Delhi District Court
State vs . 1. Heera on 20 October, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 16/2014
Unique Case ID: 02404R0068392014
State Vs. 1. Heera
S/o Jagpal
R/o N77 C/567, Sawan Park
Ashok Vihar, Delhi.
(Convicted)
2. Ranjeet
S/o Shakti
R/o C416, Sawan Park Extension
Ashok Vihar, Delhi.
(Convicted)
FIR No. : 399/2013
Police Station : Bharat Nagar
Under Section : 307/34 Indian Penal Code.
Date of committal to Sessions Court : 31.03.2014
Date on which orders were reserved : 13.10.2014
Date on which judgment pronounced :13.10.2014
JUDGMENT (Oral)
BRIEF FACTS:
(1) As per the allegations, on 12.12.2013 at about 7.05 AM at Railway Phatak, Sawan Park, towards Sangam Park, within the jurisdiction State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 1 of 43 of Police Station Bharat Nagar, the accused Dhanu (since absconding) caught hold of the hand of complainant Deepak and the accused Ranjeet caught hold of Deepak while the coaccused Ajay @ Charan (since absconding) gave knife blow on the face of Deepak while the accused Heera gave knife blow on the right thigh of Deepak, with such intention or knowledge and under such circumstances they by that act caused death of Deepak, they would be guilty of murder of Deepak.
PROSECUTION CASE IN BREIF:
(2) The case of the prosecution in brief is that on 12.12.2013 on receipt of a PCR Call vide DD No. 8B ASI Joginder Singh along with Ct.
Basant reached at the place of occurrence i.e. Sawan Park but it was revealed that the injured was taken to BJRM Hospital and hence they went to the BJRM Hospital and obtained the MLC of injured Deepak who was referred to LNJP Hospital by the doctors. ASI Joginder Singh reached at LNJP Hospital and recorded the statement of Deepak who has alleged that on the date of the incident he was going to visit his mother at Mukundpur and was going on foot towards GTK Road to catch a bus and at about 7:05 AM when he reached near Railway Phatak, Sangam Park, four boys came from behind i.e. Dhanu who caught hold of his hands; Ranjeet also caught hold of him; Ajay @ Charan who gave knife blow on the right side of his mouth and Heera who gave knife blow on the right side of his back. Deepak further stated that thereafter blood started oozing out from the State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 2 of 43 wounds and he raised an alarm on which all the four accused fled from the spot after which he made a call at 100 number and PCR Van came there who took him to the BJRM Hospital from where he was referred to LNJP Hospital. Deepak further told the police that he knew all the four assailants who were residing in the nearby jhuggies. (3) On the basis of the statement of Deepak, a rukka was prepared by the ASI Joginder Singh and after making endorsement on the same, the FIR was got registered. In the course of investigations, the accused Heera and Ranjeet were apprehended and arrested while the coaccused Ajay @ Charan and Dhanu could not be apprehended. After completing the investigations, charge sheet qua the accused Heera and Ranjeet was filed in the court.
CHARGE:
(4) Charge under Section 307/34 Indian Penal Code was settled against the accused Heera and Ranjeet to which they pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to discharge the onus upon it, the prosecution has examined as many as Nineteen witnesses, as under:
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 3 of 43 Complainant / Public Witnesses:
(6) PW10 Deepak has deposed that on the day of incident, he was residing at N77B609, Jhuggi Sawan Park, Behind Sunder Lal Jain hospital, Delhi. According to him, he is a driver by profession and on the day of incident, he was the driving the ECCO Car. He has deposed that on 12.12.2013, at about 6:15/6:30 a.m., he was going to his house at Mukandpur and he had to board the bus from GTK bus stand, therefore, he was going on foot to the bus stand but when he reached near railway crossing Sangam Park, at about 7:00 a.m., firstly two boys came from behind, they were accused Dhanu and Ranjeet. According to the witness, he knew them previously as there was a previous enmity with Ranjeet as he had insulted his wife earlier also regarding which matter was reported to the Police also. He further deposed that accused Dhanu caught hold of his hand and accused Ranjeet caught him from behind. According to the witness, after some time, two other boys namely Ajay and Hira also came there. He has deposed that he knew Hira and Ajay previously also being resident of Sawan Park and Sangam Park. He has further deposed that accused Ajay had given a knife blow on the right side of his face and accused Hira gave knife blow on right side of his back. According to him, blood started oozing out from right side of his face and back and he raised an alarm after which all the accused persons ran away from the spot. He further deposed that he made a call at number 100 and PCR came to the spot and took him to BJRM Hospital from where he was referred to LNJP State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 4 of 43 hospital. Witness has deposed that the accused Ajay and Dhanu are resident of Sangam Park whereas accused Hira and Ranjit are resident of Sawan Park. He further deposed that his statement was recorded in the LNJP Hospital which is Ex. PW10/A, bearing his signatures at point 'A'.
According to him, he had shown the spot to the Police and the Police prepared site plan at his instance. Witness has identified both the accused persons Hira and Ranjit present in Court. He has also identified one brown color sweater and one woolen Tshirt having red, blue and green stripes/ lining, same are shown to witness who correctly identifies the same which he was wearing at the time of incident and handed over to Doctor which Sweater is Ex. P1 and Tshirt is Ex. P2.
(7) In his crossexamination on behalf of both the accused persons the witness has deposed that it is correct that a case u/s 107/151 Cr.P.C. was lodged against him but the same has already been disposed of. According to him, his father was also a driver, therefore, he also adopted the same profession and he had taken leave from his work on the day of incident. He further deposed that the entire incident happened with in two minutes. He admits that the spot is a busy road and public persons used to pass from there but there was no rush in the morning time. He further deposed that he called his wife at the spot. According to him, he was trying to make a call to Police from his mobile but he was not able to do so, therefore when his wife arrived at spot, he called from her mobile to the Police. He has further deposed that his wife did not accompany him to State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 5 of 43 Hospital and she went to home to inform his mother. He does not know if the IO had recorded statement of his wife or not. He further deposed that his wife reached at the spot with in 5 minutes. He has further deposed that his house is at a distance of about 200300 meter from the spot. He further deposed that when he was being taken to the Hospital by the PCR he was conscious at that time. He further deposed that he did not give the name of the assailants to the PCR officials but he gave their names to local Police in his statement. According to him, his statement was recorded by IO after having been operated by the Doctor. He has further deposed that he did not tell the name of accused persons to the Doctor nor the same was asked to him. He further deposed that he does not remember as to after how much time, his family members came to spot. According to the witness, firstly, his mother and his wife came to LNJP Hospital and then local Police came there. He further deposed that initially, one Police officer came to Hospital whose name might be Jagminder. He has denied the suggestion that since he had previous enmity with accused Ranjit therefore he had falsely implicated him in this case after consulting with his family members. He admits that other cases are also pending against the other persons of the locality in which he is the complainant. He has denied that he is deposing falsely with the connivance of IO and his family members or that he was not beaten by accused Heera and Ranjit who are present in Court or that some other persons of the locality gave beatings to him or that he had falsely implicated these accused in this case. State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 6 of 43 Forensic and Medical Evidence:
(8) PW11 Dr. Mohit Tiwari has deposed that on 02/03/2014, he was posted as CMO at BJRM Hospital and on that day patient namely Deepak was brought to the Hospital at about 7:30 p.m. for blood sample for cross matching and he had taken the blood sample of the above said patient vide and handed over the same to SI Rakesh Duhan vide MLC No. 74564 which is Ex. PW11/A bearing his signatures at various points mark 'A'. Dr. Mohit Tiwari was not crossexamined on behalf of any of the accused despite opportunity given.
(9) PW12 Dr. Lovenish has deposed on behalf of Dr. Aradhana Singh, SR (Surgery) and has identified his signatures on the MLC of the patient being well conversant with the handwriting and signatures of Dr. Aradhana Singh having seen her while writing and signing during course of his official duties. He has further deposed that on 12/12/2013, patient namely Deepak, aged 32 years male was admitted in their Hospital who was referred by BJRM Hospital and was admitted under SR surgery and Dr. Aradhana Singh has examined the above said patient and the said patient and subsequently operated the patient and the patient was discharged on 16/12/2013 vide discharge summary Ex.PW12/A bearing the signatures of Dr. Aradhana Singh at point 'A' which he identified.
Witness has further deposed that on 07/03/2014 Dr. Aradhana Singh has given the opinion regarding nature of injuries as Grievous which State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 7 of 43 observations are mentioned on the MLC No. 70786 of BJRM Hospital which is Ex.PW12/B bearing the observations of Dr. Aradhana Singh at point 'A' and bearing her signatures at point 'B'.
(10) In his crossexamination on behalf of accused, Dr. Lovenish has admitted that he has not examined the patient personally and has voluntarily deposed that he is deposing on the basis of the official record. (11) PW18 Dr. Abhishek Wallia has deposed on behalf of Sh. Kaushal Kumar, Junior Forensic/chemical examiner (Biology) who happened to be on leave. He has deposed that on 04/03/2014, two sealed parcels duly sealed with the seal of LNH New Delhi and MS BJRMSJPURI Delhi were received in the Office sent by the SHO PS Bharat Nagar, Delhi for examination. He further deposed that the aforesaid parcels were opened and parcel No. 1 was found to contain one multi colored woolen sweater having dark brown stains at places which was marked with Ex.1a and one dirty brown colored woolen sweater having dark brown stains at places which was marked with Ex.1b. According to him the parcel No. 2 was found to contain blood stained gauze cloth piece described as blood sample which was marked as Ex. 2. He has deposed that on examination the blood was detected on exhibit 1a, 1b and 2. The detailed examination report in this regard is Ex.PW18/A bearing the signatures of Sh. Kaushal Kumar at point 'A' which the witness has identified. The serological report is Ex.PW18/B which also bears signatures of Sh. Kaushal Kumar at point 'A'. He has further deposed that State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 8 of 43 both the reports were sent to SHO PS Bharat Nagar vide covering letter Ex.PW18/C. According to the witness, he is well conversant with the signatures of Sh. Kaushal who was working as Junior forensic/chemical examiner (biology) FSL Delhi as he has seen him while writing and signing in the discharge of his official duties.
(12) In his crossexamination on behalf of accused persons, the witness Dr. Abhishek Wallia admits that he has not personally examined the above said exhibits and he is deposing only on the basis of the record. (13) PW19 Dr. Vaibhav Gulati has deposed on behalf of Dr. Ronal Kori and Dr. Somaydeep Chakarborty and has identified their signatures being well conversant with their handwritings and signatures having seen them while writing and signing during course of his official duties. He has further deposed that as per the record, on 12.12.2013 Dr. Somaydeep Chakarborty examined the patient Deepak S/o Asharfi Lal, aged about 32 years male brought by PCR with alleged history of physical assault vide MLC already Ex. PW12/B bearing the signatures of Dr. Chakarbati at point 'C' and bearing the signatures of Dr. Ronal Kori at point 'D'. The patient was referred to SR surgery for further management and opinion and thereafter, the patient was referred to LNJP Hospital for further management and treatment by Dr. Narender. Witness has also identified his signatures at point 'E' as he has seen him also while writing and signing during course of his official duties.
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 9 of 43 (14) In his crossexamination on behalf of accused persons, Dr. Vaibhav Gulati has admitted that he has not personally examined the patient and has voluntarily deposed that he is deposing only on the basis of the official record.
Police / Officials Witnesses:
(15) PW1 W/HC Kamlesh Tiwari has tendered her examination inchief by way of affidavit Ex.PW1/1 wherein she has relied upon the documents i.e. DD No. 13A copy of which is Ex. PW1/A, FIR No. 134/13 copy of which is Ex. PW1/B. She has deposed that on 22/05/2013, she was deputed as a Duty Officer at PS Model Town, Delhi from 8:00 a.m. to 4:00 p.m. she further deposed that on that day, at about 9:25 a.m., she received a Ruqqa from ASI Radhesh Kumar No. 3069/NW for registration of the case. She further deposed that she also made endorsement on the same and recorded Kaymi vide DD No. 13A. She further deposed that the Ruqqa was given for recording of CASE FIR No. 134/13, dated 22.05.2013, u/s 354/34 IPC in computer. She further deposed that after recorded FIR, she gave copy of FIR and original Ruqqa to Constable Anil No. 2354/NW to hand over the same to ASI Radhesh Kumar. She was not crossexamined on behalf of any of the accused despite being given an opportunity. (16) PW2 Ct. Basant has tendered his examinationinchief by way of affidavit Ex.PW2/1. He has deposed that on 12.12.2013, he was posted at PS - Bharat Nagar, Delhi and after receiving of PCR Call DD No. 8B, State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 10 of 43 he along with ASI Joginder Singh reached at Railway Fatak Sawan Park, but it was revealed that the injured was taken to BJRM Hospital, Jahangir Puri, Delhi by PCR Van. He further deposed that thereafter, he alongwith ASI Joginder Singh reached at BJRM Hospital and he received the MLC of Deepak and it was revealed that the injured Deepak had referred to LNJP Hospital by the Doctors. He has further deposed that after reached at LNJP Hospital his statement was recorded by ASI Joginder Singh and thereafter reached at Police Station Bharat Nagar and ASI Joginder Singh got registered the case and investigation was handed over to SI Sandeep Kumar, who recorded his statement on the same day i.e. on 12.12.2013. (17) In his crossexamination, Ct. Basant has deposed that they reached at LNJP hospital around 8:30 a.m. and remained there for 45 minutes and thereafter he along with ASI Jogender Singh left the Hospital around 9:15 AM. He denied the suggestion that he did not join the investigations along with ASI Jogender.
(18) PW3 HC Rakesh Kumar has tendered his examinationin chief by way of affidavit Ex.PW3/1 wherein he has relied upon the documents i.e. entry in Register No. 19 at Serial No. 2549/13 copy of which is Ex.PW3/A, S. No. 663/14, copy of which is Ex.PW3/B. He also relied upon the entry in Register No. 21 vide RC No. 15/21/14 copy of which is Ex.PW3/C and receipt of FSL copy of which Ex.PW3/D and deposed that on 14.12.2013, he was posted as a MHC (M) in Police Station Bharat Nagar, Delhi. He further deposed that on that day, SI Sandeep State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 11 of 43 Kumar deposited one exhibit (blood stained clothes) in Malkhana which was sealed with the seal of LNH NEW DELHI, in case FIR No. 307, 34 IPC, PS Bharat Nagar, Delhi, in this regard he made entry in Register No. 19 vide entry No. 2549/13. He further deposed that on 02.03.2014, he was posted as a MHC(M) (CP) in PS Bharat Nagar, Delhi. On that day, SI Rakesh Duhan deposited one exhibit (blood sample) in Malkhana which was sealed with the seal of MS BJRMS J PURI DELHI, in case FIR No. 399/13, u/s 307, 34 IPC, PS Bharat Nagar, Delhi, in this regard he made entry in Register No. 19 vide entry No. 663/14. He further deposed that on 04.03.2014, on the instructions of IO SI Rakesh Duhan, he handed over above 02 sealed exhibits (Blood stained clothes & blood sample) sealed with the seal of LNH NEW DELHI & MS BJRMS J PURI DELHI, to Constable Adesh Kumar No. 2422/NW vide RC No. 15/21/14, dated 04.03.2014 to deposit the same in FSL, Rohini, Delhi. On the same day he deposited the same in FSL, Rohini and handed over the copy of R/C and acknowledgment receipt after deposition. He further deposed that so long as the exhibits remained in his custody, the same remained intact.
(19) In his crossexamination, HC Rakesh Kumar has denied the suggestion that the entires in the Register No. 19 have been fabricated later at the instance of the IO.
(20) PW4 HC Jai Singh has tendered his examinationinchief by way of affidavit Ex.PW4/1 wherein he has relied upon the documents i.e. DD No.12A copy of which is Ex. PW4/A, FIR No. 399/13 copy of which State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 12 of 43 is Ex.PW4/B and endorsement on rukka which is Ex. PW4/C. He has deposed that on 12.12.2013, he was deputed as a Duty Officer at PS Bharat Nagar, Delhi from 8:00 a.m. to 4:00 p.m. and at about 10:10 a.m., he received a Ruqqa from ASI Joginder Singh for registration of case. He also made endorsement on the same and recorded Kaymi vide DD No. 12A. The Ruqqa was given for recording of case FIR No. 399/13, dated 12/12/2013, u/s 307/34 IPC in chamber. He further deposed that after recorded FIR, he gave copy of FIR and original Ruqqa to Constable Narender No. 1603/NW to hand over the same to SI Sandeep I/C PP Sangam Park.
(21) In his crossexamination, HC Jai Singh has denied the suggestion that no rukka was received by him and FIR is ante timed and ante dated.
(22) PW5 Ct. Narender has tendered his examinationinchief by way of affidavit Ex.PW5/1 and deposed that on 12/12/2013, he was posted at PS Bharat Nagar, Delhi and on that day, after registration of case FIR No. 399/13, dated 12/12/2013, u/s 307/34 IPC, PS Bharat Nagar, Delhi, DO/HC Jai Singh, No. 828/NW handed over original Rukka and copy of FIR to him to hand over the same to SI Sandeep Kumar, I/C PP Sangam Park. He further deposed that after receiving he reached at PP Sangam Park and handed over the original Rukka and copy of FIR to SI Sandeep Kumar, I/C PP Sangam Park. He was not crossexamined on behalf of any of the accused despite being given an opportunity.
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 13 of 43 (23) PW6 ASI Devender Singh has tendered his examinationin chief by way of affidavit Ex.PW6/1 wherein he has deposed that on 1112/12/2013, intervening night, he along with Ct. Driver Manoj No. 9283/PCR & Constable Basudev, No. 3297/PCR (Gunmen) was deployed at Com17 PCR Van from 8:00 p.m. to 8:00 a.m. He further deposed that on 12/12/2013 at 7:23 a.m., PCR Call was received that Sawan Park opposite, C32, "Her husband was stabbed through knife". He further deposed that after receiving of PCR Call, they reached at the spot and found injured Deepak S/o Ashrafi Lal R/o Jhugi Sawan Park, Age 25 years. He stated that four boys who were known to him attacked upon him through knife. The injured Deepak was taken to BJRM Hospital, Jahangir Puri, Delhi and was admitted. He further deposed that on 04.03.2013, SI Rakesh Duhan recorded his statement in PP - Sangam Park, Delhi. (24) In his crossexamination, ASI Devender Singh has deposed that he had taken the injured to BJRM hospital, wife of injured also accompanied them. He further admitted that Deepak did not disclosed the name of the assailant to him.
(25) PW7 Ct. Sunil has tendered his examinationinchief by way of affidavit Ex.PW7/1 and has relied upon the DD No. 8B copy of which is Ex.PW7/A. He deposed that on 12.12.2013, he was posted at PS - Bharat Nagar, Delhi. He further deposed that on that day, he was deputed as a DD Writer at PS Bharat Nagar, Delhi from 12:00 a.m. to 8:00 a.m. He further deposed that on that day, at about 7:22 a.m., he received a PCR Call from State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 14 of 43 wireless operator Omega 52 that somebody had stabbed knife to the husband of lady caller. He lodged the same into Roznamcha vide DD No. 08 B, dated 12/12/2013. He further deposed that thereafter, he apprised ASI Joginder Singh about DD entry and Constable Basant No. 1055/NW was also directed to reach at the spot and to join ASI Joginder Singh. Constable Sunil was not crossexamined on behalf of any of the accused despite opportunity given.
(26) PW8 Ct. Adesh Kumar has tendered his examinationinchief by way of affidavit Ex.PW8/1. He also relied upon the entry in register No. 21 vide RC No. 15/21/14, copy of which is Ex.PW3/C and receipt of the FSL which is Ex.PW3/D and deposed that on 04.03.2014, he was posted as Ct at PS Bharat Nagar. According to him, on that day, on the instruction of IO SI Rakesh Duhan, he took 02 sealed exhibits containing blood stained clothes & blood sample sealed with the seal of LNH, New Delhi & MS BJRMS J PURI DELHI respectively from MHC (M) (CP) to deposit the same in FSL, Rohini, Delhi vide R/C No. 15/21/14. He further deposed that he deposited the above mentioned exhibits at FSL, Rohini, Delhi on the same day i.e. 04/03/2014, vide FSL No. 2014/B1604. He further deposed that after deposited the exhibits to FSL, Rohini, Delhi, he handed over the acknowledgment and copy of R/C to MHC(M) (CP), PS Bharat Nagar, Delhi as well as to IO SI Rakesh Duhan. He further deposed that so long as the exhibits were remained in his custody, the same were remained intact. He further deposed that his statement was recorded by SI State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 15 of 43 Rakesh Duhan on the same day on 04.03.2014.
(27) In his crossexamination, Ct. Adesh Kumar has denied the suggestion that the case property was tampered with during the same remained in his possession.
(28) PW9 Ct. Jai Karan has tendered his examinationinchief by way of affidavit Ex.PW9/1 and deposed that on 02/03/2014, he was posted as Constable at Police Post Sangam Park, PS Bharat Nagar, Delhi and on that day, on instruction of IO, SI Rakesh Duhan, he took the complainant Deepak S/o Ashrafi Lal R/o Jhuggi Sawan Park, backside of Sunder Lal Jain Hospital to BJRM Hospital, Jahangir Puri, Delhi. He further deposed that as per directions Deepak was medically examined vide MLC No. 74564 and Doctor obtained his blood sample after which the doctor handed over the sealed blood sample sealed with the seal of MS BJRMS J PURI DELHI along with sample seal. He further deposed that thereafter, he reached at Police Post Sangam Park and handed over the above said blood sample alongwith sample seal to SI Rakesh Duhan, who took the same into possession through seizure memo. He deposited the same to Malkhana of PS Bharat Nagar, Delhi. He further deposed that so long as the exhibit was remained in his custody, the same remained intact. He further deposed that his statement was recorded by SI Rakesh Duhan on the same day on 02/03/2014. Witness Jai Karan was not crossexamined on behalf of any of the accused despite opportunity given.
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 16 of 43 (29) PW13 Ct. Dharmender has deposed that on 12/12/2013, he was posted at Police Station Bharat Nagar and on that day, he along with Constable Masoom Raja were on patrolling duty near railway line phatak, Sangam Park. He has further deposed that at about 7:00 p.m. when they were at underpass Sangam Park, they met SI Sandeep Kumar and asked them to accompany him for searching out the accused persons. He has further deposed that thereafter, they all came near the railway line mazar where two boys were sitting. According to the witness, SI Sandeep pointed out towards the two boys and they all rushed towards them and apprehended them. The witness has deposed that SI Sandeep then interrogated two boys and they disclosed their names as Heera and Ranjeet. Witness has identified both the accused Heera and Ranjeet in the Court by name and by pointing out. He has further deposed that in his presence SI Sandeep then prepared the disclosure statements of both the accused which are Ex.PW13/A and Ex.PW13/B. (30) In leading questions put by the Learned Addl. PP for the State, the witness has admitted that the accused Heera was arrested vide memo Ex.PW13/C and his personal search was conducted vide memo Ex.PW13/D. He further admitted that the accused Ranjeet was also arrested vide memo Ex.PW13/E and his personal search was also conducted vide memo Ex.PW13/F. According to the witness, both the accused persons Heera and Ranjeet took them to the place of incident and State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 17 of 43 IO prepared the memo of pointing out in respect of accused Heera vide memo Ex.PW13/G and in respect of accused Ranjeet Ex. PW13/H. (31) In his crossexamination by Ld. Defence Counsel, the witness has deposed that SI Sandeep met them at about 7:00 p.m. According to the witness, the distance between Underpass, Sangam Park and place of apprehension of accused persons is about 200 meters and they straight away gone there. He has deposed that he does not know the accused persons prior to their arrest and has voluntarily deposed that SI Sandeep informed them about the accused persons. He admits that the road is thorough fair but no public person were asked to join the investigations by SI Sandeep. According to the witness, they all were in Police uniform and they reached near railway line within half an hour. He has deposed that the accused persons did not try to run away after seeing them and both the accused persons were apprehended by them and there was dim light at the spot. He has deposed that all the writing work was done by the IO while standing at the spot itself. According to the witness, the distance between the place of apprehension and place of incidence is about 250 meters. He has deposed that the IO prepared all the documents at the spot while standing under the street light. Witness has denied the suggestion that no disclosure statements were made by accused persons or that accused persons had not pointed out the spot of incident. He has denied that both the accused persons were called at the Police Post and were falsely implicated in the present case.
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 18 of 43 (32) PW14 Ct. Masoom Raja has deposed that on 12/12/2013, he was posted at Police Station Bharat Nagar and on that day, he along with Constable Dharmender were on patrolling duty and when they reached near railway crossing, SI Sandeep Kumar met them. He further deposed that he had given the facts of this case and they joined with him and started the search for the accused persons. According to him, they found two boys sitting near Mazar Sangam Park, near railway line whose names were Heera and Ranjeet and they both were apprehended by the IO who knew them as they were habitual offenders. The witness has deposed that accused Heera and Ranjeet were interrogated and arrested in this case and their disclosure statements were also recorded. According to him, both the accused persons took them to the place of incident and pointed out the spot and the IO prepared the pointing out memo on their instance after which both the accused were taken to BJRM Hospital where their medical examination was got conducted. The witness has deposed that thereafter, the accused persons were brought to the Police Station and sent to lock up of Police Station Ashok Vihar. He further deposed that his statement was recorded by the IO u/s 161 Cr.P.C. And he was relieved. He has identified the accused persons Heera and Ranjeet both by name and by pointing out. (33) In his crossexamination on behalf of accused persons, Ct. Masoom Raja has deposed that SI Sandeep met them at about 7:00 p.m. he has deposed that the distance between the place of apprehension and underpass Sangam Park is about 250 meters. He further deposed that they State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 19 of 43 were on foot and they all were in uniform at that time. He admits that the said road is a thorough fair. According to him, SI Sandeep did not ask any public person to join the investigations. He has further deposed that they reached at the place of apprehension of accused at about 7:15 p.m. According to him he did not know the accused persons prior to their apprehension. He has deposed that near railway line, there was dark and accused persons did not tried to run away. He further deposed that they all apprehended the accused and both the accused persons were interrogated there. He has deposed that all the writing work was done near the Mazar while standing under the street light and they remained there for about half an hour to 45 minutes. He further deposed that the distance between the place of apprehension and place of incident is about 200250 meters and they reached there at about 8:058:10 p.m. and remained there for about 20 minutes. He has denied the suggestion that no disclosure statements were made by accused persons or that accused persons were not pointed out the spot of incident or that both the accused persons were called at the Police Post and they were falsely implicated in the present case or that he is deposing falsely at the instance of the IO.
(34) PW15 ASI Joginder Singh deposed that on 12/12/2013, he was posted at Police Station Bharat Nagar and was on emergency duty from 8:00 p.m. to 8:00 a.m. and at about 7:22 a.m., the duty officer informed him that a PCR call has been received that one person had been stabbed at Sawan Park Railway Phatak after which he along with Constable State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 20 of 43 Basant reached at Railway Phatak, Sawan Park where they could not find anybody. He has further deposed that the passersbys informed him that injured has been shifted to BJRM hospital and hence they went to BJRM hospital where he came to know that injured Deepak had been brought by PCR but now referred and shifted to LNJP Hospital. He further deposed that he obtained the MLC of the injured Deepak and thereafter, he along with Constable Basant reached at LNJP Hospital where he found the injured Deepak admitted who was fit for statement and hence he recorded his statement Ex.PW10/A and thereafter he return to Police Station and made his endorsement on the said statement Ex.PW15/A and converted the same to rukka and handed over the same to Duty Officer for registration of case and after registration of case, the further investigation was marked to SI Sandeep.
(35) In his crossexamination, ASI Joginder Singh has deposed that he reached the spot of the incident at 7:30 p.m., there he only met one passerbye and there were no other person. He is however unable to tell the names of passerbye. He further deposed that he did not notice any blood stains at the spot anywhere near the phatak. According to him, the public persons had told him the exact spot of quarrel but he cannot tell the name of those public persons who informed him about the spot. He has further deposed that he did not meet any eye witness at the spot and admits that it is on the basis of hear say that he came to know about the quarrel. According to the witness, no body at the spot told him who the injured was State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 21 of 43 or who the assailants were. He further deposed that he did not obtain the fitness of injured in writing from the Doctor before recording his statement. According to the witness, when he had recorded the statement of injured he was sitting on his bed but was physically and mentally fit. According to the witness, at the time he saw the injured, he was having a bandage on his face and back. He has deposed that except the mother of injured, there was nobody else from the house of injured present there. He has deposed that he did not prepare any site plan of the incident nor he took any photographs nor he lifted any exhibits from the spot nor he interrogated any person at the spot when he reached there on receipt of call. Witness has denied the suggestion that the statement made by the complainant was on his tutoring or that the FIR had been ante timed on his asking or that he is deposing falsely.
(36) PW16 SI Sandeep has deposed that on 12/12/2013, he was posted at Police Station Bharat Nagar and was working as Chowki In charge, PP Sangam Park. According to him, on that day, Constable Narender had brought the copy of FIR and original rukka in the Police Post and handed over the same to him as the further investigations in the present case was marked to him. He further deposed that he recorded the statement of Constable Narender u/s 161 Cr.P.C. and he was relieved from the Police Post. He further deposed that thereafter, he came back to the spot but no witness met him at the spot at that time. According to the witness, while he was going to search the accused persons as they were named in the FIR State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 22 of 43 and when he reached near Sawan Park Police Booth, Constable Basant met him and he recorded his statement under Section 161 Cr.P.C. and he was relieved from there. He has further deposed that he started the search of the accused persons and when he reached near phatak No. 3 Constable Masoom Raja and Constable Dharmender met him. He has further deposed that they were joined with in the investigations. According to him, they all reached near the underpass where the secret informer met him who informed him that both the accused persons namely Heera and Ranjeet were sitting on the railway track near Mazar. He has further deposed that he along with both the Constables reached there and found the accused Heera and Ranjeet on the railway track and both the accused were apprehended and after their interrogation and on being satisfied both the accused namely Heera and Ranjeet were arrested, personally searched and their disclosure statements were also recorded after which the accused took the police party to the spot and pointed out the place of incident and memos in this regard were also prepared after which they were got medically examined at BJRM Hospital. The witness has further deposed that on 13.12.2013 both the accused persons were produced before Learned MM and got them sent to JC. According to the witness, on 14.12.2013, he along with Constable Masoom Raja went to LNJP Hospital where the Doctor concerned handed over the sealed parcel containing the clothes of the injured and the sample seal duly sealed with the seal of LNH New Delhi and the aforesaid parcel was taken into possession vide seizure State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 23 of 43 memo Ex.PW16/A. He has further deposed that the MLC of injured Deepak was deposited in the BJRM hospital for obtaining the nature of injuries. Witness has further deposed that on 15.01.2014, he went to the house of injured Deepak who took him and they both reached at the spot where he prepared the site plan vide Ex. PW16/B. He has further deposed that thereafter, he was transferred from the Police Post therefore further investigations of the present case was handed over to SI Rakesh Duhan and he handed over the case file to MHC (R). Witness has identified the accused Heera and Ranjeet both by name and by pointing out. (37) In his crossexamination on behalf of accused persons, SI Sandeep deposed that on 12.12.2013, he left the Police Post at about 12:00 noon on motorcycle. He has further deposed that he parked his motorcycle near the railway Phatak No. 3 and proceeded on foot when Constable Masoom Raja and Constable Dharmender met him at about 7:00 p.m. According to him, the secret informer met him at about 7:30 p.m. He further deposed that Constable Masoom Raja and Constable Dharmender were present with him at that time. He has further deposed that the secret informer told him about the accused persons by taking him to one side and not in front of Constable Masoom Raja and Constable Dharmender. Witness has admitted that there is a thorough fair but no public person was met him at that time so no one asked to join the investigations. He has further deposed that the distance between the place of apprehension of the accused persons and place of receiving secret information is about 200 State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 24 of 43 meters. He further deposed that secret informer accompanied him to the place of apprehension and has voluntarily deposed that he was walking at a little distance from them. He has further deposed that accused Heera known to him prior to his apprehension. According to the witness, there was sufficient light at the place of apprehension of accused. He has further deposed that accused persons did not tried to run away after seeing them and has voluntarily added that they did not given them much time. He has deposed that all the writing work was done while standing under the street light. He has also deposed that they remained there upto 9:3010:00 p.m. He further deposed that he prepared all the documents in his own handwriting. Witness has admitted that no weapon of offence was recovered at the instance of accused persons or from the accused persons. He has further deposed that the distance of place of incident and apprehension of accused persons is about 200250 meters and has stated that they stayed at the spot for about 15 minutes and returned back to the Police Post at around 11:30 p.m. He has further deposed that he is not aware if the complainant was having any criminal cases against him or if the complainant was also the complainant in any other matter. Witness has denied the suggestion that no disclosure statements were made by accused persons or that the same were recorded by him of his own or that accused persons were not pointed out the spot of incident or that both the accused persons were called at the Police Post and they were falsely implicated in the present case or that the accused persons were compelled to sign certain State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 25 of 43 blank documents which were later on converted into various incriminating memos or that he has not conducted free and fair investigations or that he is deposing falsely.
(38) PW17 SI Rakesh Duhan has deposed that on 06.02.2014, the investigation of this case was handed over to him after transfer of previous IO SI Sandeep Kumar on 02.03.2014. He has deposed that he called the complainant Deepak in Police Post Sangam Park and he handed over the discharge card of LNJP hospital to him and thereafter he directed Ct. Jai Karan to take complainant to BJRM hospital to preserve his blood sample. He has deposed that the doctor concerned had taken the blood sample of the injured Deepak and handed over the sealed sample containing blood sample and the sample seal of BJRM Hospital to Ct. Jai Karan who handed over the same to him and he seized the said parcel vide seizure memo Ex.PW17/A, OPD Card is Ex.PW12/A and the patient case record sheet is Ex.PW17/B which was taken by him after receiving the result on the MLC. The witness has deposed that on 04.03.2014, sealed parcels containing exhibits were deposited to FSL Rohini through Ct. Adesh which were duly sealed with the seal of LNJP Hospital and BJRM Hospital. He also collected the result on the MLC from LNJP Hospital which was opined as Grievous and filed the charge sheet before Ld. MM after investigation. He deposed that he received the FSL result from MHC (M) on 28.05.2014 and the same was filed before Learned MM as supplementary charge sheet on 29.05.2014. Witness SI Rakesh Duhan was State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 26 of 43 not crossexamined on behalf of any of the accused despite being granted an opportunity.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(39) After completing the prosecution evidence, statement of accused Heera and Ranjeet under Section 313 Cr.PC were recorded wherein the entire incriminating material / evidence against the accused were put to him which they have denied. Both the accused have pleaded innocence and stated that they have nothing to do with the alleged offence and the entire case has been fabricated by the police to implicate them after calling them in the Police Post.
FINDINGS:
(40) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel, considered the testimonies of various witnesses examined by the prosecution and the memorandum of arguments filed on behalf of the accused as well as the prosecution and my findings are as under.
Prompt Registration of FIR:
(41) The case of the prosecution is that the incident in question had taken place at around 7:05 AM and as soon as the call was made to the police, the injured Deepak was taken to the BJRM hospital by ASI State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 27 of 43 Devender of PCR and after recording his statement, the present FIR was got recorded without any delay. In this regard I may observe that the Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
(42) In the case of Tulshidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
"..... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 28 of 43 befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle."
(43) In the case of Devanand Vs. State (NCT of Delhi), reported in 2003 Crl.L.J. 242 the Hon'ble High Court of Delhi, has held as under :
"the above said statement clearly show that at the earliest opportunity the prosecutrix had not made any complaint to her mother in this regard. Reading of the examination-inchief reveals that first time she was raped as per her own version after about 3036 days of coming of the appellant but in any case she admits that she has been raped many a times and she only complained to her mother few days after he had left. The appellant stayed in the house of the prosecutrix for more than year...para15"
(44) Further in the case of Thulia Kali vs. state of Tamil Nadu, reported in 1972 Cr.L.J.1296, the Hon'ble Supreme Court has held as under:
"...Delay in lodging the first Information Report quite often results in embellishment which is a creature of after thought . On account of delay the report. On the Account of delay the report not only gets breft of the advantage of spontaneity danger creeps in on the introduction of the coloured version, exaggerated account or concocted story as result of deliberation and consultation ..."
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 29 of 43 (45) Further, the Hon'ble High Court of Rajasthan in the case of Babu Lal and Anr Vs State of Rajasthan, reported in 2001 Cri LJ 2282 , has held as under: " No doubt delay in lodging the FIR in sexual assault cannot normally damage the version of the prosecutrix as held the Hon'ble Supreme Court in various judgements but husband of the prosecutrix is there and report is lodged after one and half months, such type of delay would certainly be regarded as fatal to the prosecution case"
(46) Further, the Hon'ble High Court of Madhya Pradesh in the case of Banti alias Balvinder Singh VS State of Madya Pradesh reported in 1992 Cr LJ 715 has held as under:
"in conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the Lax Morals of the Prosecutrix , it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them . It is also difficult to believe her version regarding the alleged abduction in jeep. In the circumstances, it must be held that the prosecutrix story was not satisfactorily established (Para 10)"
(47) Applying the above settled principles of law to the facts of present case, it is evident that the incident in question had taken place at State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 30 of 43 about 7:05 AM and the injured Deepak was initially admitted in the BJRM hospital at about 8:15 AM and thereafter was referred to LNJP Hospital for further management and treatment where after his treatment, his statement was recorded on the basis of which the FIR was registered at 10:00 AM. Thus the delay if any, has been satisfactorily explained and this registration of FIR within three hours of the incident, rules out any possibility of tutoring and lends credence to the prosecution version. Ocular Evidence:
(48) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies. (49) In the present case, the complainant Deepak is the sole witness who claims that he is a driver by profession and on the date of incident he was going to visit his mother at Mukundpur and was going on foot towards GTK Road to board a bus and at about 7:05 AM when he reached near Railway Phatak, Sangam Park, four boys came from behind i.e. Dhanu who caught hold of his hands; Ranjeet also caught hold of him; Ajay @ Charan who gave knife blow on the right side of his mouth and Heera who gave State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 31 of 43 knife blow on the right side of his back as a result of which he sustained injuries. Since the prosecution is placing its heavy reliance on the testimony of complainant / victim Deepak (PW10) hence it is necessary for this Court to first determine whether what he has deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 32 of 43 of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:
Krishnan Vs. State reported in AIR 2003 SC 2978). (50) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(51) Applying the above settled principles of law to the facts of present case, coming first to the testimony of the complainant / Victim Deepak (PW10) the relevant portion is reproduced as under:
I am residing at the aforesaid address. However, on the day of incident I was residing at State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 33 of 43 N77B609, Jhuggi Sawan Park, Behind Sunder Lal Jain hospital, Delhi. I am driver by profession. On the day of incident, I was the driving the EECO Car. On 12.12.2013, at about 6.15/6.30am, I was going to my house at Mukandpur. I had to board the bus from GTK bus stand, therefore, I was going on foot to the bus stand. When I reached near railway crossing Sangam Park, at about 7.00am, firstly two boys came from behind, they were accused Dhanu and Ranjeet. I knew them previously as there was previous enmity with Ranjeet as he had insulted my wife earlier also regarding which matter was reported to the police also. Accused Dhanu caught hold of my hand and accused Ranjeet caught me from behind. After some time, two other boys namely Ajay and Hira also came there. I knew Hira and Ajay previously also being resident of Sawan Park and Sangam Park. Accused Ajay had given a knife blow on the right side of my face and accused Hira gave knife blow on right side of my back. Blood started oozing out from right side of my face and back. I raised alarm. Thereafter, all the accused persons ran away from the spot. I made a call at number
100. PCR came to the spot and took me to BJRM hospital from where I was referred to LNJP hospital. Accused Ajay and Dhanu are resident of Sangam Park whereas accused Hira and Ranjit are resident of Sawan Park. My statement was recorded in the LNJP hospital which is ExPW10/A, bearing my signatures at point A. I had shown the spot to the police and the police prepared site plan at my instance.
I can identify the accused persons.
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 34 of 43 At this stage, witness has pointed out towards accused Hira and Ranjit present in court today (correctly identified).
I can identify my clothes if shown to me.
At this stage, MHC(M) has produced a sealed parcel sealed with the seal of FSL. Same is opened and found to contain one brown color sweater and one woolen Tshirt having red, blue and green stripes/ lining, same are shown to witness who correctly identifies the same which he was wearing at the time of incident and handed over to Doctor. Sweater is Ex.P1 and Tshirt is Ex.P2."
(52) Deepak has been exhaustively cross examined wherein he admits that a case under Section 107/151 Cr.PC had been lodged against him and has also explained that the same has now been disposed off. He has further explained that his father is also a driver and he has adopted the same profession. He further explained that there was no public person present at the time of the incident which admittedly lasted for about 1 to 2 minutes and therefore nobody collected there though there is a busy road but at the relevant time there was no rush. He has also explained that initially he tired to make a call to the police but he could not do so hence he made a call to his wife who came to the spot within five minutes and then she made a call at 100 number. He has further states that his wife did not accompany him to the hospital and went home and informed his mother. He has explained that his house is at a distance of about 200300 State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 35 of 43 meters from the spot. He further explained that when he was being taken to the hospital by the PCR officials, he was conscious but he did not give the names of the assailants to the PCR officials and only gave their names to local police. He has further explained that his further statement was recorded by the Investigating Officer after he was operated by the doctors. He has also stated that firstly his mother and wife came to LNJP hospital after which the local police had come there. He has denied any previous animosity with the accused persons.
(53) At the very Outset I may observe that both the accused have been specifically named in the FIR. They were known to the victim previously and hence there is no question of any mistaken identity. (54) Secondly the medical evidence which has come on record is compatible to the oral testimony of the victim and confirm the ocular evidence. Further, the nature of injury has been opined to be as "Grievous".
(55) Thirdly the forensic evidence / reports Ex.PW18/A and Ex.PW18/B have been duly proved by Dr. Abhishek Walia (PW18) which confirm that incident and assault in which the injured Deepak had received injuries and blood was found on the clothes which he was wearing at the time of the incident which were handed over by the doctor to the Investigating Officer.
(56) Fourthly the fact that there exists a previous dispute stands established from the testimony of PW1 W/HC Kamlesh Tiwari who has State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 36 of 43 placed on record the copy of FIR bearing No. 134/13 Police Station Model Town, copy of which is Ex.PW1/B confirming that on 31.5.2013 the wife of the victim made specific complaint that on the date of incident while she was crossing the road, Ranjeet along with one Vikas and one Ashok came in front of her and asked her to tell her husband not to give witness against them and when she refused, they molested her and torn her clothes on which she informed the police. It is this which conclusively establishes the existence of previous disputes between the parties. No doubt there may exists a motive for the complainant to falsely implicate the accused Ranjeet on account of the previous disputes but there is no reason why he would falsely implicate Heera, Ajay and Dhanu with whom he had no dispute. Hence under the given circumstances I do not see any reason to disbelieve the victim Deepak.
(57) Fifthly the injuries received by the victim confirm that they are not self inflicted rather they are inflicted on the vital part by the other party i.e. on the back side. The penetrating injury on abdomen is not possible either by a fall or by self infliction.
(58) Sixthly it is alleged that the weapon of offence i.e. knife has not been recovered in respect of which I may observe that merely because the weapon of offence has not been recovered, will not be fatal to the prosecution case in view of the fact that the injuries in question have not only been opined to be the grievous but are penetrating wounds which can only be caused by pointed and sharp weapon. Under the given State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 37 of 43 circumstances, the oral testimony of Deepak finding due independent corroboration from the medical and forensic report I hold his testimony to be trustworthy and correct account of the incident in question, however, keeping in view the evidence which has come on record regarding the previous disputes between the accused and the complainant and circumstantial evidence confirming a quarrel, one aspect has established and I hold that the case in question false under the exception of Section 300 IPC in view of the allegations and counterallegations made by the parties against each other at various point of time, and hence I hereby hold that it is this which brings the case within the ambit of Section 308 IPC and not under Section 307 IPC.
(59) Lastly in so far as the aspect of Common Intention is concerned, the manner in which the accused Dhanu had caught hold of the hands of the victim Deepak while Ranjeet caught him from behind and Ajay gave knife blow on right side of face and Heera gave knife blow on right side of back of Deepak and the manner in which the incident took place as confirmed from the medical record, proves and establishes the common consortium and common intention between the accused Heera Lal and Ranjeet as contemplated under Section 34 Indian Penal Code. (60) Hence in view of my above discussion, I hereby hold that the oral testimony of the victim Deepak finding independent support from the medical evidence on record, there is no reason to disbelieve the testimonies of the victim Deepak which testimonies I find credible and authentic and State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 38 of 43 confirm the version of the prosecution and charge against the accused under Section 308 Indian Penal Code (not under Section 307 IPC). Medical / Forensic Evidence:
(61) As per the medical record / MLC which his Ex.PW12/B of the victim Deepak which has been duly proved by Dr. Mohit Tiwari (PW11), Dr. Lovenish (PW12) and Dr. Vaibhav Gulati (PW19), the patient Deepak was brought to the hospital by the PCR with alleged history of assault. As per the observations made on the MLC, there were incised wound (3 cm X 0.6 CM) over right side of face, stab wound (2cm and 1 cm) width, two over right lateral back side of abdomen and bruises over right leg. (62) I have gone through the detail medical record and I may observe that from the nature of injury inflicted and the place where they are present, conclusively establishes that they are not self inflicted and have been rather inflicted on vital parts by other side. The presence of the bruises confirm that the victim had been thrown on the ground and there was a free fight in which process he fell and thereafter he was hit with sharp edged object on two places i.e. right lateral back side of abdomen, bruises on the right side of right leg and the penetrating wounds on the posterior aspect and CLW over right side face. The MLC from the LNJP Hospital confirms that Exploratory Laprotomy Subhepetic Strain Placement had been conducted. It is also reflected from the notings present on the MLC Ex.PW12/B that victim has misbehaved with the State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 39 of 43 doctors and had initially refused to take treatment confirming his highly agitated state of mind at the time of the treatment.
Apprehension and Arrest of the accused:
(63) Soon after the registration of the FIR, since the names of the accused were already mentioned in the complaint and the local police were also were of the names of the accused as they were already involved in large number of cases, the accused were apprehended and arrested by the police and even otherwise the apprehension and arrest of the accused persons has not been disputed by the accused and has gone uncontroverted. (64) SI Sandeep, Ct. Masoom Raja and Ct. Dharmender have proved that on 12.12.2013 they reached near underpass and on a secret information the accused Heera and Ranjeet who were sitting on the railway track near Mazar were apprehended and after their interrogation and on being satisfied both the accused Heera and Ranjeet were arrested. The above said witnesses i.e. SI Sandeep, Ct. Masoom Raja and Ct.
Dharmender have been exhaustively cross examined and they stood their version. Even otherwise, the apprehension and arrest of the accused persons is not disputed.
FINAL CONCLUSION:
(65) In the case of Sharad Birdhichand SardavsState of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 40 of 43 the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(66) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the Investigating Officers. The identity of the accused Heera and Ranjeet has been established and proved and is even otherwise not disputed being known to the complainant prior to the incident and also being named in the FIR. It stands established and proved State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 41 of 43 that on the date of incident i.e. on 12.12.2013 at about 7.05 AM at Railway Phatak, Sawan Park, towards Sangam Park, within the jurisdiction of Police Station Bharat Nagar, the accused Dhanu (since absconding) caught hold of the hand of complainant Deepak and the accused Ranjeet caught hold of Deepak while the coaccused Ajay @ Charan (since absconding) gave knife blow on the face of Deepak while the accused Heera gave knife blow on the right thigh of Deepak. It stands established that pursuant to the 100 number call, PCR van came to the spot and the victim was shifted initially to BJRM hospital and thereafter was referred LNJP hospital. It stands established and proved from the medical evidence which has come on record that the injury sustained by the victim Deepak were on the vital part of body and grievous in nature. Further, the apprehension and arrest of the accused Heera and Ranjeet also stands proved and established. (67) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the Investigating Agency does not negate the offence. (68) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 42 of 43 is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
(69) In view of the above discussions, on the basis of the testimonies of various witnesses examined by the prosecution and other material which has come on record, the accused Heera and Ranjeet are hereby held guilty for the lessor offence under Section 308/34 Indian Penal Code (not under Section 307 IPC).
(70) Be listed for arguments on sentence on 16.10.2014.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 13.10.2014 ASJ (NW)II: ROHINI
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 43 of 43
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 16/2014
Unique Case ID: 02404R0068392014
State Vs. 1. Heera
S/o Jagpal
R/o N77 C/567, Sawan Park
Ashok Vihar, Delhi.
(Convicted)
2. Ranjeet
S/o Shakti
R/o C416, Sawan Park Extension
Ashok Vihar, Delhi.
(Convicted)
FIR No. : 399/2013
Police Station : Bharat Nagar
Under Section : 307/34 Indian Penal Code.
Date of conviction : 13.10.2014
Argument concluded on : 16.10.2014
Date of Sentence : 20.10.2014
APPEARANCE:
Present: Ms. Suchitra Singh, Ld. Addl. PP for the State.
Both convicts namely Heera and Ranjeet in Judicial Custody with Sh. Hitender Sakarwal & Ms. Sadhna Bhatia, Advocates / Amicus Curiae.
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 44 of 43 ORDER ON SENTENCE:
(1) As per the allegations, on 12.12.2013 at about 7.05 AM at Railway Phatak, Sawan Park, towards Sangam Park, within the jurisdiction of Police Station Bharat Nagar, the accused Dhanu (since absconding) caught hold of the hand of complainant Deepak and the accused Ranjeet caught hold of Deepak while the coaccused Ajay @ Charan (since absconding) gave knife blow on the face of Deepak while the accused Heera gave knife blow on the right thigh of Deepak, with such intention or knowledge and under such circumstances they by that act caused death of Deepak, they would be guilty of murder of Deepak.
(2) However, on the basis of the testimonies of various witnesses examined by the prosecution and other material which has come on record, this court vide a detailed Judgment dated 13.10.2014 has held the accused Heera and Ranjeet guilty for the lesser offence under Section 308/34 Indian Penal Code (not under Section 307 IPC).
(3) Heard arguments on the point of sentence. The convict Heera is aged about 33 years, married having a family comprising of aged parents, four brothers (all married and residing separately), two sisters (both married), wife and one daughter. Apart from the present case, he is also involved in the following cases:
➢ FIR No. 27/2011 Sections 392/394 IPC Police Station Panipat Citiy, Haryana.
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 45 of 43 ➢ FIR No. 168/2010 under Section 452/323/324 IPC & 25 Arms Act Police Station Bharat Nagar.
➢ FIR No. 7/2010 under Section 307/324/34 IPC Police Station Bharat Nagar.
➢ FIR No. 577/2003 under Section 25/54/59 Arms Act Police Station Ashok Vihar.
➢ FIR No. 11/2003 under Section 307/186/353/332/326/34 IPC Police Station Model Town.
➢ FIR No. 422/2002 under Section 307/34 IPC Police Station Ashok Vihar.
(4) In so far as the convict Ranjeet is concerned, he is aged about 33 years, married, totally illiterate having a family comprising of aged mother (widow), two brothers (one married and one unmarried residing separately), wife and one daughter. Apart from the present case, he is also involved in one another case FIR No. 134/2013 under Section 354/34 IPC Police Station Model Town.
(5) Ld. Amicus Curaie appearing on behalf of the convicts have vehemently argued that though the convicts are involved in other cases also but not yet convicted in any case and keeping in view their young age and other family circumstances, any harsh view at this stage would be detrimental for the entire future of the convicts and hence it is prayed that a lenient view be taken against the convicts.
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 46 of 43 (6) I have considered the rival contentions. The convicts are young boys, belonging to extremely poor families who are dependent on them. Any harsh view at this stage would ruin their entire future. (7) This being the background, the convict Heera is sentenced to Rigorous Imprisonment for the period of Four Years and fine to the tune of Rs.2,000/ for the offence under Section 308 Indian Penal Code. In default of payment of fine, the convict shall undergo Simple Imprisonment for 15 Dyas.
(8) In so far as the convict Ranjeet is concerned, he is sentenced to Rigorous Imprisonment for the period of Four Years and fine to the tune of Rs.2,000/ for the offence under Section 308 Indian Penal Code. In default of payment of fine, the convict shall undergo Simple Imprisonment for 15 Days.
(9) Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them as per rules. (10) The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 47 of 43 (11) Copy of the judgment and order on sentence be given to the convicts free of costs. One copy of the order on sentence be attached along with the custody warrants of the convicts.
(12) File be consigned to Record Room to be taken up after arrest of the coaccused Dhanu and Ajay @ Charan who are reported to be absconding.
Announced in the open Court (Dr. KAMINI LAU) Dated: 20.10.2014 ASJ (NW)II: ROHINI State Vs. Heera etc., FIR No. 399/13, PS Bharat Nager Page No. 48 of 43