JUDGMENT
N.G. Nandi, J.
(1) The conviction recorded and sentences imposed vide judgment dated 29th January 1994 in F.I.R. No.363/91 Police Station Jahangir Puri, Delhi by the learned Additional Sessions Judge, Delhi for the offence under Sections 302/323/34 Indian Penal Code . and Sections 27/54/59 of Arms Act have been assailed by the appellants/convicts in this appeal under Section 374 of Criminal Procedure Code.
(2) The prosecution case, shortly stated, is that Dharamjit @ Nanha was residing in Jhuggi No.7 in Jahangir Puri with his parents whereas his brother Kishore resided in Jhuggi No.86; that both the brothers were doing electrical works; that 6th November 1991 was a Diwali day and so in the late evening Nanha went out to meet his friends; that Raju Singh @ Raju, S/o Vikram Singh, r/o Jhuggi No.H-3, Jahangir Puri, Rajesh @ Pocky and Rakesh @ Sanjay, the two brothers, S/o Kishan, r/o House No.4/1563, Jahangir Puri, Arjun S/o Devi, r/o H- 3/1088, Jahangir Puri, Delhi happened to be the friends of Nanha; that Kishore also knew all of them; that when his brother Nanha did not return home till 11.30 P.M, Kishore went out in search of Nanha and at about 12 O’clock in the midnight, near the public park in 1600 Wali Gali, H-4, Jahangir Puri, Rakesh @ Sanjay and Rajesh @ Pocky were quarrelling with his brother Nanha because they had gambled and Raju had won in gambling; that Rajesh was not paying the money won by Raju; that Nanha asked Rajesh to pay money to Raju and on this, Rajesh and Rakesh were quarelling with Nanha; that Rakesh started grappling with Nanha; that Kishore tried to intervene; that Rakesh and Rajesh first gave blows on his (Kishore) mouth and he received injuries on face near his eyes and mouth; that Kishore fell down and received injuries/bruises on his back; that Rakesh @ Sanjay took out a ‘chhuri’ (knife) from his left dub and asked Rajesh @ Pocky what he was seeing, catch hold of the rascal (Nanha); that he (Nanha) poses to be a big ‘dada’, finish him”; that in the meantime, Rajesh caught Nanha and Rakesh dealt knife blow in his chest; that Kishore was frightened because Rakesh was having an open knife in his hand and he, Raju Singh and Arjun Singh could not catch them and Rakesh and Rajesh, both the brothers, ran away; that Rajesh also received minor injuries in the scuffle; that thereafter Arjun Singh put Nanha on his shoulder, Raju held Nanha and he was taken to home; that because of the injury in the chest, Nanha was profusely bleeding and because of this the shoulder of Arjun Singh got blood marks; that Kishore brought a three-wheeler scooter from the road and put Nanha in the three-wheeler scooter; that Kishore, his mother Kalawati and Raju took Nanha to Hindu Rao Hospital where he was declared dead by the doctors.
(3) That a complaint to the above effect came to be lodged by Kishore, the brother of deceased Nanha, whereupon the offence was registered. On completion of the usual investigation, charge-sheet came to be filed against Rajesh @ Pocky and Rakesh @ Sanjay for the offence under Sections 302/323/34 Indian Penal Code . and additional against accused Rakesh @ Sanjay also for the offence under Sections 27,54,59 Arms Act. The charge came to be framed against both these accused persons for the aforesaid offences. The prosecution, in order to bring the guilt home to the accused, adduced oral as well as documentary evidence. The learned trial Judge, appreciating the oral as well as documentary evidence adduced by the prosecution and considering further statements of the accused persons recorded under Section 313 Cr.P.C., held both the accused persons guilty for the offences alleged and charged with and sentenced both the accused persons to undergo rigorous imprisonment for life for the offence under Section 30234 Indian Penal Code . and a fine of Rs.500.00 each and in default to further undergo simple imprisonment for a period of one year.
(4) That for the offences under Section 323/34 Indian Penal Code , the learned trial Judge sentenced both the accused persons to undergo rigorous imprisonment for a period of six months and pay a fine of Rs.100.00 each and in default to undergo simple imprisonment for a further period of one month. Accused Rakesh, in addition, has been sentenced to suffer rigorous imprisonment for a period of three years and a fine of Rs.500.00 and in default to undergo simple imprisonment for a period of two months for the offence under Sections 27/54/59 of the Arms Act. All the sentences, as above, awarded to the accused persons have been made to run concurrently. It is this finding of guilt and the imposition of sentences, as stated above, which have been assailed in this appeal by the appellants/convicts.
(5) According to the prosecution, Nanha, S/o Behari Lal, r/o Jhuggi No.87, H-2 Market, Jahangir Puri, Delhi was caught hold of by Rajesh during the night of 5th/6th November 1991 below the electric pole in public park of Gali No.1600, Jahangir Puri while Rakesh dealt a knife blow in the chest by Rakesh; that Nanha was taken to Hindu Rao Hospital where he was declared dead. The inquest report, Ex.PW12/G on the dead body of deceased Nanha has been proved through the evidence of PW-12. Perusal of the same suggests that external injuries were found on the dead body of Nanha.
(6) PW-10 Dr.L.T.Ramani of Civil Hospital, Delhi has stated in the evidence that the dead body of Dharamjit @ Nanha, S/o Behari Lal was brought before him for post-mortem examination on 6th November 1991; that he noted the external injuries found on the dead body; that he also noticed external injuries during the post-mortem examination; that external injury No.6 was seen to have entered the left chest cavity after cutting 5th stern costal junction and muscle of 4th under costal space, right ventricle of the heart was found pierced on its anterior surface where half an inch long cut was seen, total depth of the injury was 3 1/4′ from the body surface; that injuries were ante-mortem; that injury No.6 was caused by sharp edged weapon and was sufficient to cause death in the ordinary course of nature. The cause of death is the shock and haemorrhage following the injury to the heart; that the post- mortem report is Ex.PW-10/A prepared by this witness. Taking the evidence of PW-10 and the post-mortem report, Ex.PW-10/A, the death of deceased Nanha, S/o Behari Lal is established by the prosecution to be the homicidal death.
(7) EX.PW-1/B is the F.I.R. (complaint)given by PW-7 Kishore S/o Behari Lal. It is specifically alleged that as Nanha did not return home till 11.30 P.M. in the night of 5th November 1991, the complainant, Kishore, went out in his search and reached near the park of Gali No.1600, H-4, Jahangir Puri at about 12 O’clock midnight; that Rakesh @ Sanjay and Rajesh @ Pocky were found quarelling with Nanha, the brother of complainant Kishore because they had lost money in the gamble that they had played with Raju who had won in the said gamble and as he was not paid his money by Rakesh and Rajesh, Nanha took the side of Raju and quarreled with Rakesh and Rajesh, upon which Nanha was given beating. The complainant tried to intervene, whereupon both the brothers, Rakesh and Rajesh, gave fist blows on his face and also on the portion near the eyes of the complainant and he also sustained bruise injury on back as he fell down; that Rakesh @ Sanjay took out a knife from his left side and asked Rajesh as to what he was seeing and exhorted him to catch hold of Nanha; that Rakesh further told Rajesh that Nanha posed much himself and that he would finish him. The actual words uttered by Rakesh have been reproduced in the complaint reading “DEKHTA Kya Hai, Pakad Sale KO. Yeh Bada Dada Banta HAI. Isko Main Khatam He Kar Deta HOON’ whereupon Rajesh caught hold of Nanha and Rakesh hit chhuri (knife) in the chest of Nanha; that Kishore got frightened because Rajesh was having a open knife in his hand and Raju Singh, Arjun and the complainant could not apprehend them and both the brothers, Rakesh and Rajesh, fled away. Thus, the part played by Rakesh and Rajesh, both the appellants, along with the words uttered by Rakesh have been clearly stated in the complaint.
(8) PW-7, Kishore (complainant) deposed that he lived in Jhuggi No.86, H-2 Market, Jahangir Puri; that his brother Nanha lived in Jhuggi No.87; that both the brothers were working as electricians; that on the day of incident, his brother Nanha went out to meet his friends on the occasion of Diwali; that the witness knows the accused persons who were present in the court and identified them as Sanjay and the other as Pocky; that both happened to be the friends of his brother Nanha; that the witness was sent by his mother to trace Nanha as he had not returned home till 12.15 A.M. (6.11.1991); that the witness came to 1600 Wali Gali, H-4, Jahangir Puri, Delhi at about 12.30 A.M. and saw accused persons fighting with his brother; that he was told that the last tip of Rs.500.00 was won by Raju; that Nanha had asked Pocky as to why he was not paying the amount to Raju, and on this both the accused persons started scuffling with Nanha; that the witness also tried to intervene whereupon both the brothers i.e. Sanjay and Pocky gave fist blows to the witness; that he also sustained injuries below both the eyes and on mouth, he fell down and received injuries on his back and had got some bruises; that Sanjay asked Pocky to catch Nanha because he posed to be a big Dada and he would finish him there. Pocky caught Nanha and Sanjay, taking out a dagger from his left dub, hit Nanha directly on his chest and one at the back of his neck; that the witness was frightened because Sanjay was having a open dagger in his hand; that Arjun and Raju Singh tried to catch the accused but they ran away and in this scuffle, Pocky also had received minor injuries; that Arjun had put Nanha on his shoulder and Raju had held him and took him to his house in injured state wherefrom he was taken to Hindu Rao Hospital in a three- wheeler scooter where Nanha was declared dead.
(9) The witness was shown Ex.P-1, the shirt which has been identified to be that of Arjun Singh and he stated that the same was put on by Arjun at the time of the incident and while carrying Nanha in injured condition on his shoulder. The witness has also deposed about the discovery of the weapon namely dagger by accused Rakesh @ Sanjay vide Discovery Panchnama, Ex.PW6/B and the said weapon was taken by the I.O. which is Ex.P-2 which has also been identified as the weapon of offence by the witness. The witness was shown clothes i.e. shirt and banian, Ex.P-3 and P-4 and Ex.P-5 and P-6, pant and underwear respectively which the witness identified to be the clothes put on by deceased Nanha at the time of the incident. In the cross-examination, it has been categorically stated that he was told by his mother to inquire about Nanha as he had not returned till midnight; that it was a night intervening 5th/6th November 1991; that he reached in 1600 Wali Gali and saw the accused and the deceased quarelling as the accused were not paying the money to Raju which he had won in gambling and Nanha had taken the side of Raju against the accused persons. It is further suggested that Pocky, Sanjay and Nanha were quarelling and the remaining two were standing and they were trying to intervene. It is further stated that he saw Sanjay inflicting knife blow to the deceased and the time was 12.15 A.M. to 12.30 A.M.
(10) Thus, it would be seen from the evidence of PW-7, Kishore (complainant) that he had come to Gali 1600 Wali, near the park of Jahangir Puri, in the night of 5th/6th November 1991 and found two accused persons quarelling with Nanha on the issue of paying bet money to Raju as he had won while playing gambling with the accused persons; that there were two other persons namely Arjun and Raju Singh and that they were standing there. The words uttered by accused Sanjay at the time of the occurrenc, as stated in the complaint, have also been reproduced in the deposition and the part played by both the accused have been specifically and in no mistakable terms deposed by PW-7. It is quite natural for a elder brother to make enquiry of his younger brother if he does not return till midnight. The incident has been categorically deposed to by PW-7, the complainant and the averments in the complaint have been in all particulars substantiated/corroborated by the evidence of PW-7.
(11) The other witness to the occurrence is PW-6, Raju S/o Vikram Singh. It has been deposed by him that on 5th November 1991, during the night he along with Rajesh and Rakesh, accused persons present in court, was playing gamble in H-4 Block Park, Gali 1600 Wali under electric pole; that deceased Dharamjit @ Nanha was also standing there and watching the game; that the witness won in the gamble from the accused persons; that accused Rajesh did not pay the witness the bet money which he had lost and the witness had won; that Nanha sided with the witness and asked the accused Rajesh to pay bet money but the accused did not pay the money and the quarrel ensuing between Nanha and accused persons. Kishore, the brother of Nanha, also reached the place; that the accused persons gave beating to Nanha and Kishore; that Kishore sustained injuries; that the accused Rakesh @ Sanjay took out a knife (chhuri) from his left side dub of his pant and instigated his brother Rajesh to catch hold of Nanha saying that he was becoming Dada and he will finish him whereupon accused Rajesh caught Nanha and accused Rakesh stabbed Nanha in his chest and heart; that both the accused persons ran away from the place; that Arjun lifted the injured Nanha on his shoulder and the witness held Nanha and took him to his house along with his brother Kishore. From there, Nanha along with Kishore was taken to Hindu Rao Hospital; that the witness and the mother of Kishore also went to hospital; that the doctors declared Nanha dead; that the witness has identified Ex.P-2 as the weapon of offence discovered by the accused from the debris of the rubbish. It is also stated by this witness that the accused made a voluntary statement, Ex.PW-6/C stating to discover the weapon and the same was recovered vide Seizure Memo, Ex.PW6/E. In the cross-examination, the witness has admitted the suggestion that they were gambling under electric pole and the electric light was on at that pole. It is denied that at the time of scuffle, 10/12 boys were there.
(12) It is suggested from the evidence of PW-6 that he was very much present at the place of occurrence inasmuch as below an electric pole in 1600 Wali Gali, near the park of Jahangir Puri, the witness was playing gamble with the accused persons; that the witness won Rs.500.00 from the accused in the said gamble which the accused were not prepared to pay to the witness; that Nanha, the deceased, who was standing there and watching the gamble played by the accused and witness and as the accused did not pay bet money to the witness which he had won and they had lost, Nanha took side of witness and asked the accused persons to pay money to Raju which he had won, whereupon quarrel took place between Nanha and accused persons; that Kishore, brother of Nanha, also arrived at the place searching for Nanha as it was midnight; that Kishore also received injury on a part below the eyes; that the witness has also narrated the incident and reproduced the words uttered by accused Rakesh @ Sanjay at the place of incident and also asking his brother, the other accused Rajesh, to catch Nanha and also Rajesh having caught hold of Nanha and Rakesh having dealt chhuri (knife) blow in the chest of Nanha.
(13) That witness has given the complete and clear account of the occurrence as right from playing of gamble with the accused, his winning and the accused persons losing in the gamble, accused having refused to pay bet money to the witness which he had won in the gamble, deceased having taken side of the witness and quarrel ensuing between accused and Nanha on that score, Kishore, the brother of deceased Nanha, coming to the place in search of Nanha, he also receiving injury on face in the incident, Rakesh having uttered the words instigating Rajesh to catch hold of Nanha, whereupon Rajesh having caught hold of Nanha and Rakesh having dealt knife blow in the chest with the knife which he had taken out from the left side pocket of his trouser.
(14) Thus, PW-6 and PW-7 have given consistent version of the occurrence, as stated in the complaint/Rukka. Both the witnesses have identified P-2, knife, as the weapon of offence discovered by accused and taken by the I.O. vide Seizure Memo, Ex.PW-6/C. Both the witnesses have identified P-3 and P-4, the shift and banian and P-5 and P-6, the pant and underwear to be the clothes put on by the deceased at the time of occurrence.
(15) Perusal of Cfsl Report, Ex.PW9/C2 suggests that Ex.P-1 was a full sleeved shirt having many brown stains at places. The result of analysis is at Ex.PW9/D which suggests that the said shirt contained human blood of ‘A’ group. Ex.PW9/E suggests that Ex.3A and 3B (P-3 and 4) are the full sleeved shirt and one sleeveless banian whereas Ex.2A and 2B (P-5 and 6) are pant and underwear. The result of the analysis on page 128 suggests the presence of human blood detected on Ex.2A, 2B, 3A and 3B. It is also suggested from the Cfsl Report, Ex.PW9/F that dagger contained human blood of ‘A’ group.
(16) It has been deposed by PW-5 in his evidence that his blood stained shirt was taken into possession by the police vide memo, Ex.PW5/A. The witness admits his signature at point ‘A’ on this memo. The witness was then declared hostile and permitted to be cross-examined by the prosecution as he did not support the prosecution on the main incident. In the cross-examination, it has been deposed that Ex.P-1 is the shirt of the witness and is the same which was blood stained when he removed the injured/deceased to his house. The shirt, Ex.P-1 as per Ex.PW9/C2 suggested the blood on the said exhibit and as per the analysis report, Ex.PW-9/D, the said shirt contained human blood of ‘A’ group, whereas Ex.PW9/E and PW9/F suggest the human blood of ‘A’ group on the pant, underwear, shirt and banian of the deceased. It is also suggested from the evidence on record, especially Ex.P-9 that Ex.1 is the dark brown gauge cloth piece and as per the report of the analysis, human blood of group ‘A’ was detected on Ex.1, the gauge and on Ex.4, one all metallic dagger and the group of human blood was ‘A’. Thus, it would be seen that the weapon of offence discovered by the accused person, as aforestated, was found to contain human blood of ‘A’ group. The clothes of the deceased, Ex.P-3 to P-6 were also found to contain human blood of ‘A’ group, the shirt recovered from PW-5, Ex.1 was also found to contain human blood of ‘A’ group. The medical evidence pointed out above suggests the injuries received by the deceased in the incident. Thus, the medical evidence and Cfsl report, as above, lend complete corroboration to the ocular version given by PW-6 and PW-7. We do not find any inconsistency between the occular version and the medical evidence.
(17) It has been contended by learned counsel for appellants that there is discrepancy in the timing given by PW-6 and PW-7. It may be appreciated that the incident took place during the night intervening 5th/6th November 1991. The evidence of the witnesses has been recorded on 6th December 1993 i.e. after a gap of about more than two years of the occurrence. We have to make allowance of the time gap in the date of incident and the recording of the evidence of the witnesses as some discrepancies are bound to be there. It may also be appreciated at the same time that the time of the occurrence given by the witnesses are always approximate. Appreciating the evidence of PW-6 and PW-7, we do not regard the discrepancy in the timings given by PW-6 and/or PW-7 in their evidence to be such which would render the evidence of either of the witness unreliable or untrustworthy. Taking the incident as narrated in the F.I.R. and the evidence of PW-6 and PW-7 and also appreciating the medical evidence and the report of Cfsl, as stated above, the witnesses have fully corroborated the prosecution version in all material particulars. In our opinion, the finding of guilt arrived at by the learned trial Judge on appreciation of evidence does not call for any interference and the same deserves to be confirmed.
(18) The above discussion would reveal that accused Rakesh is proved to have possessed the weapon i.e. knife (dagger) by which he is proved to have dealt fatal blow in the chest of deceased Nanha. Section 2(c) of the Arms Act, 1959 would include knife/dagger within the meaning of Arms Act. Since knife/dagger would be covered under the provisions of the Arms Act, 1959 and accused Rakesh is proved to have unauthorisedly possessed the knife/dagger, which is a sharp edged/deadly weapon and not designed for domestic or agricultural uses, would attract the applicability of the provisions of the said Act and for that reason, the learned trial Judge, in our opinion, is justified in recording the finding of guilt against accused Rakesh and imposition of consequent sentence for the offence under Sections 27/54/59 of the Arms Act.
(19) In the above view of the matter, we are inclined to dismiss the appeal and confirm the finding of guilt and the sentence imposed by the learned trial Judge and the appeal being devoid of merits is liable to be dismissed.
(20) In the result, the appeal fails. The conviction and sentence of both the appellants/convicts is hereby confirmed.