1. Above referred appeals are directed against the impugned judgment dated 25.01.1997 of Additional Sessions Judge in Sessions case No. 202/93, FIR No. 105/88, P.S. Shakarpur finding the Appellants Manvir Singh, Rakesh Kumar, Mukesh Kumar and co-accused Manjeet Singh guilty of murder of Ashwani Kumar in furtherance of their common intention and also holding the Appellant Rakesh Kumar @ Raju guilty of offence punishable u/s 27 of the Arms Act and convicting them accordingly as also against the consequent order on sentence dated 29.01.1997 in terms of which the Appellants have been awarded sentence for the respective offences committed by them.
2. Briefly stated, case of the prosecution is that on 12.5.1988 at about 9.55 p.m., some unknown person telephonically intimated P.S. Shakarpur about a stabbing incident at Sarojini Park, Shastri Nagar, Delhi. This information was recorded as DD No. 20A (Ex.PW21/DA). Copy of the DD report was entrusted to ASI Gian Singh, PW15 for taking necessary action, who along with Trainee Sub Inspector Manoj Panth, PW19 and Head Constable Mangat Ram, PW7 left for the spot of occurrence. On reaching the spot of occurrence, ASI Gian Singh found that the injured had already been taken to Walia Nursing Home. He went to Walia Nursing Home where he found that the injured had been taken to LNJP Hospital, then he reached LNJP Hospital where the SHO Inspector Balbir Singh(PW21) was already present along with other police staff. He handed over the copy of the DD report to the SHO.
3. On 12.5.1988 at about 10.53 p.m., another information was received at Police Post Shakarpur from Constable Jeet Singh posted at LNJP Hospital that one Ashwani Kumar has been brought dead to LNJP Hospital by his brother Raj Kumar. This information was recorded as DD No. 22A(Ex.PW18/DA) in Daily Diary Register maintained at Police Post Shakarpur. On this, SHO Inspector Balbir Singh went to LNJP Hospital in an official vehicle along with the other police staff and collected the MLC of the deceased wherein he was declared brought dead.
4. Inspector Balbir Singh, PW21 met Raj Kumar, PW2 at the hospital and recorded his statement Ex.PW2/A. Raj Kumar, in his statement Ex.PW2/A claimed that on the night of 12.5.1988 at about 9.40 p.m., he and his brothers Rajinder Kumar, PW3 and Ashwani Kumar (hereinafter referred to as deceased) started from House No. 82-A, Shastri Nagar, Sarojini Park for their House No. 17/55, Geeta Colony. He and PW3 Rajinder Kumar were walking ahead and the deceased was following them at a distance of 15 to 20 paces. On the way, they noticed the Appellants, namely, Manvir, his sons Mukesh and Rakesh and co-accused Manjeet, (friend of Rakesh) standing in front of House No. 54-A, Shastri Nagar. They had hardly gone 20/25 paces ahead of that house when they heard cries of their brother Ashwani (deceased) as ''Bachao Bachao''. On this, they turned back and saw the Appellant Mukesh and co-accused Manjeet were holding the deceased and Rakesh was holding a dagger in his hand. Appellant Manvir exhorted Rakesh @ Raju to kill the deceased by uttering the words "Raju Dekhta Kya Hai Maar Churri". On the exhortation of Manvir, Rakesh @ Raju inflicted dagger blows on the person of the deceased. Complainant Raj Kumar claimed that they ran towards the place of incident but all the four accused persons ran away from the spot. The deceased fell down due to the injuries. He was taken in a three wheeler scooter to Walia Nursing Home and from there, he was taken to LNJP Hospital where he was declared brought dead. Inspector Balbir Singh appended his endorsement Ex.PW21/A on the said statement of complainant Raj Kumar and sent it to the police station for registration of the case.
5. From LNJP Hospital, Inspector Balbir Singh came to the spot of occurrence along with the witnesses. He prepared rough site plan of the place of occurrence Ex.PW21/B and also got the scene of occurrence photographed. The positive photographs are Ex.PW6/3 and Ex.PW6/4. Investigating Officer also lifted and seized the sample of blood-stained earth as well as sample earth from the spot of occurrence, vide respective memos Ex.PW2/B and Ex.PW2/C. He took into possession blood-stained kurta pyjama Exs.P1 and P2 of complainant Raj Kumar vide memo Ex.PW2/D. He recorded statements of the witnesses, conducted inquest proceedings and sent the dead body of Ashwani Kumar for post-mortem examination.
6. Appellants Mukesh and Manvir were arrested on the same night. Co-accused Manjeet and Appellant Rakesh were arrested on 14.5.1988 from Bihari Colony. Appellant Rakesh, on interrogation made a disclosure statement that he had concealed the weapon of offence in some papers lying in his house. His disclosure statement Ex.PW15/A was reduced into writing. On 15.5.1988, Appellant Rakesh led the police party to his house and from there he produced a dagger Ex.P8 and its cover Ex.P9 from a heap of papers and books lying in the house. The dagger Ex.P8 as well as its cover Ex.P9 were both stained with blood. The sketch of dagger as well as its cover Ex.PW12/A was prepared and both were sealed and taken into possession vide memo Ex.PW12/B. The exhibits were sent to CFSL for analysis in untampered condition and the report of CFSL Ex.PW21/E was collected. On completion of the formalities of investigation, Appellants were challaned and sent for trial.
7. Learned Additional Sessions Judge charged the Appellants for the murder of Ashwani Kumar in furtherance of their common intention u/s 302 IPC read with Section 34 IPC. Appellant Rakesh @ Raju was also charged for the offence punishable u/s 27 of the Arms Act. The Appellants pleaded not guilty to the respective charges framed against them and claimed to be tried.
8. In order to bring home the guilt of the Appellants, the prosecution has examined 21 witnesses including the eye-witnesses PW2 Raj Kumar, PW3 Rajinder Kumar and PW11 Jugal Kishore, TSR driver.
9. PW-2 Raj Kumar is the complainant as well as brother of the deceased. He testified that there was some dispute over financial dealings between the deceased Ashwani Kumar @ Bachu one hand and the Appellants Rakesh @ Raju and Manvir on the other hand. He further claimed that on 12.5.1988 at about 9.40 p.m., he along with his brother Rajinder(PW3) and Ashwani(deceased) was going to Geeta Colony from House No. 82-A, Shastri Nagar. He and PW-3 Rajinder and Ashwani(deceased) was going to Geeta Colony from House No. 82-A, Sarojini Park, Shastri Nagar. He and PW-3 Rajinder were walking ahead and the deceased was following them at a distance of 20-25 paces. When they reached near House No. 54-A, Shastri Nagar, he noticed the Appellants Manvir Singh, Mukesh and Rakesh standing with the co-accused Manjeet. While they moved ahead, they heard the alarm ''bachao bachao''. On this, they turned back and saw that the Appellant Mukesh and co-accused Manjeet were holding the deceased physically. There was a knife in the hand of the Appellant Rakesh. Appellant Manvir exhorted Rakesh @ Raju to stab Ashwani by saying "dekhta kya hai maar de chhuri" and on exhortation, Appellant Raju inflicted several knife injuries on the person of Ashwani(deceased) and, thereafter all the four accused persona fled away. He further claimed that he along with his brother Rajinder (PW-3) and Jugal Kishore(PW-11) took injured Ashwai Kumar in a three wheeler scooter to Walia Nursing Home, Shakar Pur and from there the deceased was taken to J.P.N. Hospital in an ambulance where he was declared brought dead. Witness testified that his statement was recorded by the police which he signed at the police station. He has proved his statement Ex.PW-2/A. PW-2 Raj Kumar further stated that police brought him and his brother Rajinder to the spot of occurrence and prepared rough site plan with his assistance. The police also took into possession blood stained earth as well as control earth from the place of occurrence and put the samples separately in empty match boxes which were sealed at the spot and taken into possession vide seizure memos. He further stated that while taking the deceased Ashwani Kumar to Walia Nursing Home, his clothes got stained with blood, which clothes i.e. Kurta and Payjama were handed over to the police and the police converted said Kurta and Payjama into a sealed parcel and took into possession vide seizure memo Ex.PW-2/D. He identified Kurta and Payjama as Ex.P-1 and P-2 respectively.
10. PW-3 Rajinder Kumar is also the brother of the deceased and he has deposed in a manner almost similar to the version of PW-2.
11. PW-11 Jugal Kishore has stated that earlier he used to drive a three wheeler scooter. On 13th April 1988 at about 9.40 p.m., he was going on his three wheeler scooter towards his house at Kundan Nagar. When he reached near Halwai shop near Nehru Crossing, he saw the Appellants Rakesh, Mukesh and Manvir and co-accused Manjeet beating Ashwani(deceased) and the aforesaid Appellants thereafter ran away towards Shastri Nagar. Ashwani was having stab injuries on the front portion of his body on the chest and was bleeding. He stated that he saw that Manjeet and Mukesh had caught hold of Ashwani and Rakesh @ Raju had given stab injuries. He further claimed that two brothers of Ashwani took him to Walia Nursing Home in his three wheeler scooter and from there Ashwani was taken away in an ambulance and thereafter he came home. He also stated that Manvir had exhorted other co-accused to beat Ashwani.
12. The Appellants in their statement u/s 313 Code of Criminal Procedure denied the prosecution case in its entirety and claimed themselves to be innocent. Appellant Rakesh in his statement has claimed that he was picked up from his house on the night of 12.5.1988 and falsely implicated by the police. He claimed that the dagger Ex.P8 was not recovered from his possession. According to him, initially one Rakesh, s/o Mohan Lal was arrested by the police, but he was subsequently released at the instance of the complainant for some ulterior motive and he (Appellant Rakesh) was falsely implicated in this case. Appellant Manvir Singh has claimed that the deceased Ashwani Kumar was known to him. There was a dispute between the deceased and his brother Ashok Kumar over the sale of plot of land in Sarojini Park, Shastri Nagar, Delhi, which was sold by Ashok vide general power of attorney Ex.PW2/DA on 11.5.1988. He claimed that PW2 Raj Kumar and PW3 Rajinder Kumar were apprehensive that in that dispute, he was taking side with Ashwani Kumar, as such he has been falsely implicated on suspicion. Appellant Mukesh Kumar has taken a plea of alibi. He claimed that he had gone to Agra in connection with his BA examination. Since there were some holidays in between he boarded a train on 12.5.1988 and reached home at Delhi at about 10.30 p.m. His father Manvir Singh and his brother Rakesh were present at the house. On the same night, police came and apprehended all of them and took them to the police station. On 14.5.1988 he was again taken to the police station. Accused Manjeet has claimed that he has been falsely implicated by the police for the reason that his name happens to be Manjeet and the police had failed to trace the real culprits. He also claimed that on 13.5.1988 and even on 14.5.1988, the police had inquired from him if he had any knowledge about the murder of Ashwani Kumar and he had told them that he had no knowledge about the murder of the deceased.
13. Appellant Mukesh, in order to prove his alibi, has examined DW1 Mahesh Chand and DW2 Narender Kumar. DW1 Mahesh Chand has stated that Mukesh, s/o Manvir Singh stayed at his house at Agra from 19.4.1988 to 12.5.1988, in connection with BA first year examinations. On 12.5.1988, Mukesh appeared for Hindi first paper in the morning shift and his Hindi second paper was scheduled for 13.5.1988, which was postponed for 19.5.1988. On coming to know, Mukesh decided to go to Delhi and he left Agra by Taj Express on 12.5.1988 at about 7.00 or 7.15 p.m. He stated on 19.12.1988, he had sworn an affidavit Ex.DW1/A in this regard before the notary at Agra. DW2 Narender Kumar, brother-in-law of Appellant Mukesh, claimed that on 12.5.1988, he was sitting at the shop of DW1 at Agra. At about 5.45 p.m. 13. Appellant came there and told him that his next examination has been postponed from 13.5.1988 to 19.5.1988, therefore, he wanted to leave for Delhi by Taj Express. He stated that Mukesh left for Delhi on 12.5.1988 by Taj Express at about 7.00 p.m. Later on he came to know that Mukesh has been falsely implicated in a murder case at Delhi. He also stated that he sworn an affidavit Ex.DW2/A in this regard before the notary on 20.12.1988. DW3, Head Constable Prem Chand was Moharir Malkhana, P.S. Seelampur, Delhi. He deposed on the basis of daily diary registers maintained at P.S. Seelampur and proved DD No. 104B pertaining to arrest of Appellant Manjeet Singh in case FIR No. 256/92, under the Arms Act, registered at P.S. Seelampur as Ex.D3/1. He also proved DD No. 36A relating to case FIR No. 255/92 under the Arms Act regarding putting up of the Appellant Manjeet Singh in lock up as Ex.D3/2.
14. Learned Additional Sessions Judge, on consideration of the evidence, found the Appellants guilty of murder of Ashwani Kumar punishable u/s 302 IPC read with Section 34 IPC. He also found the Appellant Rakesh Kumar @ Raju guilty of the charge u/s 27 of the Arms Act and convicted the Appellants accordingly.
15. Learned Shri K.K. Sud, Senior Advocate appearing for the Appellant Manvir Singh in Crl.A. No. 83/1997 and learned Shri Mukesh Kalia, Advocate and Shri Jitender Sethi, Advocate appearing for the Appellants Mukesh and Rakesh in Crl. A. No. 158/97 have assailed the impugned judgment on almost similar lines. It is submitted on behalf of the Appellants that they are innocent and they have been falsely implicated in this case. It is contended that learned trial Judge has committed a grave error in not appreciating the fact that this is a clear case of unfair investigation -there was no motive on the part of the Appellants to kill the deceased - and the ocular witnesses, namely, PW2 Raj Kumar (complainant), PW3 Rajender Kumar and PW11 Jugal Kishore are not reliable as their presence at the time of occurrence is highly doubtful. It is also contended that prosecution story, when tested in the background of the medical evidence, is highly improbable. Thus, it is urged that in view of the above referred infirmities, the Appellants are entitled to acquittal.
16. As regards unfair investigation, contention of the Appellants is two-fold. It is argued that this is a clear case of delay in registration of the case. Dilating on the argument, learned Counsels appearing for the Appellants submitted that from the testimony of PW1 Dr. Ashok Walia, it is evident that the deceased was taken to Walia Nursing Home on the fateful night somewhere around 9:30 pm and the police also reached there and removed the deceased to the hospital. If this is true then obviously, the police had an opportunity to record the statement of two or three boys who had accompanied the deceased to Walia Nursing Home there, but instead, as per the version of the Investigating Officer, the statement of the complainant was recorded at JPN Hospital much later. Learned Counsels also drew our attention to the testimony of PW2 Raj Kumar who has stated that he signed the complaint Ex.PW2/A at the Police Station and submitted that from this it can be safely inferred that that the statement of the complainant was not even recorded at JPN Hospital as projected by the prosecution. From the above circumstances, learned Counsels have urged us to infer that this is a clear case of delay in registration of FIR. It is further submitted that the delay in registration of FIR and ante timing of the same is further confirmed by the fact that the prosecution has failed to prove the special report sent to the area Metropolitan Magistrate as envisaged u/s 157 Code of Criminal Procedure
17. We are not convinced with the above argument. On perusal of the rukka Ex.PW21/A vide which the complaint Ex.PW2/A was sent to the Police Station for registration of the case, it transpires that the incident took place somewhere around 9:40 pm and the rukka was sent to the Police Station from the JPN Hospital at about 11:50 pm. From FIR Ex.PW16/A, it is evident that it was registered vide DD No. 22A on 30.05.1988 at 12.30 pm. Thus, it is clear from the aforesaid documents that the FIR pertaining to the occurrence was registered within three hours from the incident. During this period, as per the evidence, two brothers of the deceased had taken the injured deceased to Walia Nursing Home and from there to JPN Hospital where the Investigating Officer met the complainant and recorded his statement. In that backdrop, by no stretch of imagination, the FIR registered within three hours of the incident can be termed as a delayed FIR. Thus, in our view, the FIR in this case has been registered promptly and this rules out any possibility of the FIR being the consequence of deliberations on the part of the complainant and others to falsely implicate the Appellants. Just because PW2 Raj Kumar in his testimony stated that he signed the complaint Ex.PW2/A at the Police Station, it cannot be inferred that the Investigating Officer Balbir Singh, SHO (PW21) has deposed falsely to the effect that he recorded the statement of the complainant Raj Kumar at JPN Hospital and sent rukka from there. The above version of PW2 Raj Kumar regarding signing of complaint at Police Station can be attributed to the lapse of memory due to passage of time and it is of no consequence.
18. Learned Counsels further submitted that in the instant case, prosecution has failed to prove that special report was promptly sent to the Metropolitan Magistrate as required u/s 157 Code of Criminal Procedure Therefore, there is a strong possibility of ante timing of FIR by the investigating agency. In this regard, testimony of PW13 Constable Satpal is relevant. He has testified that on the night intervening 12th and 13th May, 1988, duty officer P.S. Shakar Pur handed over to him documents for delivery at the house of Ilaka Magistrate. In the cross-examination, PW13 stated that he delivered the copy of the FIR at the residence of Ilaka Magistrate on the night of 13.05.1988 at about 1:25 or 1:30 am, but he did not obtain signatures of learned M.M. in token of his having delivered the copy of FIR to him. From the aforesaid testimony of Constable Satpal, it is established that special report was delivered to Ilaka Metropolitan Magistrate without delay on the same night within an hour of the registration of FIR. Thus, under the circumstances, we are not convinced with the submission that this is a case of ante timing or delay in registration of the FIR.
19. Regarding the reliability of the testimony of the ocular witnesses, learned Counsels for the Appellants have submitted that the learned trial Judge has failed to appreciate that the prosecution case is based upon the testimony of two brothers of the deceased and so-called eye witness Jugal Kishore (PW11). It is submitted that Jugal Kishore is a planted witness and his presence at the time of occurrence is highly doubtful for the reason that PW2 Raj Kumar in his cross-examination admitted that Jugal Kishore was known to him for three to four years prior to the occurrence and despite this, his name does not find mention in the FIR.
20. We find no merit in this contention. It is well settled that FIR basically is the information regarding the commission of offence which sets the investigating agency into motion. FIR is a document containing facts constituting the information regarding commission of offence. There is no legal requirement under any law that the FIR must indicate all the minute details of the occurrence constituting the offence and indicate names of all the eye witnesses. The Supreme Court while dealing with this issue in the matter of
9. So far as non-mention of the details in Ext. P-1 is concerned, the first information report is not supposed to be encyclopaedia of all details. In the instant case, all relevant details have been indicated in the first information report....
12. ...in State of M.P. v. Mansingh it was observed that mere non-mention of name of the witness does not render the prosecution version fragile. There can be no hard-and-fast rule that names of witnesses, more particularly, eyewitnesses should be indicated in the FIR..
21. In view of the above enunciation of law, non-mention of the name of PW11 Jugal Kishore in the FIR as a witness is of no consequence.
22. Learned Counsels further submitted that Jugal Kishore was a TSR driver and his presence at the time of incident is doubtful for the reason that as per his cross-examination, he did not have requisite badge for driving the TSR. In this regard, Appellants drew our attention to the cross-examination of PW Jugal Kishore on behalf of Appellant Rakesh, wherein he stated "since that badge was out of stock and there was endorsement on the licence that badge was out of stock for the last three years". Learned Counsels argued that the prosecution has failed to prove the aforesaid driving licence to verify the above explanation given by Jugal Kishore and this circumstance casts a strong doubt against the prosecution story that Jugal Kishore actually took the deceased and his brothers to Walia Nursing Home in his TSR.
23. We do not find any merit in this contention. PW11 Jugal Kishore has candidly explained that he was not having a TSR driving badge as the badges were out of stock. There is no reason to suspect the correctness of said explanation. Otherwise also, it is common knowledge that in Delhi, several persons drive vehicles, commercial or private, without licence or without the driver or conductor badge. Therefore, non-availability of TSR badge with Jugal Kishore cannot be taken as a reason to suspect his version or his presence at the time of occurrence.
24. Learned Counsels further contended that even the presence of PW3 Rajender Kumar at the time of occurrence is doubtful, which makes him an unreliable witness. In support of this contention, learned Counsels urged that as per the case of prosecution, the deceased was taken from the spot of occurrence by PW2 and PW3 in a three wheeler scooter of Jugal Kishore. Admittedly, the deceased had sustained multiple stab injuries, which imply that he must have been profusely bleeding. Despite that, there were no blood-stains on the clothes of PW3 Rajender Kumar, otherwise his clothes would have been seized by the Investigating Officer. Learned Counsels urged that it is highly improbably that if Rajender Kumar (PW3) had accompanied the deceased in a TSR to Walia Nursing Home, his clothes would not have been stained with blood.
25. We are not convinced with the argument. PW3 Rajender Kumar has testified that the deceased was lifted from the spot of occurrence by his brother Raj Kumar and put in the three wheeler scooter. Thereafter, they removed him in the TSR of Jugal Kishore to Walia Nursing Home, Shakar Pur. From this version, it is evident that Raj Kumar did not lift the injured for helping him board the TSR. This explains the absence of blood-stains on his clothes. From the post mortem report Ex.PW5/A, it is apparent that the deceased had sustained injuries on the front portion of his body. It is possible that the deceased was placed in TSR in such a manner that his front portion was towards PW2 Raj Kumar and PW3 Rajender Kumar did not come in contact with his front portion and in that situation, there was no possibility of PW3 Rajender getting blood-stains on his clothes. Thus, absence of the blood-stains on the clothes of Rajender Kumar cannot be taken as a circumstance to rule out his presence at the spot or doubt his testimony.
26. Learned Counsels further argued that the prosecution story is highly improbable. Dilating on the argument, they submitted that as per the testimony of PW-5 Dr. Vishnu Kumar, Autopsy Surgeon, there were as many as 15 external injuries on the person of the deceased, which are detailed below:
1. Incised penetrating wound with entry wound of 1.4 X 0.5 CM oblique, over outer part of right cheek region, lower inner end being 4.5 CM outside the lower outer part of right side nostril. Margins of the wound were clean cut but showed abrasions at places around. This was then going underneath the skin and came out as exit wound just above and outside entry wound of 1.4 CM just below and outside the outer angle of right eye.
2. Multiple abrasions in 4.5X 0.5 CM on right upper eye lid running transversely.
3. Incised wound 1.3X 0.2 CM present just to the right of bridge of nose, bone deep and few abrasions around margin.
4. Multiple small abrasions in an area of 7X2 CM over right side forehead and inner part of left side forehead.
5. Abrasion 1.5 X 1 CM on the upper part of left side of nose just below the bridge.
6. Abrasion 1.5 X 1 CM in left temple region of head.
7. Bruise involving nearly whole of right external ear and a small area of scalp behind right ear.
8. Abrasion 5.5 X 1 CM on the top of right shoulder.
9. Multiple small abrasions in 3 X .5 CM area on the inner part of right elbow region.
10. Deference cuts present on the front surfaces of left hand inner three fingers just below the proximal interphalyngealy joints, bone deep.
11. Small superfacial cus-defence cut 0.7 X 0.1 CM, transverse on left palm just near the base of left middle finger.
12. Small superfacial cut-defence cut of 0.6 X 0.1 CM on the inner border of left hand thumb near its middle region.
13. Multiple superfacial abrasions scattered in 7 X 5 CM area on the inner part of left elbow region.
14. Small abrasions 1 X 0.5 CM in right mid-lumbar region on the back near mid line.
15. Incised stab wound 2.3 X 1 CM, vertical, unstitched, on the outer surface of right side of chest in posterior axillary line, both margins clean cut, both angles acute and lower end being 1.7 CM above right heel. It was chest cavity deep and blood was oozing out of pressure over chest wall.
Learned Counsels contended that as per the case of prosecution, the deceased was physically held by the Appellant Mukesh and co-accused Manjeet and he was inflicted multiple stab wounds by the Appellant Rakesh @ Raju on the exhortation of the Appellant Manvir. It is contended that if aforesaid version was true, then all the injuries on the person of the deceased would have been incised wounds caused by a sharp weapon. This, however, is not the case and injuries No. 2,4,5,6,7,8,9 and 14 are abrasions and bruises which could be the result of beating by blunt force or fall or dragging on the ground, which is not the case of the prosecution. Thus, the aforesaid injuries remain unexplained and this casts a strong doubt on correctness of the version of the prosecution witnesses i.e. PW-2 Raj Kumar, PW-3 Rajinder and PW-11 Jugal Kishore.
27. At the first blush, the argument advanced on behalf of the Appellants appears to be attractive. But on closer scrutiny of evidence, we find no merit in this contention. From the statement of PW-2 Raj Kumar, which is corroborated by PW-3 Rajinder, it transpires that at the time of the incident, they were walking 15-20 paces ahead of the injured and their attention was diverted towards the place of occurrence on hearing the alarm ''bachao bachao''. It is possible that there might have been some time gap between the start of beating given to the deceased and his raising alarm and during said period, he might have fallen down or been beaten, resulting in the aforesaid abrasion and bruises. Otherwise also, as per the version of PW-2 Raj Kumar and PW-3 Rajinder, the incident took place suddenly and if they had failed to notice the entire episode of occurrence, it cannot be taken as a reason to suspect the correctness of their version. Further, on perusal of the complaint statement of Raj Kumar Ex.PW-2/A which was recorded by the police shortly after the incident at J.P.N. Hospital, it transpires that he had named all the four accused persons in the complaint and had stated that Appellant Rakesh inflicted dagger blows on the person of the deceased at the exhortation of Manvir. Under the natural course of circumstances, it is highly improbable that within an hour or so of the death of his brother Ashwani due to brutal stabbing, the complainant might have thought to settle scores with the Appellants by falsely implicating them, knowing fully well that this would result in the real culprit going scot free. Thus, we do not find merit in the above contention.
28. It is further contended on behalf of the Appellants that even the arrest of the Appellants Rakesh and Manjeet and the recovery of the weapon of offence i.e. the dagger at the instance of the Appellant Rakesh is highly doubtful. In support of this contention, learned Counsels submitted that as per the case of prosecution, Appellants Rakesh and Manjeet were arrested on the pointing of complainant Raj Kumar on 14th May 1988 and Raj Kumar signed their personal search memos as a witness. Raj Kumar, however, in his testimony has stated that none of the accused persons were arrested in his presence. Thus, in view of the above version of Raj Kumar, it is a mystery as to how the police could identify and arrest the Appellants Rakesh and Manjeet on 14th May 1988, particularly when their physical description was not given by the complainant in his complaint Ex.PW-2/A.
29. We find no merit in this contention. The statement of complainant Raj Kumar to the effect that none of the Appellants was arrested in his presence is not so material so as to discard the testimony of PW-15ASI Gian Singh, who categorically stated that on 14th May 1988 above referred two Appellants were arrested on the pointing out of the complainant Raj Kumar. On perusal of personal search memos of the Appellants Rakesh Kumar and Manjeet Ex.PW-2/J and PW-2/K, it transpires that these memos have been signed by the complainant Raj Kumar, which indicates that Raj Kumar was actually present at the time arrest of those two accused persons.
30. It is further contended that even the evidence of prosecution regarding recovery of knife at the instance of the Appellant Rakesh @ Raju is doubtful. Dilating on this argument, learned Counsels submitted that as per the case of prosecution, the disclosure Ex.PW-15/A made by Rakesh was that "the dagger with which I inflicted blows at the person of Ashwani Kumar alias Bichu at the night of 13.5.88, has been concealed by me in the bundle of papers at my factory of book binding. I can point out the said bundle of papers and can get recovered the dagger", whereas the recovery of the dagger has been allegedly effected by the Appellant from the residential house No. 13/B, New Lahore Colony, Shastri Nagar and not from a factory.
31. In our considered view, this infirmity pointed out by learned Counsel for the Appellants is of no consequence. As per the disclosure statement, Appellant Rakesh had stated that he could get the dagger recovered from his book binding factory where he had concealed the same under the bundle of papers. In the disclosure statement, Appellant Rakesh Kumar has not given the address of his factory. As per the recovery memo, the recovery was effected from House No. 13-B, New Lahore Colony, Shastri Nagar and it was produced by the accused from a godown of papers from within the bundle of papers lying near the west wall of the godown. If we compare the disclosure statement with the facts recorded in the pointing out-cum-recovery memo, it can be safely inferred that the Appellant Rakesh was doing book binding work from his residence, which he referred to as factory in his disclosure statement. Otherwise also, the fact remains the recovery has been effected at the instance of the Appellant Rakesh Kumar. Therefore, we find no reason to suspect the disclosure statement of Appellant Rakesh Kumar or recovery of dagger consequent thereupon.
32. Another argument advanced on behalf of the Appellants is that recovery of the dagger at the instance of the Appellant Rakesh Kumar is suspect for the reason that the Investigating Officer has admittedly failed to join two or more independent and respectable inhabitants of the locality as witnesses to the recovery which amounts to violation of Section 100(4) of the Code of Criminal Procedure.
33. Section 100(4) of the Code of Criminal Procedure reads thus:
Section 100. Persons in charge of closed place to allow search.
(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
34. On bare reading of the above provision, it is evident that this provision makes it obligatory on the part of the Investigating Officer to join two or more independent inhabitants of the locality before conducting search of a premises under Chapter VII (C) of the Code of Criminal Procedure, which deals with general provisions relating to searches. Now the question is, whether the Investigating Officer had gone to conduct search of House No. 13-B, New Lahore Colony, Shastri Nagar which led to recovery of the dagger i.e. weapon of offence? To our mind, answer to this question is in the negative. As per the case of prosecution, Appellant Rakesh @ Raju on interrogation made a disclosure statement and claimed that he could get the weapon of offence recovered and pursuant to that, he himself led the police party to his house and recovered the weapon of offence i.e. the dagger from within the bundle of papers lying in the go-down. Thus, this is not a case of a search conducted by the Investigating Officer. Actually, it was the accused Rakesh who himself led the police party to his house for getting recovered the dagger. Otherwise also, an independent witness, namely, Satpal (PW12) was joined by the Investigating Officer to witness the recovery of dagger at the instance of Rakesh. Thus, we find no violation of Section 100 of the Code of Criminal Procedure which may cast a shadow of doubt on the recovery of the dagger at the instance of Appellant Rakesh Kumar. It is not out of place to mention that independent witness Satpal has fully supported the prosecution case regarding recovery by stating that on 15.05.1988 he was joined as a witness in the police party and on the said day, Appellant Rakesh Kumar led the police party to House No. 13-B, New Lahore Colony, Shastri Nagar. After opening the door of the house, he produced the blood stained knife lying in the bundle of books, which was taken into possession after preparing its sketch PW-12/A. He has been cross examined at length. We find no reason to disbelieve his version regarding recovery. It may also be pointed out that the recovered dagger was sent to CFSL for serological examination and as per the report of Serological Division of CFSL, human blood of group ''B'' was found on the dagger which matched with the blood group of the stains found on the clothes of the deceased.
35. Learned Counsels for the Appellants further contended that the story of the prosecution is also improbable because there is no cogent evidence on the record to establish any motive or reason on the part of the Appellants to kill the deceased or cause him injury.
36. In this regard, testimony of PW2 Raj Kumar (complainant) is relevant. He in his cross-examination stated that there was some money dispute between the deceased on the one hand and Manvir and Rakesh on the other hand in respect of sale of a plot and that Manvir and Rakesh owed some money to the deceased. This could be a possible motive for the occurrence. However, PW2 Raj Kumar, when asked, could not give the specific details of said money dispute. Therefore, the evidence of motive, to our mind, is very weak. This, by itself, is of no help to the Appellants for the reason that in a criminal case based upon ocular evidence, motive is not of much relevance. We draw support from the judgment of the Supreme Court in the matter of
18. ...There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. In
37. On careful perusal of the record, it transpires that PW2 Raj Kumar has fully supported the case of prosecution and his presence at the spot cannot be doubted for the reason that the complaint was recorded on his statement within few hours of the occurrence. Further, his clothes were stained with blood, which gives credence to his version that he took the deceased to Walia Nursing Home in the TSR of Jugal Kishore (PW11). Version of Raj Kumar is also supported by the testimony of PW3 Rajender and PW11 Jugal Kishore. All these witnesses have been cross-examined at length, but there is nothing material in the cross-examination to provide reason for suspecting the correctness of their version. Further from the testimony of PW21 SHO Balbir Singh and PW12 Satpal, it is established on record that the weapon of offence i.e. the dagger was recovered from the residence of Appellant Rakesh Kumar @ Raju at his instance. The dagger was blood stained and as per serological report, the blood found on the dagger was human blood of group B and it matched with the blood group of the blood of the deceased. Thus, from the aforesaid evidence, we have no doubt in our mind that the trial court has rightly convicted the Appellants.
38. It is submitted on behalf of the Appellants Manvir Singh and Mukesh that even if the prosecution story is taken to be true, then also conviction of the aforesaid two Appellants u/s 302 IPC with the aid of Section 34 IPC is unwarranted. Dilating on the argument, learned Counsels submitted that as per the prosecution story, while the deceased was going to Geeta Colony, he by chance came across the Appellants and their co-accused in front of House No. 54-A, Shastri Nagar when the occurrence took place. Learned Counsels contended that from this, it is apparent that the incident took place by chance and it is not the result of a pre-arranged plan amongst the Appellants and their co-accused to kill the deceased or to cause him dangerous injuries. It is submitted that a pre-arranged plan or meeting of minds is a sine qua non for invoking Section 34 IPC to hold a person vicariously liable for the act committed by another, which obviously is missing in this case. Therefore, the conviction of Manvir Singh and Mukesh u/s 302 IPC with the aid of Section 34 IPC is unwarranted.
39. Section 34 of the Indian Penal Code is only a rule of evidence and it does not create a substantive offence. It lays down a principle of vicarious liability. When two or more persons join actively in an assault on a third person, they are directly responsible for the injuries or harm caused to the victim, if they had common intention to cause those injuries or harm and the common intention amongst the accused persons is to be gathered from the facts and circumstances of the case. Before a person can be held liable for the act done by another under the provisions of Section 34 IPC, it must be established that (a) there was a common intention amongst the accused persons in the sense of a pre-arranged plan between them and (b) the persons sought to be so held liable had participated in some manner in the act constituting the offence. Unless both the above ingredients are present, vicarious liability for a criminal act committed by someone else cannot be foisted upon the accused.
40. In the instant case, from the ocular evidence provided by the complainant Raj Kumar (PW2), Rajender Kumar(PW3) and Jugal Kishore (PW11), it is established on record that the Appellant Mukesh Kumar and the co-accused Manjeet caught hold of the deceased and restrained him while the Appellant Rakesh @ Raju inflicted multiple stab injuries on the person of the deceased on the exhortation of the Appellant Manvir. From the aforesaid factual matrix, it can be safely inferred that the Appellants Manvir and Mukesh Kumar were nursing a common intention with the Appellant Rakesh to commit murder of the deceased. As regards the contention that there could be no common intention to kill the deceased as the incident in which the deceased sustained fatal injuries is a chance occurrence, it is well settled that to invoke Section 34 IPC, it is not essential to have a pre-arranged plan to commit the offence, but the common intention can suddenly develop at the spot. In the instant case, it is established that Appellant Mukesh along with Manjeet physically held and restrained the deceased, whereas on the exhortation of the Appellant Manvir, Rakesh who was holding a knife, gave multiple stab injuries to the deceased. Thus, in our considered view, learned Additional Sessions Judge has rightly convicted the Appellants Manvir and Mukesh Kumar for the offence of murder of the deceased punishable u/s 302 IPC with the aid of Section 34 IPC.
41. In view of the discussion above, we find that the Appellants have been rightly convicted by the learned Additional Sessions Judge. Appeals are devoid of merit and they are accordingly dismissed.
42. Appellants are on bail. They be taken into custody to undergo the remaining period of their sentence.
