Sunil v. State

judgment and order dated

18.11.2004, the learned Trial Judge has convicted the accused persons for the offence punishable under Section 302/34 IPC pertaining to the death of Anil and Vijay. They have been convicted for the offence punishable under Section 307/34 IPC for attempting to murder Mangat Ram and other persons who received gun shot wounds.

44.

To summarize, the reasoning of the learned Trial Judge is the discrepancy in the testimony of the defence witnesses pertaining to the weapons in the hands of the unruly crowd. The learned Trial Judge has noted that some witnesses have spoken of the crowd being armed with swords and knives. Some have deposed that the crowd was armed with lathis and dandas. Some have deposed that the crowd was having sarias (iron rods). Some have deposed that the crowd had kerosene/petrol bombs. The learned Trial Judge has further held that there is no evidence of any petrol or kerosene being detected from near or outside the house of Babu Ram. The learned Trial Judge has further held that the defence witnesses had not spoken about accused Sunil, Ravinder, Vijay and Shri Krishan whose presence and participation stands established by the witnesses of the prosecution and that there was no reason to doubt their presence at the spot or the testimony of the prosecution witnesses. The fact that they had received gunshot injuries was proof of their presence and that nothing was brought out in the cross-examination to discredit said witnesses who have corroborated each other. The plea of self-defence has been rejected by the learned Trial Judge in view of the testimony of the witnesses of the prosecution, as per whom the accused were the aggressors and according to whom, the house of accused Babu Ram was never surrounded by any mob, much less threatened to be set on fire.

45.

In our opinion there is hardly much scope for raising a dispute pertaining to the defence of Babu Ram of having acted in self-defence. The defence is a sham.

46.

The site plan, Ex.PW-56/A, prepared by Inspector Sajan Singh and the site plan to scale Ex.PW-7/A prepared by Tirath Raj Singh PW-7, to which we have made a detailed reference in para 11 above, show that deceased Vijay and Anil were shot dead at street No.300. Mangat Ram PW-2 also was shot at in street No.300. PW-8, PW-9, PW-13, PW-14, PW-15 and PW-27 have categorically stated that they received the gunshot injuries when they were in street No.300. These witnesses may be related to the two young boys who were shot dead as also to Mangat Ram, the complainant, but said fact alone would not render suspect their testimonies. The said six witnesses are all residents of block-D and have their houses on gali No.300 and thus their presence at the spot is natural. That all of them received gunshot wounds itself establishes their presence at the spot. A related witness is not an interested witness on account of being the relation of the complainant. An interested witness is one who has a motive to secure the false conviction of the accused and to achieve the same deposes falsely. As held in the decision reported as State of Rajasthan v. Smt Kalki & Anr (1981) 2 SCC 752:- "As mentioned above, the High Court has declined to rely on the evidence of P.W.I on two grounds: (1) she was a "highly interested" witness because she

"is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the respondents."

47.

Besides, the other prosecution witnesses namely PW-17, PW-23, PW-29, PW-30, PW-33, PW-34, PW-35, PW-36, PW-37, PW-38, PW-39, PW-40, PW-41, PW-42, PW-43, PW-44 and PW-46 are not related to the deceased or Mangat Ram. Said witnesses have deposed that they received gunshot wounds on 11.11.1998 at around 3/3:30 PM. Out of said 17 witnesses, PW-23, PW-29, PW-33, PW-37, PW-38, PW-39, PW-40, PW-41, PW-42, PW-43, PW-44 and PW-46 have categorically deposed that they were present at gali No.300 when they received the gunshot wounds. The other witnesses have not stated as to where they were standing when they received the gunshot wounds. PW-23, PW-29, PW-33, PW-37, PW-38, PW-39, PW-40, PW-41, PW-42, PW-43, PW-44 and PW-46 are not related to each other or to the deceased or to any

other witness of the prosecution. They would have no motive to falsely depose. The testimony of said witnesses establishes that the firing was directed towards people who were on street No.300. The house of Babu Ram is abutting street No.400, which as noted in para 11 above, runs parallel to street No.300 and the two streets are separated by a row of houses constructed back to back. In no way can an unruly crowd which has assembled on street No.300 set on fire any house which is on street No.400. Further, the falsity in the testimony of the defence witnesses who claim that Babu Ram, acting in defence of his house and himself and his family members, fired from the roof of his house is apparent from the fact that standing on the roof of house No.366 which is the house of Babu Ram, it is just not possible to hit anybody standing on street No.300. A little bit of geometry would show the same. Standing on any point at the roof of the house of Babu Ram, the straight line connecting the said spot from any portion of his roof to any spot on street No.300 would pass through the roof and the walls of house No.D-355, D-356 and D-357 abutting street No.300 on its northern boundary.

48.

Besides, there is no evidence of any kerosene oil or petrol being detected outside the house of Babu Ram. This also falsifies the defence version that the riotous mob was threatening to burn down the house of Babu Ram.

49.

No doubt, FIR Ex.PW-19/D-3 has indeed been registered at 9:10 PM which evidences rioting in D-Block, Jahangir Puri, but therefrom it does not stand proved that the defence version is correct. It is also true that photographs of the house of Babu Ram show that the door of his house has been broken and brick bats have been thrown towards his house.

50.

What has happened is evident. After Babu Ram fired indiscriminately and shot dead two persons on the street and injured 26 more on the street i.e. street No.300, it was apparent that the crowd retaliated. The site plan Ex.PW-7/A shows that the houses on the streets of D-Block Jahangir Puri have a front of 10" and a depth of 23".10". Jahangir Puri is a resettlement colony where slum dwellers have been relocated. Tiny plots admeasuring 10" x 23".10" have been allotted to the rehabilitated slum dwellers by the government. The population density in the colony is extremely heavy. Huge crowds can gather in densely populated areas within seconds. It is apparent that the angry crowd sought vengeance against Babu Ram after Babu Ram had created mayhem in the area. That 16 rounds were fired by Babu Ram is not disputed by him. By no stretch of imagination can firing of 16 rounds be belittled. If a man fires 16 rounds on a crowd causing death of 2 and injuring 26 others, the crowd is bound to retaliate.

51.

From the evidence of the witnesses of the prosecution it is apparent that some quarrel regarding eve teasing had taken place on street No.300 involving the families of Satpal and accused Shri Kishan who is the brother-in-law of Babu Ram. Even the defence witnesses have spoken of an eve-teasing incident. The difference is, as per the defence witnesses the victim of the eve teasing incident was Seema, the daughter of Shri Kishan and as per the prosecution witnesses the aggressors were the family members of Shri Kishan. There is commonality in the testimony of both sets of witnesses that Babu Ram left street No.300 taking along with him his sister Sushila and Seema. The difference in the two versions is regarding the presence of the co-accused. As per the witnesses of the prosecution, some of them have spoken of all co-accused being present at street No.300, with some excluding the presence of co-accused Vijay. It is thus apparent that whatever be the cause of the spat on the public street, Babu Ram retrieved himself safely from the street and reached his house.

52.

We have already discounted the defence version, in view of evidence on record, of the crowd following Babu Ram and surrounding his house. We have already held that the evidence establishes indiscriminate firing by Babu Ram on the persons in street No.300 and the fact that his house abuts street No.400 evidences that the firing was not to scare the

crowd which had surrounded the house of Babu Ram. We have already held that for anyone to be standing on street No.300 it is just not possible to set on fire any house on street No.400. We have already held that by standing on any spot on the roof of Babu Ram"s house it was just not possible to shoot any person on street No.300.

53.

The inevitable conclusion is, that as claimed by the witnesses of the prosecution, Babu Ram jumped from the roof of his house on to the roof of House No.D-354 of Mangat Ram and standing at the roof of Mangat Ram"s house at the spot marked "4" on the site plan Ex.PW-7/A, indiscriminately fired 16 shots, all directed downwards on the persons in street No.300, with specific targets being Mangat Ram and his family members against whom Babu Ram had a grievance of being the sympathizers of Lala Satpal.

54.

Besides, the right of self-defence is a self-limiting right and authorizes the person acting in self-defence to use only such force which is reasonable and commensurate with the danger to body or to property. No doubt, defence of a dwelling house stands on a different footing and law has always looked with special indulgence on a man who is defending his dwelling against those who try to unlawfully evict him, for: the house of everyone is to him as his castle and fortress.

55.

The indiscriminate firing by Babu Ram cannot be justified under any circumstances.

56.

The testimony of the witnesses of the prosecution and the defence, though with a difference qua the origin of a spat on the public street, establishes a public spat on a public street involving the families of Shri Krishan and Lala Satpal. The evidence, as held above, establishes that Babu Ram fired from the roof of the house of Mangat Ram and targeted people on street No.300 where the spat between the family members of Shri Krishan and Lala Satpal took place. It is apparent that Babu Ram was led into firing because he learnt of the quarrel going on in street No.300. It is obvious that Babu Ram had come to aid of his sister and his brother-in-law. It is obvious that Babu Ram has acted with vengeance and not to protect himself or his house. It is not the case of Babu Ram that his sister"s house or the family members of his sister who were on street No.300 were in danger and he did the firing to protect them.

57.

Looked from any angle whatsoever, Babu Ram cannot escape the consequence of his acts.

58.

Turning to the incriminatory evidence against the co-accused we find that in his statement Ex.PW-2/A, made soon after the incident, Mangat Ram has not named Vijay, much less ascribed any role to Vijay. Only while deposing in Court, for the first time, Mangat Ram talked about the

presence of Vijay, but has only stated that when Babu Ram fired on being exhorted by Shri Krishan and Sunil, Vijay was seen standing on the roof. Ashok Kumar PW-8 has deposed that when Babu Ram and the other co-accused left street No.300 to go to the house of Babu Ram, on the way Vijay joined them. He ascribes a role to Vijay when Babu Ram fired; role being of exhorting in the company of Ravinder that supporters of Satpal should not be spared. Kashmiri Lal PW-9 does not talk of Vijay"s presence on street No.300 or of anything done or spoken of by Vijay. He merely says that he saw Vijay on the roof of Mangat Ram"s house when Babu Ram fired. Similarly, even Darshana PW-13 speaks of seeing Vijay on the roof of Mangat Ram"s house. Even she does not speak of his presence in street No.300 or of saying or doing anything while standing on the roof of the house of Mangat Ram. Similar is the testimony of Raj Kumar PW-14, pertaining to Vijay as also is the testimony of Sushil Kumar PW-15.

59.

We are thus inclined to give the benefit of doubt to Vijay qua whom only one witness of the prosecution has alleged of having participated in the firing. Vijay being an un-officious bystander; simply witnessing the firing cannot be ruled out. In any case, if not a clean acquittal, Vijay is entitled to the benefit of doubt.

60.

Qua Sunil, Shri Krishan and Ravinder it has to be noted that Mangat Ram, Ashok Kumar, Kashmiri Lal, Darshana,

Raj Kumar and Sushil Kumar have categorically deposed that they were present in street No.300 along with Babu Ram. All of them have stated that said three persons left in the company of Babu Ram. The said witnesses have ascribed roles to the three, albeit with a slight variance. The variance is that Mangat Ram, Sushil Kumar and Ashok Kumar claim that Shri Krishan and Sunil exhorted Babu Ram to fire from the roof of his house, Raj Kumar says that Shri Krishan alone exhorted. Similarly, the role ascribed to co-accused Narender is at slight variance in the testimony of the witnesses of the prosecution. But, the slight variations are immaterial.

61.

Where there are a large number of accused and a large number of witnesses, it is bound to happen that there would occur variations in the testimony of the witnesses as to which accused exactly did what. The reason is obvious. With the passage of time after an incident takes place, memory fades. The core of the events pertaining to an incident is remembered by the person. At the fringes, memory fades. In the decision reported as Anna Reddy Sambasiva Reddy & Ors. Vs. State of Andhra Pradesh 2009 (6) SCALE 223 it was observed: "… looking to the nature of the incident where large number of persons attacked D-1, D-2 PW-1, PW-2 and PW-3, it would not have been possible for PW-1 or PW-3 to attribute specific injury individually to each accused. How could it be possible for any person to recount with meticulous exactitude the various individual acts done by each assailant? Had

they stated so, their testimony would have been criticized as highly improbable and unnatural. The testimony of eye-witnesses carries with it the criticism of being tutored if they give graphic details of the incident and their evidence would be assailed as unspecific, vague and general if they fail to speak with precision. The golden principle is not to weigh such testimony in golden scales but to view it from the cogent standards that lend assurance about its trustfulness."

62.

In the decision reported as Masalti V. State Of Uttar Pradesh AIR 1965 SC 202 it was observed: "… Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault."

¶63In the decision reported as State of Himachal Pradesh v. Lekh Raj & Anr AIR 1999 SC 3916 the following was observed:- "Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the

social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of Madhya Pradesh [1981] SCC (Crl.) 676, this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki and Anr. held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."

64.

The criminal appeals filed by Sunil, Shri Krishan, Ravinder and Babu Ram being Crl.Appeal No.962/2004, Crl.Appeal No.977/2004, Crl.Appeal No.981/2004 and Crl.Appeal No.61/2005 respectively are accordingly dismissed.

65.

Crl.Appeal No.14/2005 filed by Vijay is allowed. The conviction of Vijay for the offences punishable under Section 302/34 IPC and Section 307/34 IPC is set aside. He is acquitted of the charges framed against him. Since he is on bail, his bail bond and surety bonds are discharged.

66.

Appellant Babu Ram is in jail. Appellants Sunil, Shri Krishan and Ravinder have been admitted to bail pending hearing of their bails. Since the appeals filed by them have

been dismissed their bail bonds and surety bonds are cancelled. They are directed to surrender and suffer the sentence imposed upon them, which needless to state is to undergo imprisonment for life.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE JULY 28, 2009 mm / DHARMENDER

* IN THE HIGH COURT OF DELHI % Judgment reserved on :14.07.2009 Judgment delivered on: 28.07.2009 + CRL. APPEAL 962/2004 SUNIL …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 977/2004 SHRI KRISHAN …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 981/2004 RAVINDER …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 14/2005 VIJAY …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CRL. APPEAL 61/2005 BABU RAM @ FAUJI …Appellant Through : Mr. Mukesh Kalia, Advocate Ms. Sumita Kapil, Advocate Mr. Girish Gupta, Advocate versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. The process of law was set into motion, when on 11.11.1998 at 4.05 P.M. an unknown person informed the Police Control Room that a quarrel was going on in front of H.No.286, Gali 300, D Block Jahangir Puri, and that a person was firing. Const. Vijay Rani PW-3, on duty at the police control room noted the said information in the PCR form marked A. The information was forwarded to PS Jahangir Puri, where Const. Runa Rathore PW-12, recorded DD. No. 51B, Ex.PW- 12/A. 2. Copy of DD No.51B was given to ASI Ram Niwas PW-32 for investigation. Accompanied by Const. Surender PW- 6 and Const. Sita Ram PW-5 he left for the spot and on reaching the spot saw a huge crowd gathered there. The situation was riotous. Insp. Sajjan Singh PW-56 the SHO PS Jahangir Puri also reached the spot in the mean time. 3. Before investigation could commence as to what had happened and who did what, the rioting crowd had to be contained. The crowd had surrounded house No.366 on Gali No.400 in D Block belonging to Babu Ram. The crowd was demanding that those who had fired be handed over to the crowd. Stones were even thrown at the police personnel who had reached. Additional police force had to be requisitioned and with the arrival of a large number of police personnel at the spot, due to the very presence of the police force, the situation cooled as the crowd melted away. 4. Inspector Sajjan Singh and ASI Ram Niwas learnt that many injured had been removed to LNJP Hospital. They proceeded to the hospital and collected 25 MLCs being Ex.PW- 18/A to Ex.PW-18/R and Ex.PW-47/A, Ex.PW-50/B to Ex.PW- 50/E, Ex.PW-51/A, Ex.PW-51/B, Ex.PW-53/A and Ex.PW-55/E of 27 injured persons who were admitted at the hospital. All of them had gun shot wounds. Anil Kumar a resident of House No.D-354 had been declared brought dead at the hospital. Another injured victim Vijay resident of House No.D-431-432 was in a serious condition and he died in the hospital the same day at 9:20 PM. 5. Since the crowd was saying that appellant Babu Ram and other co-accused, who are all family members, had created the trouble and as per the crowd the target of the accused was the family of Lala Satpal and his neighbour and friend Mangat Ram, and since Mangat Ram who had received superficial pellet injuries was discharged from LNJP Hospital evidenced by his MLC Ex.PW-18/B, Insp.Sajjan Singh returned to the spot and went to House No.D-354, Jahangir Puri, the resident of Mangat Ram. He recorded the statement Ex.PW- 2/A of Mangat Ram as per which Mangat Ram stated that a quarrel was going on for the last 4 or 5 days between his neighbour Satpal who resides in House No.D-293/29