Delhi District Court
State vs 1. Harish on 13 February, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.18/2013
Unique Case ID No.12/2016
FIR No.355/2012
U/S: 302/323/34 IPC
P.S: Jyoti Nagar
State Versus 1. Harish
S/o. Gorakh Bahadur
R/o. H.No. 166, Gali No.2, Tahirpur,
Permanent Address:
Atich Chare Gawish Ward No.9,
Sudadha, Distt. Bajra, Nepal.
2. Harka @ Deepak
S/o. Gorakh Bahadur
R/o. Jhuggi No.E31, Gali No.2,
Kailash Colony, East Jhoti Nagar,
Delhi.
Permanent Address:
Atich Chare Gawish Ward No.9,
Sudadha, Distt. Bajra, Nepal.
FIR No.355/2012, PS. Jyoti Nagar Page 1 of 33 St. Vs. Harish etc.
Date of Institution : 04.03.2013
Date of Arguments : 09.01.2018
Date of Judgment : 13.02.2018
J U D G M E N T
Case of Prosecution
1.Criminal law was set into motion on 14.11.2012 at 11.35 pm, on receiving an information regarding quarrel, which was recorded vide DD No.30A and assigned to SI K.P.Singh, who alongwith Ct. Amit reached at the spot i.e Jhuggies near Swarankar Dharamshala, East Jyoti Nagar, Kailash Colony, Delhi, where he came to know that injured has already been removed to GTB Hospital by PCR. Thereupon, SI K.P.Singh alongwith Ct. Amit reached at GTB Hospital, where he obtained the MLC of one Subhash, who was declared brought dead. In the hospital, SI K.P.Singh also met complainant Lal Chand and recorded his statement. The gist of the statement of complainant Lal Chand is that many people from Nepal origin reside in Jhuggies situated in front of Swarankar Dharamshala and that on 14.11.2012, he alongwith his cousin Subhash (son of his maternal uncle) and some of his friends namely Chander, Ganesh and Suresh came to Jhuggies near Swarankar Dharamshala for gambling and enjoyment and while gambling, Harish and his brother Harka under the FIR No.355/2012, PS. Jyoti Nagar Page 2 of 33 St. Vs. Harish etc. influence of liquor, hurled abuses to Subhash, to which Subhash object and for that reason a quarrel started between them. Thereupon, Harka brought a bamboo stick from a nearby jhuggi & Harish lifted a burnt Serwa of the Cot and both of them then beat Subhash with the same, thereby causing him head injury due to which he fell down. Even thereafter, they continued beating Subhash with bamboo stick & burnt Serwa of Cot and also by giving him legs and fist blows. When, he and his friends came forward to save Subhash and for calling police, Harish and Harka alongwith their companions ran away. Somebody made a call to the police at 100 number. Police vehicle took Subhash and other persons who got injured in the quarrel, to GTB Hospital, where doctor declared Subhash as brought dead. On the basis of statement of Lal Chand, SI K.P.Singh got the present case FIR registered through Ct. Amit. Crime team was called at the spot. Broken pieces of bricks, concrete stone, broken wooden Serwa, bamboo stick, blood smeared soil & earth control were lifted and taken into police possession. Search was made for accused persons, who were reported to be brothers. On 15.11.2012, Harish was arrested and thereafter, on 17.11.2012, Harka @ Deepak was arrested from Anand Vihar, Bus Stand and their wearing clothes, which were having blood stains were taken into police possession. Further investigation was carried out and after completion of investigation chargesheet U/s. 302/323/34 IPC was filed before the Court.
FIR No.355/2012, PS. Jyoti Nagar Page 3 of 33 St. Vs. Harish etc.
2. On appearance, in compliance of section 207 IPC, copies were supplied to accused persons and as offence punishable u/s. 302 IPC is triable by the Court of Sessions, present case was committed to Sessions Court.
Charge framed against the accused persons
3. Charge against both the accused was framed u/s. 302/323/34 IPC, to which they pleaded not guilty and claimed trial.
Witnesses examined
4. Prosecution examined 39 witnesses to prove its case. The brief summary of the deposition of Prosecution Witnesses is as under:
5. PW1 is Lal Bahadur, who deposed that he is a Nepali national and that on 14.11.2012 in the night, he was sleeping in his jhuggi and at about 11.30 pm/12 mid night, on hearing noise from outside, he got up and came out. He deposed that suddenly, Lal Chand, who often visits their Basti, hit brick on his forehead and said " Aaj Tujhe Bhi Nahi Chhodunga". He started bleeding, fell down and lost his consciousness. He was rushed FIR No.355/2012, PS. Jyoti Nagar Page 4 of 33 St. Vs. Harish etc. to GTB Hospital in the police ambulance. He further deposed that he regained his consciousness partly in the hospital and that Lal Chand also came in the hospital and gave a fist blow on his forehead at the same place, where he had caused him brick injury.
He was crossexamined by Ld. Addl. PP on the ground that he was resiling from his previous statement given to the police. In his cross examination by Ld. Addl. PP, PW1 confirmed that accused Harish & Harka @ Deepak are also the natives of Nepal and are living in the Jhuggies of Kailash Colony and both are brothers. He further confirmed as correct that on the occasion of previous Diwali, a quarrel had taken place between both the accused and Lal Chand. He was confronted with his statement recorded u/s. 161 Cr.P.C Mark PW1/A but he denied most of the statement and denied the suggestion that accused Harka brought a danda from a nearby jhuggi and accused Harish brought a danda of broken cot and that both the accused gave multiple blows on the head of Subhash causing him head injury. He further denied the suggestion that he had stated in his statement to the police that accused Harish and his brother Harka were responsible for causing death of Subhash or that accused had caused him head injury. To a specific question as put by Ld. Addl. PP, he deposed that Lal Chand is an Auto Driver and that Lal Chand has no enmity with him.
FIR No.355/2012, PS. Jyoti Nagar Page 5 of 33 St. Vs. Harish etc.
6. PW2 Sh. Lal Chand Kumar is the complainant, who deposed that he is native of Nepal and working as Auto Driver in Delhi. He deposed that he used to visit Jhuggies opposite Swarnkar Dharamshala every year to celebrate Diwali with other natives of Nepal living there. He deposed that on 14th also he alongwith Subhash, who was son of his maternal uncle and his friends Suresh and Chander went to aforesaid jhuggies to exchange pleasantries and enjoy the festival and at about 8.30 pm, both accused Harish & Harka hurled abuses at Subhash and started quarreling with him. He deposed that accused Harka brought a bamboo stick from the jhuggi and gave blows to Subhash on various parts of his body, due to which he fell down and that thereafter, accused Harish brought a wooden Serwa burnt from one end. He deposed that in the meantime Subhash had got up and thereupon, accused Harish hit wooden Serwa on the back of the head of Subhash due to which, he again fell down. He deposed that thereafter, both the accused gave him blows with dandas and bricks lying nearby and when he, Suresh and Chander tried to save Subhash, 23 unknown friends of accused threw stones on them. Someone called the police at 100 number and police came at the spot. He deposed that he, Suresh and Chander had also received injuries. He proved his statement given to police as Ex.PW2/A and identified the case property as Ex.P1 to Ex.P4.
FIR No.355/2012, PS. Jyoti Nagar Page 6 of 33 St. Vs. Harish etc. Examination inchief of this witness was firstly deferred on 03.05.2013 as case property was not received from FSL and thereafter, it was deferred on 06.08.2014 & 07.08.2014. Thereafter, in his remaining crossexamination conducted by Ld. Defence Counsel on 12.09.2014, PW 2 deposed that the incident did not take place in his presence as he reached the spot later on and voluntarily deposed that on the last date, he deposed under the pressure of the police and the relatives of the victim. He further deposed that he was not medically examined in the hospital and that there was pitch dark at the spot when he reached there.
7. PW3 is Dr. Ranjeet Kumar, Junior Resident in Accident and Emergency Department, GTB Hospital, who had examined injured Ganesh & Chander. He proved their MLCs as Ex.PW3/A and Ex.PW3/B. His further examination was deferred since original MLCs of Ajay Bahadur, Lal Bahadur, Ms. Jyoti & Suresh had been deposited for final opinion. Thereafter, Dr. Sushma, who was deputed to depose on behalf of PW3 Dr. Ranjeet Kumar, whose examination inchief was deferred, as he had left the services of the hospital and his whereabouts were not known, was examined as PW11. PW11 proved the MLC of injured Jyoti, Ganesh, Chander & Suresh prepared by Dr. Ranjeet Kumar as Ex.PW11/A, Ex.PW3/A & Ex.PW3/B and Ex.PW11/B. FIR No.355/2012, PS. Jyoti Nagar Page 7 of 33 St. Vs. Harish etc.
8. PW4 is Dr. Mahesh Kumar, who had conducted postmortem on the body of Subhash and proved postmortem report as Ex.PW4/A. He deposed that on internal examination, fracture was found present in the skull and the cause of death was as a result of antemortem injuries to head produced by blunt force impact. He in his subsequent opinion Ex.PW4/I clarified that injuries no.1, 2 & 5 were sufficient to cause death in the ordinary course of nature and that injuries were possible with bamboo stick, wooden cot stick, brick and concrete stone.
9. PW5 is HC Manoj Kumar, who on 15.11.2012 was posted as duty officer from 12 midnight to 8 am and had recorded the case FIR Ex.PW5/A. He also made endorsement on rukka Ex.PW5/B and also proved DD No.8A & 9A as Ex.PW5/C & D.
10. PW6 is Sh. Ganesh S/o. Harka. He has not supported the case of prosecution and was crossexamined by Ld. Addl. PP for State. He was confronted with his statement recorded u/s. 161 Cr.P.C Ex.PW6/A but he denied having made such statement to the police, however, in his cross examination, he confirmed that he was taken to GTB Hospital for his medical examination. To a specific question, he confirmed that he was having injury on his head but deposed that same was received by him 12 days prior to 15.11.2012.
FIR No.355/2012, PS. Jyoti Nagar Page 8 of 33 St. Vs. Harish etc.
11. PW7 is Sh. Ajay, who has also not supported the case of prosecution and was crossexamined by Ld. Addl. PP. He was also confronted with his statement Mark PW7/A recorded u/s. 161 Cr.P.C but he denied having made such statement to the police, however, in his cross examination by Ld. Addl. PP, he confirmed that on the last Diwali of the incident, a quarrel had taken place between Subhash, Lal Chand & Harka. He further deposed that it may be or may not be that he had sustained injuries in the quarrel, which had taken place between Subhash and Harish & Harka. He denied the suggestion that he has been won over by the family members of accused persons.
12. PW8 is Smt. Pooja Dixit, who made call to police at 100 number. She deposed that on 14.11.2012 at about 11/11.30 pm some Nepalis were quarreling with each other armed with danda, whereupon she informed the police at 100 number from her mobile no. 8285366120 and later on she came to know that a person has died.
13. PW9 is Sh. Dinesh Kumar, in whose presence accused Harish was arrested vide arrest memo Ex.PW2/F. This witness was also crossexamined by Ld. Addl. PP but he denied that sweatshirt and jeans pant of accused Harish having blood stains FIR No.355/2012, PS. Jyoti Nagar Page 9 of 33 St. Vs. Harish etc. worn by him were recovered in his presence or that he stated so in his statement Mark PW9/X.
14. PW10 Sh. Chander deposed that on 14.11.2012, he was in drunken condition. He deposed that he went to Jhuggies at 3 pm and while returning back at about 1011 pm, a brick hit him on his head, due to which he received injury.
He was also crossexamined by Ld. Addl. PP and was confronted with his statement Mark PW10/A, however, he denied the suggestion that they told Harish & Harka about calling the police upon which both of them left from there leaving behind the bamboo stick and serwa. He deposed that accused Harish & Harka belong to his neighbouring village.
15. PW12 is HC Devesh, who delivered the copy of FIR to concerned Magistrate, Joint CP, Addl. C.P and DCP.
16. PW13 is HC Dheeraj, who remained at mortuary till postmortem on the body of deceased Subhash was conducted. He proved the dead body identification memos Ex.PW2/H and Ex.PW13/A.
17. PW14 is Ct. Amit Kumar, who alongwith SI K.P.Singh after receiving DD no.30A reached at the spot i.e Jhuggies near Swarnkar FIR No.355/2012, PS. Jyoti Nagar Page 10 of 33 St. Vs. Harish etc. Dharamshala, Kailash Colony, East Jyoti Nagar, Delhi. He deposed that SI K.P.Singh recorded the statement of Lal Chand and sent him to PS alongwith rukka to get the case FIR registered. After registration of FIR, he came back to the spot and handed over the copy of FIR to the IO. He proved the copy of site plan already Ex.PW2/E.
18. PW15 is Inspector Mukesh Kumar, who deposed that on 31.01.2013, he alongwith Inspector Mangesh reached at the spot, where at his instance, he prepared scaled site plan Ex.PW15/A.
19. PW16 is HC Rajender, who on 15.11.2012 was posted as MHC(M). He deposed that on 15.11.2012, IO handed over six pullandas alongwith seizure memo for which he made relevant entries and proved the copy of same as Ex.PW16/A. He further proved the various entries regarding deposit of case property and the sealed pullandas, which were sent to FSL, Rohini vide RC No. 22/21/13.
20. PW17 is Jyoti aged about 14 years, who also sustained injuries. Her statement was recorded after being satisfied about her competency to make statement. She deposed that one day before Diwali, she was sleeping in the jhuggi in the night. She got up and went out to the washroom and while she was returning back, a brick struck on his right side face from FIR No.355/2012, PS. Jyoti Nagar Page 11 of 33 St. Vs. Harish etc. behind due to which, she sustained injury. She, however, deposed that she does not know, who hit the brick to her.
21. PW18 is Dr. Parmeshwar Ram from GTB hospital, who proved the MLC of Subhash and Ajay Bahadur as Ex.PW18/A & B. In his crossexamination, he confirmed that consumption of alcohol is mentioned in the MLC of Ajay Bahadur.
22. PW19 HC Hardayal is the witness of arrest of accused Harka. He deposed that on 17.11.2012, he joined the investigation with IO/Inspector Mangesh Gedam alongwith one Ganesh. He deposed that accused Harka was arrested from Anand Vihar Bus Stand and was identified by Ganesh. PW19 deposed that they noticed blood stains on the clothes of accused and accused was also having a polythene bag in his hand. He proved the arrest memo of accused Harka as Ex.PW6/C, his personal search as Ex.PW6/D and disclosure statement as Ex.PW19/A. He further deposed that accused had changed his clothes from the polythene bag, which he was carrying with him. He proved various memos, which were prepared at the instance of accused.
In his crossexamination, he denied that accused Harka was lifted from Rohini and not from Anand Vihar Bus Stand.
FIR No.355/2012, PS. Jyoti Nagar Page 12 of 33 St. Vs. Harish etc.
23. PW20 is HC Rajender Singh, who was earlier examined as PW
16. He proved various entries made in register no.19 as Ex.PW20/A to Ex.PW20/E.
24. PW21 is Ct. Anil Baisla, who on the intervening night of 14.11.2012/15.11.2012 was posted at Police Control Room and received call regarding the incident from mobile no. 9716161018. He proved the PCR form as Ex.PW21/A.
25. PW22 is Ex.Ct. Neeraj Kumar, photographer, who alongwith Incharge Crime Team reached at the spot and took eight photographs Ex.PW22/A1 to Ex.PW22/AB from the spot. He also proved the negatives as Ex.PW22/B1 (colly.)
26. PW23 is Inspector Ravi, Incharge Crime Team, who alongwith photographer PW22 Ct. Neeraj Kumar and finger print proficient ASI Madan Lal reached at the spot and examined the same. He proved his report as Ex.PW23/A.
27. PW24 is Ct. Sandeep Kumar, who was also posted at Police Head Quarter at Control Room and at about 11.30 pm he also received a FIR No.355/2012, PS. Jyoti Nagar Page 13 of 33 St. Vs. Harish etc. call from mobile no. 8285366120 regarding quarrel. He proved the PCR form as Ex.PW24/A.
28. PW25 is Ct. Mahesh Yadav, who was posted as duty constable at GTB Hospital. He deposed that on the intervening night of 14 15.11.2012 at about 12.15 am, PCR B32 had brought three injured namely Subhash, Jyoti and one other person while PCR B51 brought some injured from the area of Jyoti Nagar for treatment.
29. PW26 is Ct. Devender, who joined the investigation on 15.11.2012 alongwith SI K.P.Singh and other police officials. He deposed that they alongwith witness Lal Chand reached at Sant Ravi Dass Community Center, Kaithwara, Gali No.2, Usmanpur, Delhi, where on the identification of witness Lal Chand accused Harish was apprehended. This witness was also crossexamined by Ld. Addl. PP, wherein he denied that in his statement Mark PW26/A, he stated that sweater, shirt having black, red and Grey colour stripes and Blue colour jeans worn by accused Harish at the time of his arrest were having blood stains and were taken into possession by the IO. In his further crossexamination, he, however, admitted as correct that the clothes Ex.PW26/PX were having blood stains when same were worn by the accused.
FIR No.355/2012, PS. Jyoti Nagar Page 14 of 33 St. Vs. Harish etc. In his crossexamination by Ld. Defence Counsel, he denied the suggestion that clothes Ex.PW26/PX are not belonging to accused.
30. PW27 Ct. Kamlesh Kumar is also witness of arrest of accused Harish. He deposed about the arrest of accused Harish in the presence of complainant Lal Chand. He deposed that clothes worn by accused Harish were having blood stains and same were taken into police possession vide memo Ex.PW26/PX.
In his crossexamination, he confirmed that proceedings were conducted at the Community Center, Usmanpur.
31. PW28 is Sh. Naresh Kumar, Sr. Scientific Officer (Biology), FSL Rohini, who examined the exhibits deposited with FSL and proved his biological report as Ex.PW28/A and serological report as Ex.PW28/B. He deposed that human blood was found on all the exhibits except Ex.A4.
32. PW29 is HC Anil, who pursuant to DD No.30A regarding quarrel also reached at the spot alongwith other police staff. He deposed that at the spot, search was made for the assailants namely Harish & Harka and other persons were also searching them. He deposed that at the spot there were three injured persons namely Chander, Ganesh & Suresh and he took all three of them to GTB Hospital for treatment.
FIR No.355/2012, PS. Jyoti Nagar Page 15 of 33 St. Vs. Harish etc. In his crossexamination, he confirmed that when he reached at the spot, crowd of about 50 public persons was present there and denied the suggestion that 2025 public persons were present there, who had sustained injuries.
33. PW30 is Ct. Ajab Singh, who was posted as Constable in PCR Unit and after receiving PCR Call reached at the spot and took three injured to GTB Hospital. He proved the attested copy of the call book as Ex.PW30/A.
34. PW31 is ASI B.D.Srinivas, who was also posted at PCR and at about 11.50 pm after receiving a call regarding quarrel reached at the spot and lifted one injured namely Subhash. who was having serious injuries and a girl aged about 12 years to hospital. He proved the attested copy of call book of PCR as Ex.PW31/A. In his crossexamination, he also confirmed that when he reached at the spot, 5060 public persons were present there and by that time no quarrel was going on.
35. PW32 is Ct. Shakti Singh, who was working as Computer Operator and on the basis of rukka given by HC Manoj Kumar, typed the FIR on computer.
FIR No.355/2012, PS. Jyoti Nagar Page 16 of 33 St. Vs. Harish etc.
36. PW33 is SI K.P.Singh, who pursuant to DD No.30A alongwith Ct. Amit reached at the spot. He recorded the statement of complainant Lal Chand and got the case FIR registered. He called the crime team and seized the various articles lying at the spot. He also deposed about arrest of accused Harish and regarding seizure of his blood stained wearing clothes. In his crossexamination, he deposed that they reached at the spot at about 11.45 pm and on enquiry came to know that there was a quarrel between Nepalies. He further confirmed that Lal Chand told him that quarrel started after they consumed alcohol and that prior to recording the statement of witness Lal Chand, he did not get him medically examined to know the level of alcohol in his blood. He further confirmed that during the enquiry made by him on reaching the spot first time, the place of incident was revealed as the open place and not inside any jhuggi.
37. PW34 is Dr. Devender from GTB Hospital, who deposed on behalf of Dr. Badri Narayan and proved the MLC of Lal Bahadur as Ex.PW34/A.
38. PW35 is Inspector Mangesh Gedam, to whom further investigation was entrusted. He deposed about various steps taken by him during investigation and proved various memos prepared by him.
FIR No.355/2012, PS. Jyoti Nagar Page 17 of 33 St. Vs. Harish etc. In his crossexamination, he deposed that he visited the place of incident at 12 mid night and at that time about 1015 persons were present there. He further confirmed that mainly the names of both the accused persons came before him during investigation and names of their other associates could not be revealed. He further confirmed that when Lal Chand alongwith SI K.P.Singh to the spot, at that time Lal Chand was not under influence of alcohol.
39. PW36 is Dr. Parmeshwar Ram, who identified the handwriting and signatures of PW3 Dr. Ranjeet Kumar as he had left the hospital and also identified signatures of Dr. Ranjeet Kumar on the MLCs of injured Ganesh, Chander, Jyoti and Suresh, Ex.PW3/A, Ex.PW3/B, Ex.PW11/A and Ex.PW11/B respectively.
40. PW37 is Dr. Dhruv Sharma, who conducted DNA examination of the exhibits and proved his detailed report as Ex.PW37/A & Ex.PW37/B. In his crossexamination, he confirmed that he conducted the test for DNA profiling on Ex.2 danda on which DNA profile could not be generated, which may be due to degradation of DNA. To a specific question, he further confirmed that since the blood gauze of deceased i.e FIR No.355/2012, PS. Jyoti Nagar Page 18 of 33 St. Vs. Harish etc. Ex.D was sufficient to generate DNA profile of deceased, hence, the clothes of deceased i.e parcel 'C' was not taken for DNA profile.
41. PW38 is Inspector Narender Singh, who filed supplementary chargesheet alongwith FSL result.
42. PW39 is Retired SI Ram Niwas, who collected the subsequent report from GTB hospital and handed over the same to IO/Inspector Mangesh Gedam.
Statement and Defence of accused persons
43. Statements of both the accused were recorded u/s. 313 Cr.P.C. wherein they denied the case of prosecution and claimed themselves innocent. They did not lead any defence evidence.
Arguments and conclusion
44. Arguments have been addressed by Sh. Ashok Kumar, Ld. Addl. PP for the State as also by Sh. Sanjeev Kumar, Ld. Defence Counsel for both the accused.
FIR No.355/2012, PS. Jyoti Nagar Page 19 of 33 St. Vs. Harish etc.
45. Ld. Addl. PP for the State argued that complainant has supported the case of prosecution and his evidence is in conformity with medical evidence. It has been argued that prosecution witnesses as well as accused persons are of Nepali origin and reside in the same vicinity, therefore, they tried to suppress the truth from the court. Ld. Addl. PP further argued that accused persons were having motive to commit the offence as one year prior to incident, there was a quarrel between deceased and accused persons. It was further argued that DNA of blood found on the clothes of accused Harish matched with the DNA of deceased.
46. Per Contra, Ld. Defence Counsel argued that complainant had motive to falsely implicate the accused persons. It has been submitted that previous enmity of accused persons was with complainant Lal Chand but he did not receive any injury in the alleged incident. Ld. Defence Counsel further argued that genesis of FIR is wrong as presence of other injured persons is not recorded in Asal Tehrir. It has been further argued that it is impossible that no injury was suffered by accused persons in the entire incident of alleged quarrel. It was argued that there were about 150 Jhuggies but except Lal Chand, none of the resident saw the incident. My attention is also drawn in respect of the authorities reported as: 2014 (1) Criminal Court Cases 410 (P&H) (DB) Amarjit Singh @ Nihang & FIR No.355/2012, PS. Jyoti Nagar Page 20 of 33 St. Vs. Harish etc. Ors. Vs. State of Punjab & 2014 (1) Criminal Court Cases 018 (Allahabad) (DB) Narendra Singh @ Nanga Vs. State of U.P.
47. In order to bring home the guilt of accused persons, apart from complainant prosecution examined five injured, however, none of them have supported the case of prosecution. PW2 Lal Chand on whose statement Ex.PW2/A, present case FIR was registered deposed about the entire incident in a cogent manner but in his crossexamination recorded after a period of one year and three months by my Ld. Predecessor as the case property was not received from FSL, he took uturn that incident did not take place in his presence and he deposed earlier under pressure of police and relatives of deceased although, he himself is the relative of deceased being his cousin i.e son of maternal uncle.
48. PW1 Lal Bahadur, PW6 Ganesh, PW7 Ajay, PW10 Chander & PW17 Jyoti, they all received injuries and were medically examined vide MLCs Ex.PW3/A, Ex.PW3/B, Ex.PW11/A, Ex.PW18/B & Ex.PW34/A, in which they told the doctor about history of assault on 14.11.2012 at Kailash Colony Dharamshala, Jhuggies i.e spot but before court none of them admitted that any quarrel had taken place in their presence and gave different version from their statement recorded u/s. 161 Cr.P.C. It appears that all the injured have turned hostile and deposed FIR No.355/2012, PS. Jyoti Nagar Page 21 of 33 St. Vs. Harish etc. falsely because they all are of Nepal origin and have pardoned the accused persons, they being of their community and origin. Though complainant after fully supporting the case of prosecution in his examination inchief, has thereafter, took his foot back in his crossexamination for obvious reason to help the accused, his evidence does not get wiped out in toto. It is settled law that evidence of a hostile witness can be relied upon to the extent it supports the case of prosecution. Reliance is placed upon the judgment of Hon'ble Supreme Court in Bhajju @ Karan Singh Vs. State of M.P (2012) 2 C Crl. (SC) 358, wherein it was held as under:
"It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross examination by the adverse party. The view that the evidence of the witness who has been called and crossexamined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Court may rely upon so much of the testimony which supports the case of the FIR No.355/2012, PS. Jyoti Nagar Page 22 of 33 St. Vs. Harish etc. prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be crossexamined can also be relied upon by the prosecution".
49. Now let me examine as to what extent prosecution has been able to prove the charge against the accused persons.
(1) Presence of accused persons at the spot: PW2 Lal Chand i.e complainant deposed that he used to visit the jhuggies opposite Swarankar Dharamshala, Kailash Colony, every year to celebrate Diwali with other natives of Nepal living there and on 14 th also he alongwith Subhash son of his maternal uncle and his friends Suresh & Chander went the aforesaid jhuggies to enjoy the festival, where both accused Harish & Harka hurled abuses at Subhash and started quarreling with him. PW1 Lal Bahadur, who was also taken to Hospital by PCR Van and was examined vide MLC Ex. PW13/A, in his crossexamination by Ld. Addl. PP confirmed that when he came out of the jhuggi, accused Harish & Harka @ Deepak and Subhash (deceased), Suresh, Chander, Ajay Bahadur and Lal Chand were present there and were celebrating Diwali, although later on he volunteered that he came to know in the morning that accused Harish and Harka were also present there. PW7 Ajay although has not supported the case of prosecution but in his crossexamination by Ld. Addl. PP admitted as correct that it may or may not be that he had sustained injuries in the FIR No.355/2012, PS. Jyoti Nagar Page 23 of 33 St. Vs. Harish etc. quarrel, which had taken place between Subhash and Harish & Harka. This admission of PW7 Ajay also corroborates the testimony of PW2 Lal Chand that on the day of incident, a quarrel had taken place between deceased Subhash and accused Harish & Harka. No suggestion was given to PW2 or PW7 that no quarrel took place between Subhash and Harish & Harka or that they were not present at the spot at the time of incident.
Presence of both the accused persons at the time of incident is also proved by the fact that after arrest the wearing clothes of accused Harish & Harka having blood stains were seized by the IO vide seizure memos Ex.PW9/A & Ex.PW6/B and on biological and serological examination of the clothes of both the accused by PW28 Sh. Naresh Kumar, Sr. Scientific Officer (Biology), FSL Rohini, blood of 'A' group was detected, which was also the blood group of deceased. No explanation whatsoever has come on record that how the blood was found on the clothes of the accused persons if they were not present at the time of the incident.
Reliance placed on the judgment of Hon'ble Supreme Court in Krishna Alias Krishnan vs State Of Karnataka on 12 January, 2000:
2001 CriLJ 2696, ILR 2000 KAR 4845, 2001 (1) Kar LJ 24, wherein it was held that once the prosecution establishes the presence of blood on the clothes of the accused which tallies with the blood group of the deceased the law enjoins upon the accused to explain how blood of that group was FIR No.355/2012, PS. Jyoti Nagar Page 24 of 33 St. Vs. Harish etc. found on his garments and in the absence of any such explanation which is not forthcoming in this case, the irresistible conclusion is that the presence of blood belonging to the same group as that of the deceased heavily incriminates the accused.
(2) Motive: It was argued by Ld. Addl. PP that accused persons had a motive to commit the offence as there was a quarrel between them and deceased on the occasion of previous Diwali and due to that incident, they started abusing deceased and became so aggressive that they killed him.
Per contra, it was argued by Ld. Defence Counsel that complainant had motive to falsely implicate the accused persons due to previous enmity.
Hon'ble Supreme Court in Ravinder Kumar & Anr. Vs. State of Punjab, 2001 (7) SCC 690, has laid down following in paragraph 18:
"18........It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have been the cause for the murder. In this connection we deem it useful to refer to the observations of Hon'ble Apex Court in State of Himachal Pradesh Vs. Jeet Singh {1999 (4) SCC 370}:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise FIR No.355/2012, PS. Jyoti Nagar Page 25 of 33 St. Vs. Harish etc. motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
Further Hon'ble Supreme Court in Paramjeet Singh Vs. State of Uttarakhand, 2010 (10) SCC 439, held that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case.
Hon'ble Supreme Court in Crl. Appeal No.261 of 2008 titled Praful Sudhakar Parab Vs. State of Maharashtra held that "Motive is a mental state, which is always locked in the inner compartment of the brain of the accused and inability of the prosecution to establish the motive need not necessarily cause entire failure of prosecution." As far as motive in the instant case is concerned, PW1 Lal Bahadur in his crossexamination by Ld. Addl. PP admitted that on the occasion of previous Diwali, a quarrel had taken place between both the accused and Lal Chand, although, he denied that both the accused were hurling abuses and were saying that they will take revenge of the quarrel of FIR No.355/2012, PS. Jyoti Nagar Page 26 of 33 St. Vs. Harish etc. last Diwali and was confronted with his statement recorded u/s. 161 Cr.P.C Ex.PW1/A. PW7 Ajay also confirmed in his crossexamination that on the last Diwali, a quarrel had taken place between Subhash, Lal Chand & Harka. Thus, a plea was taken by Ld. Defence Counsel during arguments that as previous quarrel also took place with complainant Lal Chand, he had a motive to falsely implicate the accused persons, however, accused have not taken this defence in their statement recorded u/s. 313 Cr.P.C or at the stage when PW2 Lal Chand Kumar appeared in the witness box. It is not the specific plea of the accused persons that on the occasion of previous quarrel, deceased Subhash was not present with PW2 Lal Chand Kumar. In view thereof, I find no force in the contention of Ld. Defence Counsel that PW2 Lal Chand Kumar had any motive to falsely implicate accused persons rather the evidence of PW1 Lal Bahadur and PW7 atleast show that on previous Diwali, there was a quarrel between accused persons on one side and Subhash (deceased) & Lal Chand on other side.
(3) Forensic and Medical Evidence: PW4 Dr. Mahesh Kumar, who conducted the postmortem on the body of deceased Subhash, in his report Ex.PW4/A noted 10 external injuries on the body of deceased including three lacerated wound on the forehead & head. On internal examination, fracture was found present in the skull and the cause of death was opined as a result of antemortem injury on head produced by blunt force impact.
FIR No.355/2012, PS. Jyoti Nagar Page 27 of 33 St. Vs. Harish etc. Complainant i.e PW2 Lal Chand Kumar also deposed that accused Harka brought a bamboo stick from the jhuggi and gave blows to Subhash on various parts of his body due to which, he fell down and thereafter, accused Harish brought a wooden serwa burnt from one end and in the meanwhile Subhash had got up but accused Harish hit wooden serwa on the back of head of Subhash, due to which he again fell down. This ocular evidence of PW2 that accused Harish hit on the back of the head of Subhash due to which he again fell down, is corroborated by the medical evidence as on postmortem fracture was found in the skull of the deceased. The cause of death is also opined as antemortem injuries to head produced by blunt force impact. PW4 also examined the weapons seized in the present case i.e Bamboo stick, wooden cot stick, brick & stone and prepared their sketch Ex.PW4/B1, F & H and in his subsequent opinion Ex.PW4/C, E, G & I, opined that injuries no.1, 2,3,5,7,8,9, & 10 are possible with bamboo stick, cot stick (serwa), concrete stone and broken brick. He also noted reddish stains on the bamboo stick when sketch of the same Ex.PW4/D was prepared by him. Injuries no. 1, 2 & 5 as noted in the postmortem report Ex.PW4/A, which were caused on the right forehead, left forehead & parallel to saggital suture were found as sufficient to cause death in the ordinary course of nature.
PW28 Sh. Naresh Kumar, Sr. Scientific Officer (Biology), FSL Rohini, who examined the weapon of offence i.e Bamboo stick, broken FIR No.355/2012, PS. Jyoti Nagar Page 28 of 33 St. Vs. Harish etc. wooden cot stick, broken brick & concrete stone apart from the clothes of accused persons, in his report Ex.PW28/A and Ex.PW28/B mentioned that blood was detected on Ex.2 i.e bamboo stick and Ex.4 i.e wooden piece, although grouping of the blood could not be ascertained but it was found that on these two weapons of offence, blood was of human. PW37 Dr. Dhruv Sharma, Asstt. Director, Biology, FSL Rohini deposed that as per DNA examination, DNA profile generated from the source of Ex.A1 & A2(clothes of accused Harish) was found to be similar to the DNA profile generated from the source of Ex.D (blood gauze of deceased) and further DNA profile generated from source of Ex.B1 (T shirt of accused Harka) was found to be dissimilar to the DNA profile generated from the source of Ex.D (blood gauze of deceased). PW37 proved his report as Ex.PW37/A. In his crossexamination, he deposed that he conducted the test for DNA profiling on Ex.2 danda on which, DNA profile could not be generated which may be due to degradation.
50. Accused Harish was arrested on 15.11.2012 at 5 pm vide Ex.PW2/F while accused Harka was arrested on 17.11.2012 at 6.30 pm from Anand Vihar Bus Stand. It was argued by Ld. Defence Counsel that it is impossible that no injury was suffered by accused during quarrel. It has come on record that accused were having wooden danda and serwa while giving beatings to the deceased, who was unarmed and thus was not FIR No.355/2012, PS. Jyoti Nagar Page 29 of 33 St. Vs. Harish etc. in a position to resist the accused persons. In this regard, medical examination report of accused Harish shows that no fresh injury was noted by the doctor when he was examined on 15.11.2012 at 11.30 pm while in the medical examination report of accused Harka, which was conducted on 17.11.2012 at about 10.20 pm, doctor noted old abrasion with bruises and three injuries on the right hand ring finger, little finger and right middle finger. Thus, the blood of group 'A' found on the clothes of accused Harka might be his own blood or of any other injured and due to that reason, his DNA profile was found dissimilar to the DNA profile generated from the source of Ex.D (blood gauze of deceased) thus, this evidence does not absolve him from his involvement in the present case rather the presence of blood on his clothes supports the case of prosecution that he was also present with his brother i.e accused Harish at the time of causing injuries to the deceased.
51. Ld. Defence Counsel for accused persons argued that there were about 150 Jhuggies, however, except PW2 Lal Chand Kumar none of the resident was made a witness and even PW8 Smt. Pooja Dixit, who made call at 100 number to the police, has not given the details of the incident. Admittedly, near the spot all the Jhuggies are of people, who hail from Nepal and accused persons being also of their native place, none of the injured has come forward to depose about the incident then what to talk of FIR No.355/2012, PS. Jyoti Nagar Page 30 of 33 St. Vs. Harish etc. other residents. Moreover, because of nonjoining of public persons, the testimony of police witnesses, who have fully supported the case of prosecution, does not become unreliable. As such, nonexamination of public witness is not fatal to the case of prosecution. Reliance is placed upon the judgment of Hon'ble Supreme Court in Karamjit Singh Vs State (Delhi Administration) AIR 2003 SC 1311, wherein it was held as under:
" the testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as from of other persons and it is not proper judicial approach to distrust and suspect them without good grounds."
52. It was further argued by Ld. Defence Counsel that genesis of FIR is wrong as presence of other injured persons is not recorded in the Asal Tehrir and that the incident took place between two groups but who were the other accused persons, is not explained by the prosecution. As already noted, all the injured have turned hostile in respect of the incident and except PW2 Lal Chand Kumar, none gave the version of the incident as to how it happened. PW2 Lal Chand Kumar, who is the cousin of the FIR No.355/2012, PS. Jyoti Nagar Page 31 of 33 St. Vs. Harish etc. deceased, categorically deposed that both the accused hurled abuses at Subhash & started quarreling with him and when he, Suresh & Chander tried to save Subhash, 23 unknown friends of accused persons threw stones on them. It is thus, deposed by PW2 Lal Chand Kumar that on one side there was he alongwith Suresh, Chander & Subhash and on the other side, there were accused persons alongwith their 23 unknown friends, however, the role of friends of accused persons has been confined only to the extent of throwing stone upon them. This fact is also mentioned in initial complaint Ex. PW2/A given by PW2 Lal Chand Kumar/complainant that he alongwith his cousin Subhash & his friends Chander, Ganesh and Suresh went to jhuggies near Swarankar Dharamshala for gambling and enjoying, where while gambling, accused Harish & Harka abused his brother Subhash in filthy language. Thus, mere presence of friends of deceased or friends of accused persons at the spot does not show that they were also involved in the incident. PW1 Lal Bahadur has also deposed that PW2 Lal Chand Kumar has no enmity with him. PW33 SI K.P.Singh, who after receiving of DD No.30A reached at the spot deposed that when he reached at the spot, there might be 3040 persons present but the injured had already been taken to GTB Hospital by PCR and all the other injured were also taken to hospital by PCR. Complainant in his examination inchief has categorically deposed about the incident, in which his brother Subhash died, therefore, FIR No.355/2012, PS. Jyoti Nagar Page 32 of 33 St. Vs. Harish etc. nonmentioning the name of other injured by him in the FIR, does not affect the case of prosecution adversely. Further, it has not been brought on record whether complainant was aware as to who all other persons were, who had suffered injury as he stated that when they tried to save Subhash, 23 friends of accused persons threw stones on them. Even otherwise, in such a situation when a person had been so badly injured that he ultimately died, the first information which a prudent man would give will be about that injured mainly and it is only after he gets time to come out of the shock, that he would narrate the incident in detail by mentioning the names of other injured also, who suffered minor injuries. The ocular evidence of complainant is in conformity with the medical and forensic evidence as brought on record. It has been proved beyond reasonable doubt that both the accused with an intention to kill the deceased gave him beatings with wooden serwa and bamboo stick. The judgments relied upon by Ld. Defence Counsel are distinguishable on facts and cannot be straightly applied to the facts of the present case. Therefore, both the accused are held guilty and convicted u/s. 302/34 IPC.
SANJEEV
KUMAR
MALHOTRA
Announced in the open court
Digitally signed by SANJEEV
KUMAR MALHOTRA
Location: Karkardooma
Courts, Delhi
Date: 2018.02.13 16:59:53
+0530
on 13.02.2018 (Sanjeev Kumar Malhotra)
ASJ/FTC/ECOURT
Shahdara/KKD/Delhi
FIR No.355/2012, PS. Jyoti Nagar Page 33 of 33 St. Vs. Harish etc.