Shailender @ Babley v. State

SANJIV KHANNA, J. For detailed order see Crilninal Appeal No. 384/2012 titledAsha versus State pronounced today. ~- -/[c_ (SANJIV KHANNA). JUDGE )c ,....J""1 ~· (S. GARG) JUDGE December 19,2012 VKR / !fN TI:lf.li~ JflllG:U:_[ COURT. O.l!f Dli{:JL.i!JJI AT l'IJKYIY ])JJli.:LJHI.fl 19- + (]) f. ASHA STATE . . . '(2) Cn•imDnunH Appeal ]\lo. 3~4/2012 Through Versus :rhrough . ... Appellant' Mr. Jitc1~der _Sethi and Mr.· ·rz<)hit l3hargava~ Advocc~tes. ~- . :. Rcsl)ondcnt. Ms. Richa Kapoor~ APP. Crumi111al AppeaD No. 433/2012 ANAND SlNGII@ DHAMMAL .... Appellant S'I'ATE

(3) Through Mr. Jaidccp Malik, Advoc~ltc. Versus Through ... 1Zespondcn1 Ms. Richa K.~1poor, APP. CrnmiiDllal AppcaD No. 434/20Jl2 . ANARSINGH ... ,.Appc!lant Through· Mr. Sunil DaJal mid Mr. /\shish Versus ·rhrough Sha1:rna, 1\.clvocates. ., ,. ... Respondent Ms. Richa Kapoor, APP.

(4) C1riminaH AppeaB l~o. 443/2012 Crl. 1\ 384/2012 ·l connected matters Page 1 of 4-6 ... 0· '· Sl-~(\.ILENDER@ BABLEY Through Versus STATE 'fhrough · .... Appellant Mr. lV1.ohit Mathur, : M:r. Pavvan Mathur and Mr. Viluam PanYvar, Advocates. ... Respondent Ms. Richa Kapoor, APP.

(5) CrimiliJiaH Appeal No. 4~55/20 JI.Z ASIIOK. KHATRI & ANR. Through Versus STA'rE Through . .... Appcliant Mr. R. M .. Tufail and. Mr. Vishal Seh~jpal, Advoci1tes. . ... Respondent Ms. Richa Kapoor, APP.

(6) CrimKJI]aD Appeal No. 559/2012 RAJ KUMAR Through ·versus S'J'!\Tf~ 'fhrough CO HAM: .... Appellat)-1 Mr. Sun1cet Venna & Ms: Chan1 Verma, Advocates. .. ·. Resnondent Ms. lbcha Kapoor, APP. Jf-D.ON'BLE MR. JUSTICE SANJJV lKJEilANNA fJfON'B:LE MR. JUSTICE § .. IP. GARG SANJIV K:O:-lAN.NA, ;u. Crimes, as distinguished ·from civil vvrongs, are wrongs again::Jl the society and demand .seraphic justice by way of punishrnenl of Crl. A 384/2012 +connected matters ---------- 0· •.' imprisomnent and/or .tine. Power to investigate crimes and, thci·caft.er, prosec_ute the offendci·, is given to the police, a neutral' third party as a norn~, and not . to the victim_ though in certain cases . a private con1plaint n1ay be maintainable. Compelling_ reasons for this is that police investigation is expected to ensure' indcpen.dent, -unpre:.:judiced and objective verification, scienti.tlc and professional conduct in collecti_on of evidencc/n1atedal and filing of charge-sheet without bias in favour or against the perpetrator or the victim.

¶2The present appeals by Ashok Khatri, Raj K~mar, /\nil, Shailender, Anar Singh, Anand and Asha, in1pugning their convicti_on under Section 302 read with Section 149 of Indim~ Peria_l Code, 1860 (IPC, for short) for murder of Ajay, under Section .·307 read ·with Section 149 IPC for attempt to murder ofVin1la ::md allegations under Sections 14 7/148 IPC, are rendered son1evvhat arduous and labori~ms as both, the appellants and the fan1ily men1bers of the deceased /\.jay and injured Vimla, haye hurled allegations against the police of1:1cers and have cast doubts and a_spersions on then1. Therefore, the present appeal requires a n1icroscopic scrutiny of the statements of cye-witil.csses, Vin1la (PW -4) who, as is natural, happe1i.s to be injured herself and the fm:nily mc;mbers of deceased Ajay. Similarly scrupulous scrutiny is required of the staten1ents . made by the, two Investig!lting Officers. At this stage, it is pertinent to nolc that another co-accused Dharampal, father of three n1ale appellanls and fat_hcr-in-lm~' or Asha, had expired during the course 'of tdal. Tbc six appellants, all related and belonging to one :family, have been sentenc;,ed to in1prisonment for l~fe and fine of Rs.25,QOO/- each in respect of offence under Section 302, read witl1 Section 149 IPC. with Crl. A 384/2012 +connected matters Pace 3 of 46 CD 4?- .. the stipulation that in case of defa~lt of payment of fine, Lbcy sbEti~ undergo si1nplc imprisonn1ent for 2 years. For the, o11cncc under Section 307 read with Section 149 IPC, they have bee11 se~tcnccd to 7 years simple imprisonment \~1ith iine of Rs.l 0,000/-: each, again with slip~llation that in default of payment of·fine, the appellants '~'Otdd. suffer si1nple ilnprison111ent for on~ year. ·No separate sen~encc under Sections 147 and 148 IPC has be~ri awarded in vie~v of provisions of Section 71 IPC.

¶3Before going into contentious !ssues; the alleged invo ivcment of the appe_llants and, in case the involve1nent of the appellants is proved, the sections under which they should be convicted, -,Nc think it appropriate to first record admitted facts and our findings on some disputed facts which can be decided on the basis of contemporaneous documents, executed by doctors -vvho _had exmnined the deceased Ajay or injured Vin1la_ 01~ by examination of exhibits 1~~ad '~'ith the staten1ent of '~'itnesses. Elucidation on the said .:~dn1~ttecl or disputed facts will be helpful when we examir~c the contentious 1ssues raisetl thal are required to be answered. _

¶4The adn1itted or other contentious· or disputed facts, '~'hid1 VlC feel can be clearly determined witho1:1t detailed reference to ev iclcnce arc as under:

4.] The deceased Ajay and injured Vimla, along with their family n1embers, were residing at 195, Rajpura Gudn1andi, Delhi;

4.2 The appellants were residents of 178/2 Ra_jpura Gur JViandi, Delhi. Thus, the appel1ants, deceased Ajay and injured Vimla and their fan1.ily men1.bers were neighbours. Crl. A 384/2012 + conn'ectcd mat_ters

4.3 There is evidence and material to show that the two families '~'ere known to each other and there was no past history of animosity or jll-will. M·ecnu Rana (PW:-1), Saurav (PW-2), Vin!la Ra~1a(P\N-4) and Attar Singh (PW-7) have accepted and adn1itted that the deceased Ajay and Dl~armnpal were property dealers and used .to operate from ·the smne shop/J)roperty.

4.4 Mccnu Ran a ( PW -1 ), wife of deceased Aj ay Ran a, ·h~1s slated that they khew the family of Anar Singh, prior to the incicle;nt, as her late husband was a property dealer and used to carry ~n business with Dharan1pal, in the name of K.hatri Properties. She has further stated I that her mother-in-law was inst1~un1ental and had acted as a mediator in the matrimonial alliance between Ashok and his wife Asha who are appellants in these appeals. Gaurav (PW-~) had tes~il:led that, prior to lhc date of occurrence, no quarrel had taken place between the_ two rami,FGs .. ~ ~e \laS also adtnitted that the deceased Ajay used to sit with accused Dharampal at Khatri Properties' office. h~iurcd Vimla (PW-4 ), who is also the sister-in-lavv of the deceased 1\iay, has averred that their family had participated in the marriage of app~llant A.shok as also the family of Attar Singh and the dec~aseq Ajay. She was not aware regarding what was the business rel::itionship between deceased Ajay and Dharampal, but adrnit.ted that both of them used ~o si.t together in one office and deal in properties. ,Further, prior to the incident, the relations between the ~wo families were cm·~liaL Kunal Rana (PW.:.s), a child t.hcn aged about 8 years, l1as stated that he knew the appeVant Ashok~ as his daughter used·to study in! the same ~;chool '"'here his sister was studying and the appellant Ashok used to drop ' .1 his daughter to the school. He has also· accepted that his lhlher, Crl. A 384/2012 +connected matters Page 5 of L!.6 .- deGccised Ajay, was a property dealer and the aee~tsed v•,;crc also property dealers and no quarrel had Wken place bet.,~reen the two fatnilies prim~ to the occurrence. Attar Singh (PW-7), father of the deceased Ajay, ·has accepted that relations between Rc~j Kumar and his fmnily were cordial. 4:5 There is runple evidence in form of MLCs (Ex. PW-23i!\ and PW23/B) of Sanjeevan l\IIann Hospital, Roop Nagar and Sanjeevaani 1-lospital, Darya Ganj, ~-cspectively, relating to injuries suiTcrcd by Ajay which caused his death . ., MLC (Ex. .PW23/l3), relating to Sanjeevani Mann Hopsital, Darya Ganj, sh<?ws that the deceased Ajay vlas brought to the said hospital on 3rd September, ·2005 vvilh head-injuries and h~d expired at 12.45 A.M. on 4th September, 2005. Dr. Anil Shandil (PW -18) had conducted the post-mortem on the body of Ajay ·and, on exmnination, had found that he had following cxlern~l injuries:- "(I) Abrasion reddish in colour over lower chest. 16.5 em x 0.5 em. 5 em from right nipple and 10 em belov\' len nipple crossing mid line. .

(2) fncisccl wound with clean cut well defined regular margins with dried up blood clots over vertex ,or head 15 em. From right ear 14 em, from lelt ear and 10.5 em from protuberance of" size 12.5 Clll X J.5 Clll X cranial c.avity deep with corresjJonding incised WOL!nd cut over the scalp with rracture extending towards frontal region and tovvards righl parietal occipital region as depicted in fig. B ~u.1d C. in the post mortem report with fracture part driven in. ; ,

(3) Incised \'Vound over left index finger 1.8 en} x 0.5 em. with clean cut well defined regular m<:irgins · subcutaneous to muscle deep." The following internal injuries were also noticed:- "( 1) Subscalp extravasations of blood and clots over right parietal occipital region 8 em _x 6 em and over frontal region 10 em x 8 em correspondingly. There w~1s corresponding cut mark over brain matter about I 0 em. 111 Crt. A 384/2012 + connected matters Page 6 of46 length, depressed with underlying brain matter conruscJ with subdural, subarachnoid hacmorrhaoc with intracerebral haematoma and blood clots ovc~ base or brain." In PW -18 's opinion, the death '~•as caused· by shock resulting from craniocerebral damage consequent upon head injury from heavy sharp edged weapon. .Injury No. 2 ';vas 'sufficient to cause death in ordinary course of nature. All injuries were ante mortem by nature. The Post ·Mortem Report prqved as PW1_5/ A, was written and sign.ed . . by PW-18.

4.6 Thus, it is clear fron1 the aforesaid that Ajay had died a hq1~1icidal death as a result of injury No. 2.' Ajay also had two other injuries in fonn of abrasions_ redish iri colour· o~er lower chest and index l~inger 1.8 em x 0.5 em '~'ith clear cut, defined regular marg-ins, which vvere subcutan~ous to n1uscle deep. PW -18 ~1p.s stated that th~ fracture against injury No. 2 was fissured facture, usually caused by blunt forced in1pact. He was not shm~'n weapon of o tfencc {Ex. PWS), hut after <Sxamining the sword in the cross examination, had stated that it was not correct to state that the same was neither sharp ~ nor heavy nor pointed.

4.7 In the cross-examination, PW-18 has stated that injury J'-,lo. 2 was caused by a single '~'capon and injury No. 3-was as a result of single infliction and not repeated blov.rs by sharp weapon. Injury No. ] was stated as simple injury possible by any pointed object and PW-18 could 119t say definitely whether 3 or 4 assailant_s simul1.ancous1y . . hit sword blows with force and that injury ·No. 1 would not be a result Crl. A 384/2012 + connected matters Page 7 of46 thereof. He O}Jined that in_J·ury N·o. j , •. a<;: ,, scr·atcl 1· ' .· ~ .,. ,. c. ,

¶1Jncar aormno.1~, . p.os_sible ~y any pointed object or weapon.

4.8 Counsc~ fo~- the appellm:ts has submitted and raisc?d dispute on the movenl.ent or ad~11ission of Ajay in Sarijeevani Mci.nn Hospital,. R._oop Nagar, situated at abou~ half a kilom.eter from the sile of occurrence, then to Trauma Centre, near Civil Lines behind LP. College and lastly to Sanjeevani Mm1n Hospital at Darya Ganj. · It . \'Vas subn1itted that the ostensible reason or justifi~ation for shifting i.e_ non-avai1abili'ty of ventilator is belied in view of the MLC Ex .. PW23/A of Sanjeev Mann Hospital, Roop Nagar, stating that the patient was already yentilated. It was also submitted that there \~ 1 aS connivance and n1anipulation ofthe MLCs of Ajay. A false case has been set up. There is no 1nerit in the said contentions. ~We are inclined to accept the statement of PW-L PW-2, PW-4 and P"'~N-6 to the extent that Vin1la (PW-4) and deceased /\jay JZana were first taken to Sanjeevan Mann Hospital, Roop Nagar. The J\1I:.C or /\jay Rana, Ex.PW-23/A v.ras prepared by Dr. Ashish Gupta. The said Iv1LC was proved by Dr. Ashish Srivastava (PW23) to the effccl that it was prepared at ·sanjeevan ,ttlaan Hospital, Roop Nagar. The MI ,C. \l\'as prepared at 10 P.M. and records that the tin1e of anivaJ of patient vvas 9.50 P.M. We do not agree with the contention ofthc appellants. that. Ajay Rana' was taken to some other hospital and was bandaged on head and incubated on ventilator in the said hospital. The words "scalp bandaged" and «profusely bleeding", mentioned in the ML<;:: Ex. PW23/A show that after adn1ission of /\jay at 9.50 P.M .. he v,;as bandaged and put on venl~lator. MLC (Ex. PW23/ A) uses tl:c words ·patient. -vvas already on ventilator' but said MLC records mid advised.· Crl. A 384/2012 + connected matters Page 3 of L~6 ------- ··----·-· -·- CD I that the patient should be. shifted to a higher centre. V cnfilator can l;c manual through ambu bag or by a n1achine, both requiring incubation. The name of ASI A.A. Khan is 1nentioned in the said MLC, but that docs not in any '~ray negate or make the MLC or the contents thereof doubtful. Recording of the said .name· may be due to the. fact. that the police officer had visited the said hospital and had Gollected the MLC. In any case, this is inconsequential and does not Jnakc the prosecution version debatable.

4.9 We arc also inclined to accept the statcn1ent of Mecnu Rana (:PW.:.l) and Attar Singh (PW-7) that from Sanj~evan Mann 1-lo~pitill, • I Roop Nagar, Ajay and Bimla were taken to Traun1a Centre. Vimla . . (PW-4) was adn1it.ted in the ~rm.1n1a centre for treatment, .but Ajay was ·, in a serious condition and was taken to Sanjeevan Mann Hospital, . I Darya Ganj and adtnitted in the said hospital at 11.1 ~ P.M. on 3rd . . September, 2005. · Subsequently, he died at· 12.45. A.M. on 4'h September, 2005, in the said hospi~~tl. As per the _statements of PW-1 . and 7~ Ajay was shifted li-om Trauma Centre because ventilalo: ';vas not available there. This fact is recorded i.n MLC (PW-23/B) written in· the Sanjeevan Mann Hospital, Darya Ganj. We do not accept the coritention of the apJjellants that transfer JJ:mn one hospital to another was n-mde to fabricate or create evidence. At that tin1e,- .the entire attention, object and purpose W?tS to save Ajay and ensure .. that best n1edicaJ treatlnent was made available and provided.

4.10. Similarly, contention that the deceased Ajay was not La.l<.cn 111 the wheel l1arrow from the place of occun:ence to Sai1jeevani Mann Hospital, ·~zoop Nagar is devoid of any force. The statSmcnl or PW-1 CrL A 384/2012 + conne.ctcd matters Page 9 of 4fi I ., ·' m1d PW-2 arc clear and categorical on the said aspect. Th~rc is no reason to disbelieve their testimony to the effect tl1at th<:Y had taken Ajay in the injured condition to ~he said hospital. Attm· Singh (PW-.7) joined them over there, and thereafte~-, the deceased Ajay was taken to tn:n..tnla Centre and then to Sanjeevani Mann Hospital, D~:rya ·Ganj. . I

4.1 1 . The contention · of the app~llm1ts with regard 1 lo . place of occurrence i.e. where the incident or violei1ce· h.ad taken place, in front ~f Ho~se No. 195 or 178, Rajpura Gud1nandi, is not debatable: The actual occurrence or violence had taken place in frm~t o{ house of Ajay at 195, Rajpura Gudmm1di, Delhi. The fact that the DD entry No. 44B records the place of occurrence at 177-178 Rajpura Gur Mandi, cannot be determinative. The said DD entry was recorded at 22:19 Hrs. In1n1ediately, thereafter another DD entry 4513 ';vas recorded, 'inter alia, stating that brotl1.er of A.S. Rana r/o 195 Rajpura · Gudm.andi had given a S\".rord blow.· The staten1ents of police .officers who went to the spot imn1ediately after the aforesaid DD entries were recorded namely, ACP Hira Lal (~W-2~),. ASi A.A. Khan .(PW-10), Canst. Shahji John (PW-3), Sl Anuj Nautiyal

(PW19), Constable Ramesh Kumar (PW11) and Ct. Sushil Kumar · (PW 16) are consistent. _ They ·were first to reach the s~Jot, where the 'violence had taken piace, an'd the place ·,JVas identified by them as 195, I Rajpura Gudn1andi. They had in seriatin1 stated thc~.t they reached the I spot of ~ccurrence at about 10.00/10.30 PM but by tlien the injured Ajay had been taken for treatment to 1-Iospital, along with Virnla, the I otl1cr injured. Thjs is proved frmn the photographs, Ex. PW-9/A-l t:o A-5, which we~·e taken by the Crin1e Tean1 m1d proved by Ct. Sushil Kumar (~W-9) ,~rho had taken the photographs at 2.00/2:.15 AJVJ on CrL A 384/2012 +connected matters Page :tO of 46 •• ·-·- -- - M- ~~ _,..._ ----·----- ·- - -~-- _ Evidence/material available/noticed at the spofwere 4th Sept., 2005. · ·· · lifted by the n1obile crin1e team and nak'shanajiri marked Ex. PW24/C (¥as prepared. The site plans, Ex. PW24/C, PW25/ A· and PvV8/ A, show an9 proye that blood i1; ·considerable quantity was. not tmJy found in frm}-t of house No. 195, Rajpura a'ur Mandi ·but some _blo~d was traced and found inside the ho~se, next to the entrance door. The contention of ~he appellants that the p~ace of occu~rence, as n1.entioned and recorded in DD No.44B( Ex. PWlOIDA) was 177-· . . 178, Gurn1andi, Rajpura, is inconsequential as another D;D No.45B '~'aS recorded ·within two rninutcs thereafter and in the said DI), ·it was 1nentioned that· brother of A.S. Rana Rana had been given sword blow. DD No.45 has not been given an exhibit number but ACP l-li~a Lal (PW-24) and other police witnesses were extensively cross-exarnined on the said DD entry, which was obviously shown to them. ·

4.12 Sin1ilarly, · the contention of the appellants that there is discrepancy as to the place where the police s>fficers namely P\N -3, PW-10, PW-16, PW-19 and PW-24 had, for the first time, seen the i.njurcd Ajay, is in1n1aterial. The slight discrepancy, a;s to -vvhcther the injured Ajay ~nd. Vin1la (PW-4) were seen by the police offic~rs, . . for the first time in Sanjcevani Manri Hospital, Roop Nagar as stated by PW-24, or at Trauma Centre as stated by PW-3; PW-10, 1'W~l6 and PW-19 is irrelevant for detern1ining and deciding the core is~;ues which arise for consideration. Such minor discrepancies arc· no\ consequential and occur because of lapse of time and inabilily of Lhe witnesses to recollect irrelevant minute details. The credibility or Lhc witi1esses and the statements has to b": examined on the b~sis of their overall statements and whether the version/deposition inspires Crl. A 384/2012 +connected matters ~ • I 'confidence and credence. Some podion· of the statement/testimony, if required and necessary, can be discarded. The presence of the polic~ officers al the hospitals after the occurrence and thereafter at the sc~ne of crin1e can hardly be disputed or denied. Contemporaneous endorsement written by ACP Hira Lal (I''w-24}marked PW 24/A (the tehrir) for [egistration of the FIR after recording of statement ofPW.-1 (1narked E~.· PW1/A) when read, supports the state11!-ents made by PW-3, PW-10, PW-16 and PW-19. Testimonies of PW-1, PW-4 and PW -7 ~llso negate l)resence/appearance of the police officers cit th~ hospital at Roop Nagar, when Ajay and PW-4 were taken .tliere.

4.13 Soon ?Lfter death of Ajay at 12.45 A.M. on 4th Scptemb~r, 2005, :as recorded in MLC Ex.PW-23/B, ASI Ashiq Ali Khan (P.'W-_.1 0) recorded staten1eqt ofM<?enu Rana (PW-1) and thereafter 'rukka' was sent for registration of i•IR .. rD1.is fact is conf1rn1ed by PW -1, P\N -10 and PW-24. l•IR No.497/2005, under Sectim1s i47/148!149/3.02/307 lPC was record~d on 4th Septen1.ber, 2005 at _2.20 A.M: in the po\ic<:;. station Model Town and tv·.ro DD entries i.e. SA and 6A were made. This has been proved in the statem.cnt of Constable Shahji John (~)W-· 3), who had· taken the. 'rukka' to the l)oEce station and got the 1 IR. recorded. 4·.14 1:-lead Constable Deepak (PW~22) has stated that he was given a copy of the said FIR for handing over the sa"me to the senior otTicers and the Metropolitim Magistrate. 1:-Ie, in the cross-exap"lin~l~1on, has stated that he had deiivercd the special report to the M~gistrate after 12 1nidnight. The Magistrate had made an endorsenlel{t on the copy PugC 12 of L~6 Crl. A 384/2012 + connected matters <0 -~ retained by him and he had returned back around 2 A.,M., but he ~ould nol give the exact time. 4·~ 15 We are not inclined to accept the contention of the appellants that there has been ante-timing of the FIR or there was delay in recording of the FLR. The deceased-Ajay Rana '~'as tai<e1~ from one hospi~al to the other and the pri1nary concern of the fan1ily members, as noticed above, was to provide and get best medical treatment and save Ajay's life. At that ti1ne and in such circmnstances; the eye witne!:lses would not have agreed to recording of their staternen1. Statement of PW -1 was recorded inunediately after the death of Aj ay. The trauma and shock suiiered and felt by the eye-wi.tnesses, stunned by the sudden turn of events, the injuries and the loom.ing prospect and pervading thought of l?ss of life is not difficult to visualize and

111.e · conduct of eye-·witness was , natural and understand. understandable. The fact that PW-1 composed herself and made a statcm.ent within one hour of death of her husband-Ajay has to be appreciated.

¶5This brings us to the crux of the n1alter; whether there was any unlawful asscn1.bly and ~¥ho were the members of; the 1...mlawru1 assen1.bly, sharing the comn1011 object and \iVhat was lhe common object shared or offence likely to be con1mitted in terms .,..of Section 149 IPC? Recently in Crin1.inal Appeal No. 1490/201 L Nm·e:.'ii11 @ Kalu Vs. State, we h~ve examined scope and an'lbit of unlawful assen1.bly under Section~ 141 and 149 IPC and h~vc held as under:- «28:Coming to Section \49 r~ad ·with Section ;141 lPC, il has two essential ingredients: ·. r·age 13 of L~6 Crl. A 3S4/2012 + connected matters '. . firs~ly, the oflencc must be committed by a member of an unlawful assemblv (not nccessal--11'-' by tl :1 1 · . . J ·' J 1e accuscc l!mself) cons1stmg offive or more members and, :- Secondly, th_e offe:1ce must b~ committed in prosecution. of common object ~f the assembly or that the members of the unlm·:ful ~ssembly knew that the offence was likely Lo be comm ttted 1_11 prosecution of the common qbj ect. . ~ (See observations in RtmUlchandnm and Ors. ~ v. State (~l [(era/a, AIR 20 I I-SC 3581).

¶29Mere presence in the unlawful assembly does not ren?er ~ pers?n liable unless he' shares the, common object' wh1ch IS ultimately actuated. The word "object" meand "purpose" or "design". The purpose for which the mei;nbers of the assembly set Olft or the_ purpose which they desi~·ecl to achieve is the object. In order to make it common, if musf be shared by the members prosecuted. The object of the members should be the same. This requires that there should be proof or knowledge of the object pursued, that it was the shared object and there was a general agreement as to how it was to be acl1ieved. The expressiqn "i~ prosecution of common object" !n Scctioi1 '149 1 PC bas to be strictly construed as equivalent to "in order to achieve a common object". 30. Common object may be a rcsull of a p.rior concert and common meeting, of minds, but can be also formed on the spur of the moment. lt may be formed at any stage by a \I or few members of an unlawfully assembly and the others may just join and adopt it. Once rormed, it need not contin~1e to be the same and can be modified. altered or abandoned at any stage. There must be' community of object and object may exist up loa particulal stage and not thereafter. A pe~·son may share a Pflrticula,r common object or there may be community of object, but the same may _exist up to a particular stage or for a particular offcr\cc. (Sec C/uu·a/1 Singh v. State l~f'. U.Ji'. (2004J <~ sec 205). .~

¶31Once it is established that the accused was a member or the unlawful assembly, which had common object;it is not necessary t}lat all persons forming unlawful assembly musl be shown to have committed some overt act or ·Ot11ission. Beino· part of an unlawful assembly. which· shares a b . common object. itself is sufficient. However, caut1on mw;l be taken to ensure that the accused concerned had an active mind i.e. shared a common object before he is held liable for the ads or third parties. who were members of the page :iA of46 Crl. A 38.4/2012 + connected matters < w:law~ul as~emb.ly. Passers-by or persons wpo were m~rely pte.sent ~t the Stte or the place of the assembly with no ~c:tvc mmd have to be excluded. Some persons m~{y ~vcn J0111 th.e . assembly as a matter of idle curiosity without entertamtng a common object.· (See Masalti ''· State <Jl Uttar Pradesh AIR 1965 SC 202 and K.M. Ra11i mul Ors ;, St(lte of /(arnatalw (2009) 16 se 33 7). · . . 32: Common object is entertained in the human mind •<.meL bemg a matter of intention, no direct evidence in the forn~ of ovet~ evidence may be available. Therefore, existence or non-~xtstence of common object has to be gathered from · the ctrcum~tances. (See La~ii v. State of U.P. (1989) 1 .SCC · 437): Spectfic overt acts and omissions by an acctlsed do prcdtcate formation of the common object and. k.nov·.tledge/sharing, by the said· accused, but contrary. alone 'is· not sufficient to hold that the accused did not share common object. Surrounding circumstances and all aspects have to be considered' and it is not necessary for the prosecution to establish any specific overt action in all cases. (See Daya J(is/um v. State ofllaiJmna (201 0) 5 sec 81, St£rte of U.P. v. J(rislranpal ami Ors. (2008) 16 SCC 73 and Amerika Rai and Ors. v .. State l~( Bihar (201 1) 4 sec 677). it is obligatory on the part of the Court to examine the entire evidence and lake a holistic and pragmatic view. Compendium of aspects like persons, vvho had joined the assembly, the weapons with the members or the assembly, the nature of injuries suffered, behaviour and act, before or after the scene of incident. etc. are relevant. ·Further, it is for the prosecution to prove against the person, who is alleged to be a member of unlawful assembly, that he was ' one of the persons constituting the unlawful assembly and entertained, along with other members, the coiTli110I:j object or knowledge, as defined in Section 14 J, 149 1 PC ct~. '

¶33As n'oticed above, Section 149 read with 141 l PC consists of two parts. The first part crimina\i!;cs and mandates punishment, when an offence is comniittecl in prosecution of the comrnon object and when the offence is committed with view to accomplish the said object. ln such cases, the offence committed must connect or have direct or immediate nexus with the ·common object of the un_lawful assembly, or which the accused \'vas a member. The second parl of Section 149 lPC is wider and consists of offences which are such as the member knew was likely to be committed. Thus, a member ofthe unlawful assembly shall be held I iab \c i r he knew that an offence, which he may nol share, was likely to be committed in prosecution of the common object. The expression "knows" does not refer to a mere possibility vvhich might or might not happen,. but Crl. A 384/2012 + connected matters cas~s. where it can be ascertained that the accused had postttv.e knowledge that such an offence was likely to be commtttcd. (Sec CildwrangeGowdu "· State of M)Jsore, . AIR 1956 sc 731)." I • . !

¶6Suprem.e Court, in their decision dated 22nc) Nov~mber, 2012, Bluwat Soni etc. Vs. State of Chattisgarh has dealt ~~ith purport and effect of provisions of Section 149 IPC on the question of detcnnination of con1n10n object of an unlawful assern.bly or determination of the question ·whether a ITteinber of th~ unlawful asse1nbly knew that the oiTence. was likely to be comn1itted. 1t observed that this was essentially a question of .fact \;yhich requires exan1ination of host. or connected fac;,ts like n~1ture of 'the assembly, background of the incident, motive, the arms carried by the n1embers, behaviour of the II1en1bers at or near the scene etc., but no exhaustive enu1neration was. possible. The object being enterlaii1.ed in human mind and being a n1ental attitude has to be gathered from the acts, V·lhich persons, '""'ho are members of the unl~wful assembly, commit and result thereof. The said decision also m.adc reference to. another recent decision 111 Kuldip Yadav & Others Vs. State of Bihar.- AIR 201 I SC 1736.

¶7As noted, in the preftx to the present judgn1.ent, care and caution is required to be exercised when we examine the police witnesses as the two groups i.e. the appellants and the ramily members of the deceased-Ajay Rana have both made allegation,; of bias in investigation by the police oftleers. Evidence reveals that both side"s did exert and apply pressure and had taken help' or engaged . . retired poiice officers to ir;Jluence the investigation. Investigation ' I Jnust be fair and objective as police is regarded as an independent investigator entrusted with a duty to unearth anc.l present :true and ' : correct facts. Unfair investigation, '~'hich results in failure br juslice ' I ~ "" or non-production o [evidence or material on core issues, ha~ resulted -i:1 acquittal in some cases. At the sarne tin1e, ~are and cauti:on has Lo be exercised that the accused using influence and indulginp/causing subterfuge should not go scof free and escape pu~1ishment. Nevertheless, th~ standard of proof in crin1inal cases n1andates proof ! beyond reasonable doubt and, therefore, evidence n1ust meet the said criteria. Even in cases of biased investigation, the standard of proof cannot -be diluted but while examining the statement of witnesses, their credibility/truthfulness and the allegations n1ade have to be· kept in n1ind and cam1.ot be ignored. In the present case, in order "to reach the truth, we have relied upon conter:1poraneous records p1aintained and ret1ected in the MLCs, which were prepared when the deceascd-1\jay and injured Vin1la (PW-4) were taken to the hospital. . "!e have also referred to other reasons and grounds for our fill.dings.

¶8Meenu's staten1ent (Ex.PWl/A.), under Section 154 Cr.P.C., -vvhich becan1e the FIR, reads as under:- "l reside at the aforesaid address along with my fart1ily and 1 am a housewife. (Coday) in the evening (l) was p~·esent at the house along with my ~usband Ajay, Jethani (elder sister-in-law) Bimla, her s01i Sourav @ Golu. At aboul 9:30 P.M. our neighbour Ashok S/o Sh. Dharampal, Rajkum.ar@ Billu, Ani\@ Susi S/o Sh. DharampaL_Anaar Singh S/o Sh. Ratan Singh, Anand@ Dham~11~l, Sha.dendcr (W. Bailey and Dharmpal came and after calling m)~ husb<~nc.l <~ tside Ashok said to (him) that as to why he was ask111g them l~ remove the debris from the gali. Thereupon, !11)' husband and myself persuaded them while saying l_o tl:em that as they \¥ere doing construction to their house 111 tront Page 1.7 of 46 Crl. A 384/20~2 +connected matters CD of our house and debris of the same was lying on the road which is causing a trouble for us while visiting herd and · there and because of the same '"'e had asked you to remove:· the debris fr01n there. At this, Ashok asked his associated to do away with Ajay. After that, Ashok took the svvorcl from his !'ather Dharmapal and gave a blow of the same o•i the head of my husbmid. V.,then my husbaod tried to ruri Cl\1..1ay from there Ohammal and Dharampal caught h~ld or him. and Rajkumar and Ani! caused sword blows to Ajay. When 1 tried to save they pushed me away.· Shailenqra (f~ Bailey also gave blow of sword to my husband as a ,result of which he fell down there· itself. On hearing the commotion. my Jcthani (elder sister-in-law) Bimla and h~r ." son Saurav came out. \iVhen we tried to save Ajay, Anaar Singh and Shailendra gave a blow of sword on the head or. Simla as a result or which she also fell down there. ilsctr and they all ned l'rom the spot. Thereafter, Saun1v and myself took my husband and Jethan i (elder sister-in-=law) to Mann HospitaL Shakti Nagar and from there they both were 1aken to Trauma ·Centre, where they admitted my .Jethani (elder sister-in-law). But my husband was taken t6 Sanjivani Hospital as his condition was critical \1>, 1hcre my husband has expired. All the aforesaid persons with a common intention attacked my husband and Jethani (elcler sister-in-law) with the swords and cause them i.njury in order to kill them as a result of which my husband has died and Jethani (elder sister-in-law) is injured. Legal a·ction may kindly be initiated against aforesaiq persons. I have heard the statement and the same is cGt-rect.''

¶9Endorsen1ent on the ·rukka' recorded by ACP Hira Lal (PW-24) re:ads as under:- "·ro, 'The Duty Officer, P.S. Model Town. Delhi. It is officially submitted that 1· the lnspcc.tor a_long ·with Constabk Sushi! Kumar No. \ 302/NW reached at.thc spot i.e. 195. Rc.~jpura. Delhi at the receipt of o_..o.No.44B. 4SB, where Mr. A.A.. Khan. Constable ShahJI .Jaan No. !297/NW were present at the spot. No oecular witness w_as found at the spot. It was learnt there that the fan_1lly members of the injured had carried him to Man!} HospLlaL Roop Nagar. Lca~ing Constabl~ Ramesh No. 1427/l'IW at Pag~ 1fi of Lt6 Crl. A 384/2012 +connected m~tters CD I· the spot I, the Inspector, along with the other staff reached at Roop Nagar· Hospitai where M.L.C. No. 105/05 of injured Ajay Rana S/o Madu .... (sic) Rana ·was obtained. The doctor had v . .rritten on it "nature of injury dangerous, head injury, patient is unfit fot· statement". It was .learnt about the injured that he had been admitted in the Trhuma Centre. i, the?. Inspector along with the staff reached itt th'e Traup1a Centre where it was learnt that the injured. ·w~ls carried to Sanjivni Hospital, Darya Ganj as his condition · was very critical. And injures:{ Bimla Rana w/o Jm~'abar Rana r/o the aforesaid address was found to be admitted at M.L.C. No. 67385/05 on which the .doctor had wrilten "nature of injury U/o Sharp edged weapon· on head, blunt injury on other body'. I, the Inspector along:\vith other staff reached at Sanj ivni Hospital, D<wya Ganj where injured Aja.y Rana was declared 'brought dead' on his M.L.C. No. 124/05 .. At the same place, eye witness Smt. Meenp, the wife of the cleccased met us and got her foregoing . statement recorded. The perusal of the M.L.C., observati6n of the circumstances and contents of the statement, reVCJll the commission of an oflcnce punishable u/ss 147/148/149/307/302/34 I.P.C. l-Ienee, this writing is being sent to the police station through Constable Shahj i Jaan No. 1297/NW for the purpose of the registration of the case. After registration of the case, its numoer may be inti1!1atecl. 'The dead body was sent under the supervision of Constable Sushi! Kumar No. 1302/NW. I, the Inspector left for the spot. ·oog squad and Crime Team may be sent at the spot. Time and date or ·occurrence - 03.09.2005 at about 9:30 P.M. Place of occurrence-House No. 195, Raj Punt, Gur Mandi, Delhi. ' Date and time or the dispatch of ,;..,riling - 04.09.2005 at 1:45A.M. Sd/- illegible (In English) Additional SI-10, P.S. Mock! Towi1 ·04.09.2005'' l ·] 0. PW-1, 1n her staten1ent in chief in the Court, has stated as under;- "1 know all the accused persons present in the co~u·t today as they ·are living in my village Rajpura Gurmandi. .On

3.9.05 at about 9.30 pm, I vvas present in my hou_sc along Crl. A 384/2012 +connected matters . -------- ------------ - -~-· •, \Vith my husband, my Jethani Bimla and her son Saurabh @ Golu and my son Kunal who was playin·g on the ro~f of my house. At that time accused Ashok (correctly identified) called my husband on the door of my hous.e. On hearing the call of accused Ashok, I and my husband came out on the door of our house. Accused Dharampal, abcuscd Susi @Ani!, Babley @ ~hailender, Anar Singh, Dhammal @Anand, Asha, Raj Kumar@ Billu were also present on the gate of my house. I saw a sword in the hand of accused ·Dharampal, Susi @ Ani! was 'also having a sword· in his .. hand, accused Babley @ Shailender. was also having a sword in his hand. accused Anar Singh was having hn iron pipe in his hand; and accused Dhami11al @ Anand was having a Farsa in his hand. They were standing with their weapons. As soon as we came out on the door; of our house_, accdsed Ashok had asked my husband "TUNE~ HUME GALl KA MALWA SAAF KARNE KE LIYE KYUN KAHA:'"· On this t and my husba.nd tried to make understand accused Ashok that the accused persons used to· put «Malwa" in the street in front of o{u· house and it creates inconvenience to us. On this accused Ashok asked his associates to kill A jay today itscl r. Accused Ashok took the sword from the hand of accused Dharam.pal and hit on the head of Ajay, my husband. I embraced my husband but accused Asha pushed me aside. In the mean~ime,my Jethani Bimla and her son Golu@ Saurabh also came th,ere on hearing the noise. Asha uttered to Susi @ Ani!_, "A.li\ Y ASHOK KE TALWAR SE NAI-ll MAREGA, TU APNI TALWAR SE ISKE SAR PAR MAAR". On: this my husband tried to run by saving himself. But accu5cd Anar Sir1gh, Dharmpal@ Anand and Bharampal caught hold my 'husband. Accused Dhammal and Dharampal uttered, "AA.l AJAY KO JAAN SE MAAR DO". On this my .lcthani Bimla rushed to save my husband bi.ll Asha and R<~i Kumar @ Billu pushed ba~k my .Jelha.ni Bimla. Accused Susi @. Ani\ a11d Babley @ Shai\encler hit swords on the head or my husband. Ajay fell dov·m on the ground. Bimla fell clown on my husband to save him. Asha and Raj Kumar again pushed her back. At that time Shai lerider hit his sv·lOrd on the head of Bimla. She also fell-down orY the ground. My son Kunal was standing on t\{e roof of my house and was yvceping and shouting that «MI;RE PAPA TO MAT MARO -MERE PAPA TO MAT MARC)''. All the accused ran away from the spot vvilh their weapons. L Kunal and Saurabh pul Ajay and Bimla in a Rchri which is used to carry cow dung and took them to Maan HospitaL Roop Nagar and the concerned doctor did not aclm it them because of their serious conditions. Then we took them to Page ZO of ft-6 Crl. A 384/2012 + connected matters Trauma Center behind IP Colleuc where Bimla ~,IY'lS • b i c .. admitted by the concerned doctor but my husband \Was take_n to Sanjeevan Mann Hospital, Darya Ganj as th~ere was no Ventilator in the Trauma Center wliere my husb~.md . '>~as declared dead. After some time police came and recorded my statement which is Ex. PWl/A '\Vhich bears my signature at point A. Thereafler, J returned to .my house. After some tirne police also came at my house: 1 . showed the place of occurrence to the police. My further statement was also recorded by the police. They ltiso prepared rough site plan m;d also taken photographs. After two days I rec~ivcd copy of the FIR which was brough;t by my .lcth Attar Singh Rana. After going through the copy of FIR I came to knmv that name .of accused Asha and the name of weapons was missing and, the presence of my: son · Kunal was also missing. I told this fact to my .leth. Thereafter, I and my .Jeth went to the police statioi~ and reported the matter to the police but the police did no(hear us anq turned us out of police station while statilig that statement is correct. Thereafter, my .Jeth sent a complaint to the Commissioner of Police. On 27.9.05 the police had again recorded my statement which was recorded correctly. Oi1 25.10.2005, one draughtsman along with the police came at the place of occurrence m:tcl l showed the spot lo them. I can identify the swords, if shown to me ,,,ith which the accused persons had attacked (objected to). (At this stage a scaled parcel duly scaled with the seal of FSL NK is produced. Same is allov,,ecl to be opened. Se::il is broken and its contents are shown to the witness) Sword '· Ex. PI is one of the swords similar to which the acCLJSCd persons namely Ashok, Shailendcr and Ani I were having. (At this stage another sealed parcel duly sealed with the seal of FSL NK is produced. Same is allowed to be opened. Seal is broken and its contents are shown to 1 he witness) Sword Ex. PW2 is one or the swords similar to which the accused persons namely Ashok, Shailedclcr and Ani! were-having. · (At this stage another sealed parcel duly sealed with the seal of FSL. NK is produced. The same is allowed to be opened. Seal is broken and its contents are shovYn to the witness). Farsa Ex. P3 is the same which the; accused Anand was having at the time or incident. (At this stage another sealed. parcel d.uly sealed. with the seal of FSL NK is produced. Same is allowed 1o be opened. Seal is broken and its contents arc shoyvn to the witness). Iron pipe Ex. P4 is the sar~1e which the accused Anar Singh was having at the time of incident. Crl. A 384/2012 + connected matters Page 21 of46 . l . I (At this stage another sealed parcel duly sealed vvith .. ~the seal of FSL NK is produced. Same is allowed. t~:: be opened. Seal is broken and its contents are show11 to the witness) Sword Ex. PS is one of ,the swords similar to which the accused persons namely Ashok, Shailendcr and Anil were having."

¶11Similar and identical testi1nonies in chief have been n1aclc by Saurav (PW-2), Vimla Rana (PW-4) and ·Kunal Rana (PVv-6). Before \•ve elucidate upon and examine the eviderice of the purported eye witnesses, we .would -.first like to refer to the .accepted or ad1nitted. position that the eye witnesses, nan1ely, Me~n(l R::ina . ·.{PW -1 ), Saurav (PW-2 ), Vin1la Ran a (PW -4) and K.unal 1Rana (P'lv -6) . . ! are related to the deceased. The . appellants herein belong to other fraction/group in the sense that they are family n1embers :or are related ~ith Dharam.pal - being, sons or relatives of late Dha:rampal.· (Dhararnpal, as ,noticed, \vas also an accused but had expired during the pendency of the triaL) The evidence or stateinents of related . witnesses has its advantages and disadvantages. The a~vantage being that the relatives' presence, when the· incident/occurret1.ce was outside their residential house, is natural and probable, though it still requires verification and is accepted when proved. The related \;vilnesscs would, it is stated, ensure that" the guilty, i.e. perpetrator of the crime, gets punished .. The accused v,rould not be shielded. However, caution / is. to be exercised as there could be a tendency or 'an attempt to include the innocent \•vith the guilty. The Court ha$ i<? g1.mrd. itself against con.dcn1ning, the innocent. This caution mandates insisling upon ac~eptable evidence, which in som~:? n1eas.ur~ in1plicatcs the accused and satisfies the conscience of the Court. \_see RcU1.vir Y oulav Page ZZ of 46 Crl. A 384/2012 + connected matters (]) an o Jservations .or the V:o;. State o."'" Bihar, (1995) 4 SCC 392 d Supr~n1e Court in J(uldip Yqdav (supra )j. It "\¥Ol.lld b·c a1;i;i~~priate here lo reproduce observations of a Diyision Bench of tl1is Coprl }11 ~aya Kish an & Ors. v. State 20 10 (3) JCC 2194 recording ~s ui13cr: _ "4 .... This task has to' be performed with care and caution whe1: all the eye witnesses are not only inter-related to each other, but even to the deceased and further when all the a~cus~d are inter-related to each other. Indeed, ·in a Slt~Jation ~f tl1e kind where the entire members or a flimily, being 11 111 number, are roped in as accused, it is the duty ?f th~ Judge to carefully see whether the complainant grou1) ts usmg an opportunity where the folly of a few of the op~osite gt'oup, is used; .nay misused, as a golden opportunity to ensnare in the dutches of crimin~l law the entire ~amjly of the ones who have committed the folly. How is this task to be performed? No straight jacket formula can be prescribed, but the quintessence and the signature tune ofwhatevcr formula is applied would have a COI}lmon denominator i.e. use of commonsense as a prudent person a!1d have a 360° microscopic look at the evidence."" ·xxx· "19. . ......... 1 n such a scenario, as held in the decisions reported as 1981 Cri.LJ 1034 Sfafe of UP Vs. Sahai&Ors., 2003 Cri.LJ 401 Raghumt!h&Ors. Vs. State o.f Hatycma and · .JT 20 l 0 (I) SC 24 Boddella Babul Reddy Vs. Public Prosecufor J-IC ofAP, it was not unusual for a factionist.to take advantage or every situation and occurrence and there was an incurable tendency in the ractionists to rope in lhe i1inocent members of the opposite faction along with the guilty and twist and manip~1late the facts with regai·cl to.the mode and manner of the occurrence so as to make their case appear true with the innocent mcm bers of the opposite faction also as P.articipants in the occurrence. \n such situations, it was the duty of the Court to micros~opically scrutinize the cvidencc:.ofthe eye witnesses." 1 2. PW -·1·, s st~ten1.ents were recorded on four occasions. The first state1nent (E;,.PW-1/A) was recorded at 1.45 A.M. on 4th Septcrnber, 2005. The second statcm.cnt, it is alleged, was recorded at about 3.00· ~. . A.M. on 4th Septen1ber, 2005, at the plac~ of occurren~e, by P\1\f-24. Page Z3 of l.f.6 Crl. A 384/20~2 + connected matters .. I .• J < -. ]~his statement under 161 Cr.P.C acknowl~dges receipt ofil;e FIR by PW -1. Thjs supplen1entary statement~ as held below, does not appear. to b~ true and correct. PW-1 has categorically stated, in her 1~csti~nony in the court, that the 2nd. statcn1ent -vvas regarding pointii1~ out the . ylace of o~currence and details. 3rd and 4th statements ofP\i\!-J, under section 161 Cr.P.C., were recorded, as per the prosecution, by P'vV-25 on 27.9.2005 an~ 25.10.2005. The court testin1ony,. in. c.hief, is .a con1bination of Ex. PWl /A and the state1nent recorded under Section 161 Cr.P.C on 27.9.2005. There are some differences between the court testin1ony and Ex. PWl!A, but the main and material difference relates to the allegations and presence of the appellant A;sha, at the scene of the crin1e as a n1cmber of the assembly. The contention ;:mel staten1ent of the witnesses is that the IO ·ACP Hira Lal (PW-24) I·Vas I • 1nixed up and under influei)Ce of the appellants. The aforesaid contention could be partially coiTec~. Our reasons, for the sarne, are elucidated below.

¶13We are inclined to and do believe and substantialty accept the initial version as stated and mentioned by Meenu Rana (PW-1) in Ex. PW-1/A and reject the contention that the Investigating Officer (PW-24) or ASI Ashiq Ali Khan (PW -1 0),, under infhiencc of llje appellants, did not record true and correct staten1.ent made by Tvlcenu. , Events e:stablished from the staten1ents of witnesses, including ~staten1ents of PW-1 and PW-7 sl~o-w and· prove that 'ASI Ashi~ Ali Kh~n (PW -1 0) and ACP Hi1~a .Lal (PW -24) had 111?ved _from ·one hospital. to' other and were in touch will~ ~W-l and PW-: 7. ·1 l is not possibk to accept that PW-10 and PW-24 could have been influenced by a third person so as to wrongly record the statemerit of lVJcenu - Crl. A 384/2012 + connected matters Page 2'.4-of L~G ... ; .""' (PW-4). 11>e said allegation has been made by PW-7 in his .writ~n complaint to the Gominissioner of Police (Ex.PW-7iA) made Q;, '9' ' Septcn1ber,.200S. ln the said writteh con1plain~, PW-7 had stated that two retired police officers, namely, Ram Narayan, ACP (Reid.) ;uid Bhagwan Singh, ACP (Retd.) were already present in the· ~cli~c station before the case was lodged to exerl·pressme for dil~ting the reporting, of the cri1ne. The" staten1.ent of Meenu (Ex.· PvV 1/A) vvas . ' ' not recorded in the police station, but in the Sanjeevan Mann Lt; 1-Iospital, Darya Ganj. The· said staten1ent is signed by her.. It is difficult to accept that the said two retired ACPs, who v,1ere not present at the· spot, and far away, could have influenced ASI Ashiq Ali K.han (PW-10) and ACP I-lira Lal (PW-24). As notic<pd below,· . _Lherc arc good reasons to doubt the subseq,:,ent investigatim~ and their conduct on or after 4'" September, 2005, but it would be incorrccl .. and wrong Lo hold that the initial, statement of PW-l (Ex.PW"l/A) itsdf was manipulated .and factS ~vere not mentioned to save and help Lhe appellant Asha.

1.4. Another reason, why we feel that the statement, Ex. PW-\I A shoUld be accepted, is that the Investigating Officer, it docs appear, at the said time was not under any influence, as is reflective [rom the prompt and swif-t manner in which tl1e appellants-Ashok and Rai Kumar were arrested from ti.1e hospital itself, vide ·arro;st m~:mo Ex.PW-24/D2 and Dl, wherein the time of arrest stated is 3.30 A.M. ori 4'" September, 2005. The said two appellants had got themselves admitted for treatment in tl>e Hindu Rao Hospital. 1 (The injuries ' suffered by them and tl>e alleged failure of the investigation, has been examined separately). Page Z5 of L~G Crl. A 384/2012 + connected matters p ( (_

¶15Statement of Mcenu Ran a (Ex.PW -1/ A) does not n~ake a;ny reJcrence to As~1a. However, ,it implicates the other six appellants. The slatcmertt al~o itnplica~es Dhm:arnpal who had expi:ed during ~e triaL The roles have been attributed and specifically stated _t~ the six appelJants and their individual conduct had been elucidated and clearly mentioned. It is difficult to accept a!1d believe that Asha w/o /\shok would h~ve joined and was the sole WOinan fan1ily tnetnber of th~ unlawful assen1bly armed with swords/weapons and had gone to the house of Ajay i.e. House No.195, Gurn1andi, Rajpura, Delhi MLCs of Ashok and Raj Kumar (Ex.D/2A and Ex.D/2) show that both of then1 . were stnelling. of alcohol and, therefore, were intoxicated. Attar Singh (PW-7) in his written cmnplai~1t (Ex. PW 7 I/\) had stated that Asha was carrying an iron rod in her hand but lh is ll1ct was not mentioned in Ex.PW -11 A. The said compla~nt was made on 9th September, 2005· .. Meenu Rana (PW-1), Sauray (PW-2), Vimla Rana (PW-4) and Kunal Rana (PW-6) in their statetnents in the Court have not alleged or stated that Asha was cm-rying an~ iron rod and had attacked the deceased. The role attributed to Asha, in their statements, is entirely different and to the effect that Asha had pushed .Ivleenu (PW-1) and Vitnla (PW-4) and had insti~ated and shouted.and called upon the tnale 111cmbers to altaek the . deceased-Ajay and Vim1a.

¶16In these circumstances and in view of the aforesaid factual position, we do not think that the statements ofMecnu Rana (P\V-1), Saurav (PW-2), B~n1la Rana (PW-4) and Kunal Rana (PyY-6), in the Court, in1plicating and stating that Asha was part of the assetnbly should be accepted. It has to be established bey~)lld doubt that she Crl. A 384/2012 +connected matters ' ' "· . - --:--- was present at the spot/place ·of occurrence. She is entitled :Lo acquittal as her presence, at the spot, has not been proved and established beyond doubt..

¶17We will now examine the involvement of the othef ~ppellant~. As noticed above, Meenu Rana (PW-1), Saura~ (PWc2), Bim.la R.ana (PW-4) and lZunal Rana (PW-6) are eye witnesses to the said occurren."ce. PW-1· is the person, on whose statement (Ex. PWl/A) the FIR was reco.rded inunediately after the death of t-\jay at night in tl;e Sanjeevan Mann Hospital, Darya Ganj. We uphoid and accept that she is an. eye witness and had seen the entire occurrence. She was the wife of Ajay, the deceased. Presence of Vimla Rana (PW-4) can alsO not be doubted as she had suffered injuries at the time of occurrence and admitted in tl'c Trauma Centre fcir treatment. When she arrived at the spot of the crime and what she had seen is a different aspect and is being examined separately. W c reject the c.ontcntion that Saurav· (PW-2) and Kunal ).Zana (PW-6') had no occasion or cause to see the "occurrence''. Their presence!~ in the j . house at 9.30 P.M. to 10.30 P.M., is natural, normal and not a make . \ belief. However, K1.mal Rana (PW-6) is a minor child a.nd, thcrdore, his statenient has to be viewed and examined with greater caution and care. The fact u,at Kunal's name was not mentioned in._.thc FIR i cannot be a groun<;l to disbelieve and hold that he '.'ias not an eye . witness who had seen tl1e occurrence from the roo~ of the house . 1°amilY members of K1.mal would not have wanted a' smill child to appear in the witness box and face cross-examination. rw -6· ha<l i?st his father and,·therefore, the tTauma and shock suffered by. him should . be recognized an'd accepted. Presence of. PW-6, 1l1e mii,or child at . Page Tl of 46 Crl. A 384/2012 + connected matters CD. ... - abol.1t 9 P .M.-1 0 P.M. at home IS naturaJ and probable. vVhcn an occurrence of tl:-is nature happens; children con1e out to :s~c· the happening, unless ,,orne elder family member prevents a,;:d . directs them not see 1he occurrence. 111e contention that Meenu (PW -1) had not given or n1entioned PW-6's name in her original state~U:ent cannot be a justification or ground to reject and hold that PW-6 was no~ m1 eye witness. Statement of PW-1' (Ex.PW-1/A) is htor refledtion :and version of what had tnuispired and was seen by her. fihe, it is apparent, was not required to give details of all persons, 'who had visually seen the occurrence. She Was not asked to State arid specify \•vhether K.unal had also seen the occurrence fron1 the roor'top. She . . . may not be aware of the said fact, as she might not have had ti1e occasion and chance to tail(· to Kunal after the· occurrence_, c~uring movement from one hospital to anotl1er. However, the poSsibiiity ol' the family members influencing and prompting K1.mal cann'ot be ruled out. This possibility in the pt~esenl case{ is being taken care of as V·te .intend to primarily and mainly rely upon the court testimonies ol' oilier witnesses, the :lirst statement i.e. Ex. PWl/A and other corroborating material to the extent it supports the siid statement. ln view of the deposition of the said witneSses we accept the idcntillcation and presence of the :live male appellants; along with . . Dharan1pal as the true and correct factual position. \

¶18However, we agree with th€: contention of tl1e appcllai1t.s that PW-2 m1d 4 were not present when Ashok had hit A.i:iy's head · with sword which he had takei1 from the hands of Dharampal. The statement of pW -2 and 4 that they had si:en the said occurrence is not torrect and plausible becauSe they were in the tow-shc1. a11d cmuc out Page ::m of 46 Crl. A 384/2012 +connected matters . .. ---- after hearing commotion, noise or the cries of A jay and vW~ i-and were m~ly eye '"'itnesses to the occurrence thereafter. But thjs docs not help the appellants, Asbok, Anil; Anar Singli., Raj Kumar, Shailender and Anand.

¶19It is also apparent fron1 the stateinent of PW -1 that Asl~ok had given initial blow and hit the sword on Ajay's head. T~ this extent there is no contradiction betvveen the court deposition and Ex.PWl/A. The. sword blows thyreafter attributed to· Anil, Raj K.un1ar and Shailender in the staten1ent Ex.PW-1/A, were not .on .tbe head of Ajay. Wh~reas, as per PW-1, 2, 4 and 6 depositions .in the Court, the sword blows given thereafter, by Anil and Shailender, \fitere .on the head of Ajay. Raj K;,mar is not named by the;,) as the person who had hit Ajay with the sword in their testin1onies in the Court. . ., We have refetTed to the Post Morteni Report Ex. PW Ex.PW15/A and the three injuries mentioned therein. There is one injury on the head of Ajay and tl1e same had resulted in his death. As p~r Dr. Ani] Shandil (PW-18), the said. injury was caused by a sing!<> blow and was not a result of rnultip1e blows. Ajay had also. suffered injuries on his chest and index finger. In these circumstances,_ it will be reasonable and correct to hold that appellant-Ashok h:id given the sword blow on Ajay's head and at tl1at time nobody had joined him. Dharmapal, father of Ashok, did not hit Ajay and Ashok had taken the sword from his hands. The other five appellants did not, at that, . time or simultaneously, hit Ajay. Thereafter, Vimla: had reached there and, when she tried to intervene, was beaten and injured. The cippellants and Dharampal, who were present there, ha<\ caught hold of Ajay and Vimla. She and Ajay were ·given beatings by Lhe· Page 2.9 pf o..6 Grl. A 384/2012 + connected matters I ·' a1jpellants ·but the said beatings/hits have not resulted 111 the ii1jury no.2 tl-:tat caus~d th~ death of Ajay.

¶20In view of our aforesaid conclusion, it '~'ould be appropriate and proper t~. attribute and hold that the appellant-1\.shok had act~d individually -\ll/hen he had c~used the head· injury, w\1ich resulted in Ajay's death·. He is certainly liable and we feel has been rightly convicted under Section 302 J.PC. The injury m~y have· been ~ caused by a single stroke, but was caused by a dangerous +.'eapon i.e. S\'\'Ord and the 'hit itself was directed on the head, a vital part of the body. The hit, it is apparent fron1. the .injury, was ma~~ with full force, in1pact and power. It was a deliberate and targeted hit. Crm~s­ examination of PW -18 shows that the said injury was cactsed by tbc S'i·Vord only and not by any other vveapon, i.e., rod/farsa.: The sword (Ex.P-5) was shown to ·the said· witness, in the cross-e::dmination on behalf of the appellants. 2 1. Tbe next question which anses for corlsiderittion IS whether there was any unlawful assembly and accordingly the other appellants Ani!, Anar Singh, Raj Kum;.,, {l.r{aD.d and Shajlcnder ciu1 be constmctively convicted for the otfence of murder and if nut, ca~1 . . they be convicted under any other offence? In other words if there was an unlawfully assembly, what was the common object\'" whether· mCmbers of the unlawful. assembly were aware that an· o"tience Linder Section 302 IPC or some other offences were likely to'be committed?·

¶22We accept the prosecution version that thire wm; an m1Jawful assembly of the appellants, except that Asha .was not a rnernber of the said unlawful asscn1bly. The term ·unlawful ._Page 30 of 46 Crl. A 384/2012 + connected matters I II Ill II I I I I L I • I. I I I I ;I I ll 1\111 I • II I ., ... \ "l, ·, I I -~~~ I I I" 1 assembly' as defined under Section 141, requires assen1bly o~ fiv<; or n1orc persons, which satisfies any of the five . tests/requisjtes mentioned thereip. Clause (i), (iii) and (v) tl1ereof, in one .way or ~he other, would be applicable to the facts of the present case ~s it has been established and shown beyond doubt that the appellan~s. her~in (except Asha) who were residing in 178 Rajpura Gur Mandi, Delhi, had assc1nbled with anns outside the house of Ajay at 195, Rajpura Our Mandi on 3rd Septen1ber, 2005 at about 9.30 PM. We, are also sati::;fied that ~hey had a conunon object and that i~ why they had • i assenioled with the anns. The appellants belong to one fan1ily and were residing at one place. Apparently, they were aggrieved and had grievance against Ajay. He was asked to con1.e oyt.

¶23'l11c next question is, what was the common object and whether the appellants Anil, Anar Singh, Raj IZ.um.ar, Shailen:der and Anand, shared the co111111011 object of con1n1itting 1nurder of Ajay or his fam.ily men1.bers including, Vim.la or th~y had knowledge that murder . or attempt to murder/injuries was likely or ':ould t\'kc place? Staten1cnt of Meenu Ra1~1a (PW-1) shovi'S .that the appcl\ant i\shok vvas not arn1ed but he took the sword ti·on1 his father a~1d attacked I Ajay and hit him with the said sword on his head. Dharan:pal, did not hit. N.o other n1e1nbcr of the asse1i.1bly joined in this strike or I attacked him simultaneously. ~fhe said strike was ma<\c by' Ashok individually and no one had participated when the said 11it 'vvas m'ade .• by Ashok. Thereafter, Ajay tried to run away and as P.er PW-L on . hearing, the cry and commotion, Vimla (PW-4) and SaUrav tpW_-2), came out. As per the version and testim\mY ofP,Wl, 2,4 and·6; Ani! and Shailendcr had subsequently given sword blows tO· A jay antl Cor. P~gc 31. of L~6 Crl. A 384/201.2 +connected matters '\.1 l 11'1 I \ I il l • l.i' R I I I 1-II Ill . reasons recorded above we have held that the said bl~ws/hit were not on the head and had not caused Ajay's death. Vin1lct t~ied to save him and at that tirne, Shailender hit the sword on the heacl of y imla. · f Anar Singh, Anand and Dharam.pal had caught hold of .§\-j~y .. Anar Sil~!J.h, Anand and Dharampal, it is alleged, had utter' wonjs and i1:stigatecl others to finish ·off Ajay. We are inclined to disbelieve the alleged oral utterances i.e. the quotes . attributed as exaggeration. These details are not n.1entioned in Ex. PWliA and the FIR. Even tbc written con1plaint Ex. PW7 I A is silent pn the oral utterances. Not that . ; oral exchange did not occur or transpire, it must have, b.ut we doubt and do not a~ribute the quotes mentioned in the court testin1onics lo the appellants. We have noticed the injury suffered by /\jay on b1s chest and on his han.d. Apparently, these are the injuries vvli.ich were suffered .becaus~ of the hit by Shailender and. AniL The injuries were on the chest and on the. index finger of the band. Keeping in view · the facts, we do not think that the rnembers of unlawful assembly ha.d the comn1.on object to commit murder of Ajay or any pf his fan~ily n1en1bcrs. As noticed above, the two families were close to each ·other and even had business relationship. The n1otive.and the cause of quarrel, as stated, was garbage/malwa on the street. due lo construction. The dispute was trivial and by no stretch· can be trcalcd as impelling enough to be the cause o~- n1.otive to kili or to assemble ·with ·an idea to kill or commit murder.

¶24The presence of weapons in the hands of the mcn1.bers of the assembly indicates that they wanted to show· their delermination, . strength and m1ger and to question Ajay. Heated quarrd and arg,un.1.ents took place and thereupon the appellant Ashok took the Crl. A 384/2012 + connected matters ---'---------- - Others were ·spectators till this happened and had not joined Ashok, by catcl;ing hold of Ajay or by sin1tlltan.eously attacking him with sword or I I sword frmn Dharan1pal and hit it on Ajay's head. weapons· in their hands.

¶25The next question is whether the n1en1bers of ·uniawful assen1b ly knew that n1urder _or killing was likely, though th~y di<;l. not share the con1.1110n object and did not h~ve intention to ca9se: death. The distinctio~1 betweel). Section 300 and 304 Part l/II, is r~ther thin, but does exist and is accepted. Noticing·the conduct ofthe appellants, other than Ashok who has been convicted under Section 302, (and Asha who has been acquitted) we feel that the other appcllapls should be convicted by applying the likelihood clause under ~ection 304 Part 11 IPC. We have given bendit Qf doubt to the apflellants keeping in · · mind the nattu-e of injuries suffe1~ed by Ajay, on the chest.ancl on the hp.nd, as well as injuries suffered by Vin1la. We have also kept. in m.ind that the staten1.ent -of PW-1 (Ex. PW1/A) is also susceptible to some exaggeration and has to be collated and corroborated with the nature and. extent of injuries suffered by the deceased Ajay and injured PW-4. As per the prosecution witnesses PW-l, PW-2, PW-4 and PW-6, 1he· appellants had full opportunity to cause injm-ics of their choice, desire and design, with virtual no or real rel)istance rrom Ajay and his family members except the attempt mO.de by the two women, Meenu (PW-l) and Vimla (PW-4), to save and prolecl !\jay Ji·om [urtl1er beating, or hurt. The said injuries reflect. the objc;ct which the appellants (other than Ashok) had in mind or had acted.

¶26lnjuries, suff~red by and caused to PW-4, as noticed are made subject matter of debate. The appellants have been convicted under · P.age 33 of L~G Crl. A 384/2~1:1. +connected matters \ Secti.on 307 IPC i.e. attempt to con1n1it murder of P'J'./-4. As per statem.ent of PW-1, PW-2, PW-4 and PW-6, Vimla had tr.ied to t?j·otect Ajay who had \allen on the ground. To save Ajay frqn~ .. h~ts by S\·vords/weapons Vimla had covered him. It is not the; case and staten1<;nt of PW 1, 2, 4 and 6 that the appellants were pr-evented or obstructed fron1 causing hurt and hittii1g Vin1la. They had a·full go at her, as in case of Ajay. Therefore, in the present case, the pature and extent of injuties su:ffered by Vin1la is an in1portant arid 1:elevant cor~sidcration, when we decide the question of offe1tce con1111itted and \Nhcther the conviction under Section 307 [PC is _justified. Vimh:i. vvas adn1itted in the Trauma Centre an.d was treated there. 11 is clairned that Vim.la, because of the injuries, had become unconscious It i.s possible that I . or unconscious . and had regait~ed consciousness after a l<;mg delay. Vin1la (PW-4) n1ay have become delirious imn1ediately afler th.e occur.rence, but she had soon regained .her consciousness and was able to speak and narrate the facts .:when she The MLC (Ex. P"VV14/A), was adn1itted in the· Trauma Centre. specifically n1entions, that the patient herself had alleged and given history of assault. ·She ·was conscious and oriented. Her Bl) was ·118/98 111111 and pulse was 84/m. The injuries suffered by her, as indicated, are as under:- "VE .... Incised ·wound on \eft parietal region is \0 !C111 x 0.2 ~n. . -Tenderness and restriction of movement of right shoulder. -Tenderness on left leg. ' · -Tenderness and deep abrasion on left hand. -Tenderness chest right side." d f-4th s b 2005 (t" i" )t

¶27She \l\1as declare un ·1t on epten1 er~ nne ,., m indicated), but the injuries mentioned in the report, as per the opinion Page 34 of 46 · Crl. A 384/2012 + connected mutters '' II I I I II of the doctor, were sim.ple in nature. X-rays did not indicate any fracture. She had certainly Slfffered an injury on her heC!-d i.~. left parietal region and other parts of the body, like shoulder, hand ~nd chest. But injuries vvere relatively not dangerous. (PW-14) Dr. Nitjn K.urnar's staternent, in the court, is rele~ant. l-Ie has stated that Vin1la had .an incise wound on the left parietal region on the head ~\.nd there was restriction of the n1ovement of right shoulder. The wou1~d on the shoulder was caused by sharp edged weapon though weapon of ."offence was not shown to him. Other wounds were-caused b'y another blunt object. lt was put to PW -14, whether the incise wouhd on the hea.d of Vin1l.a was purely superficial an~ simple, but PW-14 opined that opinion i·egarding depth of the wound would be :given ·by a forensic expert or the general surgeon. l-Ie denied the suggestion that the abrasions and tenderness were result of friendly jostling, fall or feigned or as a result while tending to cattle, handling ~odder etc., observing that abrasions were deep in nature and keeping in view the lo.cation n1.entioned, this was· not possible. He accepted that the depth of the wound was not stated by hin1. As per the MLC (Ex. PW 14/ A) Vi1nla· (PW-:-4) was. treated in the hospital ·frmn 3rd Septeni.bcr, 2005 tiil 7th September, ·2005 i.e. for a period of about 3 and· a haif or 4 days. Interestingly, Attar Singh Rana in his complaint (EX. I'W7/A) \ had the stated as under:- "Mrs. Bimla Rana, w/o of 111y second brother, who had come for rescue of 1\llr. Ajay Rana, ''vas also attacked vlith same ~¥capons by some people. She received multi"p\c cuts_ & injuries, who was admitted to L.N.J. Trauma Centre ol Civil line for treatment, who was discharged on the same dale of admission i.e. 4.9.2005, inspite of the fact. that her condition was not stable and wounds were still bleeding. She was given 28-30 stiches in Lhc head and leg. When insisted by us, doctors al Trauma Centre agreed to review Crl. A 384/2012 +connected matters \1 Ill [ II 1111 .I 't I II u'II In lit UU\1\1 _j;l_ __ . 28. the patient after which it was decided to keep he1: a<;tmitt.ed · lor further observation & treatment. Now that she h<:is been discharged and brought at home, police has not bother~d to· inquire about the condition of a eye-\~'itne;s of the· gruesome murder, what to talk of recording o1: her statement." ,.h giVen _8-3,0 The allegation in the said leitei· tl1at' VI.It'Jla "'"'as · · stiches on her head and leg was not supported by any evidence or malerial or the statem.erit of PW-14. PW-4 has also not alleged thai she '~'aS given around 28-30 stitches on her head and leg. Thus, ~1 can be stated that it is a false statement in the said iletter.

¶29Appellants have subn1itted that the· prosecution version must fail because of n1.nnerous reasons. Appellants Ashol>. and R.aj Kumar had also suffered injuries and were admitted to Bara Hina:u Rao . . \ hospital vid~ Ex. DWl/A and DW2/A, respectively. It is cm~tendcd ' . that the police did not investigate or go into the queslion of· injuries suffered by the appellants Ashok and Raj K.un1ar. The appellants have relied on s~ve~al judgments to contend and plead tl~at they and t~1c other appe~lants are entitled to acquittal because o-f ~[(;ttlure tin th~ part of the pofice to investigate, elucidate and explain. the injuries suffered by the said appellants and to investigate the offences comn1itted by Ajay and their family n1cmbers. We have examined ' Ex. DW~/A and DW2/A which relate to injuries surTcdxl by Ashok ... and Raj I<.un1aL In the MLC "of Raj K.un1ar (DWl/A), it was mentioned that the patient was conscious and had given ihc hislory of assault. His general co'ndition was fair. lie had c\. scar ewer right hand. The name ·of the person wl-io had brought him ,~,.as mentioned aq Shailcndcr, cousin brother who is also an appellant bcfon.; us. Sn-iell of alcohol was p~esent. The remarks "Patient was brought by Page 3tr of 46 Crl. A 384/2012 + connected matters police for m~dical examinati~n" h~s been specifically scored .~±I 1n the said MLC. But the said words are recorded in the MLC of"Ashok .Ex. DW2/A. However, it is also-mentioned that Ashok was brought to tl:c said hospital by Shailender, his brother. As per the ~aid MLC, there was alleged history of as~ault and sm~ll of alcohol was present. There was no distress and the patient was oriented. Ther;~ was tenderness present on the left side of abdomen .and right I:ypochondriun1 and li1nber region. CL W was seen over t\1e for~head on right side. Two of them reached h~spital at 10.55/11.00 PJVL on 3rtl Septen1ber, 2005. The so-called alleged injuries suffered by the appellants Ashok and Raj K.un1ar are minor in nature and s~perficial. . I

¶30There is a contradiction, as noticed in the _MLC (Ex. DV'-/2/A) of Ashok Khatri. The, contention that he was taken to the-hospital by ~police al 11.00 P.M. of3rd' Se:\Jteinber, 2005, which thougH. appears to be attractive on the first flush, has to be rejected for three reasons. Firstly~ sin1iiar entry in the case of Raj lZumar has bee11 scored oll and secondly the MLC itself records that Ashok was ; brought by Shailender (brother),.· and one of the appellants. ~l'hircll.Y, the appellants Ashok and Raj Kun1ar were arrested fron1 t~1e hospital . . itself vide arrest memos Ex. PW24/Dl-ancl D-2. ~fhe tin1e of an:est shown thereii1 is 3.30 AM on 4th September, 2005 from Bara Hindu Rao 1-Iospital. The arrest was 1nade by Investigating Officer Hira Lal (PW-24) who, at least till. 2.30/3.00 A.M, had been n1oving vvith Lhe witnesses. In TaJ,hji 1-Iinaji vs. Thal,ore K ubersing ~ .Ors. (200 1) 6 sec 145, it was held as under: "17. The first question which arises for co~sicleration is what is the eflcct of non-explsnation of injuries ·sustained by the accused persons. In Rajendra Singh & Ors. vs: S.latc Page ?.7 of 4~ Crl. A 384/2012 + connected matters --------------· . .- ~--- ··of Bihar, 2000 CriL.J 2199, Ram Sunder Yadav vs. St~te· of Bihar-1 1998CriL.J4558 and Vijayee Singh & Ors. Vs. ~State of U.P. : 1 990CriLJ 1510, all 3-Judoes Bench decision's the . ' VICW taken consistently is that it cannot be held as a 1i1atter of law or invariably a rule that \vhencver accused sustained an injury in the same occurrence, the prosecution is oblioccl to explain the injury and on the failure ofthe prosecutlo1~ to do so the prosecution case should be disbelieved. Before non-expla.imtion ofthe injuries on the person ofthe accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied or the existence of two conditions: (i) t.hat the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of i1ijurics assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear cogent and credit. ''vorthy and where the Court can distinguish the truth from falsehood th~ mere fact that the injuries on the side· of the accused persons are not explained by the .prosecution cannot by itsc\ f be a sole bas is to rcj cct t11e testimony of the prosecution witnesses and consequently the whole ·of the prosecution case.

¶18The High Court was therefore not right in overthrm,ving the entire prosecution case for non-explanation of the injuries sustained by the accused persons. The High Court ought to have made an effort at searching out the truth on the material available on record as also to find. out how much of the prosecution case was proved ! beyond reasonable doubt and was worthy of being c.~cccpted as truth fu I." .. ":;)

¶31We do_ not agree with the contention-that there {vas failure to examine alleged eye-witnesses . to _the e·ceurrence · in · form . of n.eighbo~n-s in the said locality who \l\10uld have seen tl\c occurrence. l . For one, the actual acts of violence hardly lasted 5 n1inu'tes and thu~ no one else rnjght have seen the occurrence. i.e. the ac.tuai acls of violence. No such name was indicated or stated(· in the cross cxan1.ip.ation crf the witnesses. Secondly, that the appellants were a:\so CrL A 384/2012 + connected matters residing in the sarne neighbourhood. Fear and likelihood 'of creating enen1ies and foes, in case a neighbour comes forward and makes a staten1ent agains~ another is a real po~sibility, which cannot be ru.led out and ignored· in the present case. Lastly, the testimonies or the witnesses vvho have deposed have t~ be examined 'on their own-merits and not on the basis that a third person, '"~ho could have possibly also .·been a witness, has not been examined. A gap or. infii·mity in Lbe prosecution case can be supplied or made good by examining Lhc _vvitnesses who though available were not examined and it ·is orily then . . that the deficienc~ of withholding of material witnesses cfmses Lhc court to draw an adverse inference against the prosecution. ln _Taldu~;; ifiraji 's case (supra), it was held: "19. So is the case with the criticism levelled by the High Court on the prosecution case finding faL!lt therewith ~or non-examination of independent vvitnesses. ll is true that ir a material witness, which would unfold tho. genesis or the incident or an essential part of the prosecution case, not convincingly brought to fore othcnvisc. or where there is u gap or in firm ily in the prosecution case which_ could hc~vc been supplied or made good by examining a wt'\.ncss vvhtch thouoh available is not examined, the prosecution case can be t~·med as surrering from a deficicnC); and withholding of such a material witness would oblige the Cour~ to draw an adverse inrerence against the prosc~ution by holding lhat ifthe ,,.,,itness would have been examined it ·would not have support~d the prosecution case. Qn . the otl:_ct: han~1 if already overwhelming evidence ts avmlablc . ~~nd examination of other witnesses would only be a rcpetttton or duplication of the evidence ,already adduced, n~n­ examination or such other witnesses may not be !matenal. ln such a case the Court ought to scrutinise the wo:·th o( lhc evidence adduced. The Court of facts must ask itself -- whether in the facts and circumstances of the et\sc, iL was necessary to examine such other witness, and if so, whether such witness '"''as available to be examined and yet was bcino withheld from the court. l r the answer be 'positive then"" only a question or drawing an adverse in_rcrcncc may arise. lf the witnesses ·a!r"cady examined are relmbJe and the testimony coming from their mouth is unimpeachable the crt. A 384/2012 + col)nected matters Page 39 ot 46 I~ :- Court can safely act upon it uninfluenced by the factum ()r non-examination or other witnesses." .

¶32Tl1-ere appem:s to he justitl.cation that after initial iqvestigation and arrest of Ashok and Raj .Kt.unar, lhcrc. was sh\ckness ~and f'aj 1 ure of Lhc police to investigate and cause arrest of others. Other appellants, i11entioned in Ex. PWl/A , were not qupstioncd or arrested. Weapons used by them. were not seized. Even biood stained clothes of Vim.la (PW -4) and others were not taken into custody and ·' ., send for forensic cxan1ination. As noticed, Shailender :·had l~rought ' . ' Lhc appellants Ashok and Raj Kumar to the hospital. .: Failure and· l .inaction on the part of the police to take any action again~t alJ persons n1~ntioncd in Ex: ~Wl/ A remains unexplained. Fmnily. of /\jay had:- . apparently lost faith in the 1.0. Hira Lal (PW24) as is clear from Ex. PW7 I A, a complaint letter written by PW -7 Attar Singh Rana. The noting on the letters itscll' indicates that the case was ;sub~;cquently . ~ ~ transferred ·to the crin1e branch. Thereqpon, the nevv 1.0. SI .K.B. Jha . . ,·,: (PW -25) took over the investigation and the other accused,· \h/ho are also the appellants herein, were arrested or sunendered subs<?qucntly ..

¶33Learned counsel for the appellants had laid: considerable. emphasis on the state1nent of ACP 1-Iin,Lal (PW-24), 'Yho l:ad slated that in spite of his best effort Vimla (PW-4) had refused to give her I statement under Section 161 Gr.P .C: The allegation that there was railure lo collect alleged blood stained clothes is false and in fact ThG: allegation :is there were no such blood stained clothes. debatable. For one Vi1nla (PW4) '~'as certainly injured and admiuc.d in the llospitalfor treat11lent. PW-1 's statement was Fcco[dec\ on 3'." September, 2005. As per MLC (Ex. PW14/A), PW(4 was unriL lo Page tW of 46 Crt. A 384/2012 + connected m<:~ttcrs .I IJ 'd I I I [ ' II . II II I Ill" Ill II II In make a statem_ent on 4Lh Septe1nber, 2005. · On the next day, 5L . Septe1nber, 2005, copy of the FIR was given to Saurav. · Qu.estion or debate arises whether PW-24 had tried and asked PW:-4 to rnakc/give her statement. As per PW-24 he did try an0 asked P:W-:4 but she refused .. Other family mcm~ers did nc)t permit ·Pw-24 to rccbn:l· Viinla's staten1ent. Plea and state1nent ofPW-4 is to the contrary. The reluctance on the part of the PW-4 to give staten1ent to t~10 10 PW:24 can be easily explained and is understandable in 'view of the complaint rnade by PW -7. Their frustration and anger can be appreciated as other accused mentioned in PWl/A remained untouched and in spite of death of ·Ajay, the investig~1tion :was lackadaisical. If would be illogical to exclude c1nd no~t to take into account the statement ·or PW-4, the injured witness ·who ·was herself attacked, solely on the ground that due to apprehensions and reasons that she had refused to give staten1ent to the police c~nd made her state1~1ent only before the .10, (PW-25) Sl K .. B. Jha. However, \ll'hile I cxan1ining her statement, v,,e have· to keep in n1ind that the delay and . ~ . · ... the hardening attit\1-de ',;<,,ould have resulted in . e)_{aggcralion~ improvem.cnts ~and false implications of acts being attributed to different persons facing prosecution. J:--J.er statement, tJ:cr~f~)lT, ha.s tq be read with great caution and care as we have done. Her Lcstimony has to be collated, corroborated by what has been stated by, others and read keeping in mind the acti.ml injuries suffered by her -~~nd slatc.d . ' ' and proved by PW-14. We have, therefore, read her testimpny in court as only corroborating and cementing the statement of·P\tV -1 to the extent, she has proved and establi"shcd the case. ~ame is the case Crl. A 384/2012 + connected mc:Jttcrs Page f!.:l of 46 . --!. .. -, ·when \·Ve have examined and 1~elied upon statements oT PW -2 and PW-6.

¶34.I.nvolvc1nent of appellant Ashok and R.:~j Kumar·is a]so proved from their blood stained clothes which vvete seized by PW-2Ll, the Investigating Officer. vide seizure n1en1os Ex. P"W 1 0/B and PW t 0/C. These ,;-..,ere subsequently sent to Forensic Science Laboratory and as . per the FSL Report (Ex. PW29/ A) blood ·was found on the shirt and . . jean pant worn by Ashok .Khatri and -the shirt and half pant '~'orn by I ~ " Rc~j Kumar. Blood group '0' found on the pant and shirt nf t,shok and the shirt of Raj Kumar matches with the blood. group of the deceased .Ajay.

¶35On the basis of disclosure statement made by Ashok Khatri (Ex. PW19/A) the sword (Ex. PW5) was recovered vid'e seizure memo Ex. D-1 o: The said sword was a'Iso sent for FS;L examination and as per the FSL Report (Ex. PW29/ A) hun1a~1 blood '~'as ·J(mnd_ on the said sword but the blood group .could not be ascertained as there was no reaction, vide Ex. PW29/B.

¶36Appellants Anil and 1\nar Singh \;\,icrc arrested J_llorc than one '- month after the occurrence on 171h October, 2005 and aftc~ Sl K.B. Jha (J">W-25) took ov~r the investigation 01~ 24th September,· 2.005. On 27th October, 2005, the other two accused Anand and Shaikndcr ~1urrcndcrcd before .the court of ACMM and were cu1rcstcd. P\iV-25 lias averred Lhat Anil and Anar Singh had made disclosure statcmc~ts Ex. PW21/A and PW21/Ci-l respectively, and on tl~is basis on 19th October, 2005, weapons of offence i.e. sword used lTY Anil and the ir·on pipe were_ recovered vide seizure memo Ex. PW2;f/D. Sim.ilar\y, ·shailcndcr and Anand had n1adc disclosure staten1ent? Ex. PW21/G-2 Crl. A 384/2012 +connected matters Page 4Z or 46 and PW2 1/G3 on 28 111 October, 2005 respectively, :and .pursuant to. their disclosure, PW-25 claims that a sword and farsa.were recovered ncar a canal at Hydcrpur outer Rit?g Road. The l~SL Reporl (I ~x. PW29/ A-2) records that on sword arid fai·sa Ex. 17 ~ 18, which vv·cre' sent to then1, no blood could be detected. Similar!~; on svyord and pipe Ex. 14 and 15,_no blood coul~ be detected as per FSL. Report . (Ex. PW29/A) . '· . 37. K.eeping 111 vtev,; the huge time gap in the an·cst-.-of the said accused and the n1anner and n1ode of recovery, wear~ inclined not to I rely and relcr to the same as incriminating circun1stances against Anand, Shailender, Anar ·Singh and Anil. Yet there is still suJTicient incriminating material against them in the form of the testimonies of the eye witnesses and the injured corroborated a~d supported by medical evidence. 'll1e lapses on the part of the first IO (~Vv'-24) does not negate or create doubls viz. their involvement and dQcs not merit their acquittal. The core case, as proved C!-lld established, sustains against the1~1.

¶38We have exan1ined lhe nature and extent of injllries suficrcd by Vin1la above. The next issue is whether the six mal¢ appellants have been rightly convicted under Section ~07 IPC for attempl lo c.on1.mit murdei· or Vimla. Injuries or absence of injurie~·is ,niot necc:~sary to constilutc c.m o1Ience under Section 307 IPC but the Jirosecution must .. prove that con1111011 object of the assen1bly vvas to c0~11JTiit murder i.e., they had the mens rea mentioned in Section 300 lPC' and 1;vitl~ the said intention or knovv ledge they had acted though death vvas. not the result, or that' the assembly~ had knowledge that murder or Virqlc.!" or Crl. A 384/2012 +connected matters P<Jgc 43 of 46 -----------·-· "'!"c other person may be attempted by a member, of the unlaw!lil /...,., ·asscJnbly. 0~

¶39We have examined the evidence on record but, do not find that the ingredients of Section 307 lPC viz. Vin1la are satisfied. The . _evidence mentioned above, po~tulates that the comn:on 6bjecl of the assctnb ly was to attack 1\.j ay but Vimla was hit!attacl~cd and suffered injuries because she intervened. Saun.1v (PW-2) an~. Mccnu (PW-l) ·wife of Ajay, d~d not suffer injuries. Jn these circu1)1stanccs, we do not think that Section 307 IPC can be invoked as far as injuries suffered by Vimla arc concerned. The appellants~ howcv<?r, had ,. caused hurl to Vimla by dangerous weapons and it c~m be gathered and inferred that they h~d eon1mon object to cause hurt/injure a third persons who intervened. This was also likely to :happen ~~·hen a number of assembly members are armed \;\,1ith weapons. Tlic ~ppdlants are accordingly liable to be convicted urt'der Section 324 read with Section 149 IPC for the injuries caused to Vimla. Keeping in vic\~i the injuries suffered, the weapon tiscd, i.e., the ~word or for that matter the iron pipe, using which the injury was caused on the head_ and the fact that the six male appellants had attacked a \rl/oman · Vimla~ we feel they ~deserve rigorous in1prisonmen~ of 3 years ·and . . "' line or Rs.lO,OOO/- each .. Accordingly, their conviction, in respect of injuries suffered by·and caused to Vimla~ is converted to· Section 324. read with Section 149 JPC, ii-on1 Section 307 read ~~~ith Section 149 -.:i ·-- LPC.

¶40ln view of the aforesaid discussion, the appeals arc eli::; posed of as under:- / Crl. A 384/2012 +connected matters Page 4Li of 46 r, ·~

(1) Appeal filed by Asha i~ allovved and she is acquitt~cL She will be released forthwith unless detained in accordance with law in any other case. t .

(2) Conviction of Ashok Khatri under Section 30~ J~C.f(n· murder . . of 1\jay is 1naintaincd. He is sentenced to life _imprisonment and fine of Rs.25,000/- and in default of payment. of fine. shall undergo sin1plc in:1prisonment for a period of 1 ·yea1:.

(3) Raj Kumar, Anil, Shailendcr, Anar Singh and /\nand arc convicted under Section 304 Part II read with Section 149 IPC for having caused injuries and death of Ajay and they my sentenced to rigorous in1prisonmcnt of 8 years with tine of Rs.25,000/- each and, in default of .?ay1nent of fine, they shall undergo simple imprisonn1ent. for a pcriod_of 01'1c ye~1r. .(4) .1\..shok .Khatri, Raj Kumar, !\.nil, Shapendcr, Anar Singh and Ancmd arc convicted 1.u~der Section 324 read with. Section 149 IPC i1.n· th~ injuries caused to and suiTcred l?Y Vimla and they arc sentenced to 3 )'cars rigorous imprisonnl'cnt tvilh fine of R .. s.l ().000/- each \Vilb stipulation that in default of payment of - -~- fine, they shall undergo sin1plc imprisonn1ent Lor six month. Crl. A 384/2017. +connected matters Page 4-5 of 46 ~ :\ I' t. 1: ,11 w · rhc sentences are accordingly and to the cxt~nt indicated above modified. The sentences will run concurrently and Section 428 Cr.P.c;. will apply. The appeals arc accordingly disposed of. 'fie 10cccJmbc.- /1 , 20Jl2 kkb/NA/VKR Crl. A 384/2.012 +connected matters fRUE' CO.PY 1 l~-·~--~--~B~XA~MI~E~ Pt:~g~ 46 of46 ....

* IN THE HIGH COURT OF DELHI AT NEW DELHI 0/o Reserved on: 13th September, 2012 Date of Decision: 191h December, 2012 Criminal Appeal No. 433/20~2 ANAND SINGH@ DHAMMAL .... Appellant Through Mr. Jaideep Malik, Advocate. Versus STATE ... Respondent Through Ms. Richa Kapoor, APP. Criminal Appeal No. 434/2012 ANARSINGII .... Appellant STATE Through Mr. Sunil Dalal and Mr. Ashish Shanna, Advocates. Versus Through ... Respondent Ms. Richa Kapoor, APP. Criminal Appeal No. 443/2012 SHAILENDER@ BABLEY Through .... Appellant Mr. Mohit Mathur, Mr. Pawan Mathur and Mr. Vikrmn Panwar, Advocates. STATE Versus Through ... Respondent Ms. Richa Kapoor, APP. Criminal Appeal No. 455/2012 ( -.... ASH OK KHATRI & ANR. . ... Appellant STATE Through Mr. R.M. Tufail and Mr. Vishal Sehijpal, Advocates. Versus ... Respondent Through Ms. Richa Kapoor, APP. Criminal Appeal No. 559/2012 RAJ KUMAR .... Appellant Through Mr. Sumeet Venna & Ms. Charu Verma, Advocates. Versus STATE ... Respondent Through Ms. Richa Kapoor, APP. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S. P. GARG