Delhi District Court
State vs . (1) Ramveer S/O Data Ram on 1 October, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
Session Case No. 05/12
State vs. (1) Ramveer s/o Data Ram
R/o G-1203, Sangam Vihar
New Delhi.
(2) Kamla w/o Shyam Beer
R/o G-705, Sangam Vihar
New Delhi.
(3) Jamiluddin @ Chunna
s/o Azahruddin
R/o _ 1950/23, Sangam Vihar
New Delhi.
(4) Luv Kush s/o Ram Kishan
R/o F 3/530, Sangam Vihar
New Delhi.
(5) Ashok s/o Purva Singh
R/o Vill. Shyamo PS Taj Ganj
Distt Agra (U.P.)
(6) Rajkumar s/o Purva Singh
R/o Vill. Shyamo PS Taj Ganj
Distt Agra (U.P.)
(7) Dr. Shiv Kumar Sharma(Discharged)
s/o Kishan Swaroop
R/o C-68, Jawahar Park
New Delhi
FIR No. 26/2006
Under Section 147/148/149/452/307/302 IPC
Police Station Sangam Vihar
S/vs Ramveer Page No. 1
FIR No. 26/06
PS Sangam Vihar
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Date of institution of the case : 02.05.2006
Date of reserving judgment : 01.08.2012
Date of judgment : 28.08.2012
JUDGMENT :
1. A charge sheet under Sections 302/307/147/148/149/457 IPC was filed by the prosecution against the aforementioned accused persons. (One Dr. Shiv Kumar Sharma was shown in column no.2) on the allegations of having committed murder of one Bhagwati and of having made attempt to murder one Satish.
2. The facts in brief are that on 13.01.2006 all the accused persons who were armed lathis, pipes, katta and knives forcibly entered into the house no. 3/478, Gali No.4, Sangam Vihar and in furtherance of common object, and started beating the complainant Satish and also caused injury with knife. On hearing his cries, his brother Bhagwati and sister-in-law Kusum who were present on the roof, rushed down. Accused Rajkumar caught hold of his brother Bhagwati while accused Ashok stabbed him with a knife. Accused Chunna injured the complainant with his knife while accused Ramveer gave him beatings with rods. Bhagwati and Kusum wanted to rescue him but Ramveer threatened her by keeping his katta on her temple and threatened that he would shoot her if she shouted. However, Kusum was able to raise an alarm on which all the accused persons ran away. The police was called by Kusum as well as Satish and other neighbours. Both S/vs Ramveer Page No. 2 FIR No. 26/06 PS Sangam Vihar -3- Satish and Bhagwati were removed to the hospital, where Bhagwati was declared dead. On the statement of Satish, the FIR was registered. The investigation was taken over by Insp Jai Singh who during the investigation collected the earth control and blood stains from the floor on the wall plaster. A gunny bag with blood stains was also recovered from the roof of the house. The statements of the witnesses were recorded. During the investigation, the postmortem of the deceased was got conducted and his body was handed over to his relatives on identification. Accused Ramveer was arrested and he led the police to Sec. 93, Noida, A.T.S. Company which was under
construction and got recovered his clothes from one room which he disclosed he was wearing at the time of commission of offence which was seized by the investigating officer. Accused Ramveer also got recovered a iron pipe from his house G-1203, Sangam Vihar which he had used on the day of the incident.
2. Accused Kamla was also arrested. Accused Jamiludddin was arrested from his house on 19.01.2006 and pursuant to his disclosure statement he got recovered his clothes from his house which he was wearing at the time of commission of the offence. He also got recovered knife which was used for the commission of the offence from his house, which was also seized by the police. Thereafter, accused Luv Kush was arrested from his house and he also got recovered clothes which he was wearing at the time of commission of S/vs Ramveer Page No. 3 FIR No. 26/06 PS Sangam Vihar -4- offence from his house. He also got recovered one danda from the lane behind his house which he disclosed had been used by him at the time of the incident. The said danda was seized by the police.
3. Accused Ashok was arrested on 01.02.2006 and got recovered the knife which he used at the time of commission of the offence from the bushes on a jungle behind MCD, Primary School, G Block, Sangam Vihar which was seized by the police. Accused Ashok also got recovered clothes which he was wearing at the time of commission of the offence from his house. Accused Rajkumar was arrested from C-882, Sangam Vihar in the night of 02-03/02/2006.
4. During the investigation, the investigation officer obtained the subsequent opinion from the Doctor in regard to the injuries having been caused by the recovered weapons . He got the scaled site plan and collected reports from the F.S.L. Sufficient evidence could not be collected against accused Dr. Shiv Kumar Sharma who was the Pradhan of the Colony. It was found that a few days back a dispute had arisen between both the parties in regard to vacating of the house by the complainant's family of which the accused Kamla was the owner. Dr. Shiv Kumar Sharma had participated in those proceedings but had not come to the scene of the crime on the day of incident and thus, his name was put in column no.2.The charge sheet under Sections 147/148/149/452/307/302 IPC was filed against the accused persons and was committed to S/vs Ramveer Page No. 4 FIR No. 26/06 PS Sangam Vihar -5- the Court of Sessions on 02.05.2006.
5. Charges under Sections 147/148/149/452/307/302 and 506 IPC was framed on 10.08.2006 against all the six accused persons to which they pleaded not guilty.
6. Prosecution in support of its has examined twenty nine(29) witnesses in all.
7. PW3 Satish Chand is the complainant who had deposed that there was a dispute between his family members and that of accused Kusum in regard to vacating of house of which Kamla is the owner and which the complainant's family was residing as a tenant. On account of this enmity on 13.01.2006 all the accused persons along with Dr. Shiv Kumar Sharma had entered their house armed with pipe, knives, katta and injured him while they had given a stab injury to his brother Bhagwati and threatened his sister-in-law Kusum. On his complaint Ex PW3/A, FIR was registered.
8. PW4 Smt Kusum who is an eye witness and has deposed of similar lines as PW3.
9. PW5 Mohar Singh is the father of the deceased who had reached the scene of the incident subsequently and had called the police on number 100.
10. PW7 Yameen was the neighbour who on hearing noises from the neighbourhood had gone out and found complainant in injured condition and was shouting " Jhagra Ho Gaya Jhagra Ho Gaya". He had called the police from his mobile phone.S/vs Ramveer Page No. 5 FIR No. 26/06
PS Sangam Vihar -6-
11. PW6 Assistant Sub Inspector Om Parkash was the duty officer who registered FIR No. 26/06 Ex PW6/A on the rukka sent by the investigating officer through PW13 Constable Fateh Singh.
12. PW 10 Inspector Vinod who was the Incharge Crime Team who had reached the scene of the incident along with photographer and had inspected the scene and prepared his report Ex. PW10/A.
13. PW 11 Assistant Sub Inspector Dharam Pal had reached the scene of the crime on receipt of call from PCR and had found Satish and Bhagwati lying injured. He took the two injured in his PCR where Bhagwati was declared brought dead.
14. PW 13 Constable Fateh Singh had accompanied PW 15 Assistant Sub Inspector Shiv Ram on receipt of information vide DD No. 15A, Ex PW6/B1, to the scene of the crime where they found that injured had already been taken to A.I.I.M.S Hospital. Constable Fateh Singh was left at the scene of the crime while Assistant Sub Insp Shiv Ram went to A.I.I.M.S. where he found that Bhgawati had been declared dead while Satish was fit for statement. He recorded his statement Ex. PW3/A and came back to the spot. Further investigation were taken over by the SHO.
15. PW 14 Constable Dharampal was handed over sealed parcel sealed with the seal of FMT, AIIMS by Constable Fateh Singh which he handed over to the investigating officer S/vs Ramveer Page No. 6 FIR No. 26/06 PS Sangam Vihar -7- which was seized vide memo Ex PW13/B.
16. PW 16 W/Constable Kusum Lata had joined Inspector Jai Singh in the arrest of accused Kamla on 18.01.2006 vide arrest memo Ex PW16/A and her personal search was taken vide memo Ex PW16/B. Her disclosure statement was recorded vide Ex PW16/C.
17. PW 17 Head Constable Suresh Chand had joined the investigating officer Insp Jai Singh on 14.01.2006 in the arrest of accused Ramveer vide arrest memo Ex PW17/A and his personal search was conducted vide memo Ex PW17/B . His disclosure statement Ex PW17/C was recorded. He pointed out the scene of the crime vide memo Ex PW17/D.
18. PW 18 Head Constable Rajesh had deposed that PCR record dated 07.10.2009 had been destroyed.
19. PW 19 Constable Chetan Swaroop had joined the investigating officer/Insp Jai Singh on 02.02.2006, in the arrest of accused Ashok who got recovered from the house of his sister his half sleves sweater of blue and slatey colour, one jean pant of blue colour and one blue colour shirt which were washed and as per accused he was wearing those clothes at the time of commission of offence. The said clothes were seized vide memo Ex PW19/A. Thereafter, the accused Ashok led the police to the house of accused Rajkumar who was arrested vide memo Ex PW19/B and his personal search was conducted vide memo Ex PW19/C. His disclosure statement was recorded as Ex PW19/D. The accused Rajkumar got S/vs Ramveer Page No. 7 FIR No. 26/06 PS Sangam Vihar -8- recovered his clothes which was seized vide memo Ex PW19/E. He pointed out the scene of the crime vide memo Ex PW19/F.
20. PW 21 Constable Ashok Kumar had initially gone to the scene of the crime along with Head Constable Babu Lal on receipt of information vide DD No.14A. On 15.01.2006, he joined investigation with investigating officer Jai Singh and Sub Insp Ram Sahai in the arrest of accused Ramveer and recovery of his clothes from Village Gaija, Sector 93, Noida which was seized vide memo Ex PW21/A. Accused Ramveer also got recovered one iron pipe from his house in Sangam Vihar which was seized vide memo Ex PW21/B. On 19.01.2006, he joined the investigation in arrest of accused Jamiluddin vide memo Ex PW21/C. His personal search was conducted vide memo Ex PW21/D and he made disclosure statement Ex PW21/E pursuant to which he got recovered his clothes which was seized vide memo Ex PW21/F. He also got recovered one buttondar knife from his almirah, the sketch of which was prepared vide memo Ex. PW21/G and was seized vide memo Ex PW21/H. He was also a witness to the arrest of accused Luv Kush at the instance of accused Jamiluddin vide memo Ex PW 21/K and his personal search was conducted vide memo Ex PW21/L his disclosure statement was recorded vide Ex PW21/M. Accused Luv Kush led the police to the recovery of one danda from the rocks falls behind his house which was seized vide memo Ex PW21/P. Accused Ashok also got recovered one knife from a jungle behind Primary School, S/vs Ramveer Page No. 8 FIR No. 26/06 PS Sangam Vihar -9- Sangam Vihar on 02.02.2006, the sketch of which was prepared vide memo Ex PW21/Q4 and was seized vide memo Ex PW21/Q5.
21. PW 22 Head Constable Surat Singh produced the order of the DCP vide which the PCR records had been destroyed.
22. PW 23 Head Constable Bhim Singh was the witness to the handing over of blood sample vial with the seal of CMO AIIMS by Constable Banwari Lal to the investigating officer, which was seized vide memo Ex PW23/A.
23. PW 25 Constable Rajender Singh was the motorcycle rider who had delivered the copy of FIR to the house of all the senior officers.
24. PW 26 Sub Insp Ram Sahai had joined the investigation with Insp Jai Singh in the arrest of the accused persons and recovery made at their instance.
25. PW 27 Head Constable Babu Lal along with Constable Ashok had reached the scene of the incident on 31.01.2006 on receipt of information vide DD No. 14A Ex PW27/A where he came to know that injured had already been taken to the hospital. In the meanwhile, Assistant Sub Insp Shiv Ram along with Constable Fateh Singh also came at the spot.
26. PW 28 A.C.P Jai Singh was investigating officer.
27. PW 29 Ms. Shashi Bala, Senior Scientific Officer Biology has proved the Biological report Ex PW29/A and the S/vs Ramveer Page No. 9 FIR No. 26/06 PS Sangam Vihar
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Serological report which is Ex PW29/B.
28. PW8 Dr. Rajeev Kumar had proved MLC of Satish as well as of Bhagwati which are Ex PW8/A and Ex PW8/B respectively.
29. PW 20 Dr. Aneesh has proved X ray report of Satish which is Ex PW20/A.
30. PW 9 Dr. Shiva Parsad had proved postmortem report of deceased Bhagwati.
31. PW 12 Head Constable Om Parkash the MHC(M) has proved register No. 19 as Ex PW12/A and had deposed that the case property while in his custody was never tampered.
32. The detailed testimony of the witnesses shall be considered subsequently.
33. Dr. Shiv Kumar Sharma who was placed in Column No.2, was summoned under Section 319 CrPC vide order dated 24.02.2007 after recording of the statement of PW3 Satish and PW4 Smt. Kusum. The charges were framed against him on 12.03.2002. However, he was discharged by the High Court of Delhi vide order dated 03.07.2009
34. The statement of the accused persons were recorded under Section 313 CrPC separately in which they all pleaded their innocence.
35. Accused in his defence has examined eight(08) witnesses in all. DW1 Mamta was the sister of the accused Ashok who denied any recovery of clothes having been made S/vs Ramveer Page No. 10 FIR No. 26/06 PS Sangam Vihar
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from her house.
36. DW2 Kaptan Singh brother of accused Rajkumar denied arrest of accused Rajkumar from his house in the year 2006.
37. DW3 Dr Rahul Rajput, SMO Central Jail Hospital deposed that blood group of accused Ashok was taken by the order of Court Ex DW3/A and Pathology Department of Central Jail Hospital and it was found to be B positive. The report of the concerned Doctor is Ex DW3/B and it was forwarded by the Jail Superintendent by forwarding letter Ex PW3/C.
38. DW4 Constable Vinod Kumar had proved FIR No. 210/2003 under Section 25/54/59 Arms Act against the complainant Satish Kumar which is Ex DW4/A.
39. DW5 Dr Narender Singh Baghel had deposed that he was tenant in two shops in the house of accused Jamiluddin from where he was running his clinic. The house of the accused Jamiluddin consisted of two front shops and one room big hall and did not have two rooms. He denied that on 19.01.2006, police came to the house of accused Jamiluddin and arrested him form his house.
40. DW6 Head Constable Ved Parkash produced the log book of vehicle no. DL-1CG-6406 which is Ex PW6/A and Ex PW6/B.
41. DW7 Constable Suresh has produced the DD entry record from 22.01.2006 to 18.02.2006 of police station Sangam Vihar, the photocopies of which are Ex DW7/A1 to S/vs Ramveer Page No. 11 FIR No. 26/06 PS Sangam Vihar
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DW7/A4. The DD No. 30 is Ex DW7/A5. The photocopy of FIR No. 692/2008 is Ex DW7/A6.
42. DW8 Accused Jamiluddin produced the original property documents dated 31.05.1999 which are Ex DW6/B.
43. No defence evidence was led by accused Kamla, Luv Kush and Ramveer.
44. Ld. Additional PP on behalf has argued that the consistent testimony of eye witness Satish and Kusum, recovery of the knives, the weapon of offence proves the offence against the accused persons, who are liable to be convicted.
45. Ld. counsel on behalf of the accused Jamiluddin and Luk Kush has argued that the incident had taken place on 13.01.2006 but in the complaint made by Satish, name of accused Luv Kush was not mentioned. He was arrested on 19.01.2006 i.e. after about six days. There are major contradictions in the testimony of eye witness Satish and Kusum as one has deposed that Luv Kush was holding a pipe, the other has deposed that he was having a danda in his hand. There is no consistency in regard to the weapon with which accused Luv Kush was equipped. Moreover, the incident, as per the eye witnesses, had taken place at 12.30 p.m. and continued for about 15 - 20 minutes but the police had been informed only at 01.30 p.m., that too by the father Mohar Singh and one neighbour. The mother, brother Satish and Bhabhi Kusum despite being present on the spot failed to S/vs Ramveer Page No. 12 FIR No. 26/06 PS Sangam Vihar
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inform the police which is against the natural conduct and in fact shows that the incident as reported by Satish had never taken place. Moreover, the complainant had suffered minor injury, but he made neither any effort to call the police nor to save his brother which again creates a doubt about the genesis of the fight, as deposed by the eye witness. In fact, the deceased Bhagwati did not want the house to be vacated and handed over to accused Kamla, who was the owner of the house while Satish was resisting the vacating of the house and on this account they both had a fight on the roof and Satish stabbed his brother Bhagwati, who ran down stairs to save himself and collapsed in the front room. This is corroborated by the recovery of blood soaked gunny bag from the roof and the trail of blood on the steps of the staircase. It is argued that accused persons had never entered the house of the deceased and no instance as reported ever took place. Moreover, Satish and Kusum, the two eye witnesses had deposed that the accused persons had thrown their household articles outside their house, but there is no evidence to support their testimony as no household articles were found scattered. It is also pointed out that as per Kusum some accused ran away from the rear door but in the site plan no rear door has been shown to exit in the premises in question. Moreover, there was no blood recovered from the place where the body of deceased was found lying. The question which, thus, arises is why the blood was not found in the room and whether it was washed S/vs Ramveer Page No. 13 FIR No. 26/06 PS Sangam Vihar
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away by the witnesses or was the scene of crime the roof. Moreover, Mohar Singh, father of deceased had deposed that on coming back to the house, he had found both Bhagwati and Satish lying injured but Satish was not injured to the extent of having fallen to the ground which again shows that the testimony of Mohar Singh has been manipulated.
46. It is further argued that accused Jamiluddin was arrested by the police only on 19.01.2006 and had been severely beaten up and in order to cover up the injuries which was caused to Jamiluddin the story of Jamaluddin having been injured in the incident was cooked up subsequently. It is further argued that there is no evidence to show that name of Jamiluddin is also Chuna, who is named in the complaint. Jamiluddin in fact was the erstwhile tenant / neighbour in the previous premises of the complainant and has been falsely implicated in this case. It is also argued that the alleged recovery of danda at the instance of Jamiluddin does not correspond to the version given by him in his disclosure statement and is not believable. Moreover, as per the prosecution the knife was recovered from the other room in the house of Jamiluddin but the house of Jamiluddin has only one room and, therefore, this version of the police is also not believable. Further, as per the police after the arrest of Jamiluddin at 07.30 p.m. all the investigations at his behest were concluded and the police were able to reach the house of accused Luv Kush at 11.00 p.m. which is not possible. This S/vs Ramveer Page No. 14 FIR No. 26/06 PS Sangam Vihar
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shows that all the investigations were carried out in the police station and not as deposed by the prosecution witnesses. In the Malkhana Register as well the entries were shows to be of 19.01.2006 while in fact it should have been of 20.01.2006. No public witness had been joined at the time of recovery of the case property and such recovery cannot be believed. Satish had never named Jamiluddin in his first testimony on 24.02.2007, but his examination( after the summoning of accused Dr. Shiv Kumar Sharma) in was recorded again in the Court on which he had named Jamiluddin. Moreover, mother of deceased was stated to be present in the house at the time of incident, but she has not been cited as a witness. It is, therefore, argued that the evidence against Luv Kush and Chuna is not beyond doubt and they both are entitled to be acquitted.
47. Ld. counsel on behalf of the accused Ramveer and Kamla in addition to the above detailed arguments, has argued that as per the prosecution there was a dispute in regard to the purchase of tenanted premises by the complainant's family, but there is no cogent evidence produced in regard to the payment of Rs.80,000/- by the complainant's family to the accused Kamla. The accused Shiv Sharma had been named by the complainant though in his subsequent statement recorded on the next day he withdrew the name of Dr. Shiv Sharma, which shows that the complainant cannot be believed in regard to the contents of his S/vs Ramveer Page No. 15 FIR No. 26/06 PS Sangam Vihar
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complaint and he has falsely named the accused persons on account of purchase of the property. Accused Dr. Shiv Sharma had put in Column No. II and had been summoned u/s 319 Cr.PC, but has already been discharged by the High Court.
48. The testimony of PW3 and PW4 suffers from various contradictions. The name of Luv Kush having come equipped with Katta has not been mentioned in the complaint, but subsequently introduced in the supplementary statement of Satish recorded on 19.01.2006. In the record of PCR the act had been attributed to Ashok and Ramveer. Moreover, as per PCR Form Ex.PW28/DX1, father Mohar Singh had accompanied the injured in the PCR but this fact had been denied by Mohar Singh in his testimony. Moreover, Satish had deposed that deceased had one stab injury while in the PCR Form Ex.PW28/D1, there is a mention of three injuries which is also supported by the postmortem report. PW3 Satish had claimed that he had been injured by the knife, but as per his MLC he had simple blunt injury and not by any sharp weapon which controverts his testimony. It is also argued that as per PW3 Satish and PW4 Kusum, Satish and Bhagwati had beaten up by Danda but their MLCs do not support their testimony in this regard. Moreover, PW9 Dr. Shiva Prasad had deposed that there was partially digested food present in the stomach of the deceased, but as per PW3 and PW4 they had taken breakfast in the morning and semi digested food as mentioned in the postmortem report could not have been found in the stomach S/vs Ramveer Page No. 16 FIR No. 26/06 PS Sangam Vihar
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of the deceased. Moreover, as per the postmortem report the stab wound was 13 cms deep but no blood stains were found on the recovered knife which creates a doubt about the recovered knife being the weapon of offence. Furthermore, in the application filed by the IO for the opinion in regard to the knife it was indicated that the knife submitted was the one which was alleged to have been used by the accused for committing of offence. The sketch of the knife prepared by the doctor does not bear his signatures. The postmortem report, therefore, does not support the case of the prosecution.
49. Ld. counsel has vehemently argued that the IO has been consistently using the seal of JSS, but it is nowhere explained in his testimony as to whom he was handing over the seal after its use and when was he taking it back. PW21 Ct. Ashok has also deposed that he did not see any scattered belongings in the house and that he had returned the seal to MHCM on 02.02.2006, but there is no recorded of the same which has been proved. The seal in fact remained with the IO all throughout and the possibility of his changing the weapon / clothes allegedly recovered at the instance of accused persons cannot be ruled out. Moreover, the weapon of offence was never shown to any of the prosecution witnesses. The PW10 In- charge Crime Team does not mention anything about the finger prints. Further accused Ashok on his arrest on 01.02.2006 had got recovered his clothes from house of his sister. Thereafter, he had led the police to the house of Raj Kumar, who S/vs Ramveer Page No. 17 FIR No. 26/06 PS Sangam Vihar
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pursuant to his disclosure statement, had got recovered his jacket that he was wearing at the time of commission of offence. However, these clothes were never got identified from the witness Satish and Kusum. It was, therefore, argued that the evidence adduced by the prosecution was not sufficient and the accused persons are entitled to be acquitted.
50. Ld. counsel on behalf of the accused Rajkumar and Ashok have argued that the framing of charge under Section148/307 IPC is defective as there is no mention of injury in the said charge. More over, no offence of rioting is proved as there was no unlawful assembly nor rather there any arms which have been proved to be in the possession of the accused persons nor had they assembled in a public place. The entire incident as per the prosecution took place in a house which cannot be termed as public place. For similar reason no offence under Section 147 and 148 IPC is also made out. In regard to the motive, it has been argued that no prosecution witness has been able to prove payment of Rs. 80,000/- price towards the purchase of house and this has been admitted by investigating officer in his cross examination. Like-wise, PW3 has deposed that threats had been extended by the accused persons on many occasions, but investigating officer has admitted that there were no document to show previous threat. No public witness has been examined. PW3 had deposed that his mother was present inside the house at the time of incident but neither mother has been cited as a witness nor examined. PW3 S/vs Ramveer Page No. 18 FIR No. 26/06 PS Sangam Vihar
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claimed that he had been beaten with rods but there were no tell- tail injuries on his body. Further more, PW3 has exonerated , Doctor in his supplementary statement recorded under Section 161 CrPC which shows that he has falsely named the accused persons, not because they were present at the scene of crime but because of previous enmity.
51. It is further argued that the comprehensive reading of the testimony of the two eye witnesses namely PW3 Satish Chand and PW4 Smt Kusum would show that Kusum had reached at the scene of incident after Bhagwati had been stabbed and she can not be termed as an eye witness. More over, both these witnesses have given contradictory evidence is in regard to removal and throwing of their house hold articles from rear door by the accused persons. Also, the weapon of the offence i.e. knife was never shown to the public witnesses and they did not identify the knife. It is further argued that as per PW11 Assistant Sub Inspector Dharampal, three injuries were mentioned in the PCR Form Ex PW11/D2 while deceased was stated to have been stabbed once. His postmortem report mentions three injuries on his thigh, arm and chest. More over, clothes of the deceased do not correspond to the cut marks. It was deposed by PW3 Satish Chand that shawl had been kept in the ambulance on which Bhagwati had been kept, but the said shawl has not been produced. Also no blood samples of the accused Rajkumar and Ashok were taken. Much has been argued that in the context of the postmortem report, wherein it S/vs Ramveer Page No. 19 FIR No. 26/06 PS Sangam Vihar
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was mentioned that there was semi digested food present in the stomach of the deceased that the time of incident has been reported incorrectly. However, as per two eye witnesses only tea and bread had been taken in the morning and if this was the only food taken by deceased then the stomach would not have had semi digested food.
52. In regard to PW5 Mohar Singh, it has been argued that Mohar Singh had called the police at 1.30 PM which shows that the incident had infact taken place at around 1.30 PM and not 12.30 PM as is claimed. Significantly the FIR has been registered at about 4.35 PM, when infact the incident had taken place at around 1.30 PM which shows that the delay in the FIR was only to falsely conclude the name of the accused persons. Also, the photographs which were taken by the photographer do not show that articles of the house hold had been thrown out of the house as was deposed by PW 23 Head Constable Bhim Singh. Finger prints were lifted from the scene of the crime but there is no witness examined to prove those finger prints which shows that infact no finger prints were lifted. It is thus argued that the accused persons were not aggressors and have been falsely implicated for the murder of Bhagwati which had been infact caused by PW2 Satish Chand . It is thus, argued that all the accused persons are entitled to be acquitted.
53. I have heard the arguments and have perused the record. My observations are as under:-
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54. All the six accused persons have been charged for committing house tress pass and of committing murder of Bhagwati and making an attempt to kill Satish Chand in furtherance of their common object. This is a case which rests on the testimony of PW3 Satish Chand who was an injured/eye witness and PW4 Kusum who also as an eye witness to the present incident.
55. PW3 Satish has deposed in his testimony that he along with his family have been residing in their house bearing no. F.3/478, Gali No. 4, Sangam Vihar, New Delhi as tenant of the accused Kamla, who was the owner. After about 4-5 months of the creation of the tenancy, Smt. Kamla came to their house and demanded Rs. 80,000/- for transferring the house in their name but they had already paid the said amount in two installments of Rs. 50,000/- and Rs 30,000/-. Subsequently accused Kamla asked them to vacate the house and refused to transfer the house and also to return the money and threatened that either they vacate the house or it will not be good for them. Similar is the testimony of PW9 Kusum who is sister in law( Bhabhi) of PW4 Satish and of deceased. PW5 Mohar Singh father of the deceased, had also deposed in his testimony about having paid Rs. 80,000/- in the installment of Rs. 50,000/- and Rs. 30,000/- to accused Kamla for purchase of the house, but Kamla refused to do so and told them that she had already sold the house to some other person. They asked her to return the money.
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56. A suggestion has been given to PW3 in the cross examination on behalf of accused Luv Kush and Kamla that about 5-6 days prior to the day of the incident Dr. Sharma and Kamla had come to their house and asked them to vacate it and had offered Rs. 40,000/- but their father had refused. It is further suggested that a meeting had been held on 01.01.2006 in this regard. He told her that he would vacate the house only on return of his money. On 07.01.2006 accused Ashok, Rajkumar, Ramveer, Luv Kush, Dr Sharma along with some other persons came to their house and told him that no money would be given to him and that he should vacate the house on which he had called the police at no. 100 and ASI Shiv Ram had come from Police Station. A compromise was reached on that day.
57. It is, therefore, an admitted case of the accused persons as well as the prosecution witnesses that the injured and the deceased were residing in the rented premises belonging to accused Kamla who wanted them to vacate the house and on that account there had been a dispute in the past and even the PCR had been called and the matter was compromised. The previous enmity between the accused and the complainant family is ,therefore, proved on record.
58. PW3 Satish Chand has further deposed that on the day of incident ie 13.01.2006 at about 12.30 PM he was taking bath in the front room of the ground floor while his Bhabhi PW4 Kusum and brother Bhagwati( deceased) were on the roof of S/vs Ramveer Page No. 22 FIR No. 26/06 PS Sangam Vihar
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the house. His nephew who was a small child was also there, while his mother had gone to bring back elder nephew from the school. Accused Kamla, Dr Sharma( since discharged by the order of the Hon'ble High Court), Rajkumar, Ashok, Ramveer, Luv Kush and Chunna came to their house equipped with weapons. Accused Ashok and Chunna were armed with knives while accused Ramveer and Luv Kush were each having a katta. They started giving beatings to him. Accused Chunna hit him with a knife and he sustained injuries on his left hand and on left arm. Hearing his cries his brother Bhagwati came down to the room. Accused Rajkumar along with 2-3 more persons caught hold of his brother while Ashok stabbed in his chest with a knife. Kusum also reached there and was caught by accused Ramveer who put his katta over her head and threatened her that in case she raised an alarm he would shoot her. The other accused persons then started removing the articles from the back side of the house. In the meanwhile, on getting an opportunity Kusum went to the roof and raised an alarm on which the accused persons ran away from the back door. Police was called by Kusum on no. 100 and after sometime the police came and removed him as well as his brother to AIIMS Hospital where his statement Ex. PW3/A was recorded.
59. PW4 Smt Kusum has also deposed on similar lines that on 13.01.2006 she along with her brother-in-law Bhagwati and small son was present on the roof while her brother-in-law S/vs Ramveer Page No. 23 FIR No. 26/06 PS Sangam Vihar
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Satish was taking bath in the room situated on the ground floor. All the accused persons armed with rods, pipes, katta and danda entered into their house. Accused Ramveer was having a katta while accused Ashok and Chunna each were having a knife and accused Luv Kush was having a pipe and they all started giving beatings to Satish. On hearing cries, she and Bhagwati came downstairs to save Satish. Bhagwati was caught hold of accused Rajkumar and stabbed with a knife on the right side below the chest by accused Ashok. The other accused persons gave beatings with pipes, rods and dandas to Bhagwati. Accused Chunna had hit Satish with a knife on his hand. Bhagwati started bleeding on which she shouted. Accused Ramveer caught hold of her from her hair and threatened that if she shouted she would be killed by him. Accused persons started scattering the house hold articles. On getting an opportunity, Kusum ran to the roof. Accused persons escaped from the rear door and some persons who was standing outside on the front side ran away. She has also deposed that Kamla and Dr Sharma ( since discharged) bolted the door and exhorted " maro salo ko".
60. The accused persons had sought to discredit the testimony of PW4 Smt. Kusum by arguing that entire incident had already taken place when she came inside the room and thus she cannot be termed as an eye witness. The strength for this arguments was drawn from the testimony of PW3 Satish who had deposed that on hearing his cries Bhagwati came S/vs Ramveer Page No. 24 FIR No. 26/06 PS Sangam Vihar
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down and was stabbed, and thereafter Kusum was threatened by accused Ramveer. Also, in his complaint Ex. PW3/A made to the police, he had stated that Kusum came later. However, the statement of PW3 Satish was recorded second time after the accused Dr Sharma was summoned and in his second statement it had been clearly stated by him that both Bhagwati and Kusum came downstairs, on hearing his noise. On the comprehensive reading of the testimony of PW3 Satish and PW4 Smt Kusum,. it emerges that on hearing the cries of Satish, Bhgawati had run down and was followed by Kusum. It has to be understood that such incident of fight occur within a short span of time and Kusum had trailed Bhgawati. Since Bhagwati and Kusum had come down from the roof, it is natural that they would have followed each other. The presence of Kusum on the scene of crime at the time of commission of the offence, has not been questioned. The presence of Satish and Bhagwati on the scene of the crime is also not in doubt as Bhagwati had died and his body was recovered from the room, while Satish was found in the house in injured condition by the police. The injuries caused on the person of Satish and Bhagwati are sufficient proof of the incident having taken place. Kusum being present in the house, would naturally have been a witness to whatever transpired in the house. It would infact unnatural if Kusum and Bhagwati on hearing the cries of Satish, had not rushed down from the roof to save Satish. Even if, it is accepted that Kusum had followed S/vs Ramveer Page No. 25 FIR No. 26/06 PS Sangam Vihar
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Bhagwati she would have reached the scene of the crime immediately after Bhagwati and would have been a natural witness to the injuries caused to Bhagwati.
61. Both eye witnesses ie PW3 Satish and PW4 Smt Kusum have been consistent in their testimony that accused Ashok and Chunna were armed with knives while accused Ramveer and Luv Kush were armed with katta . They both were also consistent in deposing that deceased Bhagwati was caught hold by Rajkumar and was stabbed by accused Ashok.
62. PW3 Satish had deposed about PW4 having been shown the katta by accused Ramveer and threatened against raising an alarm, while PW4 has deposed that Ramveer had threatened her by pulling her hair. As per PW4 she may not have been shown the katta but the basic incident remains consistent that she was caught hold by Ramveer and was threatened against raising an alarm. It has to be understood that in a situation where such incident is taking place, the finest details cannot be noticed by PW3 Satish who himself had been injured. The testimony of PW3 and PW4 is largely consistent on the threat having been extended by the accused Ramveer.
63. PW3 Satish had deposed in his testimony that all the accused persons before fleeing had scattered their house hold articles in the room. PW4 has also deposed to similar fact that their house hold articles had been scattered by the accused persons. The photographs of the scene of the crime S/vs Ramveer Page No. 26 FIR No. 26/06 PS Sangam Vihar
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were taken by photographer PW2 Constable Balwant Singh and photographer Ex PW2/B3 and Ex PW2/B5 also show the house hold articles being dumped in one corner of the house. Much had been argued by the ld. counsel on behalf of the accused persons that PW3 and PW4 had claimed that their house hold articles had been thrown out of the house from the rear door while the photographs of the house do not show that the house hold articles had been thrown out.
64. PW 10 Insp Vinod Pal Incharge Crime also deposed that the goods in the house were lying scattered. PW3 and PW4 both have also deposed that house hold articles had been scattered and they have clarified in the cross examination that the house hold articles had not been thrown out of the house but were scattered by the accused before fleeing from the house whether articles were scattered or were thrown out is of little consequence to the main incident of stabbing Bhagwati and causing injury to Satish, which stand proved by the testimony of PW3 Satish and PW4 Kusum.
65. Ld. counsel on behalf of the accused Rajkumar and Ashok has argued that as per the eye witnesses, accused had bolted the door from both the sides before fleeing. However, there is no evidence on record to show who had opened the doors from outside and also no bolts of either side were found to be broken. In the same context, it was also argued that as per the site plan Ex PW 28/A prepared by the investigating officer in the initial investigation, no rear door has been shown S/vs Ramveer Page No. 27 FIR No. 26/06 PS Sangam Vihar
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which proves the testimony of the prosecution witnesses to be false. In so far as rear door is concerned, it would be pertinent to refer to the scaled site plan Ex PW1/A prepared by PW1 Sub Insp.Mahesh Kumar wherein it is indicated that there was a rear door. Investigating officer may not have noticed initially the rear door and not indicated the same in the site plan prepared by him, but that in itself is not conclusive of there being no rear door. Infact, this supports the testimony of two eye witnesses that the rear door had been bolted from outside by the accused persons when they were the leaving the house which could have been the reason for investigating officer to have not noticed the rear door. It is also significant to note that PW4 Smt Kusum in her testimony has been consistent that she had run to the roof to raise an alarm. In her cross examination she has categorically stated that she did not ran out of the house to raise the alarm. This again shows that the door from outside had been bolted. In this regard, it may be pertinent to mention that as per the two eye witnesses, PW3 and PW4 the mother had gone to bring the elder nephew from the school. Also, after alarm was raised people had collected and the police had also arrived. It is but natural that the bolted door from outside would have been opened by some public persons who had reached the scene. It does not in any way discredit the testimony of the two eye witnesses.
66. Ld. counsel on behalf of the accused persons had again been vehement in arguing that incident had not taken S/vs Ramveer Page No. 28 FIR No. 26/06 PS Sangam Vihar
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place at around 12.30 PM as the first information had been received vide DD No. 14A Ex PW27/A at around 1.40 PM. The other information has been received vide DD No. 15A Ex PW6/D1 at about 1.50 PM. If the incident had actually taken place at 12.30 PM and had continued for about 10-20 minutes, the incident would have occurred much before 1.30 PM. The delayed information about the incident shows that the incident as deposed, had not taken place in the manner it has been claimed. The investigating officer had been confronted with two PCR Forms Ex PW28/DX1 and Ex PW28/DX2. Infact, these two PCR Forms support the case of the prosecution that the neighbour Yamin on hearing cries from roof, had called the police at about 1.31 PM from his own mobile phone, as recorded in PCR From Ex PW28/DX1. Like-wise, PW5 Mohar Singh had deposed that on reaching the home he had found his two sons had been beaten up and he had also made a call which is recorded in PCR Form Ex PW28/DX2 at 13.39 PM. The same PCR Form recorded at around 13.58 PM that two injured were being taken to the hospital. PW4 Kusum had deposed that she had called the police and police arrived after about 15-20 minutes. The time frame as deposed by the witnesses and the PCR Forms sufficiently prove the incident to be of around 12.30 PM. A few minutes here and there in stating the exact time of the fight cannot be a factor which could take away the truth from the testimony of PW3 and PW4. After all, it cannot be expected that the eye witnesses would have noted the exact S/vs Ramveer Page No. 29 FIR No. 26/06 PS Sangam Vihar
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time when the associates entered their house.
67. In the same context it was argued that FIR had been registered at around 4.35 PM, when infact incident had occurred at 12.30 PM. This again shows that the complainant had manipulated the facts. The explanation for time taken in recording statement of the Satish and registration of the FIR at around 4.35 PM is forth coming from the testimony of Satish himself. It is deposed by him that he, on reaching the hospital, was given the treatment while his brother Bhagwati was declared brought dead. His father Mohar Singh and third brother Mukesh had also reached the hospital. After he had received treatment, he was declared fit for statement. His statement was recorded by the police. It is but natural when eye witness himself was injured, FIR could have been recorded on his statement only after he was declared fit by the Doctor. There is no delay in registration of FIR which can be considered fatal to the case of the prosecution.
68. The entire incident has been assailed on behalf of the accused persons by claiming that the testimony of PW3 Satish is not corroborated by the circumstances. It is argued that as per Satish he was taking bath in the front room but there is no bucket of water or mug visible in the room from where it could be inferred that the Satish was infact present in that room and taking bath as deposed by him. First and fore most both the eye witnesses have deposed that the front room of their house was being used for bathing purpose. It has also S/vs Ramveer Page No. 30 FIR No. 26/06 PS Sangam Vihar
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been clarified that a latrine in the house was on the roof. The photographs Ex PW2/B9 and Ex PW2/B10 clearly show a drum of water kept in that room which sufficiently corroborates their testimony that the said room was also being used for bathing purposes. Much had been argued about accused Satish admittedly wearing underwear at the time of incident, while he was found wearing his clothes subsequently. Satish in his testimony has admitted that he was in his underwear when the accused persons had forcibly entered in the house. It is but natural that after the happening of the incident Satish would have worn his clothes. Merely because he was subsequently found in his cloth cannot be taken as a ground to discredit his testimony. It is also pertinent to refer to the testimony of Satish wherein he had deposed that he had not bolted the door from inside while taking his bath which explains why the accused persons did not have to break open the latch to enter the house. It also explain why the latches and bolts were not found broken by the police.
69. The scene of crime as being the front room has been challenged on behalf of the accused persons. The main ground for ascertaining that a gunny bag with blood stains had been admittedly recovered from the roof and there was blood stains on the staircase leading to the roof. The defence had been set up by the accused that deceased Bhagwati and Mukesh were in favour of vacating the house while other family members were against it and on this account a fight had S/vs Ramveer Page No. 31 FIR No. 26/06 PS Sangam Vihar
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started between the Bhagwati and Satish while they were on the roof. Satish and Bhagwati had stabbed each other and in order to escape Bhagwati had come down and had collapsed. It was argued that on account of previous enmity the accused persons had been falsely named by Satish and the family members were intentionally supporting him in order to save him.
70. The photographs Ex PW2/B9 and Ex PW2/B10 completely falsify the defence as set up by the accused persons. There is not only huge amount of blood lying on the ground visible in the photograph Ex PW2/B10 but there is also fresh blood on the wall visible in the photograph Ex PW2/B9. The presence of blood on the ground as well as on the wall is corroborated by PW28 Investigating Officer Insp. Jai Singh as he had lifted the floor with the blood vide memo Ex PW15/B, the blood stained wall with plaster vide memo Ex PW15/C and the wall plaster control vide memo Ex PW15/D. The amount of blood splitled on the floor as well as on the wall clearly shows that the incident as narrated by two eye witnesses, had infact taken place in the front room. It is no doubt true that blood stained gunny bag had been recovered from the roof and is also visible in photograph Ex PW2/B7 and the blood drops on two staircase reading to the roof is also visible in Ex PW2/B8. However, it is visible that the gunny bag had some blood stains and on only two steps of the staircase, few drops of blood were present. If the defence of the accused persons is to be S/vs Ramveer Page No. 32 FIR No. 26/06 PS Sangam Vihar
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believed that Bhagwati after being stabbed on the roof, had run down then the amount of blood on the roof would have been much much more. Infact, there was no blood what so ever on the floor of the roof. Also, if Bhagwati after being stabbed had rushed down the staircase to save himself the trail of blood on the staircase would have been much different and not a few drops on two staircase as visible in the photograph Ex PW2/B8. It is significant to note that Kusum after the incident had run to the roof to raise an alarm. Gunny bag having been used to clear some blood and of being carried to the roof and some blood drops having dropped from the said gunny bag is also possible. The defence that the incident had occurred on the roof is ruled out from the circumstances which are the photographs and the testimony by the two eye witnesses. It is also significant to note that had Satish and Bhagwati stabbed each other as is claimed by the accused persons, then the weapon of offence would have been recovered from the scene of crime itself. But there was no weapon found on the scene of the crime. Though sincere efforts were made by the defence to create a doubt on the recovery of gunny bag with some blood stains from the roof but inview of the consistent testimony of the two eye witnesses supported by the investigation as carried out by the crime team and the investigating officer, it does not create any doubt about the case of the prosecution and does not in anyway create a doubt, which the accused sought to establish.
S/vs Ramveer Page No. 33 FIR No. 26/06PS Sangam Vihar
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The defence set up by the accused persons is without merit.
71. The next aspect which calls for some variation to the recovery of various weapons from the accused persons.
72. It has been pointed out during the course of the arguments that PW5 Mohar Singh father of the deceased had deposed that he had accompanied the deceased and the injured sons in the PCR van but PW2 Satish had deposed that only he had accompanied his brother along with police officials, in the PCR van. It was argued that discrepancy in the testimony of the father Mohar Singh shows that the incident as deposed, had not taken place. It was also argued that the conduct of the Mohar Singh was unnatural in not having accompanied the two injured sons or in immediately following them to the hospital. As per the testimony of Mohar Singh, he and his third son Mukesh reached the hospital after about an hour. More over, Mohar Singh never inquired about the incident from the people present at the spot or in the hospital. All these shows that it was Satish his son who was the aggressor and the incident as claimed to have taken place, did not occur.
73. A person who on coming back to his house finds his two sons fatally injured would naturally be perplexed and his first priority would be to ensure that the injured are immediately taken to the hospital and not to inquire from here and there about what had transpired. The conduct of Mohar Singh in not making an attempt to immediately ascertain the facts cannot be faulted Mohar Singh and Mukesh reached the S/vs Ramveer Page No. 34 FIR No. 26/06 PS Sangam Vihar
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hospital after about one hour it is but natural that some time would have been taken by them to organise their own house hold where such a violent incident had occurred and thereafter, go to the hospital. An hour is not such a duration that could lead to any adverse inference being drawn against the prosecution. Mohar Singh did not accompany the injured in the PCR van which is a fact which is established from the testimony of PW2 Satish. Whether Mohan Singh accompanied the injured or not would not impact the veracity of the entire incident which had taken place prior to this reaching on the spot. It is an undisputed fact that Mohar Singh had reached the spot after the commission of the offence and thus said minor discrepancy of his having accompanied the injured or not would not create a doubt about the incident.
74. It was also pointed out that Mohar Singh in his testimony has deposed that when he reached the scene, he found his both sons lying injured which meant that he found Satish lying on the floor but this is in contradiction to the version put forth by PW2 Satish. This argument is totally fallacious as much is sought to be made of the word "lying" used in the testimony of Mohar Singh. A comprehensive reading of this statement would show that he said that his both sons were lying injured implying that both the sons had suffered injuries. It no where implies that Satish was also lying on the floor as was Bhagwati.
75. It has been further argued that as per the S/vs Ramveer Page No. 35 FIR No. 26/06 PS Sangam Vihar
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postmortem report Ex PW9/A of the deceased Bhagwati he had one stab wound near his right chest wall. Besides this he had three superficial incised wound over his right index finger and left index finger and thumb. It had been vehemently argued that as per PW2 Satish only one stab injury had been caused when infact there were three other injuries which were found on the person of the deceased which had not been explained by the prosecution. Infact, these additional injuries create a doubt about the manner in which the stab injury have been caused on the person of the deceased. The ld. counsel for the accused persons has laid great emphasis on the PCR Form Ex PW28/DX1 and the noting of its reverse which is mark PW11/D2. It is no doubt, true that in the noting mark PW11/D2, the Incharge PCR has noted that both the injured had been admitted in the hospital and that Bhagwati had been declared brought dead and Doctor had told that there were three injuries on the body one stab injury on the right side of the chest and other on his thigh and knife injury on the hands. However, this is the information recorded by the PCR Incharge on the basis of hearsay. Neither in the testimony of eye witnesses nor in the postmortem report is there any indication that there was also a stab injury on the thigh. Rather, the only injury found was on the chest and also three small incised injuries on the index finger and thumbs of the two hands. The injuries found on the person of the deceased correspond to the testimony of PW3 Satish Chand and PW4 Kusum and there is S/vs Ramveer Page No. 36 FIR No. 26/06 PS Sangam Vihar
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no contradiction in this regard.
76. The next aspect which comes up for consideration is the role of the accused persons and the recoveries of weapons made at their instance. PW3 Satish and PW4 Kusum the two eye witnesses have been consistent in their testimony that Chunna and Ashok had come with and knives while Ramveer had come with a danda. They both have been consistent in deposing that Bhagwati was caught hold of by Rajkumar and 3-4 other accused while Ashok had hit him with the knife on his chest. Luv Kush was also having a danda with which he gave beatings to the deceased. Both have also consistently deposed that when Kusum tried to come to their help Ramveer threatened her and told that if she shouted she would be killed. While, Satish had claimed that she was threatened at gun point, Kusum had deposed that Ramveer had threatened her by pulling her hair. The two eye witnesses have been consistent in their deposition about the presence and role of accused Ashok, Chunna, Rajkumar, Luv Kush and Ramveer. PW3 Satish Chand has also deposed that Chunna who had equipped with knife, had also attacked him with knife because of which he had sustained injuries on his elbow and hands, a fact which is fully supported by MLC of Satish which is Ex PW8/A.
77. It was argued on behalf of the accused Luv Kush that he was never named in the complaint by Satish and his name has been subsequently added. PW Satish in his cross S/vs Ramveer Page No. 37 FIR No. 26/06 PS Sangam Vihar
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examination has stated that at the time of recording of his statement Ex. PW3/A he was not aware of the name of the accused Luv Kush though he recognised him from his face, as Luv Kush was residing in the back street of the house of Satish . A suggestion has been given by the ld. counsel for the accused himself that he and Luv Kush used to play together. PW Satish has further deposed that it was he who had taken the police to the house of Luv Kush on 14.01.2006 who was not found available, and subsequently the police had apprehended Luv Kush from his house.
78. Similarly PW4 Kusum had clarified in her cross examination on behalf of accused Luv Kush that Luv Kush used to accompany accused Kamla and that is why he was known to her. PW Kusum had further deposed that Luv Kush had come with pipe in his hand. She was confronted with her statement Ex PW4/D1 wherein also she had mentioned that accused Luv Kush was having a danda. Accused Luv Kush has been, therefore, rightly identified by both the eye witnesses to be present at the scene of the crime and both have defined his role consistently in beating Bhagwati with a danda. Involvement of the accused Luv Kush is, therefore, sufficiently proved.
79. Ld. counsel on behalf of accused Jamiluddin had claimed that the accused named in the complaint was Chunna and there is no evidence to show that Chunna was infact Jamiluddin who has been arrested and made an accused in this S/vs Ramveer Page No. 38 FIR No. 26/06 PS Sangam Vihar
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case. This argument does not have much strength because it is a case based on direct evidence of two eye witnesses who have consistently identified all the accused persons as being the aggressors and their role have been consistently defined by both the eye witnesses.
80. The two eye witnesses PW3 Satish and PW4 Kusum have also deposed that these accused persons named above were accompanied by accused Kamla. PW3 Satish had deposed that she had exhorted the accused persons " Maro Salo Ko:. This evidence becomes material in the light of the earlier incident which had taken place about a week back wherein Kamla and her associates as well as family members of the complainant had a meeting in regard to vacating of the house. It is not denied that Kamla was the owner of the house who was interested in getting her house vacated. The presence of Kamla and exhortion by her is consistently established. PW4 Kusum had also specified that after beating, Kamla had left from the front of the house and had bolted the door from outside. The presence of Kamla and her role in the entire commission of the offence is also established beyond reasonable doubt.
81. The other important piece of evidence relied upon by the prosecution is the recovery of weapons of offence from the accused persons. PW28 Investigating Officer /Insp Jai Singh had deposed that in the evening of 14.01.2006 at about 5.00 PM , on the basis of secret information he, along with PW 26 S/vs Ramveer Page No. 39 FIR No. 26/06 PS Sangam Vihar
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Ram Sahai, PW 21 Constable Ashok and PW 17 Constable Suresh went to Village Gaiza, Sector 93, Noida and apprehended accused Ramveer and arrested him vide arrest memo Ex PW17/A. Accused also made disclosure statement Ex PW17/C pursuant to which he led the police on 15.01.2006 to his own house at G Block, Sangam Vihar and got recovered an iron pipe which was seized vide memo Ex PW21/B. PW28 has further deposed about the arrest of accused Kamla on 18.01.2006 and her arrest vide memo Ex PW16/A. Accused Jamiluddin was arrested on 19.01.2006 vide memo Ex PW21/C and pursuant to his disclosure statement Ex PW21/E had got recovered one buttondar knife from the almirah of his house, sketch of which was prepared vide memo Ex PW21/G and was seized vide memo Ex PW21/H.
82. Ld. counsel for the accused has argued that he had examined DW5 Dr Narender Singh Baghel who had deposed that the house of accused jamiluddin comprised of only one room . The testimony of investigating officer that accused Jamiluddin had got recovered the knife from the second room is therefore false. DW5 Dr. Narender Singh Baghel has himself stated that there were two shops and one room which shows that the house of the accused Jamiluddin comprised of more than one room. More over, no explanation had been sought from the Investigating Officer about the exact location of the rooms in the house of the accused jamiluddin. The recovery of the knife from the house of the accused Jamiluddin at his S/vs Ramveer Page No. 40 FIR No. 26/06 PS Sangam Vihar
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instance cannot be held to be doubtful.
83. The accused Luv Kush was thereafter arrested on the same day i.e. 19.01.2006 from his house and was arrested vide memo Ex PW21/K and had got recovered one danda from a Pahari behind the place of the incident which was seized vide memo Ex PW21/B.
84. Ld. counsel on behalf of the accused persons had argued that no independent public witnesses had been joined at the time of recovery of alleged weapons. More over, the recovery of danda and pipe at the instance of accused persons is not worthy of any reliance. Even if the arguments of ld. counsel for the accused persons is accepted that the recovery of danda and pipe at the instance of the two accused persons is questionable but the facts remains that the testimony of PW3 and PW4 in regard to giving beating with danda and pipe has remained consistent and even in absence of recovery of danda and pipe, their testimonies stands completely un- shaken.
85. Accused Ashok was arrested from his premises in Gali No. 22, Shani Bazar, Sangam Vihar on 01.02.2006 and was arrested vide memo Ex PW21/Q. He made disclosure statement Ex PW21/Q2 and on 02.02.2006 he led the police at about 8.30 AM behind the Primary School of J-Ist Block in a Jungle and had got recovered one Chura type knife which was seized vide memo Ex PW21/K5, after preparing its sketch Ex PW21/Q4.
86. It was argued on behalf of the accused Ramveer S/vs Ramveer Page No. 41 FIR No. 26/06 PS Sangam Vihar
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that the recovery of chura is highly suspicious as it had no blood stains. If a stab injury as it is claimed by the prosecution had been caused with this chura, the blood stain would have necessarily been present. For this ld. counsel has relied upon Kallikatt Kunhu Vs State of Kerala 2000 (1) JCC (SC) 312 where no blood stains were found on the dagger. It was held that the case of the prosecution was manufactured. In the said case the dagger in a sheath had been recovered from near the scene of the crime and it was observed that the dagger, if it was a weapon of offence could neither it be in sheath nor recovered from the basement. In the said case the alleged weapon of offence was recovered from the scene of the crime. On the facts in hand are completely distinguishable as chura was subsequently recovered from behind the jungle at the instance of accused Ashok. The recovery has been made after about 20 days of the incident and no blood stain being found on the chura was but natural. The judgment relied upon by the ld counsel is ,therefore, not applicable in the present case.
87. PW9 Dr. Shiva Parsad who had conducted the postmortem had proved the subsequent opinion Ex PW9/B whereby after examining the two knives that the knife ( chura type) which had been recovered from the possession of the accused Ashok was likely to produced the stab injury suffered by deceased Bhagwati in his chest. Ld. counsel on behalf of the accused had argued that it is indeed strange that investigating S/vs Ramveer Page No. 42 FIR No. 26/06 PS Sangam Vihar
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officer in his application Ex PW28/D vide which he had sought subsequent opinion, had indicated that the chura type knife had been recovered from accused Ashok and button actuated knife from accused jamiluddin @ Chunna. This infact was done to procure the opinion from the Doctor about the recovered weapon being the weapon of the offence. As already discussed above, this is a case which rests on the direct evidence of two eye witnesses and the recovery of chura in itself assumes secondary importance, once the testimony of two eye witnesses of deceased Bhagwati having been stabbed by the accused persons is held to be beyond reasonable doubt.
88. The arguments had also been addressed by ld. counsel for the accused Jamiluddin that there were injuries on the person of accused Jamiluddin which have not been explained by the prosecution. It has been mentioned in the MLC of Jamiluddin that there were fresh injury on his person at the time of his arrest. Accused Jamiluddin was arrested on 19.01.2006 ie much after the date of incident which was 13.01.2006. Jamiluddin may have suffered injury at the time of arrest, but it is not an in jury on his person caused at the time of incident and thus, would not create any doubt on the case of the prosecution as proved by the two eye witnesses.
89. It has also been argued on behalf of the accused persons that the defence witness are entitled to equal weightage as the prosecution witnesses. It is a proposition of law, which is fully established but the defence evidence as led S/vs Ramveer Page No. 43 FIR No. 26/06 PS Sangam Vihar
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by the accused persons is only in regard to their arrest. There is no evidence produced by any of the accused in their defence from where the inference of innocence of any of the accused persons could be drawn.
90. ld. counsel for the accused Ramveer had argued that there is no evidence on record to show that the seal before as well as after use was handed over by the investigating officer to any independent person which gave ample opportunity to the investigating officer to substitute recovered weapons. By the same logic as discussed above such recoveries of danda, churas etc is of little importance, once the two eye witnesses have proved the entire incident of death of Bhagwati and injuries caused to Satish by the accused persons beyond reasonable doubt. The prosecution has, therefore, been able to prove the incident in which Satish sustained injuries and Bhagwati died beyond reasonable doubt as well as the complicity of all the accused persons in the offence is also proved beyond reasonable dbout.
91. The question which remains to be determined is what are the offences that are established from the evidence of the prosecution witnesses.
92. The accused persons had forcibly entered into the house of the complainant and were armed with kattas, churas, dandas etc with an object of compelling the complainant family to vacate the house and to take forcible possession of the house and thereby committed an offence under Section 148 S/vs Ramveer Page No. 44 FIR No. 26/06 PS Sangam Vihar
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IPC which is a grave form of Section 147 IPC.
93. The accused persons have also caused injury with a knife in furtherance of their common object to Satish and death of Bhagwati in furtherance of their common object. However, the testimony of prosecution witnesses shows that the object was to cause harm and injury, but there is nothing on record to show that they had premeditated to commit the murder of the family member of the complainant's family. Bhagwati had no doubt, been stabbed but that happened when Bhagwati came to the rescue of his brother Satish on hearing his cries. There is no evidence on record to show that there was any premeditated object of committing murder.
94. PW4 Smt. Kusum has deposed that accused Kamla had exhorted the other accused persons " Maro Salo Ko" but the question for determination is whether it amounts to an intention to kill. This aspect was considered by the Supreme Court in the case of Matadin Vs State of Maharashtra 1998(2) JCC (SC) 65 wherein it similar exhortion was made by the accused. It was observed that when such words are used it could mean "beat" or to kill a person. However, in the circumstance of the case it was held that exhortion was not to kill but to cause injury. In the present case as well when the incident is taken as a whole, Kamla intended injury to be caused and it was not a case of the accused having come armed with object and to cause murder.
95. Thus, the offence which is made out is under S/vs Ramveer Page No. 45 FIR No. 26/06 PS Sangam Vihar
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Section 304(1) IPC read with Section 149 IPC and not Section 302 IPC. The injuries caused to Satish with a knife can only to establish an offence under Section 308 IPC read with Section 149 IPC.
96. The accused persons had also forcibly entered into the house of the complainant and thus the offence under Section 452 IPC read with Section 149 IPC is also proved.
97. The testimony of both PW3 Satish Chand and PW4 Smt. Kusum also establish that Kusum had been threatenedby accused Ramveer and thus the offence under Section 506(II) IPC is proved against the accused Ramveer.
98. The accused persons are hereby convicted for the offences punishable under Sections 148,452,308 and 304(1) IPC read with Section 149 IPC. Accused Ramveer is convicted for the offender under Section 506 IPC as well for having threatened PW4 Smt. Kusum. Let accused persons be heard on the point of sentence.
Announced in the open Court on 19th Day of September,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi S/vs Ramveer Page No. 46 FIR No. 26/06 PS Sangam Vihar
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI In re :Session Case No. 05/12
State vs. (1) Ramveer s/o Data Ram
R/o G-1203, Sangam Vihar
New Delhi.
(2) Kamla w/o Shyam Beer
R/o G-705, Sangam Vihar
New Delhi.
(3) Jamiluddin @ Chunna
s/o Azahruddin
R/o _ 1950/23, Sangam Vihar
New Delhi.
(4) Luv Kush s/o Ram Kishan
R/o F 3/530, Sangam Vihar
New Delhi.
(5) Ashok s/o Purva Singh
R/o Vill. Shyamo PS Taj Ganj
Distt Agra (U.P.)
(6) Rajkumar s/o Purva Singh
R/o Vill. Shyamo PS Taj Ganj
Distt Agra (U.P.)
(7) Dr. Shiv Kumar Sharma(Discharged)
s/o Kishan Swaroop
R/o C-68, Jawahar Park
New Delhi
FIR No. 26/2006
Under Section 147/148/149/452/307/302 IPC
Police Station Sangam Vihar
S/vs Ramveer Page No. 47
FIR No. 26/06
PS Sangam Vihar
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ORDER ON SENTENCE
1. By my judgment dated 28/08/2012,the
accused persons/convicts namely Ramveer, Kamla,
Jamiluddin @ Chunna, Luv Kush, Ashok and Rajkumar were convicted for the offences under Sections 148,506(II),452,308 and 304(1) IPC read with Section 149 IPC.
2. Shri R.K. Pandey, Ld. Public Prosecutor has argued for deterrent punishment against accused persons/convicts , keeping in view the serious nature of the crime committed by them and in view of the fact that a person has died on account of offence in question committed by the accused persons/convicts.
3. Learned Counsel for the convict/accused (1) Ashok has argued that he was around 23 years of age at the time of incident and had wife a five children. The youngest child was about one year of age at the time of the incident. It is submitted that convict Ashok had no intention of causing injury or death and that the entire incident happened at the heat of the moment. It is further submitted that he is in judicial custody since 02.02.2006 and had already spent six years and five months in Jail,lenient view may be taken against him.
4. Ld. counsel for the convict/accused S/vs Ramveer Page No. 48 FIR No. 26/06 PS Sangam Vihar
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(2)Rajkumar has argued that he was around 24 years of age at the time of the incident and had one small daughter and wife and that he is sole bread earner of his family. It is further submitted that it was an offence which had been committed at the heat of the moment and he had no intention to kill. It is further submitted that he is in judicial custody for more than six years and eight months since 02.02.2006 and considering his role, lenient view be taken against him.
5. Ld. counsel on behalf of the convict/accused (3) Luv Kush has argued that he was merely 20 years of age and was a student at the time of the incident. He had no previous antecedents and even as per the case of the prosecution, he had merely accompanied the other convicts/accused persons. There is no specific role assigned to him. Further more, he has a wife and two years old daughter and he is also supporting his aged parents. Further more, he has already suffered custody for a period of 09 months. A lenient view may be taken against him.
6. Ld counsel on behalf of the convict/ accused (4) Jamiluddin has submitted that he was around 41 years of age at the time of the incident and his role was also limited as having accompanied the other S/vs Ramveer Page No. 49 FIR No. 26/06 PS Sangam Vihar
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convicts/accused persons. He has also remained in judicial custody for a period of a little less than three years. A lenient view may be taken against him.
7. Ld. counsel on behalf of the convict/accused (5)Kamla has submitted that she has five minor children and her husband has left her and she is taking care of her children. It is further submitted that she had already spent about 22 months in custody. A lenient view be taken against her.
8. Ld. counsel on behalf of the convict/accused (6)Ramveer has submitted that he has two young children and sole bread earner of his family. It is further argued that 15-20 labours are working under him and if he is sentenced the lives of his workers and their families would also be disrupted. He had already spent 28 months in jail. A lenient view be taken against him.
9. Heard the arguments from both sides. The convicts are sentenced as under: Convict Ashok was the main accused who had stabbed the deceased Bhagwati. He is sentenced to Rigorous Imprisonment for a period of 02 years under Section 308 IPC. He is also directed to pay fine of Rs. 2000. In default of payment of fine is to undergo S.I for a period of two months. He is also undergo Rigorous Imprisonment for a period of one year S/vs Ramveer Page No. 50 FIR No. 26/06 PS Sangam Vihar
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under Section 148 IPC. He is also sentenced to undergo Rigorous Imprisonment under Section 452 for a period of three years; in addition he has to pay fine of Rs. 3000/-; in default of payment of fine he has to undergo Simple Imprisonment for a period of four months. He is also sentenced to R.I. Under Section 304(I) IPC for a period of 08 years; in addition he is directed to pay fine of Rs. 7000/-; in default of payment of fine he is to undergo S.I. for 08 months.
10. Convict Kamla was the instigator. Considering her age, and her family circumstances and her role, she is sentenced to Rigorous Imprisonment for a period of 02 years under Section 308 IPC. He is also directed to pay fine of Rs. 2000. In default of payment of fine is to undergo S.I for a period of two months. He is also undergo Rigorous Imprisonment for a period of one year under Section 148 IPC. He is also sentenced to undergo Rigorous Imprisonment under Section 452 IPC for a period of three years; in addition he has to pay fine of Rs. 3000/-; in default of payment of fine he has to undergo Simple Imprisonment for a period of four months. She is also sentenced to R.I. under Section 304(I) IPC for a period of 05 years and 06 months; in addition she is directed to pay fine of Rs. 5000/-; in S/vs Ramveer Page No. 51 FIR No. 26/06 PS Sangam Vihar
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default of payment of fine he is to undergo S.I. for 06 months.
11. Convict Luv Kush had accompanied the other accused persons in commission of crime. He is sentenced to Rigorous Imprisonment for a period of 02 years under Section 308 IPC. He is also directed to pay fine of Rs. 2000. In default of payment of fine is to undergo S.I for a period of two months. He is also undergo Rigorous Imprisonment for a period of one year under Section 148 IPC. He is also sentenced to undergo Rigorous Imprisonment under Section 452 IPC for a period of three years; in addition he has to pay fine of Rs. 3000/-; in default of payment of fine he has to undergo Simple Imprisonment for a period of four months. He is also sentenced to R.I. under Section 304(I) IPC for a period of 04 years; in addition he is directed to pay fine of Rs. 3000/-; in default of payment of fine he is to undergo S.I. for 04 months.
12. Convict Rajkumar had caught the deceased Bhagwati who was then stabbed by Ashok. Considering his circumstances he is sentenced to Rigorous Imprisonment for a period of 02 years under Section 308 IPC. He is also directed to pay fine of Rs. 2000. In default of payment of fine is to undergo S.I for a period S/vs Ramveer Page No. 52 FIR No. 26/06 PS Sangam Vihar
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of two months. He is also undergo Rigorous Imprisonment for a period of one year under Section 148 IPC. He is also sentenced to undergo Rigorous Imprisonment under Section 452 IPC for a period of three years; in addition he has to pay fine of Rs. 3000/-; in default of payment of fine he has to undergo Simple Imprisonment for a perod of four months. He is also sentenced to R.I. under Section 304(I) IPC for a period of 08 years. In addition he is directed to pay fine of Rs. 7000/-. In default of payment of fine he is to undergo S.I. for 08 months.
13. Considering the role and circumstances of convict Ramveer he is sentenced to Rigorous Imprisonment for a period of 02 years under Section 308 IPC. He is also directed to pay fine of Rs. 2000; in default of payment of fine is to undergo S.I for a period of two months. He is also undergo Rigorous Imprisonment for a period of one year Under Section 148 IPC. He is also sentenced to undergo Rigorous Imprisonment under Section 452 for a period of three years. In addition he has to pay fine of Rs. 3000/-. In default of payment of fine he has to undergo Simple Imprisonment for a perod of four months. He is also sentenced to R.I. under Section 506(II) IPC. For a period of six months. In S/vs Ramveer Page No. 53 FIR No. 26/06 PS Sangam Vihar
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addition he is directed to pay fine of Rs.1000/. In default of payment of fine he has to undergo S.I for two months. He is also sentenced to R.I. under Section 304(I) IPC for a period of 06 years. In addition he is directed to pay fine of Rs.5000/-. In default of payment of fine he is to undergo S.I. for 06 months.
14. Convict Jamaluddin had caused knife injury to Satish. He is sentenced to Rigorous Imprisonment for a period of 02 years under Section 308 IPC. He is also directed to pay fine of Rs. 2000. In default of payment of fine is to undergo S.I for a period of two months. He is also undergo Rigorous Imprisonment for a period of one year under Section 148 IPC. He is also sentenced to undergo Rigorous Imprisonment under Section 452 IPC for a period of three years. In addition he has to pay fine of Rs. 3000/-. In default of payment of fine he has to undergo Simple Imprisonment for a perod of four months. He is also sentenced to R.I. Under Section 304(I) IPC for a period of 05 years. In addition he is directed to pay fine of Rs.4000/-. In default of payment of fine he is to undergo S.I. for five months.
15. The substantive sentences of imprisonment awarded to the convicts shall run concurrently . The period of detention already undergone by the convicts S/vs Ramveer Page No. 54 FIR No. 26/06 PS Sangam Vihar
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during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convicts by this order, as provided under Section 428 CrPC. Copy of judgment and order of sentence be supplied to convicts free of cost. Fine not paid.
16. File be consigned to record room.
Announced in the open Court on Ist Day of October,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi S/vs Ramveer Page No. 55 FIR No. 26/06 PS Sangam Vihar
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S/vs Ramveer Page No. 56 FIR No. 26/06PS Sangam Vihar