Delhi District Court
State vs 1. Hitesh Kumar on 18 January, 2011
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 68/09
STATE Versus 1. Hitesh Kumar
S/o Sh. Prem Singh
R/o H.No.A152,
Bunker Colony, PhaseIV,
Ashok Vihar, Delhi.
2. Brijesh
S/o Sh. Prem Singh
R/o H.No.A152,
Bunker Colony, PhaseIV,
Ashok Vihar, Delhi.
Case arising out of:
FIR No. : 710/2004
Police Station : Ashok Vihar
Under Section : 302/34 IPC
Judgment Reserved On : 06.01.11
Judgment Pronounced On : 18.01.11
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JUDGMENT
1. Stating briefly, it is the case of the Prosecution that on 14.10.04 at about 11:10 PM, one Vikas Chauhan, S/o Sabal Singh Chauhan came to Police Post, J J Colony, Wazirpur in Indica Car No. DL8CG9851 in injured condition and stated that he has been shot by Brijesh and Hitesh, both sons of Sh. Prem Patwari. He was rushed to Trauma Centre through ASI Kewal Singh and Constable Yogesh where he was got admitted. On his MLC, the doctor stated that he had sustained gun shot injury, as told by the patient himself and the injured Vikas was declared unfit to make statement. A Case U/s 307/34 IPC was got registered by ASI Kewal Singh at Police Station Ashok Vihar.
2. IO/ASI Kewal Singh got the Indica Car of the injured photographed. The Crime Team lifted the blood stains. Blood stained clothes of the injured and bullet recovered from the body of injured was also seized.
3. The injured Vikas succumbed to his injuries on 16.10.04 at about 9.50 PM and the case was converted into S.302 IPC. Further investigation was conducted by Inspector Kharag Singh. As per the postmortem report of deceased Ex.PW17/A, the cause of the death was opined as shock which resulted from trauma to spinal cord which was SC No.68/09 State vs. Hitesh & Anr.
:3:consequent upon projectile fire arm injury to D2 Vertebra which was sufficient to cause death in ordinary course of nature.
4. As per the chargesheet, the accused persons were arrested on 22.10.04 and on their pointing out vide memo Ex.PW32/B, the rough site plan of the place of occurrence was prepared by IO/ SI Kharag Singh which is Ex.PW35/D. He also recorded the disclosure statements Ex.PW20/A and Ex.PW20/C of both the accused persons.
5. However, in terms of the directions of the Commissioner of Police, Delhi, the investigation of the case was transferred to Anti Homicide Section of Crime Branch on 26.10.04. Inspector Ajay Sharma thereafter took up the further investigation of the matter.
6. The chargesheet further discloses that despite the police custody remand of the accused persons, the weapon of offence could not be recovered, thus, Section 201 IPC was also added. It was also revealed during the course of investigation that on 13.10.04, a quarrel took place between two groups of boys in Delhi Administration Flats, Nimri Colony, Ashok Vihar. During the said quarrel, one Kailash Joshi S/o Sh. Data Ram Joshi, R/o 230, Delhi Administration Flats, Nimri Colony was beaten by one Manish Kumar, S/o Late Sh. Man Singh and others who were having the patronage of deceased Vikas Chauhan. The matter SC No.68/09 State vs. Hitesh & Anr.
:4:regarding the dispute was reported to Police Post J.J. Colony, Wazirpur and on 14.10.04, both the rival parties were called at the Police Post and the matter was got compromised. A Compromise Deed, on the one hand, was signed by Sh. Prem Singh, the father of the accused persons and deceased Vikas Chauhan and others, on the other hand. It was also revealed during the investigation that deceased Vikas Chauhan rebuked Prem Singh Patwari, father of the accused persons and also used filthy language against him. Upon hearing the news of humiliation of their father at the hands of deceased, both the accused persons who are the sons of Pradhan Prem Singh felt humiliated and with an intention to take revenge and to teach a lesson to Vikas Chauhan, they reached in the locality of deceased. They waited in the adjacent park outside his house, when the deceased returned in front of his house in Indica Car, he was manhandled by the accused persons at about 11.05 PM. They fired on him and fled away from the spot. The deceased went to Police Post J.J. Colony, Wazirpur while driving his Indica Car in injured condition and informed the police at about 11.10 PM that he was shot by Brijesh and Hitesh both sons of Prem Patwari and fell down. During the investigation, statements of several witnesses were recorded U/s 161 Cr.PC.
7. It is the case of the prosecution that Smt. Suman Chauhan, wife of the deceased Vikas Chauhan R/o H.NO.174, Nimri Colony, Ashok Vihar, Delhi, stated in her statement recorded U/s 161 CrPC on 28.10.04 SC No.68/09 State vs. Hitesh & Anr.
:5:that on 14.10.04, at about 11.05 PM, she was standing in the balcony with her five years old son and was waiting for her husband. She saw her husband come in his Indica Car No.DL8C G 9851. When he alighted from his car, the accused persons started manhandling her husband. Accused Brijesh caught hold of her husband from his neck and shouted that they would not let him live. At this, accused Hitesh fired at her husband repeatedly and thereafter both the accused persons fled away from the spot. She also stated that her husband sat in his car and chased them in injured condition while shouting "Maar Diya, Maar Diya". She also stated that on seeing this, she fell down and she regained her consciousness after sometime. Then she saw that her mother inlaw was trying to contact her husband on his mobile phone No.9811217902 from the landline number 27419074 but she could not talk due to some disturbance in their phone. At about 11.15 PM, her motherinlaw was able to talk to her husband and she came to know that her husband was being taken to Trauma Centre, Delhi by the police. She further stated that after sometime, she along with her relatives reached the Trauma Centre at about 12.45 AM and her husband stated to them that the accused persons had shot him.
8. Smt. Santosh, mother of deceased Vikas Chauhan was also cited by the Prosecution as a witness and in her statement recorded U/s 161 CrPC, she stated that on 14.10.04, she talked to her son and he told SC No.68/09 State vs. Hitesh & Anr.
:6:that he would reach home soon. When he did not return till 11 PM, she again telephoned him but the phone got cut at that time. When she again contacted her son at about 11.15 PM, he told her that he had been shot by the accused persons and that the police was taking him to hospital. She informed her sonsinlaw about the same telephonically.
9. Besides this, the Prosecution also relied upon one Atul Mittal whose statement was recorded during investigation and who corroborated the statement of Smt. Suman Chauhan. The Prosecution also relied upon the statements of Sh. Rajesh Chauhan and Chander Prakash, close relatives of the deceased who stated that when they reached at Sushruta Trauma Centre where Vikas Chauhan was admitted in injured condition, he was saying that he has been shot by the accused persons i.e Hitesh and Brijesh.
10. As per the chargesheet, Constable Rama Rao who was deputed as Rojnamcha Munshi on 14.10.04 at Police Post Wazirpur, J.J. Colony from 9PM to 9AM stated that at about 11:10 PM, one person in his Indica Car came to the main gate of the Police Post and started shouting ''save me, save me'' whose name later on revealed as Vikash Chauhan. He stated that he has been shot by Brijesh and Hitesh, both sons of Prem Patwari. Then Constable Rama Rao informed SI Umed Singh Incharge Police Post and ASI Kewal Singh, who was on emergency duty. He along with SC No.68/09 State vs. Hitesh & Anr.
:7:Constable Yogesh removed the injured to the hospital. The Investigating Agency also cited SI Umed Singh, ASI Kewal Singh and Constable Yogesh as its witnesses.
11. After completion of the investigation in the matter, the charge sheet was filed and after due compliance of S.207 CrPC, the case was committed to the Sessions Court. On the basis of material on record, both the accused persons were charged for offence punishable U/s 302/34 IPC, to which they pleaded not guilty and claimed trial.
12. It is pertinent to mention at this juncture that both the accused persons were convicted vide judgment dated 22.10.09, passed by my Ld. Predecessor. However, vide order dated 17.05.10, passed in Crl. Appeal No.453/2010 & in Crl. Appeal No.583/2010, the Hon'ble High Court of Delhi remanded the case back to the Trial Court with the directions to return clearcut findings on five issues which were spelt out in the aforesaid order.
13. The five points of reference spelt out by the Hon'ble High Court in its aforesaid order are :
(i).Whether PW5 was an eyewitness and has deposed truthfully;
(ii).Whether the deceased made a dying declaration to his mother over the telephone when he was being removed to the hospital by the police;
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(iii).Whether deceased made a dying declaration to the police at the Police Post and;
(iv).Whether the deceased made a third dying declaration at the hospital before his wife and two brothersinlaw ?
14. The Hon'ble High Court was also of the view that in the light of the testimony of PW9, a 5th issue arises as to Whether the assailants were 3 or 4 ?
15. It was further directed that the Trial Court would specifically deal with the issue as to Whether Atul Mittal is to be believed or to be disbelieved and the reasons in support of the conclusion be given. It was further directed that if the Ld. Trial Judge holds that Atul Mittal is to be believed, the fact of his testimony visavis the claim of the wife of the deceased being an eye witness as also the claim of the police officers that the deceased reached the Police Post would be discussed.
16. In view of the aforesaid directions of the Hon'ble High Court, arguments were addressed afresh by Sh. Ramesh Gupta, Learned Senior Advocate for both accused persons as well as by Learned APP. I have gone through the record in its entirety and have also considered the arguments made before me both verbally and by way of written submissions.
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17. As per record, the Prosecution has cited 37 witnesses to prove its case and examined 35 witnesses. In their statements recorded U/s 313 Cr.PC, both the accused persons denied the incriminating evidence against them and claimed their false implication in the case. In their Defence, they have examined Sh. Om Prakash Khanna as DW1 and Sh. Prem Singh Sehrawat as DW2.
Whether a dying declaration was made by the deceased to police officers at PP J.J. Colony? If yes, reliability thereof.
18. The Prosecution relied upon DD No.40 Ex.PW16/A and the testimonies of PW16 Constable Rama Rao, PW20 SI Umed Singh, PW25 HC Yogesh and PW32 ASI Kewal Singh, in support of its case that on 14.10.04, the deceased Vikas Chauhan had reached the PP J.J. Colony, Wazirpur in injured condition and had clearly named the accused persons as the assailants.
19. Learned APP argued that the said DD No.40 clearly establishes the guilt of the accused persons as it was got recorded by the deceased himself as is borne out from the testimony of the aforesaid witnesses that there is no reason for the said witnesses to depose falsely against the accused persons.
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20. The argument of the Defence, on the other hand, was that the said DD Entry is a fabricated piece of evidence, it is antetimed and in no manner can it be treated as a dying declaration. It was argued by Sh. Ramesh Gupta, Learned Senior Advocate that the said DD is inadmissible in evidence as it was a dying declaration, made before a police officer and was required to be signed by virtue of Rule 25.21 of Punjab Police Rules.
21. It was further argued that there are several discrepancies in the testimonies of the aforesaid witnesses i.e. PW16 Constable Rama Rao, PW20 SI Umed Singh, PW25 HC Yogesh and PW32 ASI Kewal Singh and thus, the presence of the said witnesses at the Police Post J.J. Colony, Wazirpur has been challenged by the Ld. Defence Counsel.
22. At this juncture, it may be added for the sake of clarification that though it had been observed in the order sheet dated 31.01.08, passed by my Ld. Predecessor that the crossexamination of PW16 is deferred and he is bound down, yet on going through his testimony, it is clear that crossexamination of PW16 was concluded on the said date and admittedly, no further request for his crossexamination was ever made thereafter by the Defence during the entire trial.
23. It was further argued by Ld. Defence Counsel that PW16 Constable Rama Rao testified that the injured Vikas Chauhan reached the SC No.68/09 State vs. Hitesh & Anr.
:11:PP J.J. Colony at about 11.10 PM on 14.10.04 in his Indica Car. When he reached near the gate, he raised an alarm "save me, save me'' and stated that the sons of Prem Patwari, Hitesh and Brijesh had shot him with bullet. He further deposed that Vikas Chauhan fell down and became unconscious and then he informed SI Umed Singh, Incharge Police Post and ASI Kewal Singh, who was on emergency duty. Ld. Defence Counsel argued that a bare reading of the statement of PW16 along with the testimony of PW25 HC Yogesh would reveal that there is contradiction in their depositions. It was argued that PW25 deposed that the injured came to PP J.J. Colony, Wazirpur, got down from the car and at that time, he was in injured condition and was raising an alarm loudly stating that he was shot by Hitesh and Brijesh, both sons of Prem Patwari and after that he fell down. He further deposed that SI Umed Singh was present at the gate of PP J.J. Colony who instructed Constable Rama Rao to lodge DD.
24. My attention was also drawn to the testimony of PW20 SI Umed Singh who also deposed about the arrival of the injured in PP J.J. Colony in his Indica Car. He deposed that at 11 PM, he was present at PP and he heard the shouts 'Bacaho Bacaho'. One Constable informed him that one injured has come at PP. The moment, he came out of his room, one boy alighted from the car who stated that "Mujhe Prem Patwari Ke Ladke Brijesh, Hitesh Ne Goli Mari Hai."
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25. Ld. Defence Counsel has vehemently argued that as per PW16, he informed about the arrival of the injured to SI Umed Singh, Incharge PP J.J. Colony and ASI Kewal Singh after Vikas Chauhan fell down and became unconscious, whereas as per their testimonies, they heard the injured saying that he was shot by the accused persons. It was argued that apparently the aforesaid witnesses had been tutored to depose that the injured had named the accused persons as the assailants.
26. While disputing the version of the aforesaid witnesses i.e. PW16 Constable Rama Rao, PW20 SI Umed Singh, PW25 HC Yogesh and PW32 ASI Kewal Singh and also questioning the correctness of DD No.40 Ex.PW16/A, Ld. Defence Counsel relied upon the testimony of PW17 Dr. L.C. Gupta. It was argued that PW17 categorically stated in his crossexamination that after receiving the bullet injury on D2 vertibra, the victim cannot drive the car as in this case, the spinal cord corresponding to D2 vertibra was found massively contused and torn. Ld. Defence Counsel argued that keeping in view the condition of the injured, it cannot be believed that he drove his Indica Car from his house which is at a distance of about 1½km from PP J.J. Colony, particularly in view of the deposition of PW17.
27. I have considered the aforesaid arguments. However, I find that the discrepancies sought to be highlighted in the testimonies of PW16 SC No.68/09 State vs. Hitesh & Anr.
:13:Constable Rama Rao, PW20 SI Umed Singh, PW25 HC Yogesh and PW32 ASI Kewal Singh are not material discrepancies. It would be apparent on going through their respective testimonies in entirety that all the aforesaid witnesses consistently deposed that Vikas Chauhan reached PP J.J. Colony in injured condition while driving his Indica Car and named the accused persons as the assailants who had shot him. The minor contradictions as pointed out by Ld. Defence Counsel that PW20 could not have heard the injured naming the accused persons as the assailants as the injured had already fallen down and became unconscious, as per the deposition of PW16, is not material nor can it be said to be fatal to the case of Prosecution. It has been held by Hon'ble Supreme Court in Leela Ram Vs. State of Haryana & Anr. AIR 1999 SC 3717 that discrepancies in evidence of eyewitness cannot affect credibility of evidence of witnesses. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. To the similar effect, Learned APP has also relied upon the judgment reported as Ram Swaroop Vs. State of Rajasthan 2008 Crl.LJ 2259.
28. It is pertinent to mention that PW20 SI Umed Singh deposed in his crossexamination that after falling injured Vikas Chauhan had become semiconscious and he denied the suggestion that Vikas Chauhan had not come to PP J.J. Colony, Wazirpur on 14.10.04. PW25 HC Yogesh also corroborated the testimony of PW16 & PW20 that Vikas SC No.68/09 State vs. Hitesh & Anr.
:14:Chauhan had come to PP J.J. Colony, Wazirpur in his Indica Car in injured condition, raised an alarm loudly "Mujhe Prem Patwari Ke Ladke Brijesh, Hitesh Ne Goli Mari Hai, Mujhe Bachao" and then he fell down at the same place. It thus, appears on going through the statements of PW16 Constable Rama Rao, PW20 SI Umed Singh, PW25 HC Yogesh and PW32 ASI Kewal Singh and on perusal of DD No.40 Ex.PW16/A that the injured did not become totally unconscious after naming the accused persons as his assailants. PW12 Dr. T. Chucha who examined Vikas Chauhan in the Trauma Centre on the night of 14.10.04 also clearly testified that on examination, he found that the patient was conscious and oriented. He deposed that Vikas was brought by HC Yogesh at 11.40 PM. These observations are also recorded by PW12 in the MLC of Vikas Ex.PW12/A. In view of the aforesaid, I find no force in the argument of Ld. Defence Counsel that the testimony of the aforesaid four witnesses is not trustworthy.
29. Moreover, the opinion, given by PW17 Dr. L.C. Gupta cannot be treated as a gospel truth particularly in view of the testimony of PW34 Dr. Anil Shandilya who categorically stated in his crossexamination that "whether a person can drive a vehicle after having his spinal cord injured depends on various considerations. One may be able to drive or may not be able to drive".
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30. I also find no force in the submission of Ld. Defence Counsel that DD No.40 Ex.PW16/A cannot be read in evidence by virtue of Rule 25.21 of Punjab Police Rules. There is overwhelming evidence on record that injured Vikas reached PP J.J. Colony in injured condition and made a dying declaration to the police officers present there. It was recorded vide DD No.40 Ex.PW16/A. There is nothing in Rule 25.21 or S.162 Cr.P.C which lays down that an unsigned dying declaration made before a police officer is inadmissible in evidence. This dying declaration is a vital piece of evidence as it contained the information as told by the victim to the police officials at the very first instance just after receiving the injuries wherein the deceased named both the accused persons as the assailants. It certainly cannot be discarded only on the ground that the signatures of the deceased were not taken thereon.
31. It is reiterated even at the cost of repetition that I found that all the aforesaid Prosecution witnesses i.e PW16 Constable Rama Rao, PW20 SI Umed Singh, PW25 HC Yogesh and PW32 ASI Kewal Singh have consistently deposed as discussed herein above that the injured came to PP J.J. Colony, Wazirpur in injured condition while driving his Indica Car and clearly stated that he was shot by Hitesh and Brijesh, both sons of Prem Patwari. The said information given to the officials, present at the PP by the deceased cannot be said to be a fabricated piece of evidence. There is nothing on record to suggest as to why the police SC No.68/09 State vs. Hitesh & Anr.
:16:officials would depose falsely. The DD No.40 has been duly proved on record. The presence of the injured at PP, J.J. Colony, Wazirpur has also been established by way of mobile call detail records of the deceased Ex.PW21/B during the relevant period inasmuch as it has been found that the position of the deceased was changed from 10.58.25 sec to 11.06.04 sec within a short distance of one km. The existence of blood stains on the steering wheel of the Indica Car of the deceased as seen in photograph Ex.PW13/B also corroborates the aforesaid.
32. The argument raised regarding the recording of DD No.40 Ex.PW16/A after sending the deceased to the hospital, as deposed by PW16 Constable Rama Rao and the testimony of PW20 SI Umed Singh that DD NO.40 was sent before injured Vikas Chauhan was sent to the hospital also cannot be said to be fatal to the case of the prosecution, in my opinion, it being only a minor contradiction.
33. The argument that the rough note regarding the dying declaration, prepared by PW16 Constable Rama Rao is not placed on record, is not material as Ex.PW16/A is duly proved on record. Certainly PW16 could not be expected to note down the dying declaration simultaneously while hearing the deceased at the same time. So, he prepared a rough note and perhaps destroyed it later on.
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:17:Whether PW5 Suman Chauhan was an eyewitness : Testimony of PW5 Suman Chauhan visavis the claim of PW9 Atul Mittal - Reliability & Reasons.
34. The case of the Prosecution has further been challenged by Ld. Defence Counsel on the ground that the testimony of PW9 Atul Mittal raises a doubt as to the place of occurrence of the alleged incident of shooting of the deceased.
35. It was argued that the testimony of PW5 Smt. Suman is not trustworthy though she claims to be an eye witness to the alleged incident. It was further submitted that as per testimony of PW9, the incident occurred in Veer Bazar and not in front of the house of the deceased. Sh. Ramesh Gupta, Senior Advocate, representing the accused persons submitted that PW5 is a planted witness. He laid much stress on the fact that her testimony was recorded on 28.10.04 i.e 14 days after the incident. He argued that it would be unbelievable that she neither approached the police nor got her statement recorded for 14 days despite seeing her husband being shot at by the accused persons, with whom she was acquainted even prior to the incident. He argued that PW5 has been introduced in this case merely to establish that the deceased was shot before his house bearing H.No.174, Nimri Colony, Ashok Vihar, Delhi and submitted that infact PW9 who failed to support the case of the SC No.68/09 State vs. Hitesh & Anr.
:18:Prosecution gave the correct version, stating that the incident had actually occurred at Veer Bazar and the assailants were 3 or 4 in number and were of short height, unlike the accused persons. It was argued by Learned Defence Counsel that PW5 is an interested witness and cannot be relied upon.
36. Ld. APP strongly relied on the statement of PW5, stating that she was a natural witness to the incident, being the wife of the deceased who was waiting for him to return home while standing in the balcony of her house. He submitted that as per PW5, on 14.10.04 at about 11 PM, she was waiting for her husband while standing in the balcony of her house. When her husband returned, she saw the incident of firing by the accused persons upon her deceased husband. He argued that PW5 clearly identified the accused persons and deposed that accused Brijesh caught hold of her husband from his neck and shouted "Aaj Is Sale Ko Zinda Nahi Chhodenge, Isne Hamare Naak Me Dam Kar Rakha Hai". In the meantime, accused Hitesh fired at her husband. After the incident, both the accused fled away from the spot. She also deposed that her husband again sat in his car and went away while saying "Maar Diya, Maar Diya".
37. Ld. APP also submitted that the testimony of PW9 cannot be relied upon. He submitted that as per PW9, there were several public SC No.68/09 State vs. Hitesh & Anr.
:19:persons in Veer Bazar and if his version was correct then the public persons should have been examined by the Defence to prove their stand that the incident actually happened in Veer Bazar which is a crowded area. He further argued that merely because PW9 deposed that he saw 34 persons running from the spot, it cannot be said to imply that Vikas Chauhan had been shot by the said 34 persons. Ld. APP submitted that infact PW9 has been won over by the accused persons for the reason that the accused persons wanted to bring in an element of confusion by the deposition of PW9 who introduced a new story of the occurrence having taken place at Veer Bazar instead of the actual spot i.e in front of house of the deceased. He argued that PW9 had been won over by the accused persons for countering the testimony of PW5 who witnessed the incident in question with her own eyes.
38. Per contra, Ld. Defence Counsel argued that the absence of other persons of the locality to support the version of PW5 and the fact that her statement was recorded after 14 days by the Investigating Agency is sufficient to discard her testimony. Reliance has been placed upon various judgments by the Defence, in support of the argument that the conduct of the wife of the deceased was unnatural and improbable and her testimony cannot be relied upon. He argued that PW5 admittedly did not raise any alarm after seeing her husband being shot by the accused persons. She did not inform the police for about 14 days and moreover, SC No.68/09 State vs. Hitesh & Anr.
:20:PW6 Smt. Santosh, the mother of the deceased does not depose anything about the presence of PW5 in the house or her having been witnessed the incident of shooting by the accused persons.
39. I have given my thoughtful consideration to the aforesaid arguments and gone through the records of the case. It would be apparent on going through the statement of PW5 that she deposed that she became unconscious after seeing the incident and after regaining her consciousness, she saw her motherinlaw, PW6 Smt. Santosh who was talking to her husband on phone. PW6 also stated in her cross examination that after the incident, Suman came to me in the drawing room. She denied the suggestion that Suman was not present in the house on the night of the incident. So, the presence of PW5 in her house on the night of the incident is duly established on record.
40. I find no force in the argument that PW5 did not inform the neighbours inasmuch as it is clear from her statement that she did not know even the names of the people, residing in adjoining flats or on the ground floor. It must be borne in mind that admittedly, deceased Vikas Chauhan had a criminal background and it cannot be ruled out that considering his involvement in various criminal cases, he and his family may not be interacting much with the neighbours.
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41. Insofar as delay in recording of statement of PW5 is concerned, I am of the opinion that it is the case of the Prosecution that the investigation of the case was transferred to Crime Branch on 26.10.04 on the directions of the Commissioner of Police. The delay in recording of statement of PW5 has been clarified by PW33 Inspector Ajay Sharma in his crossexamination that before 28.10.04, he could not record the statement of PW5 as her mental condition was not fit because of the incident. It is thus clear from this piece of evidence that it was the failure on the part of the Investigating Agency which caused the delay in recording the statement of PW5.
42. It is well settled law that any irregularity or even an illegality during investigation should not be treated as a ground to reject the Prosecution case. This view has been taken by Hon'ble Supreme Court in Leela Ram Vs. State of Haryana & Anr. AIR 1999 SC 3717. While dealing with a case U/s 376 IPC, the Hon'ble Supreme Court in State of Punjab Vs. Gurmit Singh & Ors AIR 1996 Supreme Court 1393(1) observed that the failure of the Investigating Agency cannot be a ground to discredit the statement of the prosecutrix. The prosecutrix had no control over the Investigating Agency and the negligence of an Investigating Officer could not affect the credibility of the Statement of the prosecutrix.
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43. In view of the aforesaid case law, as laid down by the Hon'ble Apex Court, I am of the opinion that since admittedly, the statement of PW5 Suman Chauhan was not recorded for about 14 days after the date of incident by the various Investigating Officers to whom the case was being transferred time and again as already discussed by me above, no fault can be found with the testimony of PW5 merely on this score.
In view of the fact that despite a lengthy crossexamination, nothing tangible has been brought out to impeach the testimony of PW5. Mere delay in examining the witness by the police U/s 161 Cr.P.C cannot be a ground to discard her testimony. I am supported in my view by a judgment of Hon'ble Supreme Court in Ramesh Vs. State of MP & Ors. Reported as (2000) 1 Supreme Court Cases 243.
44. I also find no force in the argument of the Defence that the conduct of the wife (PW5) of the deceased was unnatural or improbable inasmuch as she did not raise any alarm or did not inform the police even after seeing her husband being shot at by the accused persons.
45. A perusal of her crossexamination would reveal that she has deposed that she did not raise any alarm on seeing a scuffling between the accused persons and her husband. The witness further deposed that she could not understand what was happening, "Meri Aawaz Nahi Nikal Rahi Thi". She has further clarified about her not informing the police of having seen the occurrence in her crossexamination where she had stated that she was not in her senses and the police did not ask her. She also stated that she did not make any statement to the police till 28.10.04 as she was unwell and also during the said period, no police officials came to her and she did not try to give her statement by contacting the police.
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46. In Rammi @ Rameshwar vs. State of Madhya Pradesh reported as AIR 1999 Supreme Court 3544 (1), the Hon'ble Apex Court while dealing with a case of an eye witness of a murder has observed, that this Court has said time and again that the post event conduct of a witness varies from person to person. It cannot be a castiron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would, therefore, be different.
47. Similar view has been taken by the Hon'ble Apex Court in Leela Ram Vs. State of Haryana & Anr. reported as AIR 1999 SC 3717 that the Court shall have to bear in mind that different witnesses react differently under different situations, whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.
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48. Learned Defence Counsel argued that as per PW5 Suman Chauhan she was attending the business calls of her husband when the mobile of her husband remained with her and her sister inlaw from 15.10.04 onwards.
49. The mere fact that PW5 attended business calls of her husband would, in my opinion, not be a conclusive proof of her fit mental state. It is not her claim that she was conducting any business over the telephone, nor can it be said to reveal her fit state of mind, as argued by the Defence. This piece of evidence, does not in my opinion, suffice to negate the claim of the wife (PW5) of the deceased that she witnessed her husband being shot at by the accused persons, nor does it adversely affect the credibility of her testimony.
50. The statement of PW5 is also assailed by the Defence on the ground that her testimony is not corroborated by statement of any other neighbour though admittedly, a sound was produced when the shot was fired.
51. A careful reading of crossexamination of PW5 would reveal that she deposed that she did not remember whether the neighbour residing on the ground floor had come on hearing the sound of the fire or not. Further, the nonexamination of the neighbours would not be a SC No.68/09 State vs. Hitesh & Anr.
:25:sufficient ground to reject the testimony of PW5, particularly in the light of the fact that her statement is corroborated by various other pieces of evidence including the presence of the deceased near his house as established by his Mobile Call Detail Record Ex.PW21/B and the testimony of PW6 Smt. Santosh i.e the mother of the deceased.
52. On the other hand, I do not find myself convinced to believe the testimony of PW9 Atul Mittal, who, for the first time upon stepping into the witness box introduced the story of the deceased being present at Veer Bazar. The witness was declared hostile by the Prosecution. He deposed that on 14.10.04 at about 11 PM, he was present Veer Bazar and was purchasing goods. He further deposed that there was a commotion in the market. He saw 34 boys running from there. He also testified that upon seeing the Indica car of Vikas Chauhan, he reached near the car and Vikas Chauhan who told him that he had been shot.
53. Even upon reading the testimony of PW9 to the aforesaid extent, it is apparent that the incident of firing upon Vikas Chauhan did not take place in presence of PW9, as when he saw Vikas Chauhan, he was already in injured condition. The mere evidence of running of 34 boys in Veer Bazar also does not indicate that they were the assailants. The testimony of PW9 Atul Mittal also loses its credibility in view of the fact that as per his version, he informed the family of Vikas Chauhan, but SC No.68/09 State vs. Hitesh & Anr.
:26:none of the family members of the deceased have supported this version of their having been informed about the incident by Atul Mittal. Further, no other public witness, who as per PW9, helped the police officials put the injured Vikas Chauhan in an autorickshaw have been examined on record. Infact, in my view, the very presence of PW9 at Veer Bazar at 11 PM becomes doubtful, in view of the testimony of PW25 HC Yogesh. PW25 in his crossexamination deposed that Veer Bazar starts at 5.00/5.30 PM and continues till 9.00/9.30 PM. In the light of the aforesaid, I find it difficult to believe that PW9 had gone to Veer Bazar at 11 PM for purchasing goods, as stated by him.
54. It is also noteworthy that PW25 HC Yogesh admitted in his crossexamination that he had received a call on his mobile at about 11 PM on the night of 14.10.04 and stated that it may be a call from deceased Vikas Chauhan. He denied the suggestion that he was on duty at Veer Bazar along with 23 other Constables at that time. On the contrary, if the version of the Defence is to be believed that HC Yogesh was infact on duty at Veer Bazar at about 11 PM, then there was no question of the deceased making a call to HC Yogesh, since, as per the Defence, the deceased was also present in Veer Bazar at the time of the incident. In these circumstances, the Prosecution version seems more believable that HC Yogesh was present at PP J.J. Colony, Wazirpur and the injured Vikas Chauhan after being shot at tried to call him from his mobile phone SC No.68/09 State vs. Hitesh & Anr.
:27:to inform him about the incident and since, he knew HC Yogesh from before, he straightway reached at PP where HC Yogesh was very much present, hoping to seek his help after being shot.
55. It was also pointed by Learned Defence Counsel that as per PW20 SI Umed Singh, he had recorded the statement of wife of Vikas Chauhan on 16.10.04. However, admittedly, the said statement is not on record and the same has been withheld by the Prosecution for the reasons best known to it.
56. To counter this argument, Learned APP drew my attention to the crossexamination of PW20 wherein he clarified that he had inadvertently stated about meeting the wife of the deceased on 16.10.04. He denied the suggestion that the wife and father of the deceased had met him on the said date. Insofar as the statement of father of the deceased is concerned, I am of the view that since, it is not the case of the Prosecution that he witnessed the incident, nonrecording of the statement is not of much importance. The testimony of PW5, thus, clearly is a reliable piece of evidence. The Prosecution has proved by way of her testimony that injured Vikas Chauhan was shot at by the accused persons in front of his house and the incident was witnessed by his wife (PW5). For the reasons spelt above, I find no truth in the version of PW9 Atul Mittal.
SC No.68/09 State vs. Hitesh & Anr.
:28:Whether the deceased Vikas Chauhan made a dying declaration to his mother Smt. Santosh (PW6) on telephone ? If yes, reliability thereof.
57. The Prosecution has placed reliance on yet another piece of evidence i.e the testimony of PW6 Smt. Santosh Chauhan, mother of the deceased. PW6 deposed that on the date of occurrence at about 10.30 PM, she had telephoned her son Vikas Chauhan who stated that he was still in his factory and would return within 1015 minutes. When he did not return till 11 PM, she again telephoned him and since, there was disturbance in the telephone at that time, she could talk with him only at 11.15 PM and at that time, he told her that sons of Patwari namely Hitesh & Brijesh had shot at him and he was being taken to the hospital by the police.
58. As per Ld. APP, the statement of PW6 finds corroboration from the Mobile Call Detail Record Ex.PW21/B which indicate that the deceased spoke to his mother on the landline telephone, installed in his house at the relevant time, but for a minor variation in time which can be ignored.
59. Per contra, the testimony of PW6 is assailed by the Defence, stating that the said witness cannot be relied upon as PW25 HC Yogesh and PW32 ASI Kewal Singh who took the deceased to the hospital did SC No.68/09 State vs. Hitesh & Anr.
:29:not depose that Vikas Chauhan had named the accused persons as the assailants to his mother on the telephone on the way. Further her statement was recorded after two days of the incident and there is no explanation on record as to why she waited till 16.10.04 to disclose the names of the accused persons to the police despite the fact that the deceased clearly named them on 14.10.04 itself as per the case of the Prosecution.
60. I have considered the said arguments. However, I find that the testimony of PW6 stands corroborated by Call Detail Record Ex.PW21/B. The fact that PW25 & PW32 did not state anything about the deceased speaking to his mother enroute the hospital cannot be said to be the sufficient ground to discard her statement. Moreover, PW5 Suman also deposed that she had become unconscious after seeing the incident and upon regaining consciousness, she saw her motherinlaw (PW6) talking to her husband on telephone. Further PW7 Rajesh Chauhan also deposed that he received a telephone call from his motherinlaw (PW6) at about 11.45 PM who informed him that his brotherinlaw Vikas Chauhan had received bullet injuries. PW31 Chander Prakash has also deposed on similar lines, stating that he was informed by PW6 about the incident in question.
SC No.68/09 State vs. Hitesh & Anr.
:30:
61. It thus, appears from the aforesaid evidence that PW6 Santosh Chauhan did speak to the deceased Vikas Chauhan when he was taken to the hospital and he informed her about having been shot at by the accused persons. In these circumstances, the two days' delay in recording of her statement, is not, in my view sufficient to reject her testimony outrightly. The Prosecution has produced sufficient evidence on record which makes the testimony of PW6 credible and trustworthy and in view of the material on record, I am convinced that the deceased made a dying declaration to his mother (PW6) on telephone, naming the accused persons therein as the assailants.
Whether the deceased made a dying declaration before his wife (PW5 Suman Chauhan) and before PW7 Rajesh Chauhan & PW31 Chander Prakash at the hospital ? If yes, reliability thereof .
62. It is the case of the Prosecution that on receipt of information regarding the deceased being shot at by the accused persons from PW6, his two relatives i.e PW7 Rajesh Chauhan and PW31 Chander Prakash reached the Sushruta Trauma Centre along with PW5 Suman Chauhan and the deceased told all of them that the accused persons had shot him.
63. The testimony of PW7 & PW31 has been challenged by the Defence on the ground that the said witnesses are planted ones and the SC No.68/09 State vs. Hitesh & Anr.
:31:deceased made no dying declaration to them as claimed by the Prosecution. It was argued that the statement of PW7 & PW31 was recorded on 30.10.04 i.e after about 15 days of the incident. It was also argued that the said witnesses claimed that the deceased had made dying declaration at about 12.30 AM whereas PW25 & PW32 who were present in the hospital at that time have consistently deposed that no relative of the deceased came there at that time.
64. Ld. APP, on the other hand, submitted that the deceased was declared unfit to make a statement at 1:00 AM and when admitted, he was conscious and oriented and hence, it cannot be disputed that he made a dying declaration before the aforesaid relatives at about 12.45 AM, as stated by them. He argued that there is no ground to disbelieve the testimony of PW5, PW7 & PW31 regarding the dying declaration made to them.
65. I have considered the aforesaid argument and gone through the record. However, I do not find myself in agreement with the submission of Ld. APP. A perusal of the statements of PW5, PW7 & PW31 in its totality would reveal that their claim that the deceased made a dying declaration to them in the hospital cannot be relied upon. It would be noticed on going through the crossexamination of PW7 that at the relevant time, the deceased was being transfused blood and was being SC No.68/09 State vs. Hitesh & Anr.
:32:administered oxygen. It cannot be believed that the deceased who was apparently in such a critical condition at that time, would talk to his relatives after removing his oxygen mask. The presence of the police officials in the hospital at that time has not been disputed by the aforesaid witnesses despite which none of the police witnesses have deposed anything about the presence of relatives of the deceased in the hospital at the relevant time. Rather PW25 stated that he remained with the injured from the time since he was admitted in the Trauma Centre till 1 AM and stated that PW32 ASI Kewal Singh was informed by the doctor that the patient was not fit to make a statement, therefore, he could not be questioned. Moreover, PW32 deposed in his crossexamination that no relative of the deceased met him in the Trauma Centre and infact from 1.10 AM to 2 AM, he waited at the Trauma Centre for some relative of the deceased but nowhere or in any way, he deposed that any of the relative met the deceased till he remained in the hospital.
66. On the basis of the aforesaid evidence, I do not find that the claim of the Prosecution that the deceased made dying declaration to his wife (PW5) and to his two brothersinlaw (PW7 & PW31) at the Trauma Centre is trustworthy piece of evidence and in my opinion, no reliance can be placed thereon.
SC No.68/09 State vs. Hitesh & Anr.
:33:Other Grounds
67. Besides the aforesaid contentions, it was argued by the Ld. Defence Counsel that as per MLC Ex.PW11/A, Vikas Chauhan reached the hospital on 14.10.04 at 11.40 PM and at that time, he was conscious and oriented. The MLC also shows that the injured Vikas Chauhan himself gave the history of having received gun shot injuries. He argued that since, the injured failed to name the assailants to the examining doctor, PW12 Dr. T. Chucha, the accused persons have apparently been falsely implicated in this case. Reliance has been placed upon various judgments by the Defence in support of the aforesaid submission and it was argued that the nondisclosure of the names of the assailants to the doctor at the time of his examination and preparation of MLC is fatal to the case of the Prosecution.
68. I have considered the aforesaid argument but in view of a recent judgment of the Hon'ble Delhi High Court reported as Durga Prasad @ Bablu Vs. State 175 (2010) DLT 401 (DB), I am of the opinion that this argument deserves to be rejected outrightly. It has been held in the aforesaid judgment while relying on the judgment of Hon'ble Supreme Court reported as Pattipati Venkaiah Vs. State of Andhra Pradesh 1985 (4) SCC 80 that a doctor is not at all concerned as to who committed the offence or whether the person brought to him is a SC No.68/09 State vs. Hitesh & Anr.
:34:criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico legal cases. Reliance was also placed upon another judgment reported as State Vs. Ashok Kumar Pandey 90 (2001) DLT 356 of the Division Bench on the fact of the absence of name of the accused in the MLC wherein it was observed that the Apex Court nowhere laid down a rule that the MLC must contain the name of the accused.
69. It was next contended by Learned Defence Counsel that as per the testimony of PW17, considering the nature of injuries, sustained by deceased Vikas Chauhan, blood should have been found on his wearing clothes as well as at the place of occurrence. It was argued that the blood of the deceased was not found either inside the Indica Car or at the spot of the incident or upon the person of PW25 HC Yogesh or PW32 ASI Kewal Singh who as per the Prosecution took injured Vikas Chauhan to the hospital in an auto rickshaw from PP J.J. Colony, Wazirpur.
70. Learned APP drew my attention to the fact that as per record, the clothes of the deceased which were seized during investigation had blood stains and as per the FSL Report, the bullet marks found on the shirt of the deceased correspond with the bullet marks found on the body of the deceased. It was further argued that the blood stains were found present on the steering wheel of the Indica Car as is evident from the SC No.68/09 State vs. Hitesh & Anr.
:35:photograph Ex.PW13/10 and the seizure memo of blood stains lifted from there Ex.PW25/B. He also placed reliance upon a judgment reported as D. Sailu Vs. State of A.P. 2008 Crl.LJ 686 in support of his argument that where the medical evidence is at variance with ocular evidence, it would be erroneous to accord undue primacy to hypothetical answers of medical witnesses to exclude eyewitnesses' account which has to be tested independently. He argued that as per the eyewitness account of PW5, the deceased was shot at by accused Hitesh and not much importance can be attached to the fact that blood was not found, as argued by Learned Defence Counsel.
71. From the record, I also find that as per the report Ex.PW17/A, there was a collection of haemothorax and pneumothorax in both sides of chest and drain tubes were applied at both side of chest at fifth inter coastal space on both sides. There was about 400 ml blood in both side chest cavities and upper lobe of right lung and the triangular septum of left lung found contused, lacerated and punctured, with collection of haemottoma. This clearly brings out the reason as to why the blood was not found at the spot. 400 ml blood was found inside the chest cavities which was drained out with the help of drain tubes. Thus, it is clear as to why the blood was not found at the spot and in the car, as argued by the Learned Defence Counsel.
SC No.68/09 State vs. Hitesh & Anr.
:36:
72. Learned Defence Counsel also argued that the copy of the FIR was not sent to the concerned authority/ Area Magistrate and the case of the Prosecution should be rejected outrightly on this score itself.
73. To counter this argument, Learned APP placed reliance upon a judgment of Hon'ble Supreme Court titled as Dharamveer & Ors. Vs. State of U.P. 2010 Cri.LJ 2393 where it was held that the mere delay in dispatch of the Special Report to the Magistrate does not cast a doubt on the Prosecution case. In view of the aforesaid, I find no force in the said argument of Learned Defence Counsel.
74. It is further the contention of the Defence that the deceased had suffered two abradded bruises, multiple rub abrasion of varying sizes were found to be present on left elbow, left arm, left leg, right knee, right tebial shin, right foot, a typical imprint abrasion appeared to have been caused by leather belt was present at right back of chest and right hip, also a ligature mark in the form of pressure abrasion was present on his neck. Learned Defence Counsel submitted that the eyewitness PW5 Suman Chauhan had only deposed regarding the bullet injures, alleged to have been sustained by the deceased and there is no evidence on record to explain the other injuries which were found on the person of the deceased at the time of his medical examination as is apparent from report Ex.PW17/A. He further submitted that as per PW17 Dr. L.C. Gupta, the SC No.68/09 State vs. Hitesh & Anr.
:37:injury to the neck of deceased was caused by soft ligature material and as per PW34 Anil Shandilya, injuries no. 1, 2 & 3, found on the person of deceased are possible with blunt force impact/ objects like lathi and rod. He submits that the Prosecution has also not been able to explain as to how the said injuries were caused upon the person of Vikas Chauhan.
75. Learned APP, on the other hand, submitted that the eye witness PW5 has categorically deposed about a scuffle having been taken place between the accused persons and his deceased husband before they shot him. The cause of the death of the deceased has been opined to be as shock which resulted from trauma to spinal cord consequent upon projectile fire arm injury to D2 Vertebra which was found sufficient to cause death in ordinary course of nature.
76. Thus, the cause of death of deceased Vikas Chauhan has been duly established on record. PW5 clearly deposed about the scuffle between the deceased and the accused persons. A perusal of her testimony in its entirety would reveal that she deposed that the accused persons started scuffling with her husband. accused Brijesh caught hold of her husband from his neck and shouted "Aaj Is Sale Ko Zinda Nahi Chhodenge, Isne Hamare Naak Me Dam Kar Rakha Hai". In the meantime, accused Hitesh fired at her husband. In her crossexamination also, she reiterated that there was scuffle between the accused persons SC No.68/09 State vs. Hitesh & Anr.
:38:and her husband for about 23 minutes. The testimony of PW5, in my opinion, clearly establishes that the deceased was physically assaulted before being shot by the accused persons.
77. The next contention of the Defence is that as per PW17 Dr. L.C. Gupta, injuries no. 5 & 7, found on the person of deceased were of the same size whereas injuries no. 6 & 8 were of different size than that of 5 & 7. Learned Defence Counsel submits that it can be inferred on perusal of testimony of PW17 that more than two fire arms were used while shooting the deceased and two sets of bullet injuries of different sizes had been caused to him. It was submitted that it cannot be believed that one person would use two fire arms in addition to other blunt objects with a view to cause not only fire arm injuries but also blunt injuries. He argued that PW5 only deposed about the use of only one fire arm and the case of the Prosecution is thus, doubtful, entitling the accused persons to the benefit of doubt.
78. I have considered the said argument. However, a careful reading of the testimony of PW17 would reveal that he has categorically deposed in his examinationinchief itself that on the basis of "difference in size of injury no.5 & 7, on one hand and injury no.6 & 8, it may be possible that the same are caused by different projectile fire arms. But SC No.68/09 State vs. Hitesh & Anr.
:39:the same also depends on the distance between the muzzle end and the victim."
79. Further on reading the statement of PW34 Dr. Anil Shandilya along with the testimony of PW17 Dr. L.C. Gupta, I find that the contention of Learned Defence Counsel to this effect is totally baseless. A careful reading of deposition of PW34 would show that upon being questioned in his examinationinchief regarding the different size of injury no.5 & 7 on one hand and in injury no.6 & 8, on the other hand, he replied "I cannot say whether different weapons were used in causing injury no. 5 & 7 and 6 & 8. Vol. (The opinion regarding the different weapons can only be given when bullet causing injury is examined simultaneously with the wound)." This piece of testimony of the said Prosecution witnesses clearly negates the argument of the Defence regarding use of two different fire arms in this case.
80. Moreover, the presence of the injuries on the body of the deceased caused by bullet from different directions is also obvious, in view of the fact that during the scuffling with the accused persons and the simultaneous attack by both the accused persons, the deceased naturally would not have been standing still and must be moving while trying to escape from the clutches of the accused persons which resulted in bullet injuries upon his person from different directions.
SC No.68/09 State vs. Hitesh & Anr.
:40:
81. Learned Defence Counsel raised another argument regarding the difference of the place of incident as seen in the rough site plan Ex.PW35/D and the scaled site plan Ex.PW19/A. He submits that a bare perusal of the two site plans would show that the place of occurrence has been shown at different places in both the site plans.
82. I have considered the said submission and gone through the record. It would be seen from the record of the case that it is not the case of the Prosecution that either the rough site plan Ex.PW35/D or the scaled site plan Ex.PW19/A was prepared at the pointing out or at the instance of the eyewitness PW5 Suman Chauhan. PW35 Inspector Kharag Singh clearly stated that the rough site plan Ex.PW35/D was prepared when both the accused persons pointed out the place of occurrence. Their pointing out memo is Ex.PW32/B and after that at the pointing out of the accused persons, he prepared the site plan Ex.PW35/D. Similarly, as per PW19 SI Mahesh, the Draftsman of the Crime Branch, the scaled site plan Ex.PW19/A was prepared by him at the pointing out of the Additional SHO Inspector Kharag Singh. Thus, the difference, if any, in the place of occurrence in both the said site plans cannot be given much importance as the same does not reflect the version of any eyewitness. The testimony of the eyewitness PW5 has been held to be credible and trustworthy and the fault on the part of the Investigating Agency of not SC No.68/09 State vs. Hitesh & Anr.
:41:having prepared the site plan at her instance cannot, in my opinion, go to benefit the accused persons.
83. Learned Defence Counsel further argued that the Prosecution has failed to show the existence of common intention between the accused persons and they cannot be convicted for the offence in question with the aid of S.34 IPC.
84. On going through the record, however, I find no substance in this argument. PW5 specifically deposed that she saw both the accused persons namely Hitesh & Brijesh scuffling with her husband. she deposed that accused Brijesh caught hold of her husband from his neck and shouted "Aaj Is Sale Ko Zinda Nahi Chhodenge, Isne Hamare Naak Me Dam Kar Rakha Hai". In the meantime, accused Hitesh fired at her husband and after the incident, both the accused fled away from the spot. The factum of existence of common intention has thus, been duly proved from the testimony of not only PW5 but also from the testimony of PW16 Constable Rama Rao, PW20 SI Umed Singh, PW25 HC Yogesh and PW32 ASI Kewal Singh, who have consistently deposed that the deceased upon reaching the PP J.J. Colony, Wazirpur had stated that he had been shot by accused Hitesh & Brijesh who are the sons of Prem Patwari. Similarly, from the testimony of PW6 Smt. Santosh Chauhan, mother of the deceased which has been found to be creditworthy, the SC No.68/09 State vs. Hitesh & Anr.
:42:deceased while speaking to her enroute to the hospital had told her that he had been shot by accused Hitesh & Brijesh.
85. In the judgment Durga Prasad @ Bablu Vs. State (supra), the Hon'ble High Court of Delhi has held that an accused can be convicted with the aid of S.34 IPC even if no overt act is attributed to that accused and merely on basis of his presence at scene of crime while some crime was being committed by his associates provided prosecution is able to show that accused present at scene of crime and sought to be convicted with the aid of S.34 was sharing common intention with other accused who had actually participated in crime.
86. The next argument of the Defence is that though as per the case of the Prosecution, the incident had occurred in front of the house of the deceased on 14.10.04. However, there is no reference as to the place of occurrence either in the DD No.40 Ex.PW16/A or DD No.41 Ex.PW16/B or in rukka Ex.PW32/A. It was argued that as per the case of the Prosecution, the police had come to know about the place of occurrence only after the arrest of the accused persons on 22.10.04 and upon their pointing out, the police had prepared the rough site plan Ex.PW35/D. However, PW25 HC Yogesh deposed that he along with PW32 ASI Kewal Singh reached the place of occurrence and enquired into the matter but did not receive any information. Learned Defence Counsel submitted SC No.68/09 State vs. Hitesh & Anr.
:43:that the said visit was on 15.10.04. PW32, in his crossexamination, also stated that he made enquiries from the neighbours near the house of deceased on 15.10.04. It is submitted that no reason is assigned why the place of occurrence stated to be within the knowledge of the police was not mentioned till the arrest of accused persons except for the reason that the incident had occurred at Veer Bazar and not at the house of the deceased.
87. I have considered the aforesaid submission. However, I am of the opinion that the place of occurrence has been duly proved on record from the testimony of PW5. The testimony of PW9 Atul Mittal has been held to be unreliable. There is no other evidence to counter the testimony of PW5 regarding the place of occurrence. The fault on the part of the Investigating Agency in not making the proper enquiries at the place of occurrence at the appropriate time, cannot in my opinion, be a factor to be taken into consideration to the benefit of the accused persons.
88. It was argued by Sh. Ramesh Gupta, Learned Senior Advocate, representing both the accused persons that the weapon of offence does not find reference in DD No.40 Ex.PW16/A, DD No.41 Ex.PW16/B, rukka Ex.PW32/A or in MLC Ex.PW12/A and as per the Prosecution case, the police came to know about the type of fire arm only after the arrest of the accused persons. It is the case of the Prosecution that the SC No.68/09 State vs. Hitesh & Anr.
:44:licensed revolver of father of the accused persons was used in this case which was never recovered during the investigation.
89. My attention was drawn to the statement of PW32 ASI Kewal Singh who deposed that Prem Pradhan, father of the accused persons had produced his fire arm i.e the revolver along with arms license before the Investigating Officer. He further deposed that it was given to PW35 Inspector Kharag Singh in his presence. Learned Defence Counsel relied upon the aforesaid testimony and submitted that the Investigating Agency for creating a suspicion against the accused persons did not produce the licensed revolver of the father of the accused persons despite the fact that it had been handed over to Inspector Kharag Singh.
90. However, a perusal of the statement of PW32 ASI Kewal Singh would reveal that the witness after stating that the revolver was given to Inspector Kharag Singh in his presence had clarified that only the license of the revolver was given and not the revolver.
91. It is also pertinent to mention at this juncture that father of the accused persons has been examined as DW2 who in his examinationin chief has deposed that on 17.10.04, he had gone to the Police Station with his licensed revolver and his license and handed over the same to Additional SHO Inspector Kharag Singh in presence of ASI Kewal Singh.
SC No.68/09 State vs. Hitesh & Anr.
:45:He also deposed that at that time, Additional SHO prepared a document on which it was recorded that revolver along with license was received by him. The said document is Ex.PW20/J. He volunteered that at the time of preparing the said document, the title of the document was 'Fard Maqboojgi Arms License' was not mentioned in it and it bears his signatures at point D.
92. On going through the crossexamination of DW2, however, it is apparent that the witness admitted that he is the Parobkar of this case as it pertains to his sons. He also admitted that his sons, the accused persons were supplied with the complete charge sheet. He also admitted that document Ex.PW20/J is titled as 'Fard Maqboojgi Arms License'. He also admitted that since 17.10.04 till date, he never made any complaint in writing to any authority or forum qua his claim that even though his revolver was seized but it was not officially shown in the charge sheet.
93. His crossexamination, thus, clearly indicates that the story, put forth by the Defence regarding the seizure of his licensed revolver by the Investigating Officer is false. It cannot be believed that the father of the accused persons who admittedly is Higher Secondary pass and was posted as a Patwari at the relevant time and who was well conversant in both Hindi & English would not take the necessary action, if his licensed fire arm was illegally seized by the police officers. In the light of the SC No.68/09 State vs. Hitesh & Anr.
:46:aforesaid discussion, I find no force in the contention that the weapon of offence was illegally concealed by the Investigating Agency.
94. The accused persons also examined one Sh. Om Prakash Khanna as DW1 who deposed that in October 2004, he was posted as Tehsildar, Model Town. He deposed that he know both the accused persons very well since the year 199798. In his crossexamination, he categorically deposed that he never met any senior police officer to inform that the accused persons had been implicated in a false case nor he tried to find out whether in the record, the police had shown the production of both the accused persons by DW1 or their arrest in some other manner. In view of this piece of evidence, the ground raised by the Defence regarding the arrest of the accused persons on 21.10.04 also does not stand proved.
95. On the basis of the aforesaid discussion and the evidence, both oral and documentary on record, particularly the dying declaration made by the deceased at PP J.J. Colony, Wazirpur which been proved by the Prosecution witnesses namely PW16 Constable Rama Rao, PW20 SI Umed Singh, PW25 HC Yogesh and PW32 ASI Kewal Singh and the dying declaration made by the deceased to his mother, PW6 Smt. Santosh and the eye witness account of PW5 Suman Chauhan, I am convinced that the Prosecution has established its case beyond any doubt. It has been SC No.68/09 State vs. Hitesh & Anr.
:47:proved on record that it is the accused persons who, in furtherance of their common intention, committed murder of deceased Vikas Chauhan on 14.10.04. Both the accused persons are therefore, held guilty for offence punishable U/s 302/34 IPC. Let the accused persons be heard on the point of sentence.
Announced in the Open Court On 18.01.2011 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.68/09 State vs. Hitesh & Anr.
:48: FIR No.710/04PS : Ashok Vihar SC No. : 68/09 18.01.11.
Present : Sh. Rakesh Mehta, Learned APP for State.
Both accused on bail with Counsel Sh. Mukesh Kumar Verma. Vide judgment announced of even date on separate sheets, both the accused are held guilty and convicted for offence punishable under Sections 302/34 IPC. Let them be taken into custody.
Put up for arguments on the point of sentence on 28.01.11. At request of Learned Counsel who states that he will be out of station on 28th January, date is changed to 27.01.11.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.68/09 State vs. Hitesh & Anr.
:49: FIR No.710/04PS : Ashok Vihar SC No. : 68/09 27.01.11.
2:40 PM Present : Sh. Rakesh Mehta, Learned APP for State.
Both convicts produced from JC with Counsel Sh. Mukesh Kumar Verma.
Arguments on the point of sentence heard.
Put up for Order on Sentence on 29.01.11 at 2 PM, as requested by Ld. Defence Counsel.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.68/09 State vs. Hitesh & Anr.
:50:In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 68/09 STATE Versus 1. Hitesh Kumar S/o Sh. Prem Singh R/o H.No.A152, Bunker Colony, PhaseIV, Ashok Vihar, Delhi.
2. Brijesh S/o Sh. Prem Singh R/o H.No.A152, Bunker Colony, PhaseIV, Ashok Vihar, Delhi.
Case arising out of:
FIR No. : 710/2004 Police Station : Ashok Vihar Under Section : 302/34 IPC Judgment Pronounced On : 18.01.11 SC No.68/09 State vs. Hitesh & Anr. :51: ORDER ON SENTENCE
1. Convicts namely Hitesh and Brijesh, both sons of Sh. Prem Singh have been convicted for offence punishable U/s 302/34 IPC vide judgment dated 18.01.11.
2. I have heard the arguments, advanced by Learned Defence Counsel on the point of sentence and have also considered the submissions made by Learned APP.
3. It was argued by the Learned Defence Counsel that the accused persons are not previous convicts. They have families to support. Both the convicts have minor children and that both of them were government servants. A prayer for taking lenient view was made having regard to the same.
4. On the other hand, Learned APP submits that both the Convicts have committed offence punishable U/s 302/34 IPC and they deserve the maximum sentence as prescribed under law.
5. Having regard to the facts & circumstances of the case, I find that the present case cannot be categorized as a rarest of rare case of murder. Accordingly, both the Convicts namely Hitesh and Brijesh are hereby sentenced for offence punishable under Section 302/34 IPC to SC No.68/09 State vs. Hitesh & Anr.
:52:undergo Imprisonment for Life, in addition to payment of fine of Rs. 10,000/ each, in default whereof both shall undergo Simple Imprisonment for six months each. Both the Convicts shall also be entitled to benefit of Section 428 Cr.PC. Copies be given free of cost to both the convicts. File be consigned to Record Room. Announced in the Open Court On 29.01.2011.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.68/09 State vs. Hitesh & Anr.
:53: FIR No.710/04PS : Ashok Vihar SC No. : 68/09 29.01.11 3:15 PM Present : Sh. Rakesh Mehta, Learned APP for State.
Both Convicts produced from JC.
Vide Order on Sentence announced of even date on separate sheets, both the convicts are sentenced for offence punishable under Section 302/34 IPC to undergo Imprisonment for Life, in addition to payment of fine of Rs.10,000/ each, in default whereof both shall undergo Simple Imprisonment for six months each. Both the Convicts shall also be entitled to benefit of Section 428 Cr.PC. Copies be given free of cost to both the convicts. File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.68/09 State vs. Hitesh & Anr.