Amit was arrested, and charges were framed against him as well, who pleaded not guilty and claimed trial. The prosecution examined 42 witnesses in support of its case, the statement of the appellants were recorded under Sec. 313 Cr.PC and the appellants did not lead any evidence in defence. Submissions on behalf of the Appellants

(3.) The appellants through their appeal and submissions made by their counsel submitted that they have been falsely implicated, and their name had not been mentioned at the very first instance. Even though the first information on the PCR was given by PW-8 Rinku but the place of incident mentioned was different from the actual spot of incident. Further as per the MLC of the deceased, the victim was brought by his brother Madan Lal who neither disclosed the names of the assailants nor was examined by the prosecution. IO, PW-38 stated that he received the information that one person was lying injured due to stabbing by knife but when they reached the spot, they were informed that the injured had already been removed to the hospital. No statements of the public witnesses have been recorded. The appellants through their counsel further contended that PW-7 stated that the appellants were known to him prior to the incident as they resided in the same locality. PW-11 also stated that he knew the appellants from an earlier date, and they were friends of the deceased. He further stated that the appellants had quarreled with his brother 2-3 times and demanded money from him and therefore PW-7 and PW-11 had reasons to falsely implicate the appellants. It was further contended that there were contradictory versions regarding making a PCR call at the first instance. While PW-8 stated that he had made call from his number 987336325, PW-2 stated that it was received from mobile No. 9873386375. The site plan Ex. PW-11/B and scaled site plan Ex. PW-38/J do not show the position of the eyewitnesses. As per the site plan, point A showed where the appellants had stabbed the deceased whereas point B showed where he had fallen later. Nowhere in the testimonies of PW-7 and PW-11 was it mentioned as to how the deceased went from point A to point B. Despite the knife attacks by four appellants there was no blood found at point A which was sufficient to indicate that the incident did not happen at that point and there was also an absence of trail of blood from point A to point B thereby discrediting the testimony of PW-7 and PW-11. Learned counsel for appellants further contended that there were contradictory statements of PW-7, PW-11 and PW-3 at whose instance the site plan was prepared. Also, there were material contradictions in the testimonies of PW-7, PW-11, PW-8 and PW-38. There was also doubt as to the duration of the incident since it was stated that 18 stab wound injuries were inflicted on the deceased within 2-3 minutes. PW-7's statement does not corroborate the testimony of PW-32 regarding meeting at the hospital. While he stated that he reached the hospital and met the police officials at 11:30 p.m. for the first time however testimony of PW-32 indicates that the police officials arrived at hospital at 10:20 p.m. Injury sustained by PW-7 does not match with the MLC report and while PW-7 deposed that they remained at PS till 5:00 a.m. however, PW-37 stated he had arrived in the PS at 5:00 a.m. It was contended that recovery of blood soaked clothes from the appellant by the Investigating Officer was after more than a month and was noted by learned Trial Court as being not believable. Also no DNA matching of the blood or the seized clothes was done. The counsels for the appellants inter alia relied upon Jagir Singh v. State (Delhi), (1975) 3 SCC 562, Madathil Narayanan v. State of Kerala, (2018) 14 SCC 513 on the issue of non-disclosure of names of the assailants at the earliest possible opportunity; Dinesh v. State of Haryana, AIR 2002 SC 2374, Shingara Singh v. State of Haryana, (2003) 12 SCC 758 and Vijay Singh v. State of M.P., 2004 SCC OnLine MP 308 on site plan discrepancy; Bhimappa Jinnappa Naganur v. State of Karnataka, 1993 Supp (3) SCC 449, Rishi Pal v. State, 1993 SCC OnLine Del 249 on the absence of trail of blood; Thangavelu v. State of T.N., (2002) 6 SCC 498 on animosity between appellant and deceased; Krishnegowda v. State of Karnataka, (2017) 13 SCC 98 on discrepancies and contradictions between evidence of witnesses; Kashinath Baban Palkar v. State of Maharashtra, 1995 SCC OnLine Bom 167 on failure of prosecution to prove the place of incident; Dilbagh Singh v. State, 2018 SCC OnLine Del 6827, Gurdial Singh v. State of Punjab, 1994 Cri LJ 1231 on credibility of eye witnesses; Raj Kumar, Sadhana and Akhilesh v. State, 1996 SCC OnLine Del 533 on doubtfulness of recoveries and Hem Raj v State of Haryana, 2005 (3) SCALE 482 on credibility of related witnesses. Submissions on behalf of the Prosecution