Delhi District Court
18 In Virsa Singh vs . State Of Punjab, 1958 Scr 1495, It Was on 16 February, 2012
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE-II (NORTH) : DELHI
S.C. No. 28/10
ID No. 02401R0081442006
State
Vs.
1 Anil Kumar alias Susi
S/o Dharam Pal Singh
R/o 177-178, Rajpura Gurmandi,
Delhi
2 Anar Singh
S/o Rattan Singh
R/o 177-178, Rajpura Gurmandi,
Delhi
3 Raj Kumar alias Billu
S/o Ajit Singh
R/o 177-178, Rajpura Gurmandi,
Delhi
4 Ashok Khatri
S/o Dharampal
R/o 177-178, Rajpura Gurmandi,
Delhi
5 Shailender alias Babley
S/o Dharampal
Sessions Case No. 28/10 Page 1/78
2
R/o 177-178, Rajpura Gurmandi,
Delhi
6 Anand Singh alias Dhammal
S/o Rattan Singh
R/o 177-178, Rajpura Gurmandi,
Delhi
7 Asha
W/o Ashok Khatri
R/o 177-178, Rajpura Gurmandi,
Delhi
8 Dharampal [expired]
S/o Rattan Lal
FIR No. 497/05
P.S. Model Town
U/S 147/148/149/302/307 IPC
Date of Institution: 01.12.05
Date of reserving for judgment:28.01.12 and 10.02.12
Date of pronouncement: 16.02.12
JUDGMENT
In the present case, charge has been framed against accused Anil Kumar, Anar Singh, Raj Kumar, Ashok Khatri, Shailender, Anand, Asha and Dharampal in respect of offences U/S 147, 148, 302 r/w Section 149 IPC and Section 307 r/w Section 149 IPC. The Sessions Case No. 28/10 Page 2/78 3 allegations in the charge are that on 03.09.2005 at about 9:30 PM in front of H.No. 195, Rajpura Gur Mandi, Delhi, all accused were the members of unlawful assembly, the common object of which was to commit murder of Ajay Rana and to cause injury to Smt. Bimla Rana. 2 It has been further alleged that on the abovesaid date, time and place, all the accused, who were members of unlawful assembly, were armed with deadly weapons i.e. swords and iron pipe. 3 It is further alleged that they all, in prosecution of common object of unlawful assembly, committed murder of Ajay Rana. 4 It is further alleged that in prosecution of common object of unlawful assembly, they also assaulted Smt. Bimla Rana with such intention or knowledge and under such circumstances that if by that act they had caused the death of Smt. Bimla Rana, they would have been guilty of culpable homicide, amounting to murder. 5 All accused pleaded not guilty to said charges and claimed trial.
6 To prove its case, prosecution has examined 29 witnesses. They are Meenu Rana(PW-1), Saurav(PW-2), Constable Shazi John (PW-3), Vimla Rana(PW-4), Naresh Kumar(PW-5), Kunal Rana(PW-
6), Attar Singh(PW-7), Inspector Devender Singh(PW-8), Constable Sushil Kumar(PW-9), ASI Ashiq Ali Khan(PW-10), Constable Ramesh Kumar(PW-11), HC Ramesh Kumar(PW-12), HC Ramesh Lal(PW-13), Dr. Nitin Kumar(PW-14), Dr. K. Goyal(PW-
Sessions Case No. 28/10 Page 3/78 415),Constable Sushil Kumar(PW-16), HC Ravinder Kumar(PW-17), Dr. Anil Shandil(PW-18), SI Anuj Nautiyal(PW-19),Constable Kaushal(PW-20), HC Yashpal(PW-21), HC Deepak(PW-22), Dr. Ashish Srivastava(PW-23), ACP Hira Lal(PW-24), SI K.B. Jha(PW-
25), Inspector Ajay Sharma(PW-26), SI Omvir(PW-27), Constable Narender(PW-28) and Dr. Naresh(PW-29).
7 Statements of accused have been recorded U/S 313 CrPC, wherein they have denied the allegations of prosecution. Accused Shailender, Anil and Asha have submitted that they are innocent. They have been falsely implicated in this case.
8 Accused Ashok Khatri and Raj Kumar have submitted that they were extensively injured at the hands of Ajay Rana and his associates. They were admitted in the hospital by control room officials. They were not in a position to make any statement. Later on, they were mischievously removed from the hospital without the permission of doctor on the pretext of getting proper medical treatment and were falsely implicated in this case. On account of head injuries, there were not in a proper state of mind. Accused Ashok has submitted that Ajay Rana and his associates took up a quarrel with him without any reason, in which he received injuries on his head and other parts of body. He raised noise and lost his mental balance and senses. Complainant involved his every near and dear relative including his wife, who is a Govt. School Teacher. His father had surrendered in Sessions Case No. 28/10 Page 4/78 5 court. Complainant was able to take the possession of the property where he was running his business. On account of false involvement his father lost health and has died.
9 Accused Raj Kumar has further submitted that he was at his house on the day of incident. After taking dinner, he was about to go to sleep. He heard a noise of quarrel outside. He saw Ajay Rana and his associates fighting with other persons. When he tried to intervene, he was beaten by Ajay Rana and his associates with danda and received injuries on his forehead. He fell down and became unconscious and was removed to hospital. Later, he found himself admitted in the hospital. During the night, he was removed by police without permission of the doctor and arrested in this case. He has been falsely implicated in this case because he is the relatives of other accused persons.
10 Accused Anand Singh has submitted that it is a false case. The complainant and his family are the tenants of Karan Singh, who was the Congress MLA of the locality. Karan Singh has one brother namely, Nehru, from different mother and therefore, Karan Singh and Nehru were not on good terms with each other. Nehru is his [Anand Singh's] friend. Nehru used to support BJP and he [Anand Singh] was also the supporter of BJP. Nehru had affiliation with him, while the complainant side was close to Karan Singh. Further, Nehru had eloped with the daughter of sister-in-law of PW Attar Singh and later on, Sessions Case No. 28/10 Page 5/78 6 deserted that girl. Since then, complainant side had grudge against him and Nehru. He has further submitted that complainant was doing business in the name of 'Khatri Properties' in Shop No. 2/40, Roop Nagar. He was also having a shop there in the name of 'Natasha Motors'. Deceased Ajay Rana and Jawahar used to harass him to close the shop. On the day of incident, he was not present in village as he had gone to meet his daughter Chitra at her matrimonial home. 11 Accused Anar Singh has submitted that he had gone to the office of Crime Branch, Prashant Vihar on 17.10.05. He never made any disclosure statement to police. Police had obtained his signatures on some papers. He was not present at the spot. He has been falsely implicated in this case being the relative of other accused. 12 During the pendency of trial, accused Dharampal died and proceedings against him were dropped on 04.06.10. 13 Now, the case remains to be decided against remaining accused.
14 Total five witnesses have been examined by accused in their defence.
15 Accused Raj Kumar has examined one witness in his defence. He is Dinesh Kumar [DW-1]. Accused Ashok Khatri has examined two witnesses in his defence. They are Dinesh Kumar [DW- 2] and Ish Kumar Midha [DW-5]. Accused Anand Singh has examined two witnesses in his defence. They are Bhola Nath Vij Sessions Case No. 28/10 Page 6/78 7 [DW-3] and Chitra Kataria [DW-4].
16 I have heard arguments from ld. counsels for accused and ld. Addl. PP for State. I have also gone through the written submissions filed by ld. counsel for accused and ld. counsel for complainant.
17 First of all, I am taking the offence of murder which has been defined in Section 300 IPC, which is reproduced here for ready reference:
"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, Sessions Case No. 28/10 Page 7/78 8 cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
18 In Virsa Singh Vs. State of Punjab, 1958 SCR 1495, it was observed by Hon'ble Supreme Court that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Sessions Case No. 28/10 Page 8/78 919 Now, the question that arises for consideration is as to whether the above referred ingredients are present in this case or not. 20 In the present case, out of 29 witnesses, PW-18 Dr. Anil Shandil has conducted the postmortem on the dead body of deceased Ajay Rana on 04.09.05 vide postmortem report Ex. PW15/A. During postmortem, PW-18 Dr. Anil Shandil found the following external injuries on the body of deceased:
External injuries:
1 Abrasion reddish in colour over lower chest 16.5 cm x 0.5 cm, 5 cm from right nipple and 10 cm below left nipple crossing midline.
2 Incised wound with clean cut well defined regular margins with dried blood clots over vertex of head 15 cm from right ear, 14 cm from left ear and 10.5 cm from occipital protuberance of size 12.5 cm x 1.5 cm x cranial cavity deep with corresponding incised wound cut over the scalp with fracture extending towards frontal region and towards right parietal occipital region.
3 Incised wound over left index finger 1.8 cm x 0.5 cm with clean cut well defined regular margins subcutaneous to muscle deep.
21. He [Dr. Anil Shandil] has opined the cause of death as "shock resulting from craniocerebral damage consequent upon head injury from heavy sharp edged weapon. All injures were ante-mortem in nature. Injury No. 2 was sufficient to cause death Sessions Case No. 28/10 Page 9/78 10 in ordinary course of nature.
22 In cross-examination by ld. counsel for accused Anand Singh, PW-18 has denied that clotting on the base of brain can by caused only with blunt object.
23 In cross-examination by ld. counsel for accused Anil, Ashok, Shailender and Asha, PW-18 has deposed that injury No.2 is possible to be caused with a Kulhari having sharp edge and with a heavy kulhari. Injury no.2 can be caused with a heavy farsa or a farsa having sharp edge. On the basis of dimension about the injuries, he cannot say whether injury No. 2 is possible by attacking the person from back or front side. He has further deposed that injury No. 2 is caused with a single weapon. It is not always necessary that thickness of the blade of weapon of attack determines the width of the wound. He has deposed that it is not necessary always that the size of the wound will correspond with the size of the weapon. 24 An opportunity to cross-examine PW-18 has been given to ld. counsels for other accused, but they did not avail of that opportunity.
25 Since, as per the postmortem report Ex. PW15/A, deceased suffered incised wound on his head, I am of the considered view that the first two ingredients as are discussed in Virsa Singh's case are existing in the present case.
Sessions Case No. 28/10 Page 10/78 1126 So far as, the third ingredient i.e. whether the injuries inflicted by accused on the body of deceased were intentional and were not accidental is concerned, I am of the considered view that this question cannot be decided without discussing the evidence of other witnesses, examined by the prosecution.
27 In the present case, PW-1 Meenu Rana is the star witness of this case being the complainant. She has deposed that on 03.09.05 at about 9:30 PM, she was present in her house alongwith her husband Ajay Rana. Her jethani Bimla and nephew Saurav alias Golu were also present in the house. Her son Kunal was playing on the roof of her house. Accused Ashok called her husband Ajay Rana on the door of her house. On hearing the call of accused Ashok, she and her husband Ajay Rana came out at the door of their house. Accused Dharampal, Anil alias Susi, Shailender, Anar Singh, Anand Singh alias Dhammal, Asha and Raj Kumar alias Billu were also present at the gate of her house. She saw sword in the hands of accused Dharampal, Anil and Shailender. Accused Anar Singh was having an iron pipe in his hand. Accused Anand Singh alias Dhammal was having farsa in his hand. As soon as they came out on the door of their house, accused Ashok Khatri asked her husband Ajay Rana "tune hame gali ka malwa saaf karne ke liye kyon kaha". On that, she and her husband Ajay Rana tried to make accused Ashok understand that Sessions Case No. 28/10 Page 11/78 12 accused persons used to put malba in street in front of their house, causing inconvenience to them. On that, accused Ashok asked his associates to kill Ajay. Accused Ashok took the sword from the hand of accused Dharampal and hit on the head of her husband Ajay. She embraced her husband but accused Asha pushed her aside. In the meantime, her jethani Bimla and her son Saurav alias Golu also came there. Accused Asha said to accused Anil alias Susi "Ajay, Ashok ki talwar se nahi marega, tu apni talwar se iske sar par maar". On hearing that, her husband Ajay tried to run away to save himself but accused Anar Singh, Anand Singh alias Dhammal and Dharampal caught hold of her husband. Accused Anand Singh alias Dhammal and Dharampal said "Aaj Ajay ko jaan se maar do". On that her jethani Bimla rushed to save Ajay Rana but accused Asha and Raj Kumar pushed her back. Accused Anil alias Susi and Shailender hit the swords on the head of Ajay Rana and he fell down. Her jethani Bimla Rana laid down over Ajay Rana to save him. Accused Asha and Raj Kumar again pushed Bimla back and Shailender hit his sword on the head of Bimla. Bimla also fell down. Her son Kunal was standing on the roof of her house. He [Kunal] was crying and shouting "Mere Papa ko mat maro- 2". All the accused ran away from the spot with their weapons.
Sessions Case No. 28/10 Page 12/78 13She, Kunal and Saurav put Ajay and Bimla in a rehdi, used for carrying cowdung. They took them to Maan Hospital, Roop Nagar but the doctor did not admit them there because of their serious conditions. From Maan Hospital, they took Ajay and Bimla to Trauma Center, where Bimla was got admitted but her husband Ajay Rana was referred to Sanjeevan Hospital, Darya Ganj due to the non-availability of ventilator in the Trauma Center. In the Sanjeevan Hospital, her husband Ajay Rana was declared dead. After sometime, police came and her statement Ex. PW1/A was recorded.
28 She [PW-1 Meenu Rana] has identified the swords Ex. P-1, Ex. P-2 and Ex. P-5 being the swords similar to the swords which accused Ashok, Shailender and Anil were carrying. She has also identified Farsa Ex. P-3 and iron pipe as Ex. P-4, which accused Anand Singh and Anar Singh respectively were carrying at the time of incident.
29 In cross-examination by ld. counsel for accused Raj Kumar, PW-1 has deposed that when the incident took place, she was present in her house. She has denied that since she was inside the house, she did not witness the incident. She has denied that in the scuffle, her husband fell down on a khutta and sustained injury. She has denied that accused Raj Kumar had only tried to intervene to avoid the incident.
Sessions Case No. 28/10 Page 13/78 1430 In cross-examination by ld. counsel for accused Anand Singh, PW-1 has deposed that she and her husband were standing outside the kitchen in her house when her husband was called by accused. Besides her husband, nobody else was standing with her at that time. She has denied that her husband died because they continued to get treatment in clandestine and did not get him treated in good hospitals. The main door of the house was open at the time when her husband was called. The distance between the place where they were standing and the door was around 20-25 paces. It might have taken them to reach the main door a few seconds. None of the accused had entered inside their house during the intervening period. She had stated in the FIR that when the accused persons came to the door of her house, she saw that accused Dharampal, Anil alias Sushi and Shailender were armed with swords, accused Anar Singh was having iron pipe in his hand and accused Anand Singh alias Dhammal was having farsa in his hand. After few seconds of their reaching at the door, her jethani and Saurav also reached there. When she [jethani of PW-1] reached near the door, accused were beating her husband. Accused Ashok hit her husband with sword and she [PW-1]was saving him. At that time her husband was on the door. Accused persons had not entered the door but they were at the door. She could not embrace her husband because Asha had pushed her. She had stated in her Sessions Case No. 28/10 Page 14/78 15 statement Ex. PW1/A that accused Asha uttered to Anil that Ajay would not die with the sword of Ashok, so he should hit him with his sword. Her husband had tried to run away to save himself after receiving injuries but he was not allowed to run away. He was apprehended at the door itself by accused Dhammal, Anand Singh and Anar Singh. She cannot tell which part of the body of her husband was caught hold by whom of the aforesaid three accused or in what manner they were holding her husband from the front side. She had stated in her statement Ex. PW1/A that accused Dhammal and Dharampal uttered Aaj Ajay ko jaan se maar do. She alongwith Kunal and Golu picked up her husband after the incident. The blood did not come on her clothes. She cannot say if the blood had come on the clothes of Kunal and Golu. Her husband was directly removed to hospital from the spot. Her husband had fallen down at the gate itself. She has denied that she made statement Ex. PW1/A after due deliberations with her relatives subsequently on the next day of the incident. She has denied that accused Anand Singh was not present in Rajpura Gur Mandi on the day of incident. She has denied that accused Anand Singh had gone to the matrimonial house of his daughter Chitra. She has denied that she was not present at her house but infact she was present at her parents' place and she was called later on after the death of her husband was planted as an eye witness. She has denied that in Sessions Case No. 28/10 Page 15/78 16 order to make further improvements, she is giving a wrong story and has levelled allegations against the initial I.O. She has denied that accused Anand Singh has nothing to do with the death of her husband and he has been falsely implicated.
31 In cross-examination by ld. counsel for accused Dharampal, Ashok, Anil, Shailender and Asha, PW-1 has deposed that she did not notice where the blow of Farsa had fallen on her husband. Farsa blow was given by accused Dhamal alias Anand Singh. She cannot say if the Farsa was hit on the head of her husband Ajay. She does not remember as to whether Dhamal was standing in front or on the back of her husband when he was hit with Farsa. First blow on the head of her husband was given by accused Ashok. Accused Ashok was standing at the back of her husband when he hit him. Her husband did not sit after receiving said blow. Sword blow given by accused Anil also fell on the head of her husband. Accused Raj Kumar did not have sword in his hand and he did not hit her husband. Two injuries caused on the head of her husband were caused by accused Shailender alias Bable and Anil alias Sushi and thereafter, her husband fell on the ground. She had not stated in Ex. PW1/A that after giving sword blow by accused Raj Kumar and Anil to her husband Ajay, she intervened to save her husband and they pushed her back and made her fall on the ground [she was confronted with her statement Ex. PW1/A Sessions Case No. 28/10 Page 16/78 17 wherein it was so recorded]. She has deposed that she was pushed by accused Asha only. Nobody caused any injury to her husband Ajay after he had fallen down on the ground. There was no bleeding after the sword blow given by accused Ashok. After the sword blow given by accused Anil, her husband fell down on the ground and bleeding took place. Bimla on her arrival had laid down on her husband Ajay to save him. At that time, she was 4-5 steps away from her husband. She noticed only three sword blows being hit on the head of her husband. She has denied that in her statement Ex. PW1/A she had not mentioned the name of her son Kunal [she was confronted with Ex. PW1/A where it is not so recorded]. She had stated in statement Ex. PW1/A that accused Asha and Raj Kumar had caught hold of Bimla, when she was lying on Ajay Rana to save him and they dragged her away; that Bimla tried to save Ajay Rana [she was confronted with Ex. PW1/A where it is not so recorded]. She has denied that in statement Ex. PW1/A she had stated that Bimla had reached the spot after Ajay had fallen on receiving injuries[ she was confronted with her statement Ex. PW1/A wherein it was so recorded]. She has denied that she had stated in statement Ex. PW1/A that she had embraced her husband to save him after he received three sword blows [confronted with statement Ex. PW1/A wherein it is so recorded]. When accused Ashok had come to call her husband, he was not alone. At that time, accused Sessions Case No. 28/10 Page 17/78 18 Ashok was not armed with any weapon. She has denied that in her statement Ex. PW1/A she had not mentioned accused being armed with iron pipe and farsa. She had stated in statement Ex. PW1/A that Asha exhorted Anil to hit Ajay with his sword as he would not be killed with the sword of Ashok; and that accused Dharampal, Anand Singh and Anar Singh together caught hold of Ajay [she was confronted with her statement, wherein it was not so recorded]. Accused Dharampal and Dhammal gave joint exhortation to kill Ajay simultaneously. She has denied that on coming to know about the injuries of deceased Ajay and Bimla on the basis of medical report, they introduced iron pipe and farsa as weapons instead of original version which was made with a view to involve all the members of the family of Dharampal. She does not know if accused Ashok Kumar and Raj Kumar had been admitted in the Bara Hindu Rao Hospital. She has denied that accused were first assaulted by Ajay and other members of her family. In her presence, none of them was assaulted from her side. Neither she, Bimla, Kunal, Golu nor any other member of her family pelted stones or bricks on accused Ashok and Raj Kumar. She has never been shown sword or any other weapon by police till she was examined in the court on 15.01.07, though she had seen weapon of offence at the time of incident. She cannot distinguish and identify which of the sword was in the hand of which accused.
Sessions Case No. 28/10 Page 18/78 19She had stated in statement Ex. PW1/A that "Bimla Ajay Se Lipat Gayi" [she was confronted with statement Ex. PW1/A, wherein it was not so recorded]. She has denied that she is deposing falsely or that her husband and other family members had picked up a quarrel with Ashok and Ajay being drunk and caused injuries to them or that to conceal the truth of incident, they wasted time for giving medical aid to Ajay till they could be assured of favourable and false medical report or that thereafter, on account of death of Ajay, they made false story and not been content with that, further made false allegations by way of supplementary statements. She has denied that on the day of incident, there was a feast going on in their house and that in that feast they had invited accused Ashok as well or that everybody consumed liquor.
32 In cross-examination by ld. counsel for accused Anar Singh, PW-1 has deposed that if one sits at the place where buffaloes are tied in the house, the main gate would be visible. Prior to the day of incident, her husband did not have any quarrel with any of the accused persons. She has denied that they used to tie buffaloes and make sometimes cow dung cakes in the plot of accused persons sometimes. She had stated in her statement Ex. PW1/A that accused Anar Singh had caught hold of Ajay [ confronted with her statement Ex. PW1/A, wherein it was not so recorded]. She has denied that she Sessions Case No. 28/10 Page 19/78 20 has falsely implicated accused Anar Singh by attributing him the role that he caught hold of Ajay. She has denied that accused Anar Singh was not present at the spot on the day of incident and that he has been falsely implicated.
33 After going through the testimony of PW-1 Meenu Rana, I am of the considered view that there was an intention on the part of accused to cause injury on the person of deceased Ajay Rana and the injury inflicted on the body of deceased Ajay Rana was not unintentional and accidental. It is worth noting that PW-1 has categorically deposed that on the relevant date, all accused armed with swords, iron pipe and farsa, came at the gate of her house and asked her husband as to why he [husband of PW-1] had asked them to clear the malba, lying in front of her house. She has further deposed cogently that when her husband tried to make the accused Ashok understand that malba was creating inconvenience to him, accused Ashok exhorted other accused to finish Ajay Rana. Accused Ashok took sword from the hands of accused Dharampal and hit on the head of her husband. When the sword blow did not cause death of Ajay Rana, accused Asha exhorted to accused Anil that Ajay Rana would not die with the sword of Ashok and he [Anil] should give the sword blow to Ajay Rana. On hearing that, her husband tried Sessions Case No. 28/10 Page 20/78 21 to run away to save himself but accused Anar Singh, Anand alias Dhammal and Dharampal caught hold of her husband and accused Anand alias Dhammal and Dharmpal said that Ajay should be killed on that day. PW-1 has further deposed clearly that in the meantime, her sister-in-law [jethani] Vima and her son Saurav alias Golu also came there. Her sister-in-law tried to save her husband but accused Asha and Raj Kumar pushed her back. Accused Anil and Shailender gave sword blow on the head of Ajay Rana, due to which he [Ajay Rana] fell down. It is further worth noting that in her cross-examination, PW-1 has denied all the relevant suggestions which were put to her by ld. counsels for accused.
34 Further, the testimony of PW-1 cannot be disbelieved only because she has deposed certain facts, which were not deposed by her in her statement Ex. PW1/A. It is worth noting that it is the case of PW-1 that the copy of FIR was not given to her and when she received the copy of FIR, she found some infirmities in the statement Ex. PW1/A. She has categorically deposed that police had not mentioned certain facts in her statement Ex. PW1/A, on the basis of which FIR has been registered. She pointed those infirmities to the police but police did not pay any heed to her submissions. It is also worth noting that when the police did not take any action, she told about those infirmities to her brother-in-law Attar Singh [PW-7] and he filed the Sessions Case No. 28/10 Page 21/78 22 complaint Ex. PW7/A to the Commissioner of Police. Ultimately, the Commissioner of Police withdrew the case from local police and assigned the investigation to Crime Branch. I am of the considered view that in these circumstances, it cannot be said that PW-1 has improved her statement and that her testimony cannot be believed. 35 In the complaint Ex. PW7/A, it is mentioned that accused Asha was carrying rod and attacked the deceased. It is worth noting that PW-1 Meenu Rana has deposed in cross-examination by ld. counsel for accused Asha that she had not stated to her jeth that Asha was having an iron rod or pipe in her hand. It is worth noting that PW- 7 Attar Singh is not an eye witness to the case. He has got typed this complaint ex. PW7/A on the basis of facts, which were told to him by PW-1 and other eye witnesses. In these circumstances, I am of the considered view that this discrepancy will not materially affect the case of prosecution particularly when as PW-1 and other eye witnesses have clearly disclosed the role of accused Asha.
36 Further, PW-1 has also proved the motive behind the murder. The true and trustworthy testimony of PW-1 cannot be disbelieved only because malba was not seized by the I.Os during investigation. It is further worth noting that in the cross-examination by ld. counsel for accused Anand Singh, PW-1 has categorically deposed that malba was lying just opposite to her house in the gali and Sessions Case No. 28/10 Page 22/78 23 she had shown the malba to the police. She has denied that there was no malba lying in the gali or that the story of malba has been fabricated. She has further denied she did not show any malba to the police as there was no malba lying in the street. It is worth noting that PW-25 SI K.B. Jha, who is one of the investigating officers, has admitted, in his cross-examination by ld. counsel for accused Anand Singh, that the place, where the malba was lying as per the version of eye witness, has not been shown in the site plan. He has volunteered that he had seen malba on 26.09.05 and 27.09.05. However, he had not mentioned that fact in his case diary. He has further deposed that he did not get the malba photographed. He pointed out the place, where malba was lying, when he visited the spot. He has denied that no malba was lying in the gali and that false and fabricated story has been formulated by Inspector Hira Lal in connivance with the complainant. It is further worth noting that in cross-examination by ld. counsel for accused Anand Singh, PW-19 SI Anuj Nautiyal has also deposed that photographs of malba were taken in his presence. 37 Further, the testimony of PW-1 Meenu Rana is corroborated with the testimonies of other eye witnesses, namely Saurav alias Golu [PW-2], Vimla Rana [PW-4] and Kunal Rana [PW- 6], whose testimonies are discussed hereinafter.
Sessions Case No. 28/10 Page 23/78 2438 PW-2 Saurav has fully supported the case by deposing that on 03.09.05 at about 9:30 PM he was present in his house alongwith his uncle Ajay Rana, his aunt Meenu Rana and his mother Bimla. Kunal, son of his uncle Ajay Rana, was on the roof of the house. He and his mother were feeding buffaloes. At that time, accused Ashok called his uncle Ajay Rana at the gate of the house. His uncle Ajay Rana and his wife Meenu Rana went to the gate of the house. After sometime, he and his mother heard the cries of his uncle Ajay and aunt Meenu. He alongwith his mother rushed to the gate of the house. All the accused persons were jointly beating his uncle. Accused Ashok, Sushi and Babley were having swords in their hands. Accused Dhammal was having farsa in his hand and accused Anar Singh was having iron pipe in his hand. His aunt Meenu tried to save Ajay but accused Asha pushed her. Asha said to accused Anil alias Sushi that "Ajay Ashok ki talwar se nahi marega, tu mar, teri talwar se marega". On hearing that, his uncle put his hand on his head for saving himself and tried to run away but accused Dhammal, Dharampal and Anar Singh caught hold of his uncle. Accused Dharampal and Dhammal uttered "Aaj Ajay bachna nahi chahiye, jaan se maar do". His mother rushed to save his uncle but accused Asha and Billu pushed his mother Sessions Case No. 28/10 Page 24/78 25 back. Accused Anil and Bable attacked on the head of his uncle. His uncle fell on the ground. His mother laid down over his uncle to save him but accused Asha and Billu dragged his mother backwards. Accused Bable attacked on the head of his mother with the sword. His mother fell down on the ground. All the accused jointly beat his mother and uncle. He has also identified swords as Ex. P-1, Ex. P-2 and Ex.P-5; Farsa as Ex. P-3, an iron pipe as Ex. P-4. 39 In cross-examination by ld. counsel for accused Dharampal, Ashok, Anil, Shailender and Asha, PW-2 has deposed that rodi, badarpur and bricks were lying near the place of incident. He had stated in his statement to police that malba was lying near the place of incident [confronted with statements Ex. PW2/DA and Ex. PW2/DB where there is no mention of malba]. He did not pelt brick pieces or stones on the accused persons. All the seven male accused had surrounded his uncle Ajay. He did not see exchange of hot words between his uncle and accused persons because he was busy in attending buffaloes inside the house. Ajay was profusely bleeding from his head. He has denied that he was not present at the spot and that is why his clothes were not blood stained. He has denied that when he reached the place of incident, Ajay was lying on the ground in an injured condition. He cannot say how many farsa and sword blows were given to Ajay. He does not recollect as to how many Sessions Case No. 28/10 Page 25/78 26 blows fell on the head of Ajay. First blow was given by accused Bable and thereafter, the blow was given by accused Sushi. Accused Bable had hit on the back side of the head and accused Sushi had also given blow on the upper portion of the back side of the head of Ajay. Since all the accused persons were giving blows to Ajay, he did not notice whose blow fell on which part of the body of Ajay. He did not see farsa blow falling on Ajay or Bimla or anyone else. Accused Dhammal had caught hold of Ajay by one hand. He has deposed that accused Dharampal, Dhammal and Anar Singh had together caught hold of Ajay from his front side. Accused Anar Singh was having an iron pipe in his hand. The length of iron pipe must by about three feet and there was a check valve on the iron pipe on one side. He has denied that he had stated to police that after hearing the abusive language and noise of quarrel and cries of his aunt when he alongwith his mother Bimla reached the spot, he found his uncle Ajay drenched in blood [confronted with statement Ex. PW2/DA, wherein it is so recorded]. He had stated to police that when he reached the spot, he found that accused Ashok, Anil, Shailender, Dharampal, Raj Kumar, Anar Singh, Anand alias Dhammal were beating Ajay. He had stated to police that accused Dharampal and Dhammal were holding his uncle Ajay and other accused were beating him with fist blows and others were beating him with sharp edged weapons. He had given Sessions Case No. 28/10 Page 26/78 27 details of weapons in the hands of accused in his statement dated 04.09.05 [confronted with statement Ex. PW2/DA wherein the details of weapon with individual accused has not been mentioned]. He had stated in his statement dated 04.09.05 that accused Asha was also present at the spot with other accused and she had pushed Meenu and his mother [confronted with statement Ex. PW2/DA, wherein it is not so recorded]. He had stated in his statement dated 04.09.05 to police that accused Asha exhorted accused Anil alias Sushi to give sword blows to Ajay as he would not be killed with the sword of Ashok [confronted with statement Ex. PW2/DA, wherein it is not so recorded]. He had mentioned the name of Kunal being present at the time of incident and was shouting to spare his father[confronted with statement Ex. PW2/DA, wherein it is not so recorded]. He had stated in his statement Ex. PW2/DA that accused Ashok called his uncle Ajay[confronted with statement Ex. PW2/DA, wherein the name of accused Ashok is not mentioned]. He had stated in his statement Ex. PW2/DA that accused Dharampal, Dhammal and Anar Singh exhorted that Ajay should not be spared that day [confronted with statement Ex. PW2/DA where it is not so recorded]. He had given the role of accused Ashok in his statement Ex. PW2/DB that he was holding sword. He had not stated to police that Ashok had given sword blow to anyone. "Ajay aaj bachna nahi chahiya" was uttered by Sessions Case No. 28/10 Page 27/78 28 accused Dharampal and Dhammal simultaneously. He had not stated in his statement that above exhortation was also simultaneously given by accused Anar Singh. He has denied that he was not present at the spot. He has denied that he projected himself as eye witness though he was not the witness of present incident. He has denied that he has been tutored to depose in the court to falsely implicate the accused persons.
40 In cross-examination by ld. counsel for accused Raj Kumar, PW-2 has deposed that at the time of incident, he was busy in attending buffaloes. His mother was assisting him. They were serving fodder to buffaloes, when the incident took place. The place, where he had been working with his mother, was at a distance of about 5-6 steps from main entrance of his house. He and his mother heard the noise of scream but he cannot tell whose scream it was. After hearing scream, they rushed to the main entrance. The incident was taking place just at the gate of house. He cannot tell if any of the accused had sustained injuries. He has denied that his family members caused injuries to accused Raj Kumar and other accused. He cannot tell as to how many injuries deceased Ajay had sustained. He had seen that he was bleeding from his head. The whole incident had taken place within 4/5 minutes. Police had recorded his statement on 03.09.05. His statement was not read over to him. His statement was also Sessions Case No. 28/10 Page 28/78 29 recorded on 27.09.05 at his house and same was read over to him. He has denied that he had not witnessed the incident or police had projected him as an eye witness falsely. He has denied that he gave statement to police as per the instructions of his Tau Attar Singh. 41 In cross-examination by ld. counsel for accused Anar Singh PW-2 Saurav has deposed that his attention was diverted by the cry made by accused Ashok asking Ajay to come out. At that call, neither his mother nor he rushed to the main door. He had stated in his statement dated 04.09.05 that accused Anar Singh was having iron pipe in his hand and accused Anar Singh caught hold of Ajay [confronted with statement Ex. PW2/DA where it is not so recorded]. He has denied that accused Anar Singh was not present at the spot. 42 In cross-examination by ld. counsel for accused Anand Singh, PW-2 Saurav has denied that neither he nor Meenu or Kunal was present at the spot. He has denied that blood did not come on their clothes because they did not take the injured to hospital in rehri and they were not present at the spot. He knows accused Dhammal. He had told the police that Kunal was also an eye witness but police did not record his statement. His statement was recorded by police but it was not read over to him. He had stated to police and pointed out the place, from where he had seen the incident and spot. He had also told the police the positions, where Meenu and other witnesses were Sessions Case No. 28/10 Page 29/78 30 standing at the time of incident. On 27.09.05 when scaled site plan was prepared, he had told the police the positions/points where he was standing when the incident took place. He had pointed out the place to police where accused Dhammal was standing with farsa. He has denied that he was not present at the spot and therefore, he did not point out the place to police where he was standing and as such same is not reflected in Ex. PW8/A [scaled site plan]. He has denied that story of farsa in the possession of Dhammal has been subsequently introduced by him. He has denied that his earlier statement was also a fabricated statement. He has denied that accused Anand Singh alias Dhammal was not present in village Rajpura itself on the day and time when incident took place. He has denied that his first statement was read over to him by police. He had stated to police that at the time of incident, he was attending to buffaloes [he was confronted with statement Ex. PW2/DA where it is not so recorded]. He had stated in his first statement to police that Ajay Rana went to the gate of the house or that Ajay was called out of the house and thereafter, they heard the abuses [confronted with statement Ex. PW2/DA where it is not so recorded]. He had not stated to police that Ajay was called out of the house but he had stated that he was called at the gate [confronted with statement Ex.PW2/DA where it is so recored]. Two or three calls were given to Ajay. No quarrel on malba took place in Sessions Case No. 28/10 Page 30/78 31 his presence and therefore, he does not know anything about it. He witnessed the incident from inside the dairy. He was at a distance of 7-8 steps away from the main gate, from where he witnessed the incident. He had not come outside the gate. He had not stated to the police that he witnessed the incident, while he was outside his house [confronted with statement Ex. PW2/DA where it was so recorded]. He had not stated to police in his statement dated 27.09.05 that he had witnessed the incident from the gate of his house [he was confronted with statement Ex. PW2/DB where it was so recorded]. He had stated to police in Ex. PW2/DB that he was attending buffaloes in dairy [confronted with statement Ex. PW2/B wherein it was not so recorded]. None of the accused had entered the gate of his house but they were on the gate. His uncle was standing just at the gate. He does not recollect as to who of the accused was standing immediately after his uncle and who of the accused was standing by his side. He does not recollect as to who of the accused was holding which part of his uncle. Two of the accused persons were holding his uncle with one of their hands and one of the accused was holding him with both of his hands. He cannot specify who of the accused was holding with one hand and who of the accused was holding Ajay with both hands. The whole incident went on for less than five minutes. He has denied that no incident took place at the gate of his house. He has denied that Sessions Case No. 28/10 Page 31/78 32 neither he was present at his house on the day of incident nor he witnessed the incident. He had stated to police in his first statement that accused Dhammal was armed with farsa; accused Dharampal and Dhammal exhorted to kill [confronted with statement Ex. PW2/DB where it is not so recorded, however, "Ajay Bachna Nahi Chahiye" is recorded]. He had stated to police in his second statement that Kunal was standing on the roof of the house and was saying "Papa ko mat maro" [he was confronted with statement Ex. PW2/DB, where it was not so recorded]. He had stated in his first statement to police that Meenu Rana was also requesting accused persons not to beat Ajay [confronted with statement Ex. PW2/DA and Ex. PW2/DB, where it is not so recorded]. He has denied that his uncle had sustained injuries somewhere else and since he was brought to their house, the blood had fallen near his house. He has denied that his family members want to grab the plot of land situated opposite their house. He has denied that he is deposing falsely.
43 After going through the testimony of PW-2 Saurav, I am of the considered view that he has fully supported the testimony of PW-1, Meenu Rana, so far as the fact of inflicting injuries is concerned. His true and trustworthy testimony cannot be disbelieved on the ground that he deposed certain facts, which were not mentioned in his first statement Ex. PW2/DA. It is worth Sessions Case No. 28/10 Page 32/78 33 noting that PW-2, Saurav has given the explanation that his first statement was not read over to him. Moreover, in his second statement Ex. PW2/DB he has clearly stated that his first statement recorded by the police [local] was not complete and his uncle Attar Singh had lodged complaint in that regard to Commissioner of Police. In these circumstances, I am of the considered view that the facts, which were not mentioned in Ex. PW2/DA and deposed by PW cannot be called contradictions or improvements in any manner.
44 Further, PW-4 Vimla Rana, who has also received injury in the incident has fully supported and corroborated the testimony of PW- 1 by deposing that at about 9:30 PM she was present at her house. Kunal was playing on the roof. She and her son Golu were feeding cattle. Meenu and Ajay were inside the house near kitchen. Accused, present in court, gave a call to Ajay. Ajay and Meenu went out of the house in response to the call at the main gate. After few seconds, she heard screams and cries. She and Golu came out of the house at the main gate and saw the accused Dharampal, Anar Singh, Dhammal and Billu, Asha, Ashok, Sushi and Bable. She knows all the accused persons as they are her neighbours. Accused Bable was having sword in his hand. Accused Ashok and Sushi were also armed with talwar. Accused Dhammal was having farsa in his hand and accused Anar Singh was having iron rod in his hand. All accused persons were assaulting Ajay with swords. Meenu was trying to save Ajay from Sessions Case No. 28/10 Page 33/78 34 accused persons. Accused Asha was pushing Meenu backwards. Accused Asha exhorted Sushi that Ajay would not be killed with the sword of accused Ashok, therefore, he [Sushi] should hit Ajay with his sword. On hearing that, Ajay tried to flee away but accused Dhammal, Dharampal and Anar Singh caught hold of Ajay and did not allow him to flee. Accused Dharampal and Dhammal exhorted that Ajay should not be spared and he should be killed. When she [PW-4] rushed to save Ajay, she [PW-4] was pushed back by accused Asha and Billu. In the meantime, accused Babley and Sushi hit the swords on the head of Ajay. Ajay fell down. She [PW-4] rushed and laid herself over Ajay to save him. Accused Asha and Billu caught hold of her and accused Bable hit the sword on her head. Kunal, who was upstairs on the roof, was crying that accused should not beat his Papa [Ajay]. Golu and Meenu were crying not to kill Ajay. After receiving sword blow, she fell on the ground. All the accused persons fled away from the spot. She [PW-4] and Ajay were removed to Mann hospital, Roop Nagar in a cow-dung- carrying rickshaw, and thereafter, she fell unconscious. She [PW-4] has identified the swords as Ex. P-1, Ex. P-2 and Ex. P-5 being similar to ones, which accused were having at the time of incident. She has identified farsa as Ex. P-3, being similar to farsa which accused Sessions Case No. 28/10 Page 34/78 35 Dhammal was having in his hand at the time of incident. She has also identified iron rod as Ex. P-4, being similar to iron rod which accused Anar Singh was having in his hand at the time of incident. 45 In cross-examination by ld. counsel for accused Dharampal, Anil alias Sushi, Ashok, Shailender alias Bable and Asha, PW-4 Vimla has deposed that the whole incident took place for five to ten minutes. She has admitted that crying, shouting and screaming took place during the time of incident. She had stated in her statement to police that accused persons were beating Ajay when she reached the spot. It is possible that before her reaching the spot, Ajay might have received injuries with swords. Accused Asha, Billu and Dharampal were not armed with any weapon. They were also beating Ajay. All these accused persons were beating Ajay with fists and legs. She had stated to police that accused Anil was armed with sword when she first saw him after coming out from the house [confronted with statement Ex. PW4/D where there is no mention of Anil initially having sword in his hand]. She had stated this fact in her statement on 27.09.05 because she had seen the same with her own eyes. Both the blows were given from the back side of Ajay because he had been caught hold by three accused persons from the front side. Two of the accused had caught hold of Ajay by hands on both sides and third accused was holding him from front side. Ajay could not succeed in getting himself freed from accused, who were holding him. He was released by accused Sessions Case No. 28/10 Page 35/78 36 persons after sword blows were given on his head. The moment accused persons released Ajay, he fell on the ground. She had seen only two sword blows which were given on the head of Ajay. She received three sword blows on her head, when she was lying on Ajay. She had not seen accused Ashok and Anar Singh hitting her with swords at any point of time but they were wielding the swords. Accused Dharampal did not assault her in any manner. She has denied that accused Anand Singh had not given any blow to her. Accused Anil was armed with sword. She regained consciousness after 3-4 days. She recollects only that she was taken to Mann hospital and thereafter, she does not know as to where she was taken. She narrated the whole incident to Attar Singh. She told him about the weapons, the accused were armed with and the blows given by them. She was discharged from the hospital after four days and she came to her house. She did not tell police that she would give her statement only after consultation with her lawyer and family members. She has denied that after due consultation with her lawyer, she made a false statement before police. Police recorded her statement at her house. She has denied that by the time she reached the spot, Ajay had already fallen due to injuries. She has denied that Kunal and Golu were not present at the spot. She had little consciousness, while she was taken to hospital in rehri. Golu was pulling rehri and Kunal was pushing it.
Sessions Case No. 28/10 Page 36/78 37Her clothes were extensively smeared with blood. She was not wearing the said blood stained clothes, when she was discharged from the hospital. She cannot say as to who changed her blood stained clothes from her body. She does not know as to who had taken those clothes or that the clothes were handed over to police. She has denied that farsa Ex. P-3 belongs to them. She has denied that on the day of incident deceased Ajay had called Ashok for drinks, who had been taking liquor with his friends. She has denied that Ajay was in drunken condition; that he picked up a quarrel with Ashok and caused injury on his head, with sharp edged weapon and on raising an alarm, the family members of Ajay reached there and joined him [deceased] in beating Ashok and everyone, who came to rescue him[Ashok]. She has denied that accused Dharampal, Shailender, Anil, Anar Singh and Asha were neither present at the spot nor they participated in the incident or that their names have been falsely introduced. She has denied that Meenu, Golu or Kunal were also not present at the spot or that their names have been introduced to project them as eye witnesses. She has denied that she has deliberately suppressed the medical record of Mann Hospital. It took her only one or two seconds to come out of the house and try to save deceased. She did not see if sword blows had fallen on the hands of deceased, when he[deceased] tried to save himself from the blows with his hands. She did not Sessions Case No. 28/10 Page 37/78 38 notice, if the sword blows on the head of deceased fell before he made an attempt to save himself or later on. She first made efforts to save deceased. After she was discharged from the hospital, she never went to PS to get her statement recorded. She had not asked Attar Singh to take her to P.S. She has denied that she had not told Attar Singh that accused Anar Singh had pipe in his hand. She has denied that deceased Ajay was taking liquor inside his house alongwith his friends. She has denied that accused Ashok was also taking liquor with Ajay. She has denied that an altercation took place between Ashok and Ajay and his friends, as a result of which accused Ashok had sustained injuries at their hands. She has denied that in the quarrel, inside the house, she had tried to intervene and thus, she sustained injuries on her person. She has denied that accused Anar Singh was neither present at the spot nor he had assaulted either Ajay or his friends or her[PW-4]. The incident had taken place at 9:30 PM. Both Ajay and his wife Meenu had come out of the house together, after they heard the call from outside the house. First of all, she heard the voice of Ajay who was saying "Mujhe mat maro" and she had stated the said fact to police in her statement. She had stated to police that she had fallen unconscious at the spot [confronted with statement Ex. PW4/D where it is not so recorded]. She had stated to police that her son Golu was feeding cattle [confronted with statement Ex.
Sessions Case No. 28/10 Page 38/78 39PW4/DA where name of Golu is not mentioned]. She had stated to police that she heard the noise of scream of her brother-in-law and sister-in-law from outside the house. She, Golu, Meenu Ajay and Kunal had not taken dinner and other family members had already taken dinner. She sustained injuries when she was in standing position and not when she laid down over Ajay. Kunal remained on the roof till the whole incident lasted. She had fallen on the place of incident, after receiving blows. She was a little bit conscious at the spot but by the time she reached hospital, she became unconscious. She had become unconscious at the gate of Sanjeevani hospital; therefore, she cannot say if she had been taken inside the hospital or not. She has denied that she sustained injury on account of falling due to dhakka- mukki. She has denied that she had been tutored by Attar Singh to give statement to the police.
46 In cross-examination by ld. counsel for accused Anand Singh alias Dhammal, PW-4 has deposed that the rehri, in which she and Ajay were taken to hospital, was stationed near the place of incident but the rehri did not belong to them. Firstly, Ajay was kept in the rehri. He was laid in the rehri with his face upside. She has denied that rickshaw was not big enough to accommodate two persons. She has denied that they were not taken in the rehri. She has denied that they were taken to hospital by Attar Singh and ASI A.A. Khan in a Sessions Case No. 28/10 Page 39/78 40 private vehicle. She has denied that she had never fallen unconscious and remained conscious throughout. She has denied that she had given statement to doctor in Trauma Center. She had not given any statement to any doctor in Trauma Center that her injuries were first treated in Sanjeevani hospital. She has denied that she is suppressing these facts because her family was the aggressor. She had not told the name of the assailants to the doctor either at Sanjeevani Hospital or at Trauma Center. Call was given by accused Ashok only and not by others. The whole incident lasted for about 4-5 minutes. She has denied that no such incident had taken place opposite the gate of her house in the gali. Her house number is 195. She cannot say whether the incident had taken place in front of H.No. 178 but the incident had taken place at the gate of her house. She has denied that farsas, talwars and knives are always kept by them in their house. She has denied that sword, farsa and iron rod, which are the case property of this case, belong to them and they handed over the same to police to plant them upon accused persons. She had stated to police that accused Dharampal and Dhammal stated that "Ajay should not be sparede and should be killed" [confronted with statement Ex. PW4/DA where it is not so recorded]. She had stated to police that after Asha gave exhortation, Ajay tried to flee away but he was caught hold by accused Dhammal, Dharampal and Anar Singh [confronted with Sessions Case No. 28/10 Page 40/78 41 statement Ex. PW4/DA, where it is recorded that after exhortation by Asha, Anil and Shailender attacked Ajay with swords]. She has denied that she had made the statement after due consultation with her family members. She has denied that accused Dhammal was not present in Rajpura on the day of incident or that he had gone to visit his daughter at his matrimonial home. She has denied that whole medical record has been fabricated. She does not know if accused Raj Kumar and Ashok had sustained injuries. She has denied that they were having swords with themselves and inadvertently the blows of swords fell on Ajay and he sustained injuries.
47 It is worth noting that PW-4 Vimla Rana has suffered head injury in the incident when she tried to save the deceased Ajay Rana. She has fully supported the testimony of PW-1 by describing the role of each accused. It is further worth noting that PW-4 suffered head injury with the same weapon, which was used by accused Shailender alias Babley, while causing the murder of deceased Ajay Rana. After receiving the second blow on her head, she became unconscious after a short while. In these circumstances, it can be concluded that an attempt was made by accused to cause her murder but fortunately, she survived. In the present case, PW-4 has narrated the incident in detail and nothing has come in her cross- examination to the contrary.
Sessions Case No. 28/10 Page 41/78 4248 Further, the testimony of PW-4, Vimla Rana is corroborated with medical evidence. She [PW-4] has been examined by PW14 Dr. Nitin Kumar vide MLC Ex. PW14/A. He [PW-14] has categorically deposed that the patient was having incised wound on left parietal region of the head besides other injuries. He has further deposed that the incised wound was inflicted with a sharp edged weapon.
49 In cross-examination by ld. counsel for accused Anand Singh, PW-14 has deposed that an incised wound can only be caused by a sharp edged weapon.
50 In cross-examination by ld. counsel for accused Dharampal, Ashok, Anil, Shailender and Asha, PW-14 has deposed that abrasions on the body of patient were deep in nature, which could be caused as a result of friendly jostling.
51 Further, the testimony of PW-1 is corroborated with the testimony of her son Kunal Rana [PW-6]. He has deposed that on 03.09.05 at about 9:30 PM, he was playing on the roof. His aunt Vimla and cousin Golu were feeding cattle downstairs. Accused Ashok, present in court, gave a call to his father Ajay from the gate of his house. Accused Ashok, Bable, Sushi, Anar Singh, Dhammal, Dharampal, Asha and Billo are present in court. His mother tried to save his father but accused Asha pushed his mother. In the meantime, Sessions Case No. 28/10 Page 42/78 43 his aunt Vimla reached the spot. When she tried to save his father, accused Asha and Billoo caught hold of Vimla. Accused Bable gave a blow on the head of Vimla. Vimla fell down on the ground. He saw blood coming out from the heads of Vimla and his father. All the accused persons gave beating to his father and Vimla and thereafter, they fled away from there. Accused Ashok, Bable and Sushi were having swords in their hands. Accused Dhammal was having farsa in his hand. Accused Anar Singh was having an iron pipe in his hand. Accused Asha, Billoo and Dharampal were with accused persons. He came downstairs. Golu and his mother put Vimla and Ajay in a cow dung rickshaw and took them to hospital. He accompanied them to Mann hospital. His uncle Attar Singh Rana reached Mann hospital and sent him and Golu to home. 52 In cross-examination by Ld. Addl. PP, PW-6 has deposed that when his mother and father came at the gate of the house, all the accused persons started beating his father with the arms, which they were having with them.
53 In cross-examination by ld. counsel for accused Raj Kumar, PW-6 Kunal has deposed that he had not stated to the police that when his mother and father came at the door, an altercation took place between accused persons and his parents [he was confronted with statement Ex. PW6/DA where it was so recorded]. He has denied that Sessions Case No. 28/10 Page 43/78 44 incident took place after 10:00 PM. No other family member was present on roof with him. He went upstairs to play after 9:00 PM. He has denied that the incident had not taken place at the gate of his house and it happened somewhere else. When accused Ashok gave a call to his father, then his attention was diverted towards accused. He has denied that accused Ashok had sustained injury in the quarrel. He has denied that when he saw accused Ashok, he was having injuries on his person. Ashok had given only one call. It was between 9:00 or 9:30 PM when accused Ashok had given the call. When he was going to call his mummy and papa, they came at the gate. The moment accused Ashok gave a call, his mother and father both appeared at the gate. There were three injuries on the head of his father but he cannot tell how many injuries, his father had sustained on the other parts of body. Vimla Rana had sustained only one injury on head and one on left thumb and left leg. Accused Billoo and Asha were holding Vimla when she sustained injuries. He had stated to police that accused Asha and Billoo were holding Vimla, when she sustained injuries [ confronted with statement Ex. PW6/DA, where the name of Billoo was not mentioned]. Blood of his father had fallen on his clothes. The clothes of Vimla were also blood stained. His mother was not given any blow by any of the accused except that she was pushed by accused Asha. Injured were removed to the hospital straightaway from the spot.
Sessions Case No. 28/10 Page 44/78 45No sword, farsa or iron pipe had been shown to him by police at any point of time. He has denied that he was not playing on the roof but he was studying in the room and that is why he does not know as to what had happened outside. He has denied that he has deposed in the court as he has been tutored by his family members.
54 In cross-examination by ld. counsel for accused Anar Singh, PW-6 Kunal has deposed that he did not throw stones or bricks from the roof on the accused persons. His father had fallen on the ground after Vimla had reached there. He has denied that his father had not sustained injury before Vimla had reached there. He had stated to police that Vimla and Golu were feeding cattle inside the house [confronted with statement Ex. PW6/A wherein it is not so recorded]. He had stated to police that Ashok, Bable and Sushi were having swords, Dhammal was having farsa and Anar Singh was having iron pipe in his hand [confronted with statement Ex. PW6/DA where it was not so recorded]. He has denied that he was not present at spot or that he has been produced as an eye witness, subsequently, with due deliberations by his family.
55 In cross-examination by ld. counsel for accused Dhrampal, Ashok, Anil, Shailender and Asha, PW-6 Kunal has deposed that he stated to police in his statement about the particular weapon held and used by particular accused in causing the injuries to his father Sessions Case No. 28/10 Page 45/78 46 [confronted with statement Ex. PW6/DA, where it was not so recorded]. He has denied that he had not stated these facts to police because he had not witnessed such incident. He has denied that whatever he has been taught by his elders, he has deposed in the court. He has denied that he had never given any statement to police. He has denied that he made a false statement in the court on 13.03.08 to the effect that all accused persons started beating his father with the arms which they were having with them. He had stated this fact to the police [confronted with statement Ex. PW6/DA, where it is not so recorded but it is recorded that Dharampal, Ashok uncle, Asha Aunty, Raj Kumar, Anil, Shailender, Anar Singh and Anand Singh, gave blows with sword, farsa and iron pipe to his father]. He had not gone through his statement U/S 161 Cr.P.C, though he had signed the same in Hindi. He had neither read his statement nor the same was read over to him by police. In his presence, none of his family members had read his statement. He has denied that he has narrated these facts as he has been tutored by his elders. He had stated in his statement to police the place of injuries on the person of his father and Vimla [confronted with statement Ex. PW6/DA, where the places of injuries have been mentioned as head of his father Ajay and Vimla and no other part of the body is mentioned and so far as head is concerned, it is mentioned that blood was oozing out from the head of his father]. He had seen Sessions Case No. 28/10 Page 46/78 47 who had hit Ajay first. He had also seen how many times each accused had hit his father with respective weapon. He cannot tell the length of iron pipe, sword and farsa. Handle of farsa was of iron. He does not recollect if the farsa was a fodder cutting instrument. He cannot tell the difference between farsa and gandasa. No lathis or dandas were used in the incident. Accused Asha had pushed his mother. He cannot say if "tu-tu main-main" had taken place between his father Ajay and accused Ashok. Hatha-pai had also taken place between his father Ajay and accused Ashok. He has denied that he has been tutored to depose in the court.
56 In cross-examination by ld. counsel for accused Anand Singh, PW-6 Kunal has deposed that he had seen the weapons, held by accused in their hands. He did not ask his father not to come outside because, in the meantime, his father and mother had already come outside. Golu had not come in response to the call at the gate. His Tai Vimla was working with Golu. He[PW-6] did not pelt stones from the roof top. He has denied that on the day of incident, he alongwith his mother had gone to his maternal grandfather's house and he was not present in Rajpura. He has denied that he had not witnessed the incident or that he has been introduced as witness in the case at the instance of his family members. He has denied that he has given a tutored statement in the court.
Sessions Case No. 28/10 Page 47/78 4857 After going through the testimony of PW-6, I am of the considered view that his testimony is trustworthy and reliable as he [PW-6] has identified all the accused persons and has described their individual role. In cross-examination by ld. counsels for accused, nothing has come on record to disbelieve his testimony. He has fully supported the testimonies of PW-1, PW-2 and PW-4 on material points and denied the suggestions put to him by ld. counsels for accused.
58 Further, the testimonies of eye witnesses namely, PW-1 Meenu Rana, PW-2 Saurav alias Golu, PW-4 Vimla Rana and PW-6 Kunal Rana, cannot be disbelieved only because they are the relatives of deceased Ajay Rana.
59 In State V. Ashok Kumar Pandey, 2001 [2] JCC Delhi 1, it has been observed by Hon'ble High Court of Delhi that "relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegation against an innocent person."
60 In Masalti V. State of U.P, AIR 1965 SC 2002, it has been observed by Hon'ble Supreme Court that "again it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The Mechanical rejection of such evidence on Sessions Case No. 28/10 Page 48/78 49 the sole ground that it is partisan would invariably lead to failure of justice."
61 Further, the testimony of PW-1 Meenu Rana cannot be disbelieved only because she did not try to save her husband and no blood came on her clothes.
In Rana Pratap V. State of Haryana, AIR 1983 SC 680, it has been observed by Hon'ble Supreme Court that "Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Other run away to keep themselves as far removed from the spot as possible. Yet other rush to the rescue of the victim, even going to the extent of counter attacking the assailant. Everyone reacts in his own special way. There is no set rule of natural reaction to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and imaginative way."
62 In Appabhai V. State of Gujrat, 1988 SC 696, it has been observed by Hon'ble Supreme Court that "the court must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature, may react Sessions Case No. 28/10 Page 49/78 50 differently. Their conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner." 63 In the present case, PW-1 has categorically deposed that she tried to embrace her husband to save him but accused Asha pushed her aside. Moreover, the fact cannot be ignored that the accused were armed with deadly weapons at the time of incident and on account of fear of injury, she might not have come forward to rescue her husband. But, it does not mean that she was not present on the spot and head not witnessed the incident.
64 Further, PW-1 has deposed in her cross-examination by ld. counsel for accused that she picked up her husband by legs, when he was taken to hospital in a luggage rickshaw and therefore, the blood did not come on her clothes.
65 Further, the testimony of PW-4 Vimla Rana cannot be disbelieved only because her statement has been recorded by I.O at belated stage.
66 In Acharapambath Pradeepan and Anrs. V. State of Kerala 2007 [1] Crimes 54 [SC] while relying upon the judgment in case 'State of U.P. Vs. Satish', JT 2005 [2] SC 153, it has been observed by Hon'ble Supreme Court that "unless the investigating officer is categorically asked as to why there was delay in examination Sessions Case No. 28/10 Page 50/78 51 of the witnesses, the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion." 67 It is worth noting that in her cross-examination by ld. counsel for accused Dharampal, Ashok, Anil, Shailender and Asha, PW-4 Vimla Rana has deposed that she did not meet the police after she came from the hospital. She neither made any statement to police nor went to police station. It is further worth noting that PW-25 SI K.B. Jha, to whom the investigation was handed over by the Commissioner of Police on the complaint of PW-7 Attar Singh, has deposed that on the perusal of file, he came to know that an eye witness of the case namely, Vimla Rana, who had also got injury, had not been examined by the previous I.O. So, he recorded her statement on 27.09.05.
68 It is further worth noting that PW-7 Attar Singh has also mentioned in his complaint Ex. PW7/A that the local police was not serious in recording statement of PW Vimla Rana under the pressure of retired ASI Bhagwan Singh and Ram Narayan. It is worth noting that both these police officers namely, Bhagwan Singh and Ram Narayan also kept on meeting SI K.B. Jha during the investigation.
Sessions Case No. 28/10 Page 51/78 52All these facts strengthen the stand of PW-7 that earlier I.Os were under the influence of retired ASI Bhagwan Singh and Ram Narayan and therefore, statement of Vimla Rana was not recorded timely by the previous I.O. In these facts, I am of the considered view that delay in recording the statement of PW-4 cannot be fatal to the prosecution case.
69 Further, the testimonies of eye witnesses, namely, Meenu Rana [PW-1], Saurav [PW-2], Vimla Rana [PW-4] and Kunal Rana [PW-6] are corroborated with forensic evidence. 70 PW-29 Naresh Kumar has deposed that on 28.10.05 he received 15 sealed parcels in the office of FSL. He examined all the parcels and prepared biological reports Ex. PW29/A1 and Ex. PW29/A2. He prepared the serological report Ex. PW29/B. 71 An opportunity to cross-examine the witness has been given to ld. counsels for accused, but they did not avail of that opportunity.
72 Now, a perusal of biological report Ex. PW29/A1 shows that blood has been detected on the clothes of accused Ashok Khatri and Raj Kumar. Further, a perusal of serological report Ex. PW29/B shows that human blood of 'O' Group has been detected on the clothes of accused Ashok Khatri and Raj Kumar. It is worth noting that the blood group of deceased is also of 'O' Group and the same Sessions Case No. 28/10 Page 52/78 53 group has been detected on the clothes of accused Ashok Khatri and Raj Kumar, who have been arrested immediately after the commission of offence from Bara Hindu Rao Hospital in the early morning of 04.09.05. It is significant to note that accused have not furnished any explanation, as to how the blood of deceased came on their clothes. Thus, the forensic evidence also goes against the accused persons and corroborates the testimonies of eye witnesses.
73 Further, the weapons of offence namely, swords, iron pipe and farsa have been recovered at the instance of accused persons. 74 PW-19 SI Anuj Nautiyal has deposed that on 05.09.05 he joined the investigation with I.O. Accused Ashok Khatri led them to his H.No. 178/2, Rajpura, Gur Mandi. He produced one talwar which was behind the door of ground floor. The talwar was taken into possession vide memo Ex. PW10/D. He has deposed that sword Ex. P-5 is the same sword, which was seized in the case. 75 In cross-examination by ld. counsel for accused Anil, Ashok, Asha, Dharampal and Shailender, PW-19 has denied that no recovery was effected as stated by him or that the same was planted falsely by procuring the same at the instance of complainant. 76 The testimony of PW-19 is further corroborated with the testimony of PW-10 ASI Aashiq Ali Khan, who has also identified the sword Ex. P-5, which was produced by accused Ashok on 05.09.05, when he was taken on police remand for recovery of weapon of Sessions Case No. 28/10 Page 53/78 54 offence.
77 Further, PW-21 HC Yashpal has deposed that on 17.10.05 he alongwith SI K.B. Jha went to 177, Rajpura near Shakti Nagar. The house was found locked. I.O came to know that some relative of accused Anand Singh is residing at Sector-11, Rohini. Thereafter, they went to D-4, Sector-11, Rohini, where Anar Singh and Anil Kumar met them. They took both of them to their office at Prashant Vihar. Accused Anil made his disclosure statement Ex. PW21/A. He was arrested arrest memo Ex. PW21/B and his personal search was conducted vide memo Ex. PW21/C. On the next day, police remand of accused Anar Singh and Anil Kumar was taken. They took accused persons near nala under the bridge at Roop Nagar, from where one sword was recovered at the instance of accused Anil and one iron pipe was recovered at the instance of accused Anar Singh. Sword was seized vide seizure memo Ex. PW21/D and iron pipe was seized vide seizure memo Ex. PW21/E. 78 He [PW-21] has further deposed that on 28.10.05, he again joined the investigation with I.O SI K.B. Jha. They took accused Shailender and Anand Singh near Ring Road Haider Pur bushes, from where one sword was recovered at the instance of accused Shailender and one pharsa was recovered at the instance of accused Anand Singh. Seizure memos of sword and pharsa are Ex.
Sessions Case No. 28/10 Page 54/78 55PW21/E1 and Ex. PW21/E2.
79 In cross-examination by ld. counsel for accused Ashok Kumar, Anil Kumar, Shailender and Asha, PW-21 has denied that recovery of weapons has been planted upon accused persons after procuring the same from market at the instance of complainant and her relatives to falsely implicate the accused in the present case. 80 In cross-examination by ld. counsel for accused Anand Singh, PW-21 has also denied that recovery of pharsa has been planted upon accused Anand Singh.
81 In cross-examination by ld. counsel for accused Anar Singh, PW-21 has deposed that the rod was recovered about 6-7 meters away from the base of the bridge. The location of the rod was about 1 to 1.5 feet from the high wall along the nala. There was a gap of 4 to 5 meters between the rod and the sword. The place from where the sword was recovered was wet and there were bushes. He has denied that no recovery of weapon of offence was effected from Anar Singh and the rod has been planted upon him.
82 An opportunity to cross-examine PW-21 has been given to accused Raj Kumar but he did not avail of that opportunity. 83 The testimony of PW-21 HC Yashpal is further corroborated with testimony of PW-25 SI K.B. Jha who has deposed on the same lines as that of PW-21, so far as the recovery of weapons Sessions Case No. 28/10 Page 55/78 56 of offence from accused Anar Singh, Anil, Shailender and Anand Singh are concerned and same is not reproduced her to avoid repetition.
84 The testimony of recovery witnesses cannot be disbelieved only because the public persons were not joined by the I.O at the time of recovery of weapons of offence.
85 It is worth noting that it is the tendency of public not to come forward and join proceedings in a criminal case and public persons are generally reluctant to be a witness in the criminal case. 86 In Appabhai and Anr. V. State of Gujrat, AIR 1988 SC 696, it has been observed by Hon'ble Supreme Court that "experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, town or cities. One cannot ignore this handicapped with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum of the prosecution and Sessions Case No. 28/10 Page 56/78 57 search for the nugget of truth with due regard to the probability, if any suggested by the accused."
87 It is worth noting that weapons of offence Ex. P1 to Ex. P4 have been recovered from the bushes. Therefore, it cannot be said that recovery was effected from an open place, which was accessible to all. 88 Moreover, all eye and recovery witnesses have identified weapons of offence and there is nothing on record to show that the injury on the person of deceased Ajay Rana and PW-4 Vimla Rana were not caused by these weapons.
89 Further, the testimonies of recovery witnesses cannot be disbelieved only because that no blood was detected on the swords. In the present case, sword Ex. P-5, recovered at the instance of accused Ashok Khatri, was looking like 'washed' as per the statement of PW- 24 Inspector Hira Lal. Therefore, there cannot be any question of blood thereupon. The other weapons of offence i.e. Ex. P-1 to Ex. P-4 have been recovered at the instance of other accused persons after a long gap. In these circumstances, it is not possible to believe that blood would remain intact on those weapons for such a long time. 90 Further, benefit of doubt cannot be extended to accused on the ground that iron pipe Ex. P-4 was lying at the spot and was planted upon the accused Anar Singh.
91 In the present case, PW-9 Constable Sushil Kumar has Sessions Case No. 28/10 Page 57/78 58 taken five photographs of the spot, Ex. PW9/A1 to Ex. PW9/A5 on 03.09.05 at the instance of I.O. It is worth noting that no question has been put by ld. counsels for accused to PW-9 as to whether the iron pipe Ex. P-4, shown in photo Ex. PW9/A5 was lying at the spot or not. Moreover, PW-25 SI K.B. Jha has denied that iron pipe is visible in the photograph Ex. PW9/A-5.
92 In the present case, ld. counsels for accused have heavily relied upon the MLC Ex. PW23/A. They have submitted that accused have been falsely implicated in this case as deceased was already having bandage and was on ventilator when he was taken to Sanjivani Mann Hospital, Roop Nagar by his brother Attar Singh and ASI Ashiq Ali Khan.
93 It is worth noting that in the present case, PW-23 Dr. Ashish Srivastava has deposed that MLC Ex. PW23/A was prepared by Dr. Ashish Gupta. In cross-examination by ld. counsel for accused Anand Singh, PW-23 has deposed that he does not know Dr. Ashish Gupta. He has never seen Dr. Ashish Gupta writing and signing. He cannot identify the writing and signature on the MLC. He has admitted that whenever a doctor leaves the service of hospital, his whereabouts and permanent address are noted down in the hospital records. He has further deposed that as per MLC Ex. PW23/A, when the patient was brought to hospital, he was already having bandage on Sessions Case No. 28/10 Page 58/78 59 his head and was incubated on ventilator. Apparently, the patient was treated at some other medical center prior to bringing to Sanjeevan Mann Hospital. He has further deposed that they did not have ventilator in Sanjeevani Mann Hospital. He cannot give any reason as to why the patient, who was on ventilator, was shifted to a hospital where there was no ventilator.
94 It is worth noting that on one hand, ld. counsels for accused have heavily relied upon the MLC Ex. PW23/A. On the other hand, they have raised objection on the exhibition of this document. It is worth noting that Dr. Ashish Gupta, who has allegedly prepared the MLC Ex. PW23/A, has not been cited as witness in the list of witnesses by the I.O for the reasons best known to him. 95 It is worth noting that PW-19 SI Anuj Nautiyal has deposed in his cross-examination by ld. counsel for accused Anil, Ashok, Asha and Shailender that Inspector Hira Lal had obtained the treatment papers of deceased Ajay Rana and injured Vimla Rana but he has not seen those papers in the file. It is worth noting that PW-19 has nowhere stated that MLC Ex. PW23/A is the same MLC, which was obtained by Inspector Hira Lal from Sanjeevan Mann Hospital. 96 Further, PW-10 ASI Ashiq Ali Khan has deposed in his cross-examination by ld. counsel for accused Anand Singh that he accompanied Addl. SHO Hira Lal to Mann Hospital, who collected the Sessions Case No. 28/10 Page 59/78 60 MLC of injured. He does not now if any addition or subtraction was made in the MLC after the same was shown to Addl. SHO. He has denied that he had taken injured to the hospital and Attar Singh, brother of injured had accompanied him. He has denied that injured was removed to Mann hospital to get him treated clandestinely. 97 Since PW-3 Dr. Ashish Srivastava did not know Dr. Ashish Gupta and was not able to identify the signature and handwriting of Dr. Ashish Gupta, who had prepared the MLC Ex. PW23/A and PW- 10 ASI Ashiq Ali Khan has denied that he took the injured to Sanjeevan Mann Hospital alongwith Attar Singh and does not know whether any alteration was made by Addl. SHO, I am of the considered view that the possibility that I.O ACP Hira Lal [PW-24] might have manipulated this MLC, cannot be ruled out. Therefore, I am of the considered view that MLC Ex. PW23/A is not duly proved by the prosecution and thus, cannot be taken into consideration. 98 Further, the testimony of eye witnesses who are trustworthy and reliable, cannot be disbelieved only because that I.O did not make efforts to enquire as to how the accused Ashok Khatri and Raj Kumar suffered injury on their body.
99 In the present case, PW-24 ACP Hira Lal has deposed in cross-examination by ld. counsel for accused Raj Kumar that he did not record the statement of any witness and also not investigated as to Sessions Case No. 28/10 Page 60/78 61 how the accused Ashok and Raj Kumar sustained injury. He did not register any case in respect of injury sustained by accused as he did not receive any complaint in that regard.
100 It is significant to note that it is the case of accused Ashok Khatri and Raj Kumar in their statements recorded U/S 313 Cr.PC that they received injuries at the hands of deceased Ajay Rana and his associates as Ajay Rana picked up a quarrel with accused Ashok without any reason. Accused Raj Kumar has also stated that on the day of incident, he was about to go to sleep after taking dinner. He heard the noise of quarrel outside. He saw that Ajay Rana and his associates were fighting with other persons. When he tried to intervene, he was beaten by Ajay Rana and his associates with danda and he received injuries on his forehead. He fell down and became unconscious and was removed to hospital.
101 It is further worth noting that accused Ashok and Raj Kumar remained silent and did not state as to how deceased Ajay Rana received injuries. It is further worth noting that both the accused have not taken the plea of self defence. Thus, the plea taken by accused does not help them in any way. Rather, it strengthens the prosecution story that both these accused were present at the time of incident. 102 In Sikander Singh and Ors. V. State of Bihar V[2010] SLT 472 SC, it has been observed that "it cannot be held as an Sessions Case No. 28/10 Page 61/78 62 unqualified proposition of law that whenever the accused sustains an injury in the same occurrence, the prosecution is obliged to explain the injury and on failure of the prosecution to do so, the prosecution case has to be disbelieved. Hence, it was not obligatory on the part of prosecution to explain how the accused sustained injury and when. The obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by accused in the same occurrence.
103 In Hare Krishan Singh and Ors. V. State of Bihar, AIR 1988 SC 863, it has been observed that "if the witnesses examined on behalf of the prosecution are believed by court in proof of guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of accused.".
104 Thus, the non-explanation on the part of prosecution about the injury on the person of accused Ashok Khatri and Raj Kumar are Sessions Case No. 28/10 Page 62/78 63 not fatal to the prosecution case.
105 Further, in the present case, there is no delay in lodging the FIR and the FIR was not ante-timed.
106 In State V. Ashok Kumar Pandey, 2001 [2] JCC, [Delhi] 1, while relying upon the judgment in case Raghbir Singh V. State of Haryana, 2000 AIR SCW 1812, it has been held that " if a witness rushes to hospital to save the victim's life instead of going to police station, it is satisfactory explanation for delay in filing FIR." 107 In the present case, deceased Ajay Rana was taken to Mann Hospital, Roop Nagar from where he was taken to Trauma Center as ventilator facility was not available at Mann Hospital. Thereafter, he was taken to Sanjeevan Mann Hospital, Darya Ganj where he was declared dead. Police arrived in the hospital and recorded statement of PW-1 Meenu Rana and got the FIR registered. In these circumstances, it cannot be said that the FIR was ante-timed or there was delay in lodging the FIR.
108 In Abid V. State of U.P, 2009 [4] RCR [Criminal] 985, there was a reference of case Anna Reddy S. Reddy and Ors. V. State of A.P., JT 2006[5] SC 617, it has been observed that "how could it be possible for any person to recount with meticulous exactitude the various individual acts done by each assailants? Had they stated so, their testimony would have criticized as highly Sessions Case No. 28/10 Page 63/78 64 improbable and unnatural. The testimony of eye witnesses carries with it the criticism of being tutored if they give graphic details of the incident and their evidence would be assailed as unspecific, vague and general if they fail to speak with precision. The golden principle is not to weight such testimony in golden scales but to view it from the cogent standards that land assurance about its truthfulness." 109 In Appabhai and Ors V. State of Gujrat, AIR 1988 SC 696, it has been observed that " a witness though, wholly truthful is liable to be overawed by the court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the sput of moment. Discrepancies which do not go to the root of the matter and shake the basic version of the witness, therefore, cannot be annexed with undue importance. More so, when the all important "probabilities factor" echoes in favour of the version narrated by the witness."
110 Further, accused cannot be extended benefit of doubt on the Sessions Case No. 28/10 Page 64/78 65 ground that there is ambiguity in the prosecution case regarding the place of occurrence. Ld. counsels for accused have submitted that as per DD No. 44B dated 03.09.05 Ex. PW10/DA, the quarrel took place at 178, Rajpura, Gur Mandi and not at 195, Rajpura, Gur Mandi. 111 In the present case, PW-3 Constable Shahji John has deposed that on 03.09.05 on receipt of DD Nos. 44B and 45B, he went to 195, Rajpura, Gurmandi alongwith ASI Ashiq Khan. Blood was lying on the gate of the house No. 195 Rajpura, Gurmandi. Constable Ramesh and Inspector Hira Lal also came there. From the place of occurrence, it was revealed that injured Ajay Rana had been taken to Mann Hospital, Roop Nagar. Constable Ramesh was deputed at the spot for guarding the same.
112 In cross-examination by ld. counsel for accused Anand Singh, PW-3 has deposed that they [PW-3 and ASI Ashiq Ali Khan] visited 195, Rajpura, Gurmandi. They also went to the place which was mentioned in DD No. 44B as the call was received regarding quarrel at 178, Rajpura, Gurmandi. However, in cross-examination by ld. counsel for accused Ashok, Anil, Asha and Shailender, PW-3 has deposed that they did not go to H.No. 178, Rajpura, Gurmandi. He has denied that he is deliberately suppressing the fact that place of occurrence was H.No. 178 and blood was lying there. In cross- examination by ld. counsel for accused Raj Kumar, PW-3 has denied Sessions Case No. 28/10 Page 65/78 66 that they had received call regarding incident at H.No. 178 and therefore, they had gone there and not at H.No. 195, Rajpura. 113 Further, PW-10 ASI Ashiq Ali Khan has deposed that on 03.09.05 he received DD No. 44B and 45B at about 9:19 PM and 9:20 PM respectively. He alongwith Constable Shahji reached H.No. 195, Rajpura, Gurmandi. Blood was lying at the spot. Injured were not present at the spot and were removed to hospital. In cross-examination by ld. counsel for accused Anand Singh, PW-10 has denied that he had gone to H.No. 178 and from there he had tampered all the evidences in collusion with complainant party.
114 Further, the testimonies of PW-3 Constable Shahji and PW- 10 ASI Ashiq Ali Khan are corroborated with testimonies of PW-11 Constable Raj Kumar. He has deposed that on 03.09.05 on receipt of DD No. 44B and 45B by Inspector Hira Lal, he alongwith Inspector Hira Lal and SI Anuj Nautiyal reached 195, Rajpura, Gurmandi, where ASI Ashiq Ali Khan and Constable Shahji met them. Inspector Hira Lal left him for the protection of spot and left for the hospital. In cross-examination by ld. counsel for accused Anand Singh, PW-11 has deposed that he did not go through the contents of DD No. 44B and 45B.
115 Moreover, PW-19 SI Anuj Nautiyal and PW-24 ACP Hira Lal have also deposed that they reached the spot i.e. 195, Gurmandi.
Sessions Case No. 28/10 Page 66/78 67116 In cross-examination by ld. counsel for accused Anand Singh, PW-19 has deposed that Inspector Hira Lal had disclosed him the address where they were supposed to go. He was informed that they have to reach at 195, Rajpura, Gurmandi.
117 In cross-examination by ld. counsel for accused Anand Singh, PW-24 has denied that place of occurrence was not mentioned in DD No. 45B. He never visited 177-178, Rajpura, Gurmandi. He has denied that place of occurrence was manipulated subsequently or that they ignored the initial DD NO. 44B, showing the place of occurrence as 177-178, Rajpura.
118 Since, all the material witnesses have deposed that they went to H.No. 195, Rajpura, Gurmandi and denied the suggestions put to them by ld. counsels for accused regarding the place of occurrence, I am of the considered view that there is no ambiguity in the prosecution case regarding place of occurrence, particularly, when the eye witnesses of the case have categorically deposed that the incident took place in front of their house i.e. H.No. 195, Rajpura, Gurmandi. 119 So far as, the question of infirmities, in the prosecution case, regarding not sending weapon of offence for opinion to doctor, who conducted the postmortem on the body of deceased; not sending the MLC of accused Ashok and Raj Kumar to the doctor for opinion; not taking clothes of injured Vimla into possession; and not citing Sessions Case No. 28/10 Page 67/78 68 Bhavna as PW are concerned, I am of the considered view that mishandling of the investigation by the I.O cannot stand on the way of prosecution case, if the evidence produced by the prosecution is trustworthy and reliable.
120 In CBI V. Santosh Kumar Singh, 2007[1] Crimes I, Delhi HC [DB], it has been observed that "Court should not be influenced by the suspicious role made by the Investigating Officer during investigation and criminal justice should not be made a casualty for wrongs committing by I.O."
121 In State V. Ashok Kumar Pandey, 2001 [2] JCC Delhi [1], it has been observed that " mishandling of investigation in any extent does not stand on the way of conviction if evidence adduced tested on the touch stone of credibility is sufficient to prove the accusation".
122 In the present case, PW-25 SI K.B. Jha has deposed that he had produced one sealed pulanda containing sword before Dr. Anil Shandil, who had conducted postmortem on the dead body of deceased Ajay Rana. ACP Ram Kishan had also reached the hospital and requested the doctor to opine if the injury caused on the body of deceased was possible with that weapon. However, the doctor did not consider their request and directed them to deposit the same with FSL in order to see if the blood was present on that sword. But, PW-18 Dr. Sessions Case No. 28/10 Page 68/78 69 Anil Shandil has deposed that the weapon of offence Ex. P-5 was never sent to him. I am of the considered view that said ambiguity in the prosecution case will not affect the prosecution case as PW-18 has opined that head injury was caused by heavy sharp edged weapon. It is further worth noting that all the eye witnesses have deposed that the accused were carrying the swords, farsa and iron rod and they used the same while inflicting injuries to deceased and PW-4 Vimla Rana. 123 Further, in cross-examination by ld. counsel for accused Raj Kumar, PW-25 SI K.B. Jha has deposed that MLCs of accused Ashok and Raj Kumar were sent to Hindu Rao Hospital for opinion regarding nature of injuries but it was reported by the hospital that accused were absconding from hospital. Thus, in these circumstances, the said infirmity is also not fatal to the prosecution case. 124 In the present case, PW-4 Vimla Rana has categorically deposed in cross-examination by ld. counsel for accused Anand Singh that Bhavna was not present in the house at the time of incident. Since Bhavna was not a material witness for prosecution, I am of the considered view that her non-examination will not materially affect the prosecution case. It is worth noting that it is the quality of evidence and not the quantity which has to be taken into consideration by the court.
125 Further, accused cannot be extended to the benefit of doubt only on the ground that deceased was involved in criminal activities Sessions Case No. 28/10 Page 69/78 70 and he was called with the name "Katli" and used to extort money from flower vendors.
126 In Virender Kumar alias Gara V. State of NCT of Delhi, 2001 [2] JCC [Delhi] 33, it has been observed that "it must be understood that the constitution of India gives equal right to all the citizens of this country. Nobody has a right to take the law in his own hands and kill another person because that person is of bad character or has been facing criminal trial."
127 In the present case, accused have not placed any documentary evidence to show that deceased was involved in criminal case. They have unnecessarily levelled wild allegations against the deceased without any proof. However, even if it is presumed that deceased was a criminal, I am of the considered view that accused cannot be permitted to assault the deceased by taking law in their hands.
128 In Keshab Chaudhary V. State of Assam, 1987 Cr. L. J 1742 and Abdul Hai V. State of Assam, 2007 [2] Crimes 289 , it has been held that " plea of Alibi can be accepted only when it is shown that it was impossible for accused to be present at the place where the offence was committed."
129 Further, accused Anand Singh has taken the plea of alibi to Sessions Case No. 28/10 Page 70/78 71 show that he was no present at the spot as he had gone to Gurgaon to see his daughter. However, I am of the considered view that plea of alibi taken by accused Anand Singh is of no avail to him because the said defence has not been proved beyond the shadow of reasonable doubt.
130 In the present case, accused Anand Singh has examined his daughter Chitra Kataria [DW-4] to prove the plea of Alibi. But, I am of the considered view that testimony of DW-4 is of no avail to accused Anand Singh as DW-4 did not make any complaint to the higher officer of police or to any other authority to the fact that her father has been falsely implicated in the case of murder. She did not take help of her husband and in-laws in that regard. Moreover, PW-25 SI K.B. Jha has denied that accused Anand Singh had told him that he was not present in Village Rajpura on the day of incident and had gone to visit his daughter, who was pregnant, in Gurgaon. Moreover, Gurgaon is not so far from Delhi to make it impossible to reach to Delhi from Gurgaon. It is further worth noting that not only the name of accused Anand Singh is mentioned in the FIR but the eye witnesses have attributed specific role of this accused in their deposition in the court.
131 Further, the prosecution case cannot be disbelieved on the ground that some blood was lying inside the house, besides the place Sessions Case No. 28/10 Page 71/78 72 of occurrence.
132 It is worth noting that in the present case, deceased Ajay Rana and PW Vimla Rana had been assaulted by a number of persons with swords. I am of the considered view that when a person is assaulted by a number of persons with different number of weapons, the blood will certainly fall at different places, near the place of occurrence. In these circumstances, the possibility that the blood had fallen inside the gate of house, which is near the place of incident cannot be ruled out.
133 After going through the testimonies of the eye witnesses PW-1 Meenu Rana, PW-2 Saurav, PW-4 Vimla Rana and PW-6 Kunal Rana, I am of the considered view that prosecution has successfully proved on record that there was an intention on the part of accused to inflict bodily injuries on the person of Ajay Rana and the bodily injuries inflicted on the person of deceased, were not accidental or unintentional. Thus, the third ingredients as discussed in Virsa Singh's case referred above is also existing in the present case.
134 Now, the Fourth ingredient i.e. whether the injury was sufficient in the ordinary course of nature to cause death is also found present in this case as PW-18 Dr. Anil Shandil has opined in the postmortem report Ex. PW15/A that injury No. 2 was sufficient to Sessions Case No. 28/10 Page 72/78 73 cause death in ordinary course of nature. He has further opined that all the injuries were ante-mortem in nature and death of deceased occurred due to shock resulting from craniocerebral damage which may be consequent upon the head injury caused by heavy sharp edged weapon. There is nothing in his cross-examination to the contrary. 135 Thus, all the four ingredients as discussed in Virsa Singh's case referred above, are existing in the present case. 136 In view of above discussion, I am of the considered view that prosecution has successfully proved beyond reasonable doubt that all the accused committed murder of deceased Ajay Rana and attempted to commit murder of PW-4 Vimla Rana and in that attempt caused injury to her.
137 Now, the question that arises for consideration is whether accused committed the offence of 'rioting' and cause the murder of deceased Ajay Rana and caused injury to PW Vimla Rana in prosecution of common object of the unlawful assembly which was armed with deadly weapon.
138 The term 'rioting' has been defined U/ S146 IPC, which is reproduced here for ready reference:
"Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly Sessions Case No. 28/10 Page 73/78 74 is guilty of the offence of rioting."
139 The term 'unlawful assembly' has been defined in Section 141 of Indian Penal Code, which interalia is reproduced here for ready reference:-
"An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is--
First.--To overawe by criminal force, or show of criminal force, the Central or any State government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.--To resist the execution of any law or of any legal process Thirdly.- to commit any mischief or criminal trespass, or other offence; or Fourthly.-- .................
Fifthly.-- ....................
140. Section 149 IPC is reproduced here for ready reference:
"If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who at the time Sessions Case No. 28/10 Page 74/78 75 of committing of that offence, is a member of the same assembly is guilty of that offence."
141 In Sikander Singh V. State of Bihar V [2010] SLT 472 SC, it has been held that " 'Common Object' does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of unlawful assembly has the same object and their number is five or more and that they act as an assembly to achieve the object. The common object of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of unlawful assembly the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant consideration. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of the fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful."
Sessions Case No. 28/10 Page 75/78 76142 In Masalti V. State of U.P [1964] 8 SCR 133, it has been observed that " Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of unlawful assembly. [See also : Mutur Ram and Anr. V. State of Chhatisgarh, 2010 [2] Crimes 609 [Chhatt.]; Sikander Singh and Ors. V. State of Bihar, 2010 [3] Crimes 139 [SC] and Kishan Chand and Ors. V. State of U.P, 2007 [4] Crimes 224 [SC]. 143 In Bishana alias Bhiswadeb Mahato and Ors. V. State of West Bengal [2005] 12 SCC 6557, it has been observed that " for the purpose of attracting Section 149 or 34 IPC, a specific overt act on the part of the accused is not necessary. HE may wait and watch. Inaction on the part of an accused may sometime go a long way to hold that he shared a common object with others."
144 In Dani Singh and others V. State of Bihar, AIR 2004 SC Sessions Case No. 28/10 Page 76/78 77 4570, it has been held that "the plea that some of the accused persons did not commit any overt act would really of no consequence. They were not mere sightseers as claimed. There is nothing to show that they had dissuaded the persons from committing the criminal act or withdrew at any point of time during the course of incident constituting by itself or as a step in furtherance of the ultimate offence".
145 In the present case, from the testimonies of eye witnesses namely, PW-1 Meenu Rana, PW-2 Saurav, PW-4 Vimla Rana and PW-6 Kunal Rana, discussed in the earlier part of judgment, it is proved on record that all the accused came together to the house of deceased. They were armed with deadly weapons i.e. swords, farsa and iron pipe. All the accused took active part in the commission of offence of murder of Ajay Rana and caused injury to Vimla Rana, when she tried to save Ajay Rana. All the material witnesses have also deposed specific role of each accused. It is worth noting that there is nothing on record to show that accused were merely the sightseers or that they dissuaded any of the accused from committing crime or withdrew himself or themselves at any point of time during the occurrence of incident. The assembly of accused was certainly unlawful. It cannot be believed that an assembly of 8 persons, who are armed with deadly weapons, will surround the unarmed deceased, Sessions Case No. 28/10 Page 77/78 78 without any criminal object.
146 From the above discussion, I am of the considered view that prosecution has proved its case beyond reasonable doubt that accused have committed rioting and they were the members of unlawful assembly, who was armed with deadly weapons, the common object of which was to commit murder of deceased Ajay Rana and to make an attempt to cause the murder of PW Vimla Rana. Accordingly, all accused are convicted in respect of the offences U/S 147 and 148 IPC. They are further convicted in respect of offences U/S 302 r/w Section 149 IPC and U/S 307 r/w Section 149 IPC.
147 All accused are on bail in this case. They are taken into custody.
Announced in the open court today
on 16.02.2012 (Smt. Bimla Kumari)
Additional Sessions Judge-II(North)
Tis Hazari Courts, Delhi.
Sessions Case No. 28/10 Page 78/78