Delhi High Court: In a case wherein six murder convicts challenged the judgment wherein they were convicted for murder and were directed to undergo imprisonment for life along with fine of Rs. 10,000 each, the Division Bench of Mukta Gupta* and Poonam A. Bamba, JJ. dismissed the appeals and opined that at the stage when firing was started, the conduct of the two eyewitnesses in running away and hiding for some time and immediately on the accused running away coming to the rescue of the deceased could not be said to be unnatural as self-preservation was the first instinct of any human being.
In 2010, information regarding the firing incident was received by the police after which the police reached the spot and found blood along with one empty cartridge lying at the spot. The police then went to the hospital as the injured person had already been taken to the hospital, where he was declared “brought dead ”. The police recorded the statement of Sunny, the brother of the deceased (injured person) who informed that the family of appellant had an old enmity with his family and that on an earlier occasion as well a quarrel had taken place between the members of his family and the family members of appellant. Sunny further informed that he and the deceased were going to drop his friend, Bunty and at about 8.30 PM, the appellants came to the spot. Ranjit, Vicky, Mahesh, and Anil caught the deceased from behind while Vijay and Chander Prakash fired bullets at the deceased. Sunny further informed that he and Bunty managed to escape and after some time when the assailants left, he and Bunty came back to the spot and took the deceased to the Hospital. On Sunny's statement, FIR under Sections 302 and 34 of the Penal Code, 1860 read with Section 27 of the Arms Act, 1959 was registered.
Analysis, Law, and Decision
The issue before this Court was “whether reliance could be placed on the testimony of an eyewitness who has turned hostile? ”.
The Court noted that Sunny, brother of the deceased turned hostile and he, being the eyewitness had corroborated the version of Bunny in material particulars, however, he failed to name the accused. Further, Bunty who was examined in his examination-in-chief and cross-examination on behalf of other accused supported the case of the prosecution fully, however, when his cross-examination was conducted and when examination of Sunny was also recorded for the first time, they turned hostile. The Court also noted that the two main assailants, who allegedly fired the shots, could not be arrested, were declared proclaimed offenders, and arrested later. Bunty, friend of the deceased fully supported the case of the prosecution however, when he appeared after the arrest of the two assailants, he could not identify them.
The Court further noted that Bunty in his examination-in-chief clearly stated that when the deceased along with his brother, Sunny went to drop Bunty, then three motorcycles stopped in front of them. Later when Vinod, Mahesh Anil and Vicky were arrested, Bunty duly identified them. Bunty clearly deposed about the exhortation made and that “firstly, Vinod caught hold of the deceased and stabbed him from behind with a knife in his neck portion and forehead several times. Further, Chander Prakash took out a pistol from under his shirt and fired upon the deceased in his stomach and Vijay took out a pistol from under his shirt and fired upon the deceased on his chest and rest of the five accused had caught hold of the deceased during this incident. The deceased fell on the road after receiving injuries ”.
The Court opined that Bunty's version was further corroborated in material particulars by Sunny, who was the real brother of the deceased, however, he failed to name the accused. The deposition of Bunty was further corroborated by the person whose motorcycle was taken by Bunty and Sunny, who put the deceased on his motorcycle and took him to the hospital. The Court noted that on the way, Bunty and Sunny also found a police gypsy in which the deceased was taken to the hospital and this version was corroborated by the driver who was present in the government Gypsy when Sunny and Bunty requested him to stop and help them in taking the deceased to the hospital. Thus, the Court opined that this showed that Bunty was present at the spot to be able to take the deceased to the hospital.
The Court opined that if the testimony of the eyewitnesses were cogent and convincing then the same would not dent the case of the prosecution merely because there was no recovery of weapon of offence, that is, the two pistols used for commission of offence of firing. The Court noted that evidence of Bunty and Sunny was assailed by the appellants stating that their conduct was unnatural as they ran away when the accused allegedly fired shots. The Court opined that “at the stage when firing was started, the conduct of the two eyewitnesses in running away and hiding for some time and immediately on the accused running away coming to the rescue of the deceased could not be said to be unnatural as self-preservation was the first instinct of any human being ”.
The Court, after considering the evidence by the prosecution, held that the guild of the appellants had been proved beyond reasonable doubt and thus, the Court dismissed the appeals.
[Vinod alias Kake v. State (NCT of Delhi), 2023 SCC OnLine Del 1699, decided on 22-3-2023]
Advocates who appeared in this case :
For the Appellant: Advocate Aishwarya Rao
Advocate Mansi Rao
For the Respondent: APP Prithu Garg
*Judgment authored by: Justice Mukta Gupta