Delhi District Court
Chhotu & Ors vs . State Of Maharashtra, Wherein It Is ... on 29 November, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 116/1/10
Unique Identification No. 02404R000510442002
State
Versus
Praveen
S/o Raja Ram
R/o B3/253, Sultan Puri, Delhi
FIR No. 803/02
PS - Sultan Puri
U/s. 302/34 of IPC
Date of Decision: 26/11/2011.
Date of order on sentence: 29/11/2011.
Order on Sentence
29/11/2011
Present. Ld. APP for State.
Convict Praveen in person with counsel Sh. S.D. Sharan.
Heard on the point of sentence.
Learned defence counsel has contended that incident had taken place at
the spur of moment and according to the judgment, convict Praveen had not
SC No. 116/1 1
caused any injuries to deceased Rajesh. Learned defence counsel has further
contended that convict Praveen was aged about 24 years at the time of incident. He
is having aged parents, wife and children to support. Learned defence counsel has
further contended that convict Praveen has no criminal record. He is not a
previous convict nor habitual offender. Learned defence counsel has further
contended that during trial, conduct of convict Praveen remained good. Learned
defence counsel further submits that a lenient view be taken.
On the other hand, Ld. APP has contended that accused has been
convicted for offence U/s. 302/34 of IPC. Hence, he be dealt with accordingly.
I have considered the submissions of learned defence counsel and Ld.
APP for State. The offences committed has caused a huge loss to the family of the
deceased, who was aged about 30 years. He was also a earning member of the
family and was supporting his family. Due to his murder, his family has also
suffered a lot and lost the love and affection alongwith financial loss.
After considering the age, character and antecedents of convict Praveen
and the circumstances in which the murder was committed, I am of the view that
this case is not falling within the ambit of rarest of the rare cases.
Offence U/s. 302 of IPC is punishable with death or imprisonment for
life and shall also be liable to fine.
Accordingly, sentence of imprisonment for life is imposed U/s.
302/34 of IPC with fine of Rs. 5000/ upon convict Praveen. In default of
payment of fine, he shall further undergo three years simple imprisonment.
Fine not deposited.
Convict Praveen remained in custody from 20/07/2002 to 10/11/2009
SC No. 116/1 2
and from 26/11/11 till today.
Benefit of Section 428 of Cr.P.C. be given to convict Praveen.
Convict Praveen be remanded to JC to serve the sentence.
Announced in Open Court on
dated 29thof November, 2011
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No. 116/1 3
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 116/1/10
Unique Identification No. 02404R000510442002
State
Versus
Deva
S/o Rakha Ram
R/o B4/192, Sultanpuri, Delhi
FIR No. 803/02
PS - Sultan Puri
U/s. 302/34 of IPC and u/s 27 of Arms Act.
Date of Decision: 26/11/2011.
Date of order on sentence: 29/11/2011.
Order on Sentence
29/11/2011
Present. Ld. APP for State.
Convict Deva in person with counsel Sh. S.D. Sharan.
Heard on the point of sentence.
Learned defence counsel has contended that incident had taken place at
the spur of moment and according to the judgment, a single blow was given to the
SC No. 116/1 4
deceased by convict Deva, hence, there was no cruelty or there was no repetition
of blows. Learned defence counsel has further contended that convict Deva was
aged about 20 years at the time of incident. Father of convict Deva already
expired. He is having old aged mother suffering from heart ailment. He is having
four sisters, out of which, one is unmarried, two are widow and fourth has already
expired. Learned defence counsel has further contended that all the sisters and
their children are residing with convict Deva and are dependent on him. Convict
Deva has no criminal record. He is not a previous convict nor habitual offender.
Learned defence counsel has further contended that during trial, conduct of
convict Deva remained good. Learned defence counsel further submits that a
lenient view be taken.
On the other hand, Ld. APP has contended that accused has been
convicted for offences U/s. 302/34 of IPC and 27 of Arms Act. Hence, he be dealt
with accordingly.
I have considered the submissions of learned defence counsel and Ld.
APP for State. The offences committed has caused a huge loss to the family of the
deceased, who was aged about 30 years. He was also a earning member of the
family and was supporting his family. Due to his murder, his family has also
suffered a lot and lost the love and affection alongwith financial loss.
After considering the age, character and antecedents of the convict
Deva and the circumstances in which the murder was committed, I am of the view
that this case is not falling within the ambit of rarest of the rare cases.
Offence U/s. 302 of IPC is punishable with death or imprisonment for
life and shall also be liable to fine.
SC No. 116/1 5
Accordingly, sentence of imprisonment for life is imposed U/s.
302/34 of IPC with fine of Rs. 5000/ upon convict Deva. In default of
paymennt of fine, he shall further undergo three years simple imprisonment.
Offence U/s. 27 of Arms Act is punishable with imprisonment for a
term which shall not be less than three years, but which may extend to seven years
and shall also be liable to fine.
Accordingly, sentence of three years R.I. is imposed U/s. 27 of
Arms Act with fine of Rs. 5000/ upon convict Deva. In default of payment of
fine, he shall further undergo nine months simple imprisonment. .
Both the substantive sentences of imprisonment shall run concurrently.
Fine not deposited.
Convict Deva remained in custody from 24/07/2002 to 28/10/2010 and
from 26/11/11 till today.
Benefit of Section 428 of Cr.P.C. be given to convict Deva.
Convict Deva be remanded to JC to serve the sentence.
Announced in Open Court on
dated 29thof November, 2011
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No. 116/1 6
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 116/10
Unique Identification No. 02404R000510442002
State
Versus
1. Praveen
S/o Raja Ram
R/o B3/253, Sultan Puri, Delhi
2. Rattan
S/o Satveer
R/o B3/302, Sultanpuri, Delhi
3 Deva
S/o Rakha Ram
R/o B4/192, Sultanpuri, Delhi
4. Kailash
S/o Jagdish Prasad
R/o B3/395, Sultanpuri, Delhi
5. Sanjay
S/o Raj Kumar
R/o P4/205, 206, Sultan Puri, Delhi (Since Proclaimed Offender)
SC No. 116/1 7
FIR No. 803/02
PS - Sultan Puri
U/s. 302/120B/34 of IPC and u/s 27 of Arms Act.
Date of institution of the case: 11/10/02
Arguments heard on: 21/11/2011
Date of reservation of order: 21/11/2011
Date of Decision: 26/11/2011
JUDGMENT
This case was registered on the statement of one Baljeet Singh u/s 302/34 and 25/27 of Arms Act. During investigation, identification statement of dead body of Rajesh was recorded. After postmortem, dead body was handed over to the relatives of the deceased. Rough site plan and scaled site plan were prepared. Photographs of the spot were taken. DD entry was collected. Blood was collected from the spot. Some exhibits and sample seal were also taken in the possession from the hospital. MLC and postmortem report were collected.
Inquest papers were prepared by the IO. Exhibits were sent to FSL. FSL report was obtained. Accused Parveen was arrested on 20/07/02. Accused Rattan and Deva were arrested on 24/07/02. Accused Kailash was arrested on 26/07/2002. Their personals searches were prepared. All the accused persons made disclosure statement after their arrest and each pointed out the place of occurrence.
Accused Parveen was put to join the TIP on 22/07/2002 but he refused to join the TIP and accused Deva and Rattan were put to join the TIP proceedings , but they also refused to join the same on 25/07/2002. Accused SC No. 116/1 8 Kailash was also put to join the TIP proceedings on 25/07/2011, but he also refused to join the same.
On completion of investigation, chargesheet was filed against all the accused persons u/s 302/34 of IPC and u/s 25/27 of Arms Act.
Case was committed to the Court of Sessions and was received on 27/01/2003. Charge u/s 120B/302/34 of IPC and u/s 25/27 Arms Act was framed against all the accused persons. One of the coaccused Sanjay was declared proclaimed offender.
To prove its case, prosecution has examined PW1 to PW23 in all. Statement of all the accused were recorded. All the accused persons have denied the case of prosecution.
Accused Parveen, Rattan, Deva and Kailash have stated that from the evidence it is very clear that PW Baljeet, PW Jagdish and PW11 Satpal are procured witnesses and their evidence contradicts each other on material points and cannot be relied to connect the accused with this case. There is no common intention established by the prosecution. For arguments sake, if the prosecution case is admitted as correct without considering the weakness in evidence, even then accused Parveen, Rattan and Kailash have not taken any part, so they cannot be convicted u/s 302/34 of IPC because according to evidence, Deva has taken out knife from his pant immediately and inflicted only one injury and under these circumstances each accused shall be convicted according to the part played by them.
I have heard Ld APP for State and Ld defence counsel Sh. Dhyan Singh for accused persons and have gone through the evidence brought on record SC No. 116/1 9 and material placed on record.
Findings qua identity of accused Rattan and Kailash.
PW1 Baljeet Singh, who is stated to be the eye witness to the incident has stated that after committing the incident, all the accused persons had fled away from the spot. He removed the injured to the hospital. After about 2830 days of the incident, he was called by the police and told to come to the Court. When he was standing outside the Court, then the police came alongwith two boys having muffled face and told him that those boys refused for TIP. Those two boys after coming out of the Court, removed the clothes from their faces, then he identified those boys as the same boys, who had caught hold of Rajesh, at the time of incident and those two boys have been identified by PW1 as Parveen and Deva.
PW1 has further identified two other persons who were present at the spot when Rajesh was hit by the accused persons as Rattan and Kailash.
Another eye witness is PW8 Jagdish Chand. He has deposed about the identity of accused persons that he had gone to Tis Hazari Court on 30/09/2002, in connection with the present case and there outside the court room, he had seen the assailants with the police persons. He identified them and he came to know their names as Kailash, Deva, Rattan and Praveen. PW8 Jagdish Chand, has further deposed that accused Praveen had caught hold the injured and accused Deva had stuck the knife on the left portion of the chest of the injured. Accused Kailash and Rattan were with the above said two accused. The person who had hit empty bottle on the head of the injured is not present in the Court.
The third witness, PW11 Sh. Satpal has stated that on 07/07/02, he SC No. 116/1 10 had gone to Sultan Puri, Bus Terminal to take his relatives at about 9.30/10.00 pm. So many public persons were present there and some one stated him that a quarrel had taken place. He has further stated that police came there and told him to give statement and he signed his statement on the directions of the police. He was told by the police that he should state that he had seen the incident. PW11 has not supported the case of the prosecution in any manner. So in all, PW1 Baljeet Singh and PW8 Sh. Jagdish Chand have deposed about the presence of accused Kailash and Rattan at the spot only with coaccused Parveen and Deva but neither PW1 Baljeet Singh nor PW8 Jagdish has stated anything about the role or any overt act on the part of accused Rattan and Kailash.
Ld defence counsel has contended that for mere presence of accused Kailash and Rattan, they cannot be convicted for offence u/s 302 of IPC with the help of section 34 of IPC for having common intention. In support of his contention, Ld defence counsel has relied upon 1997 VII AD SC 427 titled as Chhotu & Ors Vs. State of Maharashtra, wherein it is held that " if really accused was sharing the common intention of the other three to commit the murder to assault the deceased with the knife he was allegedly carrying, he is, therefore, entitled to at least the benefit of reasonable doubt."
Ld defence counsel has further relied upon I 2005 CCR 69 (SC) titled as Nagarjit Ahir etc Vs State of Bihar, wherein it is held that " it may be safe to convict only those persons against whom overt act is alleged with aid of Section 149, IPC lest some innocent may got involved and this is only rule of caution not rule of law. Merely presence of accused at scene of occurrence there is nothing to suggest they shared common object of unlawful assembly SC No. 116/1 11 and took part in assault."
Ld defence counsel has further contended that even it is held in 1999 VII AD (SC) 787 titled as Ramashish Yadav & Ors Vs. State of Bihar that if two of the accused persons caught hold the deceased and other two inflicted the injuries, then the two accused persons who caught hold , could not be convicted u/s 302/34 of IPC.
Ld defene counsel has further relied upon on 1 (2001) CCR 302 (SC) titled as Suresh & Anr vs State wherein it has been held that "who only keeps common intention in his mind, but does not do any act at the scene , cannot be convicted with the aid of section 34 of IPC."
Accused Rattan was arrested in this case on 24/07/02 and he made disclosure statement on the same day. He also pointed out the place of occurrence on the same day. Thereafter, he joined the TIP on 25/07/02, wherein he refused to join the TIP proceedings on the ground that he was shown to the witnesses in police station.
According to PW14 CT Salim, on 24/07/2002, he was posted at PS Sultanpuri and on that day, he alongwith W/HC Raj Bala had gone to Tis Hazari Court in case FIR no. 488/02 PS Sultan Puri in the Court of concerned MM and they presented the accused of case FIR no.488/02, and after leaving the accused in the lockup, they came back to the Court, where they met with SI Vinod Kumar, who was interrogating accused Rattan, after his arrest. His personal search was taken vide memo Ex.PW14/B and he was arrested vide memo Ex.PW14/B1. Accused made disclosure statement Ex.PW14/D and pointed out the place of occurrence vide memo Ex.PW14/F. SC No. 116/1 12 Ld defence counsel has contended that PW14 Ct Saleem has nowhere stated that after his arrest, accused Rattan was asked to muffle his face nor he has stated that accused Rattan was taken to place of occurrence in a muffled face. Not only this, even in his cross examination it has come that accused Ratan was also taken for his medical examination, so there were so many occasions where accused Rattan could have been shown to the witness by the police officials.
PW22 SI Vinod Kumar, who had arrested accused Rattan has stated that on 24/07/2002, on the oral direction of SHO, Investigation of the case was handed over to him. On that day, information was received at PS Sultanpuri that two accused persons namely Deva and Rattan will surrender in the Court of concerned Ld MM at 2.00 pm. Thereafter, PW22 alongwith his staff reached in the Court of Ld MM, where accused Deva and Rattan had surrendered before the Court. After obtaining permission from Ld MM, both the accused were interrogated and were arrested. Accused Rattan was arrested vide memo Ex.PW14/B1 and his personal search was taken vide memo Ex.PW14/B and he recorded statement of accused Rattan vide memo Ex.PW14/D. Both the accused were taken for medical examination at SGM hospital, where they were medically examined and thereafter they pointed out the place of occurrence. Pointing out memo was also prepared in this regard and thereafter they both were produced before the concerned court and were remanded to JC.
PW22 SI Vinod Kumar has further stated that both the accused i.e. Deva and Rattan were kept in muffled face immediately after their arrest. He also moved application of TIP of accused Rattan, but he refused to join the TIP proceedings.
SC No. 116/1 13
Ld defence counsel has further contended that PW14 Ct Saleem and PW22 SI Vinod Kumar have not corroborated each other regarding the fact that the accused Rattan was kept muffled face, after his arrest and during the investigation till he was produced before the concerned Court and remanded to JC.
Ld defence counsel has further contended that accused Rattan had also moved an application for holding their TIP dated 24/07/2002.
Ld defence counsel has further contended that PW1 Baljeet Singh has no where stated that he had identified accused Rattan at any time after the incident, but before his deposition in the Court on 18/10/04.
In my view, PW1 has stated that he never identified the accused persons in the PS nor police officials told him in the PS to identify the accused persons, so the contention of ld defence counsel that accused Rattan was shown to the witness by the police is of no consequence.
PW8 Jagdish Chand has stated that one day he had gone to Tis Hazari court on 30/09/02, in connection with the present case and there outside the court room, he had seen the assailants with the police persons and had identified them. There he came to know that names of the assailants as Kailash, Deva, Rattan and Praveen. He had seen the above said persons in the Court and they were present in the court.
Ld defence counsel has contended that identification on 30/09/2002 by PW8 Jagdish Chand is of no consequence as accused Rattan has refused to join the TIP on 25/07/2002. Ld defence counsel has further contended that it is not disclosed by PW8 Jagdish Chand as to why he had gone to the Court or SC No. 116/1 14 whether he was called by the police. Ld defence counsel has further contended that if at all PW8 had to identify the accused persons then could have been called after 29/07/02, till which all the accused persons had already been arrested.
Ld defence counsel have further contended that in the cross examination, PW8 SI Jagdish has stated that police had not called him to identify the culprits in Tis Hazari Court and he recognized the assailants by their face and police told him their names.
Ld defence counsel has further contended that PW8 Jagdish was not called to identify the accused persons then why he had gone to Tis Hazari Court on 30/09/2011 and reason to visit the Court has not been disclosed by the witness, which shows that he had not gone to 30/09/02 and had not identified the accused persons there.
In support of his contention, Ld defence counsel has relied upon 1997 (3) C.C. Cases 103 (SC) titled as Raju @ Rajendra Vs State of Maharashtra, where in it has been held that " in absence of any TIP proceedings held for identification of accused immediately after his arrest, it is difficult to solely rely upon the identification by witnesses for the first time in Court and that too after a lapse of almost one and half years after the incident, hence in such circumstances, benefit of doubt could be given."
In my view, the judgment relied upon by Ld defence counsel is not applicable to the facts and circumstances of the case as accused all were put to join the TIP but they refused to join on the ground that they were shown to the witness in police station but witnesses have not been cross examined in this respect nor suggested that accused were shown to PW1 Baljeet Singh and PW8 SC No. 116/1 15 Jagdish Chand in PS, after their arrest.
Accused Kailash was arrested on 26/07/2002, in this respect PW18 HC Datar Singh has stated that on 26/07/2002, he was posted at PS Sultanpuri. On that day, he joined the investigation of this case and he alongwith SI Vinod Kumar went to Tis Hazari Courts to produce the accused Deva, who was remanded to JC by concerned court. Then he went to the lock up to hand over the aforesaid accused there. Then he returned back to the court of PS Sultan Puri at Tis Hazari. SI Vinod kumar formally arrested one accused, whose name he came to know as Kailash, who was in muffled face and he surrendered himself in the Court. Accused Kailash was interrogated by SI Vinod Kumar. He made disclosure statement Ex.PW18/A and he was arrested vide memo Ex.PW18/B. His personal search was taken vide memo Ex.PW18/C. Accused Kailash was taken to PC for some days. Thereafter, he was taken to SGM hospital for his medical examination. From the hospital, accused led the police party to the spot and pointed out the same vide memo Ex.PW18/D. Accused was locked up in muffled face by the IO.
Ld defence counsel has contended that PW18 HC Datar Singh has not deposed that during PC remand, accused Kailash was kept in muffled face, hence PW18 cannot be relied upon regarding the identity of accused, in any manner.
PW22 SI Vinod Kumar has stated that on 26/07/2002, accused Kailash had surrendered before the Court concerned. He interrogated him after obtaining permission from the concerned Court and arrested him in this case vide memo Ex.PW18/B. His personal search was taken vide memo Ex.PW18/C. Accused Kailash also made disclosure statement Ex.PW18/A. Accused was kept SC No. 116/1 16 in a muffled face and was taken for medical examination at SGM hospital. Thereafter, accused Kailash led the police party to the place of occurrence and pointed out the place vide memo Ex.PW18/D and thereafter he was taken to PS Sultan Puri and kept in a lockup. Next day he was produced before the duty MM and was sent to JC for two days.
PW22 SI Vinod Kumar has further deposed that on 29/07/2002, accused Kailash was taken out from Lockup in muffled face and he moved an application for TIP of accused Kailash, but he refused to join the TIP. Thereafter, he was sent to JC.
Ld defence counsel has contended that again PW22 SI Vinod Kumar has also not been able to deposed that during the police custody remand, accused Kailash remained with them in muffled face. Ld defence counsel has further contended that it has also not come on record that when accused was remanded to JC, he was asked to remain in muffled face till he join the TIP proceedings i.e from 26/07/2002 to 29/07/2002.
PW19 SI Gulshan Nagpal has also stated that on 30/09/02, complainant Baljeet Singh has also identified all four accused persons before him when the had appeared before Court on that day. He recorded statement of Baljeet Singh in connection of identification of aforesaid four accused persons .
Ld defence counsel has contended that PW19 SI Gulshan Nagpal has stated in the cross examination that he had called complainant Baljeet Singh on 30/09/2002 and PW1 Baljeet Singh has also stated that after 28 to 30 days of incident, he was called by the police to reach at the Court and when he was standing outside the Court, police came alongwith two boys having muffled face SC No. 116/1 17 and told him that those boys have refused for TIP. He identified those two boys, who removed the clothes from their faces and he identified them as Praveen and Deva, so PW1 Baljeet Singh has nowhere corroborated with PW19 SI Gulshan Nagpal that on 30/09/2011, he has identified all the four accused persons. So the contradictions regarding identification of accused Kailash and Rattan are material.
In the cross examination, PW1 Baljeet Singh has stated that his statement was not recorded on 30/09/2002. This question was asked in reference to the statement of PW1 Baljeet Singh regarding identification of accused persons.
Ld defence counsel has contended that PW1 Baljeet Singh has been confronted with the fact regarding identification of accused Praveen and Deva as deposed by him, which is not appearing in his statement Ex.PW1/DA and has further stated that he has not mentioned the names of accused persons nor their addresses in the statement PW1/DA, where these are recorded so.
Ld defence counsel has further contended that in such circumstances, firstly the identification of accused Kailash and Rattan is disputed, if we presumed that they have been identified by PW1 Baljeet Singh and PW8 Sh. Jagdish Chand , then no overt act has been deposed by any one of these witnesses on behalf of these accused Kailash and Rattan, so they cannot be held guilty and convicted for the offence u/s 302 of IPC read with section 34 of IPC having common intention to commit murder of Rajesh.
SC No. 116/1 18 Findings qua accused identification Praveen and Deva.
PW1 Baljeet Singh in this respect has stated that he was plying a taxi. Rajesh was his nephew, who was son of his elder brother. Rajesh was working in MCD having office at Saria Rohilla as baildar, who was also plying blue line bus on contract basis, after hiring the same from other person. On 07/07/2002, at about 8 pm, he was sitting at the house of Rajesh in his portion, at that time, Rajesh told him that he had to go to bus terminal Sultan Puri to take accounts from his driver. PW1 Baljeet Singh told him that he had also some work there, so he would also accompany him. So both of them reached around 9.15 pm at bus terminal. On reaching there, Rajesh told him by looking at the buses in the bus terminal that his bus has not been yet come, so they would have to wait for his bus for sometime. Both of them started waiting for the bus of Rajesh at bus terminal.
PW1 has further deposed that after 23 minutes of reaching there, he saw that a boy was beating a poor man. On seeing the same, Rajesh tried to intervene and asked that boy as to why he was beating that poor man, that boy told Rajesh to just go away and to mind his own business and told him " Tune Duniya ka theka le rakha hai" and kept on beating that old man, ultimately Rajesh intervened and separated both of them. That boy threatened Rajesh saying that " I will see you in a little while" and then went inside the bus terminal. Soon thereafter, that boy returned alongwith two other boys and those two boys caught hold of Rajesh and the first boy hit Rajesh with a bottle of glass which he had brought, on the head of Rajesh. Rajesh started bleeding from his head and started bending down towards the earth. Rajesh tried to get up and tried to run away but SC No. 116/1 19 the first boy who had hit the Rajesh with bottle and another boy who alongwith other boy holding Rajesh, caught hold of Rajesh. The third boy took out the knife from his pocket and hit Rajesh on the left side of his chest and after hitting Rajesh, all the three boys ran away with the knife, from the spot.
PW1 has further deposed that all this happened so fast, that PW1 got scared, he took Rajesh towards the village, but after a while Rajesh fell down. Then he rang at the residence of Rajesh from the bus terminal and asked for a vehicle also. Brother of Rajesh namely Rakesh reached there in a Maruti Van, and they put Rajesh in the maruti Van and took him to the Braham Shakti hospital, where he was declared brought dead by the doctors.
PW1 Baljeet Singh has further stated that he had shown the place of occurrence to the police and on his pointing out, site plan was prepared. Police lifted blood stained peelings of sugarcane and blood stain paper, which were lying on the spot and sealed the same in a pullanda with the seal of SS and taken into possession. Seal after use was handed over to PW1 and police prepared some papers. PW1 Baljeet Singh has further stated that he identified the dead body of Rajesh and his statement was recorded Ex.PW1/A. PW1 has further deposed that after about 2830 days, he was called by the police in the court, when he was standing outside the Court, police came alongwith two boys having muffled face and told him that those boys have refused for TIP. Those boys removed the clothes from their faces, then he identified those two boys and those two boys present in the Court were the same boys, who caught hold of Rajesh and he came to know their names as Praveen and Deva.
PW1 Baljeet Singh has further deposed that the accused Praveen and SC No. 116/1 20 one another boy had caught hold of Rajesh, accused Deva hit Rajesh with knife in his chest.
PW8 Shri Jagdish Chand has stated that on 07/07/02, at about 9.30 pm, he was standing at bus stand, Sultan Puri. He saw that one boy was beating a poor person. In the mean time, another boy came there and asked the person, who was beating, as to why he was beating the poor person. Thereupon, the poor person was left and the person who was beating the poor person, started beating the boy who had inquired as to why the poor person was being beaten. Then, both those boys started fighting with each other. After some time, both the boys who were quarreling with each other, stopped fighting. The boy who was initially beating the poor boy, told the boy with whom he stopped fighting, that he should remain there and he would come in no time to teach him a lesson.
PW8 Shri Jagdish Chand has further deposed that after sometime, the boy who left extending threat, returned back with 23 friends. One of the friends was holding an empty beer bottle and hit the same on the forehead of the person to whom the aforesaid threat was extended. On receiving the blow of the bottle over the forehead, the person fell down and the injury from the forehead started bleeding. The injured after sometime, tried to get up but two of the friends of the aforesaid boy caught hold him. Another person/friend of the said boy took out a knife from the pocket of his pant and struck the same on the left side of the chest of the injured who had received injury on his forehead. Thereafter all the culprits ran away from the spot.
PW8 has further stated that after sometime, he saw that one person came and picked up the injured and took him away. He came back to his house SC No. 116/1 21 and took his meal. Thereafter, after some time he returned back to the place of occurrence and there he found that police personnels had come there. He contacted the police personnels and told them that he wanted to contact them and that he had witnessed the incident. Police officials informed him the name of injured as Rajesh and he was also informed that he had expired.
Regarding identification, PW8 Jagdish chand has stated that on 30/09/2002, he had gone to Tis Hazari in connection with the present case and there outside the court room, he had seen the assailants with the police persons and he identified them. There he came to know the names of the assailants as Kailash, Deva, Rattan and Praveen.
PW8 Jagdish Chand has further deposed that accused Praveen had caught hold the injured and accused Deva had stuck the knife on the left portion of the chest of the injured.
Ld defence counsel has further contended that PW1 Baljeet Singh and PW8 Jagdish Chand have contradicted each other regarding the manner in which incident had taken place. PW1 Baljeet Singh has nowhere stated that the boy, who was beating the poor person and injured Rajesh had also scuffled with each other and the earlier boy had threatened the Rajesh to see him.
Ld defence counsel has further contended that PW1 Baljeet Singh has stated that he was witness to the incident, but according to PW8 Jagdish chand PW1 came at the place of occurrence after the accused persons had run away. He picked the injured and took him away, which shows that PW1 Baljeet Singh was not present at the spot and had not seen the incident, but he reached there later on and took away the injured, so PW1 Baljeet Singh cannot be relied upon. SC No. 116/1 22 Ld defence counsel has further contended that PW8 Jagdish Chand is a planted witness, hence he cannot be relied upon regarding the incident, as it seems to be highly improbable that he returned at bus terminal Sultanpuri in the midnight.
Accused Praveen was arrested on 20/07/2002. According to PW13 ASI Prahlad Singh, on that day, he was posted at PS Sultan Puria and he alongwith Inspector Sukhvinder singh, SI Vinod, Ct Raj Singhoperator and Ct Ved pal, driver of vehicle no. DLIC PO 475 went to Raj park, Sultanpuri at about 6.50 pm, where one secret informer informed that one of the three boys, who had killed Rajesh at the bus terminal Sultan Puri by knife on 07/07/02, could be apprehended, present in house no. 2810, Basti Julahan, Sadar Bazar, Delhi. PW13 ASI Prahalad Singh has further stated that they reached at the said house and outside the house, accused Praveen son of Raja Ram was pointed out by the secret informer and he was apprehended. Accused Praveen was interrogated by the IO and he made disclosure statement vide Ex.PW13/A. He was arrested vide memo Ex.PW13/B and his personal search was taken vide memo Ex.PW13/C. He also pointed out the place of occurrence vide memo Ex.PW13/D. Ld defence counsel has further contended that PW13 ASI Prahlad Singh has nowhere stated that after his arrest, accused Praveen was kept in muffled face and PW13 has also not deposed that during custody with constable, accused Praveen remained in muffled face, when he pointed out the place of occurrence. So identity of accused Praveen is doubtful.
PW22 SI Vinod Kumar has stated that on 20/07/2002, he also joined the investigation of this case with the IO and they left the PS in the official gypsy and reached at Raj Park Sultanpuri at about 6.50 pm, where they met with one SC No. 116/1 23 secret informer, who informed Inspector Sukhvinder Singh that the three boys involved in the incident of the present case were identified and verified by him and one of them whose name is Praveen is residing at the house of his relative at house no. 2810, Basti Julahan, Sadar Bazar, Delhi and if raid conducted, he could be apprehended from there. Thereafter, they alongwith informer left Raj Park in the same gypsy and reached at house no. 2810, Basti Julahan, Sadar Bazar, Delhi, where one person who was standing outside the house was pointed out as Praveen by secret informer. He was interrogated by the IO and was arrested vide memo Ex.PW13/C. His personal search was taken vide memo Ex.PW13/B. He also made disclosure statement which is Ex.PW13/A and pointed out the place of occurrence as Ex.PW13/D. PW22 has further stated that accused was kept in muffled face after his arrest. From the spot, they came to PS Sultanpuri and accused was sent to lockup at PS Sultanpuri.
Ld defence counsel has contended that both PW13 ASI Prahalad Singh and PW22 SI Vinod Kumar have contradicted each other regarding the fact as to whether accused Praveen was kept in muffled face from his arrest till he was remanded to JC.
In the cross examination, PW22 SI Vinod Kumar has stated that Baljeet Singh had identified one of the accused Praveen, whose dossier was shown to him.
In his examination, PW23 Inspector Sukhwinder Singh has stated that on 21/07/02, accused Praveen was got medically examined from SGM hospital in muffled face and after his medical examination, he was produced before the SC No. 116/1 24 concerned court and was remanded to JC. On the same day, he moved TIP application of accused Praveen Ex.PW23/E, which was fixed for 22/07/02, he deputed SI Sukhbir Malik for TIP of accused Praveen, who later on told him that accused Praveen had refused to join the TIP.
Ld defence counsel has contended that at the time of moving the application for conducting the TIP of accused Praveen, accused was produced before the concerned Court unmuffled, on 22/07/02, as mentioned in the application of the IO. So, the deposition of witnesses that accused Praveen was kept muffled face from the time of his arrest till he was produced for the TIP before the Court is of no consequence and it is doubtful that the accused Praveen was kept muffled face during the investigation.
PW1 Baljeet singh has stated that he had identified two of the boys having muffled face after about 30 days of incident and after the identification their names were disclosed as Praveen and Deva. Incident had taken place on 07/07/02. According to PW1 Baljeet Singh, he was called by the police and it was told by the police that both these boys had refused to join the TIP. TIP was refused by accused Praveen on 22/07/02, so it is not clear as to when PW1 had identified the accused, outside the Court. PW8 has stated that he had identified all the four assailants on 30/09/02, in the Court outside the court room and came to know their names as Kailash, Rattan, Praveen and Deva.
Ld defence counsel has contended that there is no corroboration to the fact that after the arrest, accused Praveen was kept muffled face till he was remanded to JC. So, in such circumstances, identification of accused Praveen before the Court for the first time by PW1 and PW8 cannot form the basis of his SC No. 116/1 25 conviction and in support of the same, Ld defence counsel has relied upon 2005 (3) RCR 958 titled as Pradeep Kumar Vs State of Haryana, where in it was held so.
Ld defence counsel has further contended that assuming accused Praveen was present at the spot and has been identified accordingly by the witnesses before the Court, even then he cannot be held guilty as according to PW1 Baljeet singh and PW9 Jagdish Chand, accused Praveen had caught hold Rajesh only and he did not cause any injury to Rajesh.
Ld defence counsel has further contended that in view of 1999 VII AD (SC) 787 titled as Ramashish Yadav and Ors Vs State of Bihar , it has been held that the person, who caught hold of the deceased cannot be convicted u/s 302 of IPC read with section 34 of IPC. So even then accused Praveen cannot be held guilty for the same and could not be convicted for offence u/s 302 of IPC.
Regarding the identity of accused Deva, PW1 Baljeet has stated that third boy took the knife from his pocket and hit Rajesh on the left side of his chest and after hitting Rajesh, all the three boys had run away from the spot. All this happened so fast that he got scared. PW1 has further stated that after about 2830 days, of the incident, he was called by the police and told to come to the Court. While he was standing outside the Court, police came alongwith two boys having muffled face and told him that those boys refused to join the TIP. Those two boys after coming out of the Court, removed the clothes from their faces, and PW1 identified those two boys as the same boys who caught hold of Rajesh,, out of which one was Deva.
PW8 Jagdish Chand has stated that after receiving the blow of the SC No. 116/1 26 bottle over the forehead, the person fell down and the injury from the forehead started bleeding. After some time, injured tried to get up but two of the friends of the aforesaid boy caught hold him. Another person /friend of the said boys took out a knife from the pocket of his pant and stuck the same on the left side of the chest of the injured, who had received injury on his forehead. Thereafter, all the culprits ran away from the spot.
PW8 Jagdish Chand has further stated that on 30/09/2002, in connection with the present case, he went to Tis Hazari Court and there outside the court room, he had seen the assailants with the police persons and he identififed them and there he came to know the name of assailants as Kailash, Deva, Rattan and Praveen.
Ld defence counsel has contended that as already argued above, the identity of accused Deva is also in dispute and for the first time, identity of the accused before the Court is no identity at all. Ld defence counsel has further contended that accused Deva had also moved an application for holding TIP on 24/07/2002 itself, which was not allowed by the Ld Trial Court.
According to the case of prosecution, accused Deva was arrested in this case on 24/0702 and he was put to TIP on 25/07/02, but he refused to join the TIP on the ground that he was shown to the witness in the PS. Regarding the arrest of accused Deva, PW14 CT Saleem has stated that after leaving the accused in the lockup in case of FIR no. 488/02, he came back to the same court, where he met SI Vinod Kumar, who was interrogating accused Deva son of Parkha Ram and Rattan son Satbir, who were in muffled face. Accused Deva was arrested vide memo Ex.PW14/A1 and his personal SC No. 116/1 27 search was conducted vide memo Ex.PW14/A. Accused Deva also made disclosure statement Ex.PW14/C and also pointed out the place of occurrence vide memo Ex.PW14/E. PW22 SI Vinod Kumar has stated that on 24/07/02, information was received in the PS Sultan puri that accused Deva will surrender in the Court of Ld MM at Tis Hazarui Court after 2.00 pm. Thereafter, he along with his staff reached in the court of Ld MM at tis Hazari Court, where accused Deva had surrendered before the Court concerned. After obtaining the permission from Ld MM, he interrogated accused Deva and arrested him vide memo ExPW14/A1 and took his personal search vide memo Ex.PW14/A. He also recorded the disclosure statment of accused Ex.PW14/C. Accused was taken to SGM hospital where he was medically examined and thereafter he pointed out the place of occurrence vide memo Ex.PW14/E. Thereafter, accused was produced before the Ld MM and one day PC remand of accused Deva was obtained.
PW22 has further deposed that accused was kept in muffled face immediately after his arrest. He also moved an application for TIP of accused, but accused refused to join the TIP. Accused Deva led the police party to Haridwar regarding the recovery of the weapon of offence, but accused disclosed that he had mislead the police in his earlier disclosure statement regarding the concealment of the knife in Haridwar, in fact he had handed over the weapon of offence i.e. knife to accused Sanjay (since PO). PW22 has further stated that he recorded the supplementary statement of accused Deva vide memo Ex.PW22/A and after completion of PC remand, accused was produced before the Court concerned and was remanded to JC.
SC No. 116/1 28
PW19 SI Gulshan Nagpal has also stated that on 30/09/2002, complainant Baljeet singh has also identified all the four accused, when they had appeared before the Court on that day. So, in all accused Praveen was arrested on 20/07/2002, accused Deva was arrested on 24/07/02, accused Rattan was arrested on 24/07/02 and accused Kailash was arrested on 26/07/2002 and their personal searches were conducted and they all made disclosure statement and pointed out the place of occurrence and thereafter they were put to TIP i.e. accused Praveen on 22/07/2002, accused Rattan and Deva on 25/07/2002 and accused Kailash on 29/07/02. All the four accused persons refused to join the TIP on the ground that they were shown to the witnesses by the police in the PS. PW1 Baljeet Singh has stated that he had identified only two of the accused persons outside the Court i.e. accused Deva and Praveen. PW8 Jagdish Chand has stated that he had identified the accused persons on 30/09/2002 outside the Court i.e. accused Kailash, Deva, Rattan and Praveen. PW19 SI Gulshan Nagpal has also stated that on 30/09/2002, Baljeet Singh has identified all the four assailants before him when they were produced before the Court, on that day.
Now it has to be seen, whether PW1 Baljeet Singh or PW8 Jagdish Chand or any other PW has been cross examined in respect of the fact that the accused were shown to the witnesses after their arrest till they refused to join the TIP, in the PS. PW1 Baljeet Singh has stated in the cross examination that one constable came to call him from his residence after about one and half months around 12 noon or 1.00 pm. He was called by the police official to come in the Court, on the next day morning. PW1 Baljeet Singh has stated in the cross SC No. 116/1 29 examination, he told about the fact that after 28 to 30 days of the incident he was called by the police and asked to come to the Court and was asked to stand outside the Court room and police came with two boys having muffled face and stated him that those boys had refused to join the TIP . Those two boys had removed the clothes from their face and he identified those boys, so it is clear from the cross examination of PW1 that he identified the accused persons outside the Court room after the refusal to join the TIP of the accused persons i.e. Praven and Deva.
PW1 Baljeet Singh has not been cross examined in any manner that in between 20/07/02 to 22/07/02, he was called by the police in the PS to identify accused Praveen or accused Rattan and Deva were shown in between 24/07/02 to 25/07/02 to him or was called on in between to 26/07/02 to 29/07/02 to identify accused Kailash. In fact after about 28 to 30 days, PW1 Baljeet Singh has identified only accused Praveen and Deva outside the Court and he had identified the accused Praveen and Kailash for the first time before the Court, during his examination. So, it cannot be said that accused persons i.e. accused Praveen and Deva were shown to PW1 Baljeet Singh before their refusal to join the TIP on the ground that they were shown to the witnesses int he PS. Hence the contention of Ld defence counsel in this respect is not forceful in any manner.
PW8 Jagdish Chand has stated that he had identified all the four accused persons outside the court on 30/09/02. In the cross examination, PW8 Jagdish Chand has not been cross examined on the fact that he was called in between 20/07/02 to 29/07/02 in the PS to identify the accused persons, who remained with the police during investigation, after their arrest on different dates SC No. 116/1 30 and before the accused persons refused to join the TIP, so it cannot be said that accused persons were shown to PW8 Jagdish Chand at any time in between 20/07/02 to 29/07/02.
PW13 ASI Prahlad Singh is a witness to the arrest of accused Praveen. PW13 has not been cross examined on behalf of accused Praveen that during that time, accused Praveen remained in the custody of police till he refused to join the TIP. PW1 Baljeet Singh or PW8 Jagdish Chand was called to PS and accused Praveen was shown to the witness. No suggestion has been given to PW13 that accused Praveen was shown to him in the PS or at any time, after his arrest but before his refusal to join the TIP or during the period when he remained in the custody of police officials.
PW14 Ct Saleem is a witness to the arrest of accused Deva and Rattan. He got conducted medical examination of accused persons and also joined the investigation when accused persons pointed out the place of occurrence. PW14 Ct Saleem has not been cross examined in any manner that the accused Rattan and Deva were shown to the witnesses i.e. PW1 Baljeet Singh and or PW8 Jagdish Chand, after their arrest but before they refused to join the TIP.
PW18 HC Datar Singh is a witness to the arrest of accused Kailash. He took accused for his medical examination to SGM hospital and also joined the investigation when accused Kailash pointed out the place of occurrence. PW18 has also not been cross examined in any manner that the accused Kailash was shown to the witness i.e. PW1 Baljeet Singh and PW8 Jagdish Chand, after his arrest but before he refused to join the TIP proceedings. PW1 Baljeet Singh and SC No. 116/1 31 PW8 Jagdish Chand and PW19 SI Gulshan Nagpal have also stated that they have identified the accused persons on 30/09/02 outside the Court.
Even PW 22 SI Vinod Kumar has not been cross examined that the accused persons were shown to PW1 Baljeet Singh or PW8 Jagdish Chand after their arrest but before they refused to join the TIP. In such circumstances, as none of the witnesses have been cross examined to the fact that accused persons were shown to the witness before they refused to join the TIP in the PS, hence the contention of Ld defence counsel is not forceful in any manner that the identity of accused persons is doubtful as they were shown to the accused persons by the police.
It has come in the deposition of PW22 SI Vinod Kumar and PW23 Inspector Sukhwinder Singh that the witness Baljeet Singh has identified one of the accused as Praveen Kumar, when dossier was shown to him. According to the case of prosecution, witnesses have deposed about the arrest of accused Praveen from his house on the pointing out of secret informer on 20/07/02. PW1 or PW8 is not public witness to the arrest, personal search and disclosure statement of the accused persons, which shows that PW1 and PW8 did not join the investigation, hence it cannot be said that any of the accused was shown to PW1 or PW8, at any time during investigation.
Accused Rattan and Deva have surrendered themselves before the Court, so the precautions have to be taken by them regarding their identity before their arrest in this case. It is no known whether accused persons appeared before the Court at the time of moving application for their TIP on 24/07/02 in muffled faces. They had moved an application for surrender on 23/07/2003. Even in the SC No. 116/1 32 application dated 23/07/02, accused persons Rattan and Deva did not dispute their identity and did not mention anything about their identity. PW23 Inspector Sukhwinder Singh has also stated that witness Baljeet Singh has identified one of the accused Praveen after seeing the dossier of the criminals in the PS on 20/07/2002 and thereafter, after pointing of secret informer, accused Praveen was arrested. Even at that time, PW23 or PW22 did not ask the complainant Baljeet Singh to join the investigation, hence it cannot be said that even at the time of his apprehension , accused Praveen was shown by the police to complainant Baljeet Singh.
In view of the deposition of witnesses, it cannot be said that accused persons have been identified by the witnesses for the first time in the Court, after the incident because accused persons were put to TIP, but they refused to join the TIP on the ground that during their custody, they were shown to the witnesses in PS, but the same has not been substantiated in any manner either by producing any evidence on behalf of accused persons or by cross examining PW1 Baljeet Singh and PW8 Jagdish Chand, in this respect that accused persons were shown to both of them in the PS, during their custody with the police. So the contention of Ld defence counsel that identity of accused persons for the first time in the Court is of no consequence, is not forceful, in any manner.
Ld defence counsel has further contended that blood stained clothes of neither PW1 Baljeet Singh nor PW4 Rakesh have been seized by the IO, as both have claimed that they had removed the injured to Brham Sbakti hospital and in this process, their clothes must have been blood stained. To my mind, this contention is also not forceful in any manner because PW1 Baljeet Singh has SC No. 116/1 33 specifically stated that he took injured Rajesh from the place of incident towards the road, who had walked 3035 steps, then he fell down. Photographs of the spots, where injured fell down were taken and had been proved. Blood stains exhibits were also collected and the same have been proved beyond reasonable doubts. These were sent to FSL and human blood was found on these exhibits, so non seizure of blood stained clothes of PW1 Baljeet Singh and PW4 Rakesh is of no consequence. More so, name of PW1 Baljeet Singh and PW4 Rakesh are appearing in the MLC of injured Rajesh, wherein they have been shown as persons, who had brought Rajesh to Braham Shakti hospital.
Case was registered on the statement of PW1 Ex.PW1/A. PW1 has deposed about the manner in which the incident had taken place. According to PW1, he accompanied deceased Rajesh to Sultanpuri Bus Stand, where deceased Rajesh intervened in the quarrel and the person, who was beating the poor person left on saying that he will see him in a little while and then that boy went inside the bus terminal. Soon after some time that boy returned alongwith two other boys and those two boys caught hold of Rajesh and the first boy hit the Rajesh with a bottle of glass, which he had brought on the head of Rajesh. Rajesh started bleeding and started bending down towards the earth, and when Rajesh tried to get up and tried to run away, the first boy, who had hit the Rajesh with bottle and another boy caught hold the Rajesh and the third boys took out the knife from his pocket and hit Rajesh on the left side of his chest and after hitting, all the accused persons ran away from the spot.
Ld defence counsel has contended that from the deposition of witnesses, place of incident is not certain. Ld defence counsel has further SC No. 116/1 34 contended that from the deposition of other witnesses , it is doubtful whether PW1 was present at the spot as PW8 has stated that he had also witnessed the incident and when all the culprits ran away from the spot, after some time, he saw one person came and picked up the injured and took him away, which shows that PW1 Baljeet Singh came after the incident and took away the injured.
PW1 Baljeet Singh has further stated that he took Rajesh towards the village but after a while Rajesh fell down, then he rang at the residence of Rajesh from the bus terminal and asked for a vehicle also and brother Rajesh, namely Rakesh reached there in Maruti van, then he put Rajesh in Maruti van and took him to the Braham Shakti Hospital, where he was declared brought dead.
Rakesh has been examined as PW4. He has stated that on 07/07/02, he was working as driver. On that day, at about 10.00 pm, he was present at his house. He received a phone call from his uncle Baljeet Singh that Rajesh his real brother was beaten by 23 boys at bus terminal Sultan Puri with dandas. He immediately reached there and found Rajesh lying on the road and blood was oozing out from his chest and head. His uncle Baljeet Singh was also present there. He immediately lifted his brother Rajesh from the spot in his maruti Van took him to Braham shakti hospital, where the doctor declared him brought dead. On the second day, body of his brother was referred to SGM hospital for postmortem. He identified the body of his brother Rajesh. After postmortem, body was handed over to him. IO recorded his identification statement vide Ex.PW4/A can handed over the body vide memo Ex.PW4/B. In the cross examination, PW4 Rakesh has stated that he did not go inside the bus terminal as his brother was lying in the road, which has SC No. 116/1 35 corroborated with the deposition of PW1 that he took Rajesh towards village, but Rajesh fell, then he rang at the residence of Rajesh from the bus terminal and asked for a vehicle also and brother Rajesh, namely Rakesh reached there in Maruti van, then Rajesh was taken to Braham Shakti Hospital, where he was declared brought dead. So, when Rajesh was taken to the hospital, he was not lying at the place of occurrence but was lying on the road. So neither PW1 nor PW4 could be disbelieved in any manner.
According to MLC Ex PW7/A. Injured Rajesh was admitted to Braham Shakti hospital by Rakesh, brother and Uncle Baljeet Singh at about 10.25 pm on 07/07/02. So this is also corroborating to the deposition of PW1 and PW4 Rakesh that they had removed injured Rajesh from Sultanpuri Bus terminal to Braham Shakti Hospital after the incident and it is also proved from the depositon of PW1 that the incident had taken place before 10.00 am as PW1 and PW4 have corroborating each other that after the incident, call was made at the house of injured Rajesh by PW1, which was received by PW4, who reached at the spot in a maruti van, after 15 minutes and then removed Rajesh to Braham Shakti hospital.
Ld defence counsel has contended that from the deposition of the witnesses either eye witnesses or police witnesses has not been able to prove about the place of occurrence as all the witnesses have given different place of occurrence.
In this respect, PW1 Baljeet Singh has stated that the incident had taken place on Bus Terminal, Sultanpuri and after the incident, he took Rajesh towards village but after while Rajesh fell down, he rang up to the house of Rajesh SC No. 116/1 36 and asked for the vehicle. In the cross examination, PW1 has stated that they went inside the terminal from main Nangloi road and has further stated that the poor person was beaten outside the gate of terminal, which was at the distance of 510 steps at the from the gate and no quarrel took place with Rajesh at the spot, where the poor man was being beaten. Rajesh has gone there to intervene at that time, he was standing near the gate. Then they went inside the terminal from the gate after about 5/10 steps, where the incident took place. At that time, he was coming back after drinking water, when the quarrel took place between deceased and those boys and place of rehri wala, who was standing near the gate, was at a distance of 1015 steps from the place of occurrence, when Rajesh was hit with the bottle and he started running and he was at a distance of 45 steps, when Rajesh was stabbed with knife.
PW1 Baljeet Singh has further stated in the cross examination that Rajesh did not fell at the spot and he just bent down and while he was taken Rajesh towards the hospital, which was near the village, Rajesh must have walk for 3035 steps on his foot before he fell down. Rajesh was walking with his help and blood was oozing out from the injuries of Rajesh, while he was working, but he cannot say whether blood was trickling down to the ground at the time or not since he was helping him to walk.
So from the deposition of PW1 Baljeet Singh, it is clear that there were three places, first near the gate of bus terminal where the poor person was beaten up when Rajesh intervened, the second place is where Rajesh was hit with the bottle and knife and third one is where the Rajesh fell down after walking for 3035 steps on his foot with the help of PW1 Baljeet Singh. So there is no SC No. 116/1 37 confusion about the place of occurrence. It all happened outside the gate and nearby the gate and further where the Rajesh fell down, so the deposition of PW1, that after extending threats the said person, who was beating poor person went inside the bus terminal and came outside with two more persons, is not doubtful as place of occurrence as established by PW1 from his deposition.
Deposition of PW1 Baljeet Singh has been corroborated by PW8 Jagdish Chand, who has stated that after the incident, all the culprits ran away from the spot. After some time, he came and saw that one person came and took injured away, which is corroborating with the fact as deposed by PW1 Baljeet Singh that at that time, he was coming back after drinking water, when the quarrel took place between deceased and those boys, rehri wala was standing near the gate where he had gone to drink water and he was at the distance of 1015 steps from place of occurrence, when the Rajesh was hit with the bottle. He then started running towards Rajesh and he was at a distance of 4/5 steps, when Rajesh was stabbed with knife. Had PW1 Baljeet Singh been present at the spot, where Rajesh was stabbed then certainly he could have intervened and save Rajesh from the injuries. The explanation given by PW1 is not unnatural and seems to be quite plausible that he had gone to drink water from rehri and had seen the incident from the distance of 45, steps when Rajesh was stabbed. So even, it cannot be said that PW1 Baljeet Singh was not having any opportunity to see the accused persons, who had caused injuries to Rajesh.
PW8 Jagdish Chand has stated that the incident of beating had taken place inside the terminal, so to my mind, it is not a contradiction as it depends on each person how he perceive the facts and situation. In my view, such question SC No. 116/1 38 about the place of occurrence should have been asked after showing the site plan to the witness by pin pointing the place about which witness was deposing to ascertain whether there was any difference in place of occurrence as deposed by the witnesses or as shown in the site plan. Otherwise there is no other method to check whether the place of occurrence has been deposed differently or the same by witnesses.
According to the site plan Ex.PW23/A, which was prepared on the pointing of PW1 Baljeet Singh mark XA showing the place where quarrel had taken place. Same is inside the bus terminal and mark B has been shown at the distance from the bus terminal on road of Katchi patri by the side of the road where injured had fell down and blood had also fell down there. PW1 Baljeet singh had also stated that after sustaining injuries, Rajesh had walked 3035 steps with his help and ultimately fell down. So there is no ambiguity about the place of occurrence. Even in scaled site plan Ex PW5/A, point A has been shown where the Rajesh was hit with bottle and knife i.e. inside the sultanpuri bus terminal. Point B has been shown from where PW1 Baljeet Singh had seen the occurrence and there is not much distance between point A and B, which shows that PW1 Baljeet singh was in a position to see the accused persons, at the time of incident. Point D is showing the place where the blood had fallen, which was at the distance from sultanpuri bus terminal, hence again corroborating with the deposition of PW1 Baljeet Singh that after the stabbing, Rajesh had walked 3035 steps with his help.
Ld defence counsel has contended that PW8 has stated that the incident had taken place at the place where initially the poor person was beaten. SC No. 116/1 39 Again it seems to be the question of individual perception. PW1 Baljeet Singh has stated in the cross examination that the distance between the place where the poor person was beaten and later on incident had taken place at the distance of 510 steps only. So, even if we assume this as a contradiction, then it is a minor contradiction and does not raise any doubts about the presence of PW1 Baljeet Singh or presence of PW8 Jagdish Chand at the spot and further that they had not seen the incident.
PW9 HC Jagdish Chand has stated that SI had lifted the blood, which was lying on the ground P31 service road at some distance from the bus stand/terminal, Sultan Puri. This fact is also corroborating with PW1 Baljeet Singh who has stated that injured Rajesh had fell down after walking 3035 steps as place of incident and according to the site plan, it was a road side, which was also corroborating with PW4 Rajesh, who reached there in the vehicle and found Rajesh lying on the road and blood was oozing out from the chest and head.
PW17 Ct Rajender Singh has stated that he joined the investigation on 07/07/2002 and reached at the spot i,e. Road which was leading towards pooth from Sultanpuri bus terminal. Some blood stains and blood smeared earth and some papers were noticed by them. These were lifted and were sealed with the seal of SS and were seized.
PW22 SI Vinod Kumar and PW23 Inspector Sukhvinder Singh have also deposed the same facts regarding lifting of exhibits from the place where Rajesh had fallen down. So from the deposition of these witnesses there is no doubt about the place of incident. The place where initially the quarrel taken place was nearby the place of incident and hardly there is any difference, but the the SC No. 116/1 40 place where Rajesh fell down after walking 3035 was away from the place of incident from where the exhibits were collected, so the contention of Ld defence counsel that prosecution have not been able to establish the identity of place of incident is not forceful, in any manner.
On 07/07/02, PW12 Ct Rakesh Kumar was posted at PS Sultan Puri as DD writer from 4.00 to 12.00 midnight. At about 10.29 pm, he recorded DD no.55B Ex.PW12/A on the basis of the wireless message that one boy has been stabbed at bus stand Sultan Puri. He handed over the DD to SI Vinod Kumar, who went to the spot with CT Jagdish. He also recorded DD no.56B Ex.PW12/B and on the same day at about 10.40 pm, as information was received that one Rajesh was got admitted in Braham Shakti hospital was brought dead. This DD was handed over to Constable Rajender to further hand over to SI Vinod Kumar. This witness has not been cross examined by Ld defence counsel in any manner, hence the prosecution has been able to prove both the facts that Rajesh was got admitted in Braham Shakti hospital on 07/07/2002 around 10. 25 pm and he was brought dead, as per information recorded at 10.40 pm. PW22 SI Vinod Kumar on receipt of DD alongwtih Ct Jagdish reached at Bus terminal, Sultan Puri and found blood scattered on the ground at a small distance from bus terminal. No eye witness met there. In the mean time he also received another DD through Ct Rajender. He left PW17 Ct Rajender behind at the spot and PW22 himself with Ct Jagdish reached at Braham Shakti hospital where he collected MLC of Rajesh in which he was declared brought dead. In the hospital, PW1 Baljeet Singh met PW22 who told him that he was the eye witness and uncle of Rajesh. He recorded the statement of Baljeet Singh SC No. 116/1 41 Ex.PW1/A and made his endorsement Ex.PW3/B and handed over the same to Ct Jagdish for getting register the case. According to the cross examination of PW22 SI Vinod Kumar, he reached at the hospital at about 11.00 pm and recorded statement of complainant at about 11.30 pm. Except complainant, no other eye witness was present at that time. He left the hospital at about 1.0 am night. Firstly he came back to the spot. They stayed there till 6.00 am.
PW1 Baljeet Singh has also stated that the local police came in the hospital and his statement was recorded Ex.PW1/A and in the cross examination he has further stated that police came there around 11.00 pm and he also pointed out the place of occurrence to the police at about 12.15 am. He stayed with the police at the spot for 1520 minutes and came back to the hospital. So with a minor gap in the time, both PW1 Baljeet Singh and PW22 SI Vinod Kumar have corroborating each other regarding the reaching of the police in the hospital; regarding the recording of statement of the complainant and also when the complainant pointed out the place of occurrence to the police. In view of the same, the contention of Ld defence counsel that PW22 SI Vinod Kumar did not meet with any eye witness at the spot in between 1.15 am till 3.00 am is of no consequence as statement of PW1 was already recorded being eye witness to the incident.
PW8 Sh Jagdish Chand has stated that he had seen the incident and remained there till 10.15 pm and then he left the spot and again came back to the spot at about midnight and saw police inspector and 23 constables were present there. He accompanied the police officials to PS. So it cannot be said that PW8 Jagdish Chand did not reach at the spot and did not contact with the police SC No. 116/1 42 officials. Again there seems to be some minor contradictions about the time, but in such circumstances, it cannot be expected from the witness to note down the time of each and every visit and about the persons with whom PW8 met at the spot. PW22 SI Vinod Kumar has also stated that two public witnesses met him at about 3.00 am night . Meanwhile SHO had also reached there. So the statement of those public persons recorded by the SHO in his presence.
PW23 Inspector Sukhwinder Singh has stated that again he alongwith complainant Baljeet Singh, SI Vinod Kumar and other police staff reached at Braham Shakti hospital. There he filled up form 25.35.1B for conducting postmortem of dead body of Rajesh. Dead body was preserved in the mortuary of Sanjay Gandhi Memorial Hospital. Thereafter, they again came back to the spot where he recorded the statement of public witnesses Satpal and Jagdish. Thereafter, he released the witnesses and searched for suspected persons. In the cross examination, PW23 Inspector Sukhwinder Singh has stated that witnesses Jagdish came at the spot at about 3.15 am and Satpal reached there 15 minutes later on. Both witness Jagdish and Satpal remained with him for one and half hour. PW 23 Inspector Sukhwinder Singh has further stated that complainant Baljeet Singh was not knowing witness Satpal and Jagdish, hence there was no question for him to point out as to where Satpal and Jagdish were standing at the time of incident.
Ld defence counsel has contended that name of Jagdish is not mentioned in the scaled site plan as to where he was standing at the time of incident and PW23 Inspector Sukhwinder Singh has not been able to disclose any reason about the same, as scaled site plan was got prepared by PW19 SI Gulshan SC No. 116/1 43 Nagpal. In the cross examination, SI Gulshan Nagpal has stated that on 09/09/02, he called the draftsman and complainant Baljeet after taking rough notes, scaled site plan was prepared and has further stated that he does not remember, whether the complainant had told him about the position, whether witness Satpal and Jagdish were standing at the time of incident.
In my view, the contention of Ld defence counsel is not forceful in any manner because it has not come in the evidence of any of the witness that PW1 Baljeet Singh and PW8 Jagdish Chand were known to each other. So it was not possible for PW1 Baljeet Singh to point out as to where other witness was standing, hence this fact as to who pointed out the place of standing of PW Satpal is not having any much impact on the deposition of witness to disbelieve them. The contention of Ld defence counsel that signatures of PW1 Baljeet Singh are also not appearing on the memos prepared, is also not forceful in any manner because PW23 Inspector Sukhwinder Singh has stated that it was not mandatory to obtain the signatures of public witness on the memos. This could create a doubt only that at the time of preparation of memo, PW1 Baljeet Singh was not present with the police party but considering the deposition of PW1 corroborating with other witness, it cannot be said that memos were not prepared by the police officials as deposed by them and PW1 did not remain with them during the investigation.
This fact is also corroborating with the fact that PW1 Baljeet Singh has stated in the cross examination that he went to PS next day to hand over the seal, which was given to him after use. So, it cannot be said that the exhibits were not taken in the presence of PW1 Baljeet Singh and were not sealed. It cannot be also SC No. 116/1 44 said that seal after use was not handed over to Baljeet Singh, which he had returned on the next day. Simultaneously, it also eliminates the possibility of tampering with the exhibits in any manner and also further proved that PW1 Baljeet Singh was present at the time of lifting the exhibits from the spot.
PW1 has stated in the cross examination that police took him and he pointed out the place of incident to the police around 12.15 am and stayed there for about 1520 minutes and thereafter he came back to the hospital. PW1 Baljeet Singh has further stated in the examination in chief that police has lifted blood stains peelings of sugarcane and blood stain paper, which were lying on the spot and put the same in a plastic jar and converted into parcel with the help of white cloth and sealed the same with the seal of SS and seal after use was handed over to him and police has prepared some papers. So from the deposition of PW1 Baljeet Singh, it is also clear that memos were prepared by the police in his presence, then merely he did not sign the memos as a witness has affected the trustworthiness of the witness and he cannot be disbelieved in any manner regarding the collection of exhibits from the spot.
PW6 Ct Rajender Prasad has stated that on 08/07/2002, he was posted as photographer in District line, North West District, Crime Team. He was called by the IO at PS Sultan Puri. He reached there. He accompanied the IO opposite shop no. P31, Krishna Vihar, Delhi on main road. There on the instructions of the IO, he took photographs of the place of occurrence where blood was lying. He has proved the negatives as Ex.PW6/A1 to A3 and positives as Ex.PW6/AC. So, from the deposition of PW6, it is clear that he had taken the SC No. 116/1 45 photographs of the place, where Rajesh had fallen down on the road and was picked up by his brother PW4 Rakesh and was removed to Braham Shakti hospital.
PW9 HC Jagdish Chander has also stated that SI lifted the blood, which was lying in front of P31 service road at some distance from the bus stand/terminal, Sultan Puri. Blood was kept in a plastic jar. It was sealed with the seal of SS. The parcel was taken into possession vide memo Ex.PW9/A. PW9 has also deposed about two sealed parcels sealed with the seal of DKS, which were handed over by doctor, after the postmortem of dead body of Rajesh, which were taken into possession vide memo Ex.PW9/B and has further stated that in front of shop P31, service road from Puth village, the blood, leaf of sugarcane and one old paper envelope (blood stain) were lying and the same were lifted and sealed with the seal of SS and it was taken into possession vide memo Ex.PW9/A. In the cross examination, he has stated that exhibits were being lifted from the spot, when he reached there with rukka and copy of FIR.
PW17 CT Rajender Singh has also accompanied the IO during investigation. He has stated that IO had lifted blood, earth, papers and Ganne ka chhilka from the spot and sealed the same with the seal of SS and seized the same vide memo Ex.PW9/A. He has further stated that two sealed parcels and sample seal were also handed over to IO by mortuary staff and it was seized vide memo Ex.PW9/B. Ld defence counsel has contended that in the cross examination, PW17 Ct Rajender Singh has stated that they reached Braham Shakti hospital at about 4.00 am from the spot and till they remained at the spot, no public person had SC No. 116/1 46 come and the police had not recorded the statement of any person except the police officials, which shows that the statement of PW8 Jagdish Chand was not recorded in the night nor he had reached there. Ld defence counsel has again and again contended that PW1 Baljeet Singh and PW8 Jagdish Chand were not present at the spot .
To my mind, the same is not forceful because although both have narrated the facts of the incident in different manner, but have corroborated each other regarding the fact that two persons caught hold of Rajesh and one stabbed on his left side chest with a knife. PW1 Baljeet Singh has identified one of the person, who caught hold, as Praveen and further identified the person, who had stabbed on the left side of the chest of Rajesh, as Deva. Similarly, PW8 Jagdish Chand has also stated so and has identified accused Praveen as a person, who had caught hold the injured and accused Deva as a person, who had stuck knife on the left side chest of the injured. It has also not come on record that PW8 Jagdish Chand was stock witness of the police, so there could not be any possibility of introducing the PW8 Jagdish Chand as an eye witness to the incident, otherwise if both PW1 Baljeet Singh and PW8 Jagdish Chand had not seen the incident then they could not have been able to depose the manner in which Rajesh was stabbed and could not be able to identify accused Praveen, as the person who had caught hold Rajesh and accused Deva, as a person who had stuck knife on the left side of the chest of injured. Both accused Parveen and Deva were not known previously to PW1 Baljeet Singh and PW8 Jagdish Chand and nothing has been alleged that they were having any enmity with the accused persons and they have deposed against them to falsely implicate them. Merely that the bottle and knife have not been recovered does not mean that no such SC No. 116/1 47 incident had taken place. Testimonies of PW1 Baljeet Singh and PW8 Jagdish Chand are corroborating with each other and inspires confidence, so they cannot be disbelieved in any manner.
PW22 SI Vinod Kumar has also stated that PW23 Inspector Sukhwinder Singh lifted blood , blood stained sugarcane stripe (chilka), one envelope blood stained and sealed the same with the seal of SS and taken the same into possession vide memo Ex.PW9/A and seal after use was handed over to the complainant Baljeet Singh by the IO.
PW23 SI Sukhwinder Singh has also deposed the same facts regarding the collection of exhibits from the spot vide memo Ex.PW9/A. So, the prosecution, has been able to prove beyond reasonable doubts that in the intervening night of 07/08.07.02, exhibits were collected from in front of shop no. P31, in presence of complainant Baljeet Singh and after sealing the same, seal after use was handed over to PW1 Baljeeet Singh, which he returned back to the police, on the next day, in the PS. The exhibits were sent to FSL. PW16 Dr. Rajender Kumar has stated that on 24/12/2002, three sealed parcels were received in the laboratory from SHO, PS Sultan Puri, in this case. Parcel no.1 was containing Ex.1 i.e. piece of paper having brown stains. Parcel No.2 was containing exhibits 2a,2b,2c & 2d, i.e. one damp pants with the belt having brown stains, one damp shirt having brown stains, one damp baniyan having brown stains and one damp underwear having brown stains. Parcel no.3 was containing Ex.3 i.e. brown gauze cloth piece described as blood gauze.
On biological examination, blood was detected on Ex.1,2a,2b,2c,2d SC No. 116/1 48 and 3. On serological examination human blood of A group was detected on Ex. 2a, 2b,2c & 3. Ex.1 i.e. piece of paper found to have human blood group, however failed to show any reaction in relation to ABO grouping. Remnants of the exhibits have been sealed with the seal of RK, FSL, Delhi. He prepared Ex.PW16/A to PW16/A2 and serological report Ex.PW16/B. PW16 has not been cross examined in any manner, so from the deposition of PW16 Dr. Rajender Kumar, prosecution have been able to prove the fact that piece of paper was having human blood, but the same could not be connected with blood group A of deceased Rajesh.
PW15, WHC Rakesh has stated that he was posted at PCR control Room on 07/07/02 and his duty hours were from 8.00 pm to 8.00 am. on that day, at about 10.20 pm, he received a call that one person has been stabbed at Sultanpuri bus terminal near CNG pump. He filled up the form Ex.PW15/A. PW3 HC Kali Charan has stated that on 08/07/2002, he received the rukka sent by SI Vinod Kumar through constable Jagdish at 1.05 am and on the basis of same, he recorded FIR of this case, copy of which is Ex.PW3/A. He also made his endorsement on the rukka Ex.PW3/B and handed over the copy of FIR and rukka to Ct Jagdish and further investigation was marked to SI Sukhvinder Singh. Three copies were handed over to special messenger to deliver the copies of FIR to the senior officers of police and Court. He also recorded the kayami entry vide DD no.3A regarding registration of the FIR. DD of bandi/closure was also recorded vide DD no.4A. DD no.3. Copies of which are Ex.PW3/C and Ex.PW3/D. He has also produced the original FIR register and DD register. Nothing came out from the cross examination of this witness nor Ld defence SC No. 116/1 49 counsel has pointed out any contradiction in the statement of PW3.
PW2 Ct Pradeep Kumar has further corroborated and has stated on 08/07/2002, after obtaining the copies of FIR, he delivered the same to the senior officers and to the Court. He received the copies at about 2.05 am and reached back to the PS after delivering the same at about 1.40 pm. Nothing came out from the cross examination of PW2 to disbelieve his testimony.
PW5 SI Manohar Lal has stated that on 09/09/2002, he was called by the IO and reached at DTC bus terminal Sultan Puri, Delhi. Complainant Baljeet Singh was present at the spot. He took rough notes and measurements on the pointing out of complainant Baljeet Singh and on the basis of the same, he prepared scaled site plan Ex.PW5/A. He destroyed the rough notes and measurements after the same. In the cross examination, he has stated that SI Gulshan Nagpal and complainant were present at the spot, which is corroborating with the statement of PW1 Baljeet Singh and PW19 SI Gulshan Nagpal.
PW10 Rajesh Dahiya has stated that on 07/07/02, he was posted as Incharge, Crime Team North West District and on that day, he alongwith the members of the crime team was called near bus terminal, Sultanpuri. They inspected the scene of crime. Blood was lying scattered at the spot. In the cross examination, he has stated that blood was lying scattered by the side of the road, which corroborates with the fact that from the place of incident Rajesh walked about 3035 steps towards the road and there he fell down.
Regarding cause of death, PW7 Dr. Deepak Bhardwaj, has stated that patient Rajesh was brought dead in emergency from at about 10.25 pm. He was SC No. 116/1 50 examined by Dr. Sudeep, who was working as casualty medical officer. He identify the hand writing and signatures of Dr. Sudeep on MLC Ex.PW17/A. Dr. Sudeep has left the services of the hospital and his present whereabouts are not known. Death summary has also been identified by PW7 as Ex.pW7/B in handwriting of Dr. Sudeep. Nothing came out from his cross examination to disbelieve his testimony.
Postmortem on the dead body was conducted by PW20 Dr. Komal Singh. He has stated that he was posted in SGM hospital as HOD, Forensic medicine on 08/07/2002. on that day, he conducted postmortem on the body of deceased Rajesh, 30 years, male, was brought by the SHO Sukhvinder Singh of PS Sultan Puri with the alleged history murder conducted by two person by means of a knife and a glass bottle. He conducted external examination and internal examination . According to his opinion, cause of death was haemorrhagic shock and coma subsequently to the stab injury to the hart and blunt impact over the head. Both the injuries were sufficient to cause death in the ordinary cause of nature. All the injuries were ante mortem and were of same duration. Time since death was approximately 15 hours. Clothes and the blood sample in a guaze piece were sealed and handed over to the IO. He has proved his detailed report as Ex.PW20/A. He has not been cross examined by Ld defence counsel in any manner, regarding cause of death or and regarding time since death or that clothes and the blood sample of deceased were not sealed and were not handed over to the IO, hence his deposition is unrebutted and unshaken.
Ld defence counsel has contended that accused Praveen and Deva were not having any motive to commit murder of injured Rajesh. To my mind, SC No. 116/1 51 it is not so, because initially a quarrel had taken place with Rajesh of one boy, who after threatening Rajesh went inside the Bus terminal, Sultanpuri and came back with 23 persons. One of the boy, gave empty bottle blow on the head of Rajesh. He sustained injuries and bent down towards the ground, when he tried to get up, then he was caught hold by accused Praveen and accused Deva stabbed him on the left side of his chest with the knife. These facts are itself proving that said person came back with the accused persons with the intention to commit murder of Rajesh as they came back with empty bottle and knife and both the bottle blow and knife blow were given on the vital part of the body i.e. on the head and on the left side of chest i.e. heart, so it cannot be said that accused persons particularly accused Praveen and Deva, were not having any motive to commit murder of Rajesh. Even if, we assume that the motive was a weak one, then also the same itself is insufficient to lead any adverse inference against the prosecution.
In support of these contentions, I relied upon Nathuni Yadav v. State of Bihar Crl. No.184 of 1982 and Govt.A No.3 of 1982, Law Finder Library Edition, wherein it has been held that: "Motive for doing a criminal act is generally a difficult area for prosecution. One can not normally see into the mind of another. Motive is the emotion which impels a grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Champbell struck a notice of caution in Rameshwar v. State of Rajasthan AIR 1952 SC 54 Reg v. Palmer (Shorthand Report at page 308 CCC May 1856) thus: " But if there be any motive which can be assigned, I am bound to tell you that th adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very SC No. 116/1 52 slight motives' not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties." Though, it is a sound proposition that every criminal act is done within a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.
In Atley v. State of U.P., Air 1955 SC 807 it was held that " that is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but absence of clear proof of motive does not necessarily lead to the contrary conclusion." In some cases, it may not be difficult to establish motive through direct evidence, while in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes, it may appear that the motive established is a weak one. That by itself is insufficient to lead to any inference adverse to the prosecution.
In view of the above discussion, prosecution has been able to prove beyond reasonable doubts that PW1 Baljeet Singh and PW8 Jagdish Chand were present at the spot and incident had taken place in their presence. They have also identified the accused persons. According to the deposition of PW1 Baljeet Singh, accused Kailash and Rattan neither participated in the incident nor have done any overt act. PW8 Jagdish Chand has identified both of the accused i.e. Kailash and Rattan as the person, who were present at the spot, but he has also not deposed any overt act on the part of these accused persons.
Ld defence counsel has relied upon various judgments and in such circumstances, it cannot be said that accused Kailash and Rattan were having any SC No. 116/1 53 common intention in committing murder of Rajesh. It has been held in 2010 (2) Acquittal 309 (Raj.) titled as State V. Balwant Singh and Ors., wherein it has been held that if there is no evidence of enmity and motive and if it was attributed to one of the accused and if the other accused has not inflicted any injury on the deceased and was stated to be present, standing at the place of occurrence, then there is no error or illegality in acquittal of appellant by trial court.
It has also been held in AIR 1996 Supreme Court 2478 titled as Dhanna etc. V. State of M.P., wherein it has been held that if the prosecution witnesses did not refer to any role played by accused, when he gave statement to the police during investigation, then accused cannot be convicted for murder on the basis of improvements made by the said witness during trial".
In view of the above discussion and relying upon the judgment as referred, for mere presence of accused Rattan and Kailash, at the spot, they cannot be held guilty and convicted for the offence u/s 302/34 of IPC. Accordingly, both accused Rattan and Kailash are acquitted for the same.
In view of the above discussion, prosecution has also been able to prove beyond reasonable doubts from the deposition of PW1 Baljeet Singh and PW8 Jagdish Chand that at the time of incident, accused Praveen caught hold the injured Rajesh and accused Deva caused the knife injuries on the left side of his chest.
According to the deposition of PW20 Dr. Komal Singh, stabbed injury was sufficient to cause death in the ordinary cause of nature. Identity of accused Deva has been proved beyond reasonable doubts as a person, who has SC No. 116/1 54 stabbed the deceased Rajesh on his left chest, so offence u/s 302/34 of IPC has been proved beyond reasonable doubts against accused Deva, for which he is held guilty and convicted for the same.
In view of the above discussion and from the deposition of witnesses, prosecution has been able to prove beyond reasonable doubts that while committing murder of Rajesh, accused Deva had used a knife and stabbed him, so offence u/s 27 of Arms Act is also proved beyond reasonable doubts, for which he is held guilty and convicted for the same.
Now the only question is whether accused Praveen, who had caught hold injured Rajesh at the time he was stabbed, can be convicted with the help of section 34 of IPC i.e. common intention. In this respect, Ld defence counsel has relied upon various judgments wherein it has been held that merely the accused has caught hold the injured/deceased at the time of incident, then on the basis of the same, he cannot be convicted u/s 34 of IPC i.e on the basis of having common intention.
On the other hand, Ld APP has relied upon 1991 (3) Supreme Court Cases, 627 titled as Khujji @ Surendra Tiwari Vs State of Madhya Pradesh wherein it has been held that the fatal blow, if not inflicted by accused itself implies that more than one person participated and someone of them inflicted the fatal injury. If several persons have participated in the commission of the crime then conviction of one of the accused with the aid of section 34 of IPC has to be sustained.
Ld APP has further relied upon 61 (1996) Delhi Law Times 566 (DB) SC No. 116/1 55 titled as Inder Singh & ors Vs State, wherein it has been held that motive is irrelevant where ocular evidence with regard to the commission of offence is there and if two of the persons caught hold deceased and third accused caused fatal stab injury to deceased with open knife then all the persons, who caught hold the deceased were sharing the common intention with the third person, who had caused fatal injury , so the convicts were right convicted for offence 302 of IPC read with section 34 of IPC.
The judgments relied upon by Ld defence counsel i.e 2005 (3) RCR 958 is of Hon'ble Punjab and Haryana High Court and the judgment 1997 VII AD (SC) 787 titled as Ramashish Yadav and Ors Vs state of Bihar is of two Hon'ble Judges of Supreme Court of India whereas judgment relied upon by Ld APP (1991) 3 Supreme Court Cases 627 titled as Khujji @ Surendra Tiwari Vs State of Madhya Pradesh is of three Hon'ble Judges of Supreme Court of India, so the judgment relied upon by Ld APP (1991) 3 Supreme Court Cases 627 is applicable to the facts and circumstances of the present case. Had accused Praveen not caught hold injured, then accused Deva could not have been able to give stab injuries to the Rajesh on the left side of his chest with such force that proved fatal for injured Rajesh and caused his death. The act of accused Praveen of holding injured Rajesh facilitated accused Deva to stab him with the knife on his vital parts of the body, which proved fatal for injured Rajesh and caused his death, so it cannot be said that accused Praveen caught hold injured Rajesh without any other intention except that he was to be stabbed by accused Deva with a knife. Had accused Parveen not been any common intention to commit murder of Rajesh, SC No. 116/1 56 then he could have release Rajesh, on seeing the knife, which was taken out by accused Deva to stab injured Rajesh.
According relying upon the judgment as referred by Ld APP, I am of the opinion that prosecution has also been able to prove beyond reasonable doubts that accused Praveen was having common intention with accused Deva to commit murder of injured Rajesh. Accordingly he is also held guilty for the offence u/s 302 of IPC read with section 34 of IPC and convicted for the same.
Announced in Open Court on 26/11/2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 116/1 57 SC No. 116/1 58