Delhi District Court
State vs . on 9 September, 2009
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IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 46/01
Date of Institution: 15/07/2000
Arguments heard on:03/09/2009
Date of reservation of order:07/09/2009
Date of Conviction: 07/09/2009
State Vs.
1) Vikas @ Amit
Son of Kishori Lal
R/o L-571, Mangolpuri,
Delhi.
2) Sanjeev @ Vishal
Son of Kishori Lal
R/o L-571, Mangolpuri,
Delhi.
3) Sunder @ Sanju
Son of Nathi Lal
R/o T-1268, Mangolpuri,
Delhi.
4) Mohd. Abdul Hamid @ Kannu
S/o Khuda Bux
R/o T-327, Mangolpuri,
Delhi.
5) Bhawishan Singh @ Vijay @ Gungad
Son of Dwarika Prasad
R/o Jhuggi No. W-33/63, L-Block,
Mangolpuri, Delhi
( Since Juvenile)
( Facing trial before Juvenile Justice Board)
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FIR No. 339/2000
PS - Mangolpuri
U/s. 302/307/323/34 IPC
JUDGMENT
This case was registered on the statement of one Raj Kapoor Singh, who has stated that he resides at T-1302, Mangolpuri, Delhi, with the family of his sister Smt. Lakhpati and used to do the work of whitewash. On 16/04/2000 at about 7.15 p.m. in the evening, while he was coming from the market to his house, his nephew Sanjay son of Kashi Ram was talking outside H.No. T-1302 with Vikas, Sunder Lal, Kannu and Vijay, who used to visit his nephew Sanjay in connection with dance competition. Kannu stated that yesterday Sanjay insulted them in the dance competition, so they will not spare him today. Sunder caught hold right hand of Sanjay and Kannu caught hold left hand of Sanjay. Vijay put his hand on the mouth of Sanjay from behind and they all three told Vikas to kill Sanjay. On this, Vikas took out one knife from his right side pant pocket and with intent to kill Sanjay, stabbed on the abdomen of Sanjay. Meanwhile, his sister Smt. Lakhpati also came out of the house and he alongwith his sister Smt. Lakhpati ran towards Sanjay to save -:3:- him. Then Vikas also stabbed him on his chest and stabbed on the head of his sister. Meanwhile, public persons gathered there and on seeing the crowd, all the four boys fled away from the spot. Meanwhile, his brother in law Kashi Ram also came at the spot and removed three of them to hospital for treatment.
On the statement of Raj Kapoor Singh, a ruqqa was prepared by SI Neeraj Kumar and he got registered a case U/s. 307/324/34 of IPC. During investigation, at the instance of Raj Kapoor Singh, site plan was prepared. Photographs of the spot were taken. Blood stained earth and earth control were taken. One pair of hawai chappal and sealed pullanda of clothes of Sanjay were seized. Statements of witnesses were recorded.
On 17/04/2000, injured Sanjay died and investigation was handed over to Inspector Banwari Lal. Section 302 of IPC was added. Inspector Banwari Lal prepared the proceedings U/s. 174 of CrPC and recorded statement regarding identification of the dead body. He also got conducted postmortem on the dead body and the dead body was handed over to its legal heirs.
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Accused Vikas @ Amit, Mohd. Abdul Hamid @ Kannu, Sunder @ Sanju were arrested on 17/04/2000 on the pointing out of the complainant. Weapon of offence i.e. knife was recovered on the pointing out of accused Sanjeev Kumar @ Vishal. On 28/04/2000, one another accused surrendered before the court i.e. Bhawishan Singh @ Vijay son of Dwarka Prasad (juvenile). SI Neeraj got conducted TIP of accused Bhawishan Singh @ Vijay, but he refused to join the TIP. One accused Ashish @ Rinku could not be arrested. Later on he has been declared proclaimed offender.
Postmortem report and MLC of the deceased/injured were collected. One pant and shirt of accused Bhawishan Singh @ Vijay were sealed and seized in this case. One pant and one underwear of accused Sanjeev @ Vishal were also sealed and seized in this case. Scaled site plan was got prepared later on. Sketch of the knife was prepared and pointing out memo and seizure memo of the knife were also prepared. FSL report was placed on record later on and on completion of investigation, charge- sheet was filed against accused Vikas @ Amit, Sanjeev @ Vishal, Sunder @ Sanju, Mohd. Abdul Hamid @ Kannu and -:5:- Bhawishan Singh @ Vijay .
Case was committed to the Court of Session on 31/07/2000 and was received on 02/08/2000.
Vide order dated 07/09/2000, a prima facie case was found to be made out against all the five accused persons U/s. 120 B of IPC and U/s. 302 read with Section 120B of IPC and also against accused Vikas, Sunder, Mohd. Abdul Hamid and Bhawishan Singh @ Vijay U/s. 324 read with Section 34 of IPC. Accordingly, charges were framed to which they pleaded not guilty and claimed trial.
Vide order dated 21/11/03, accused Bhawishan Singh @ Vijay was declared juvenile and IO was directed to file a separate challan against the accused in Children Court and trial was continued further against the remaining accused persons.
To prove its case, prosecution has examined PW1 to PW19 in all. An application U/s. 311 CrPC of the prosecution was allowed on 187/05/2009 to examine a witness to prove FSL report. MHC(M), who was cited as a witness, was not summoned and Inspector Banwari Lal already examined as PW18, was not examined inadvertently -:6:- regarding the fact of deposit of case property with MHC(M) and sending the same to FSL. PW18 was further reexamined. PW19 from FSL was examined and PW20 and PW21 were examined as MHC(M).
PW1 is Dr. Sanjeev Verma. He has proved MLC of deceased Sanjay.
PW2 is Dr. Komal Singh. He has proved postmortem report Ex. PW2/A and also gave his opinion regarding the use of knife Ex. PW2/B. PW3 is Dr. Pankaj Prasad. He has proved MLCs of Sanjay, Raj Kapoor Singh and Smt. Lakhpati Devi as Ex. PW3/A, Ex. PW3/B and Ex. PW3/C. PW4 is Constable Ashok Kumar. On 16/04/2000, he was on duty at SGM hospital and gave information to PS about admission of Sanjay at about 00.30 a.m. in the night of 16/17.04.2000. He has again informed at PS about the death of Sanjay.
PW5 is Rakesh Kumar. On 16/04/2000, on the directions of the IO, he took photographs of the spot and handed over the positives and negatives, which are Ex. PW5/A1 to A5 and Ex. PW5/B1 to B5 to the IO.
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PW6 is Constable Kuldeep Raj. On 16/04/2000, he was working as Roznamcha Munshi and recorded DD No. 52B and DD No. 53B Ex. PW6/A and Ex. PW6/B. PW7 is Constable Joginder Singh. He has joined the investigation with the IO and took the police remand of accused Bhawishan Singh @ Vijay ( this accused has already been sent for trial in children court).
PW8 is Raj Kapoor Singh. He is eye witness to the incident. On 21/04/2003, he deposed about the facts of the case. Again he was examined on 20/04/2005. On that day, he resiled from his statement and was cross examined by Ld. Addl. PP.
PW9 is Smt. Lakhpati Devi. She is also eye witness to the incident.
PW10 is Naresh Kumar. He has identified the dead body of Sanjay vide his Statement Ex. PW10/A and received the dead body vide receipt Ex. PW10/B. PW11 is Constable Rajender Singh. He joined the investigation with Inspector Banwari Lal.
PW12 is Constable Daya Ram. He has also joined the investigation of this case with the IO. -:8:-
PW13 is SI Manohar Lal. He has prepared scaled site plan of the spot Ex. PW13/A. PW14 is HC Om Prakash. He has recorded FIR Ex. PW14/A and has also proved DD No. 2A Ex. PW14/B. PW15 is SI Neeraj Kumar. He is IO of the case. He got registered this case by preparing ruqqa Ex. PW15/A and also prepared site plan Ex. PW15/B. He also received blood stained cloths of injured Sanjay from the doctor vide memo Ex.PW15/C. PW16 is HC Ajay Pal. He has joined the investigation with IO Inspector Banwari Lal and arrested accused Vikas on the pointing out of witness Raj Kapoor. He has also witnessed the arrest of accused Abdul, Sanjeev @ Misra and Sunder @ Sanju. He has also witnessed the recovery of knife effected accused Sanjeev @ Vishal and has identified the knife further in the court as Ex. P1.
PW17 is Ravinder. He is public witness to the recovery of knife but he has resiled from his statement and has not supported the case of prosecution.
PW18 is Inspector Banwari Lal, IO of the case. PW19 is Sh. A.K. Srivastava. He has proved -:9:- biological report of FSL Ex. PW19/A and Serological report Ex. PW19/B. PW20 and PW21 are HC Havel Singh and HC Joginder. They were working as MHC(M) and sealed pullandas were deposited with them.
After completion of prosecution evidence, statements of accused persons were recorded. Accused Vikas @ Amit has denied the case of prosecution and has stated that he has been falsely implicated in this case. He was not present at the spot on the day of alleged offence and was at his shop at that time.
Accused Mohd. Abdul Hamid @ Kannu and accused Sunder @ Sanju have also denied the case of prosecution and have stated that they are innocent and have been falsely implicated in this case.
Accused Sanjeev @ Vishal has also denied the case of prosecution and has stated that he has been falsely implicated in this case. He was not present at the seen of alleged offence.
Thereafter, additional statements of accused persons after examination of PW18 to PW21 were recorded -:10:- and they have denied the case of prosecution.
I have heard learned defence counsel Sh. R. S. Mahla for accused Vikas and Sanjeev and Sh. S.P. Yadav for accused Sunder and Abdul Hamid.
Learned defence counsel for accused Vikas and Sanjeev has contended that in Ex. PW2/A, complainant Raj Kapoor has named only Vikas, Sunder Lal, Kannu and Vijay, whereas both Raj Kapoor and Lakhpati have not named the accused persons in the alleged history to the doctor. He has further contended that accused Sanjeev has not been connected with the offence in any manner. He has further contended that recovery of the knife is doubtful and that site plan has been prepared by the IO of his own. He has further submitted that PW8 Raj Kapoor has firstly supported the case of prosecution, but on the next date, he has resiled from his statement and has not supported the case of the prosecution in any manner.
He has further contented that from the deposition of PW9 Lakhpati, it is clear that she was not present at the spot and she has not seen the incident. He has further contended that weapon of offence was produced before the -:11:- court unsealed. Both PW8 and PW9 contradicted each other regarding the presence of PW Raj Kapoor. He has further contended that PW9 has stated that weapon was double edged, but it is not so and she was not having any occasion to see the knife due to the crowd at the spot. He has further contended that IO did not meet Lakhpati in the hospital. Witnesses have not supported regarding the recovry of knife and PW17, eye witness of the recovery of knife, has not supported the case of prosecution. He has further contended that there is also difference in initials of seals whether it was of "DKS" or "KS". He has further contended that link evidence is missing. Constable Vijender has not been examined.
Learned defence counsel has further relied upon Param Hans Yadav and Sadanand Tripathi Vs. State of Bihar & Others AIR 1987 Supreme Court 955 and has contended that prosecution has not been able to establish by circumstances that all the accused persons entered into a criminal conspiracy to kill Sanjay and no evidence has been collected that any dance competition was held/whether accused persons were defamed by Sanjay (since deceased) and due to the same, they entered into a conspiracy to -:12:- commit murder of Sanjay.
He has further relied upon State of Himachal Pradesh Vs. Krishan Lal Pardhan & Others AIR 1987 Supreme Court 773 and has contended that there is no meeting of minds of the accused persons for agreeing to do or causing to be done an illegal act or an act by illegal means.
He has further relied upon Jagir Singh Vs. The State (Delhi Administration) AIR 1975 Supreme Court 1400 and has contended that hostile witnesses is to be discredited altogether and not merely to get rid of a part of his testimony. So, the deposition of PW8 Raj Kapoor cannot be read in evidence in any manner.
Ld. Defence counsel has further relied upon Lakshmi Singh & Others Vs. State of Bihar AIR 1976 Supreme Court 2263 and has contended that statement of complainant was recorded later on and PW9 cannot be relied upon as she was not in a position to see as to who stabbed the deceased.
He has further contended that some witnesses were called U/s. 311 CrPC vide order dated 18/212/2009 and has relied upon Narain Singh & Others Vs. State ( P& H) -:13:- 1982 C.C. Cases 33 (HC) and has contended that witnesses have been summoned by the prosecution to fill up the lacuna in its case and re-summoning of the prosecution witnesses is illegal and their depositions cannot be read in evidence.
On the other hand, Ld. Addl. PP has contended that the order passed by the court to summon the witnesses U/s. 311 CrPC has not been challenged by the accused persons in any manner, so, now this plea cannot be raised in any manner.
Learned defence counsel for accused Sunder and Abdul Hamid has contended that according to ruqqa, Lakhpati came later on at the spot and in the statement, complainant Raj Kapoor has named only four accused persons. He has further contended that only one injury was caused to the deceased. PW1 i.e. Dr. Sanjeev Verma has also stated about one injury , whereas PW2 Dr. Komal Singh has stated about two injuries. PW1 has stated that minor surgery was done, whereas PW2 has not stated about any minor surgery of deceased Sanjay. He has further contended that according to the MLCs of PW8 and PW9 i.e. Raj Kapoor and Smt. Lakhpati, they sustained sharp/blunt nature of injuries, which -:14:- does not corroborate with the facts of the case.
He has further contended that PW4 was Duty constable in the hospital and he has informed at the PS about admission of injured Sanjay only and has not informed about admission of injured Raj Kapoor and Smt. Lakhpati. He has further contended that according to deposition of PW6, who talks about DD No. 53B, the place of incident was C-1380, Mangolpuri, Delhi. Lady Constable Sunita, who has informed this, has not been examined. It is not verified whether incident took place at C-1380 or in front of the house of injured Sanjay. He has further contended that PW8 has not named accused Sunder and has named Kannu. It is not known, who is Kannu. No role has been attributed to Kannu and has further contended that according to PW8, there was no light at the spot. Similarly, PW9 has also not attributed any role to accused Mohd. Abdul Hamid. He has also stated that PW Raj Kapoor was not present there. Both have further contradicted as to whether Raj Kapoor was living with Lakhpati or was living separately. Both contradicted each other whether Raj Kapoor was present in the house since morning or he came back from his work in the evening. -:15:-
PW9 has also stated that it was dark at the time of incident. She did not tell about the injury of Raj Kapoor. Clothes of PW 9 were not seized either by the IO or the doctor. He has further contended that it is clear form the cross examination of PW9 that she was having some motive against accused Sunder and Abdul Hamid to implicate them falsely in this case due to matrimonial disputes of her daughter Mamta. Even none of the neighbour has been examined. He has further contended that PW15 has not shown any electricity pole on the site plan, position of eye witnesses etc. He has further contended that one pair of hawai chappal was not identified by anyone. He has further contended that PW13 has prepared scaled site plan, although it has been prepared much later and at that time, Section 302 of IPC had already been added in this case, but in the particulars given by him in the site plan, Section 302 of IPC has not been mentioned, which shows that it was not prepared on the date, as stated, and is anti-dated.
He has further contended that PW15 did not meet injured Raj Kapoor in the hospital. He has further contended that motive has not been proved against accused Sunder -:16:- and Mohd. Abdul Hamid and Section 120B IPC has not been proved against both these accused. There is no eye witness to the motive. There is no evidence to prove the learning of dance by accused from deceased Sanjay. He has further contended that the knife was produced before the court in unsealed condition. Both injured Raj Kapoor and Lakhpati are interested witnesses. There is no independent witness. There is no recovery from accused Sunder and Abdul Hamid and no particular role has been attributed to both of them by anyone.
Learned defence counsel has relied upon Sucha Singh Vs. State of Punjab 2009(3) C.C. Cases (SC) 297 and has contended that there are significant contradictions in respect of the injuries and place of occurrence, lack of motive and false implication of accused in this case.
Learned defence counsel for accused Sunder and Abdul Hamid has further relied upon Rajiv Katyal Vs. State 2009(3) C.C. Cases (HC) 257 and has contended that none of the prosecution witnesses has supported the case of prosecution and there is no other evidence which conclusively point out towards the guilty of the accused persons.
Learned Addl. PP has submitted that from the -:17:- deposition of PW8 Raj Kapoor and PW9 Smt. Lakhpati Devi, prosecution has been able to prove presence of accused persons at the spot and committal of offence by them i.e. stabbing of Sanjay, who died later on due to the stabbing. He has further contended that identity of the accused persons is not in dispute as they are known to the witnesses. He has further contended that accused persons took a quarrel with deceased Sanjay outside his house and thereafter stabbed him, which shows that they had come prepared with a knife to kill Sanjay, who was stabbed by the accused persons in furtherance of their common intention.
Learned Additional PP has further contended that even evidence of hostile witness can be considered and the same cannot be outrightly rejected in all and has further relied upon following judgments:
1) Khurji Vs. State of M.P. 1991 CrLJ 2653
2) Ashok Vs.State. 1995 Volume I Crime
3) A.R. Puri Vs. State 2000 II AD Vol II (Crime) 315 PW8 is Raj Kapoor Singh. The case was registered on his statement Ex. PW8/A, wherein he has deposed the manner in which Sanjay was stabbed by the -:18:- accused persons and he has also named accused Vikas, Sunder Lal, Kannu and Vijay. He has further stated therein that when he and his sister Lakhpati tried to save Sanjay, then accused Vikas stabbed him on his chest and also stabbed on the head of his sister and then fled away from the spot.
In Ex. PW8/A, Raj Kapoor Singh has also stated about the motive to kill deceased Sanjay as the accused persons were talking with deceased Sanjay and were threatening him to kill him because yesterday Sanjay humiliated them in a dance competition.
PW Raj Kapoor has been examined by the prosecution as PW8. He has stated that on 16/04/2000 at about 7.15 p.m., he had come to his house after his work. He saw that accused Vikas, Sanjeev and Kannu were beating his nephew Sanjay in front of his house. He has also stated that accused persons were known to him as they used to visit Sanjay. They were giving beatings to Sanjay on the pretext that Sanjay humiliated them. Then accused Vikas caught hold of hands of Sanjay. Accused Sanjeev also caught hold of hands of Sanjay and accused Vikas gave Churi blow on waist -:19:- just near the abdomen. Thereafter as witness was not feeling well, hence his examination in chief was deferred. It was 21/04/2003. Thereafter, again on 20/04/2005 i.e. after about two years, he was further examined and at that time, he has not supported the case of prosecution and has stated that he had seen some boys quarreling with his nephew Sanjay. He could not identify the accused persons. Sanjay was removed to SGM hospital, where he expired. His statement was recorded by the police. He did not give the name of any of the accused. He has further stated that at that time, there was no electricity, hence, he could not see anything.
He has been cross examined by Ld. Addl. PP for State. He has admitted that he had given statement before the court on 21/04/2003 and the same was signed by him. He has stated that in that statement he had not stated that he had seen accused Sanjeev, Vikas and Kannu giving beatings to his nephew in front of his house. He has further stated that he had not stated therein that the accused persons fled away from the spot. He has also denied that he had stated that on that day, accused persons were giving fist blows and accused Vikas caught hold of both hands of Sanjay and accused Vikas -:20:- gave churi blow in the waist just near the abdomen, but at the same time, he has admitted that he had given statement to the police, which is Ex. PW8/A. He has denied the suggestion that he has been won over by the accused persons and was deposing falsely.
PW8 has further stated that he had identified the dead body of Sanjay vide memo Ex. PW8/B. He has further stated that in his presence, police had lifted blood stained earth, blood sample and earth control and seized the same vide memo Ex. PW8/C. He has also admitted that blood stained pant of accused Sanjeev was also taken into possession alongwith underwear vide memo Ex. PW8/D. He has identified the pant Ex. P1. He has denied that any knife was recovered from accused Sanjeev. He has further denied that the accused made any disclosure statement in his presence. He has further denied that sketch of the knife was prepared.
Thereafter, he was cross examined by learned defence counsels for the accused persons. In cross examination, he has stated that on 21/04/2003, he was brought to the Court under pressure of the police and was -:21:- asked to depose so. He has further stated that he had signed all the documents, but the contents of the same were not read over to him. Thereafter, court question was put to the witness that earlier police protection was ordered by the Court on 10/11/04 to safeguard his presence because he was being prevented by some unknown persons to come to the Court, which he has admitted. So, this admission itself falsifies the statement of PW8 that he was brought to the court under pressure of the police on 21/04/2003 and was asked to depose so. In cross examination, he has testified that he was present at the time of death of Sanjay. He has also admitted that incident had taken place in front of his sister's house Lakhpati at about 7.15 p.m. So, in nutshell, he has tried to back out about the identity of the accused persons. He has deposed about the facts of the incident, time and place as per the case of prosecution. He has also admitted that he participated in the investigation and some proceedings were conducted in his presence. He has also identified pant of accused Sanjeev as Ex. P1.
PW9 is Lakhpati. She is mother of deceased Sanjay. She has stated that on 16/04/2000 at about 7.00 -:22:- p.m., she was present in her house with her son Sanjay and was talking with him. Accused Sanju @ Sunder Lal, known to her being resident of the same area and also he used to frequently come to his son for learning dance, came to there house and called his son Sanjay and took him outside. Then she heard the sound and came outside and saw that her son was surrounded by accused Vikas, Sanjeev, Sunder and Mohd. Hamid, who were known to her prior to the incident and her son cried "bachao-bachao". Accused Sunder caught hold of hands of her son and accused Sanjeev caught hold of back of her son. Accused Vikas gave knife blow on her son by saying that he will not leave him alive. Accused Vikas also gave knife blow on her head. This witness has also resiled from her statement and has been cross examined by Ld. Addl. PP. In cross examination conducted by Ld. Addl. PP, she has admitted that accused Kannu @ Mohd. Abdul Hanif caught hold of hands of her son and accused Vijay @ Bhawishan pressed the mouth of her deceased son from backside. She has also admitted that all the three accused told accused Vikas to kill her son, who took out a knife from his right pocket. She has further admitted that accused -:23:- Sanjeev and Rinku also instigated Vikas to kill her son Sanjay and accused Vikas gave full knife blow on the right side of the abdomen of her son. She has further admitted that in the meanwhile, her brother Raj Kapoor also came there and when she tried to save her son, accused Vikas gave a knife blow on her head and also gave a knife blow on the chest of her brother Raj Kapoor. She has further admitted that when people gathered there, then the accused persons ran away from the spot. She has further admitted that due to lapse of time, she could not recollect the facts. She has identified the knife as Ex. P1.
She has been cross examined by learned defence counsels. In the cross examination, she has stated that when her son was attacked by stabbing, he was held in grip from backward and from the front. Learned defence counsel has contended that if deceased Sanjay was caught hold of from front and back, it was not possible for the witness to see as to which of the accused had stabbed and caused injuries to deceased Sanjay. Learned defence counsel has further contended that PW8 has stated that he came at the spot after his work, whereas PW9 has admitted in the cross -:24:- examination that Raj Kapoor was in the house since morning on that day. He has further contended that PW9 reached at the spot on hearing the cries and there was a huge crowd and she has stated that Sanjay was surrounded by the crowd and the accused persons and so it was not possible for her to see as to in what manner the incident took place and by whom it was committed.
Learned defence counsel has further contended that PW9 has also admitted that it was dark at that time and she became unconscious after getting the injury. He has further contended that police did not seize the clothes of PW9 nor the doctor collected the same from her. Hence, it cannot be said that she also sustained injuries in this incident. He has further contended that the weapon used, was double edged, but it is contrary to the knife produced before the court.
In nutshell, PW9 has named accused Vikas, Sanjeev, Sunder and Mohd. Abdul Hamid and has also deposed the manner in which the accused persons instigated accused Vikas to stab her son Sanjay. She has also deposed about part of body of her son Sanjay where he was stabbed -:25:- and it has also been stated so by PW8 Raj Kapoor Singh. PW9 has also stated that she and PW8 sustained injuries at the hands of accused Vikas. She has also deposed that accused Vikas gave a knife blow on her head and also gave a knife blow on the chest of her brother Raj Kapoor. So, in fact, she is not hostile in any manner and has supported the case of prosecution. She has deposed about the names of the accused persons, the manner in which the accused persons committed the offence, the place and time as per the case of the prosecution.
Now let us see whether PW8, who has resiled from his statement can be relied upon or not.
In this respect, I rely upon Sarvesh Narain Shukla Vs. Daroga Singh and Others AIR 2008 Supreme Court 320 wherein it has been held:
" Though this witness had been declared hostile, we are of the opinion that an outright rejection of his evidence is not called for and both parties are entitled to rely on such part of this evidence which assists their case".
So, the deposition of PW8 cannot be outrightly rejected at all. At first instance, he has given the names of the accused persons, the manner in which the incident took place, the -:26:- place and time, but after about two years, he has relised from his earlier statement and has stated that the previous statement was given by him under pressure of the police, but from the court question, it is clear that he was being threatened by some unknown persons and police protection was given to him, so clearly he has been won over by the accused persons. There is also a time gap of two years in between his first examination and second examination. So, the deposition of PW8 regarding the identification of the accused persons, the manner in which they committed offence, the place and the time cannot be outrightly thrown away. Both PW8 and PW9 have corroborated each other in this respect.
Regarding the contentions of learned defence counsels that both PW8 and PW9 have contradicted each other on the fact that PW8 came at the spot afterwards, but PW9 has stated that PW8 was present in the house since morning and also PW8 and PW9 both have stated that there was no light at that time, are not contradictions at all and if we assume that these are contradictions, then these are minor contradictions. On the basis of these contradictions, It would -:27:- not be justified to reject their testimonies. Some contradictions are bound to appear due to time gap between the date of offence and the date of examination of the witnesses. The date of the offence is 16/04/200, whereas PW8 for the first time was examined on 21/04/2003. Thereafter, he was again examined on 20/04/2005. PW9 was examined on 21/04/2003 and again on 29/04/2004 and she was cross examined thereafter on 09/12/2000. So, there was long time gap. In support of it, I rely upon Shivappa and Ors. Vs. State of Karnataka 2008 CRI. L.J. 2992 where in it has been held that:
"minor discrepancies or some improvements would not justify rejection of the testimonies of the eye witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of witnesses as also time gap between date of occurrence and the date on which they give their depositions in Court".
I further rely on Vikram and Othes Vs. State of Maharashtra AIR 2007 Supreme Court 1893 wherein it has been held that:
"the purported omissions related only to the -:28:- details of the occurrence, but the fact that Pws 2, 3, 4 and 6 were eye witnesses to the occurrence does not stand thereby disproved in any manner whatsoever. The occurrence took place on 22/01/1997. They were examined in Court two and a half years later. If there occurred some contradictions or even assuming they had omitted to state the incident in great details, the same by itself would not lead to a conclusion that the appellants had been falsely implicated in the case."
It has come in the deposition of PW8 and PW9 that accused persons were known to them. So, the identity of the accused persons is not in dispute and if PW8 has resiled from this, then it is of no use.
Both PW8 and PW9 have stated that there was no light at the time of incident. Time of incident is 7.00 p.m. Date is 16/04/2000. So, it was summer season and the time was 7.15 p.m. Visibility of that day cannot be compared in respect of darkness in comparison to the winter season. If there was no light, then it does not mean that both PW8 and PW9 were unable to see the accused persons. Identification of known persons is much easier then the unknown persons. Accused persons were known to both PW8 and PW9, so, -:29:- slight glimpse of the accused persons was sufficient for the witnesses to identify the accused persons. Moreover, according to deposition of PW9, when they tried to save injured Sanjay, then accused Vikas also stabbed both of them. So, it cannot be said that both PW8 and PW9 had seen the accused persons at such a distance that they were unable to identify them. According to deposition of PW9, both had encountered with the accused persons at such a close distance that accused Vikas was able to stab them, while he was trying to run away from the spot.
Regarding the contention as to whether PW8 came at the spot after work or was present at home since morning, does not affect their testimonies because from the deposition of PW8 and PW9, it is clear that both the witnesses were present at the spot and due to this reason they sustained injuries. Both PW8 and PW9 have not been cross examined by learned defence counsel that they did not sustain injuries at the hands of accused Vikas.
I further rely on The State Vs. Sejappa 2008 CRI. L.J. 3312 wherein it has been held:
" As far as the acceptance of evidence of the hostile witness is concerned, it is a well settled law that part -:30:- of the hostile witness which goes well with the prosecution case can be accepted and rejecting only that portion of the evidence which does not support the prosecution case. Therefore, applying such yardstick in the instant case, it cannot be said by any stretch of imagination that the evidence of PW1 has to be ignored in totality merely because of a witness not supporting the prosecution case in certain minor aspects which do not have any bearing on the core of the prosecution case."
Deceased Sanjay was examined by PW1 Dr. Sanjeev Verma. He has stated that he had carried out a minor operation on the person of Sanjay, who was brought to SGM hospital with alleged history of stab wound on the left side of abdomen. The witness has not been cross examined by learned defence counsels. PW2 Dr. Komal Singh has conducted postmortem on the body of deceased Sanjay. PW2 has deposed about two external injuries. PW2 has further stated that external injury No.2 penetrating the left intercostal muscle, pleura and lower lobe of left lung measuring 3.2 c.m. X 0.8. c.m., was sufficient to cause death in ordinary course of nature. PW2 has also not been cross examined by defence -:31:- counsel. PW3 is Dr. Pankaj Prasad. He has proved MLCs of injured/deceased Sanjay, Raj Kapoor and Lakhpati as Ex. PW3/A to Ex. PW3/C. Learned defence counsel has contended that according to deposition of PW8 and PW9, accused Vikas gave one knife blow on the abdomen of Sanjay, whereas according to deposition of PW2, two external injuries were found on the body of deceased Sanjay. He has further contended that both PW2 and PW1 have contradicted each other as PW2 has not mentioned about the minor surgery done by him on the body of Sanjay. So, the medical evidence is not in consonance with the depositions of PW8 and PW9, hence, PW8 and PW9 cannot be believed in this respect.
According to MLC of injured/deceased Sanjay, he sustained perforated stab injury below left costal margin i.e on the left side of abdomen. This corroborates with the depositions of PW8 and PW9, whereas PW2 found one more external injury i.e. clean incised wound at left hypochondrium and lumber region. In this respect, I rely upon D. Sailu Vs. State of A.P. AIR 2008 Supreme Court 505 wherein it has been held:
-:32:-
"Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant"."
So, only on this ground, the witnesses cannot be disbelieved. I further rely upon Chandrappa and Ors. Vs. State of Karnataka AIR 2008 Supreme Court 2323 and according to the same, if the witnesses have not given the exact description of the injuries, then it does not mean that witnesses are not trustworthy and cannot be believed in any manner.
Initially, the investigation was carried out by PW15 SI Neeraj Kumar. On 16/04/200, he received copy of DD No. 52B which is Ex. PW6/A and alongwith Constable Daya Ram reached at SGM hospital. There he obtained MLC of injured Sanjay, but he was not fit for statement. He also collected MLCs of Raj Kapoor and Lakhpati. They both were fit for statement. He has recorded statement of Raj Kapoor Ex. -:33:- PW3/A and made endorsement on the same Ex. PW15/A and got registered the case vide FIR Ex. PW14/A. Learned defence counsel has contended that PW4, who was Duty Constable in the hospital, had informed at the police station about the admission of injured Sanjay and not about the admission of injured Raj Kapoor and Lakhpati Devi. He has further contended that according to DD No. 53B, the place of incident was C-1380. This information was given by lady Constable Sunita, who has not been examined. Duty Constable might not be knowing about the admission of injured Raj Kapoor and Lakhpati Devi, but PW15 SI Neeraj Kumar stated so that they both were found admitted there. Even as per MLC of Raj Kapoor Ex. PW3/B, he was admitted in the hospital on the same day at 7.40 p.m., whereas injured Sanjay was admitted there at 7.30 p.m. and Lakhpati Devi was admitted in the hospital at 7.35 p.m. All the three injured were got admitted there by one Kanshi Ram, father of injured Sanjay. PW3 has not been cross examined by learned defence counsels at all that the MLCs are false and fabricated and Raj Kapoor and Lakhpati were not admitted in the hospital on that day at 7.34 p.m. and 7.40 p.m -:34:- . So, the contention of learned defence counsels is not tenable in any manner in this respect.
Thereafter, PW15 SI Neeraj Kumar visited the place of occurrence and prepared site plan Ex. PW15/B at the instance of complainant Raj Kapoor Singh and got the spot photographed. He also took blood stained earth control and one chappal from the spot and sealed the same with the seal of "NK" and seized vide memo Ex. PW8/C. He also received blood stained clothes of injured Sanjay from the doctor and seized them vide memo Ex. PW15/C. Thereafter, investigation of this case was handed over to Additional SHO Banwari Lal. Collection of blood stained earth control and one pair of chappal from the spot, itself show that the place of occurrence was in front of house of deceased Sanjay and not C-1380, as contended by learned defence counsel. Moreover, PW15 has not been cross examined by learned defence counsel on this aspect. In cross examination, PW15 has denied the suggestion that he did not meet Raj Kapoor and Raj Kapoor did not give any statement in the hospital. So, there is no contradiction about the place of occurrence and the contention of learned defence counsel in this respect -:35:- is unfounded.
PW8 Raj Kapoor has sustained stab injury i.e. CLW on the right chest wall, which corroborate the deposition of PW9 and according to MLC of PW8 Ex. PW3/B, she also sustained injury i.e CLW in scalp and tenderness over right tempro mandibulo occipital zone, which also corroborate with the deposition of PW9 that she was stabbed on her head by accused Vikas and Raj Kapoor Singh was stabbed by accused Vikas on his chest.
It has been further contended by learned defence counsel that PW15 did not meet Lakhpati in the hospital. So, this shows that Lakhpati was not injured and her MLC has been fabricated, but it is not so. PW15 has further stated in his cross examination that prior to handing over the investigation to Inspector Banwari lal, he had recorded the statement of Lakhpati Devi, supplementary statement of Raj Kapoor, Constable Daya Ram and photographer. He has denied the suggestion that he had not collected articles from the place of occurrence in presence of witness Raj Kapoor. PW8 has also admitted in the cross examination conducted by learned Addl. PP that police had lifted blood stained earth, -:36:- blood sample and earth control from the spot and same were taken into possession vide memo Ex. PW8/C, which bears his signature at point A. So, plea of learned defence counsel is of no use and is not helpful to accused persons in any manner and further does not lead to any conclusion that no such incident took place or the accused persons did not commit the offence, as alleged by the prosecution.
Further to complete the chain of evidence, prosecution has examined PW5 Rakesh Kumar. He took the photographs of the spot and has proved the same as Ex. PW5/A1 to A5 and negatives Ex. PW5/B1 to B5. This witness has also not been cross examined by both the learned defence counsels on the point that the place, which was photographed by him, was not the actual place of occurrence.
PW6 is Constable Kuldeep Raj. He has recorded DD No. 52B and DD No. 53 B, which are Ex. PW6/A and Ex. PW6/B respectively.
PW7 Constable Joginder Singh has joined the investigation with the IO and he has deposed about the police remand of accused Bhawishan Singh @ Vijay. (So, it is not much relevant herein because accused Bhawishan Singh @ -:37:- Vijay has been sent to Juvenile Justice Board for trial).
PW10 Naresh Kumar has identified the dead body of Sanjay. His statement is Ex. PW10/A in this respect and he also received the dead body vide receipt Ex. PW10/B. The witness has not been cross examined by both the defence counsels.
PW12 Constable Daya Ram has corroborated the deposition of PW15 and has stated that he joined the investigation with the IO on 16/04/2000. In his presence, blood stained earth, blood sample and earth control were lifted by the IO and were sealed with the seal of "NK" and these were seized vide memo Ex. PW8/C. He also got registered the case and handed over back the copy of FIR and ruqqa to the IO. This witness has also not been cross examined by both the defence counsels that the place of occurrence was somewhere else and no blood stained earth, blood sample and earth control were lifted by the IO.
Further investigation was conducted by PW18 Inspector Banwari Lal. It was handed over to him on 17/04/2000. He searched for the accused persons, but could not trace out any of the accused. Before that on the same -:38:- day at about 10 a.m., he alongwith his staff reached at SGM mortuary and dead body of Sanjay was identified by his relatives. He recorded statement of PW8 Raj Kapoor Singh Ex. PW8/B and PW10 Naresh Ex. PW10/A regarding identification of dead body of Sanjay. He also prepared the brief facts of the case.
PW18 Inspector Banwari Lal thereafter received secret information regarding the presence of accused Vikas at his house. Therefore, he alongwith his staff and complainant reached the house of accused Vikas at T-571, Mangolpuri, and at the instance of complainant, he arrested accused Vikas vide memo Ex. PW18/D. His personal search was conducted vide memo Ex. PW16/M. Accused Vikas made disclosure statement Ex. PW16/A. Accused Vikas also pointed out the place of occurrence vide memo Ex. PW16/H. Thereafter, he alongwith the police party, complainant and accused Vikas came back to the mortuary and after postmortem of the deceased, dead body was handed over to its relatives. He has proved the relevant memo in this regard Ex. PW10/B. In the mortuary, Constable Rajender Singh also produced two exhibits, which were -:39:- sealed with the seal of "DKS" alongwith one sample seal. He seized the same vide memo Ex.PW18/E. PW11 has corroborated these facts with PW18 Inspector Banwari Lal and has stated that on 17/04/2000, he joined the investigation and got conducted postmortem on the dead body of deceased Sanjay. The doctor handed over clothes worn by the dead body in a sealed parcel, sealed with the seal of "DKS" and he handed over the same to the IO with the sample seal. Thereafter, the dead body was handed over to relatives. The witness has been cross examined by learned defence counsels. In cross examination, he has confirmed that the pullanda was sealed by the doctor in his presence as he was inside OT, where postmortem was done.
PW16 HC Ajay Pal has corroborated the fact that on 17/04/2000, he joined the investigation with Inspector Banwari Lal (PW18) and inquest proceedings were prepared by the IO. The dead body was identified by Raj Kapoor and Naresh. In the meantime, Inspector Banwari Lal had received an information that the accused of this case had come to his house. Thereafter, he alongwith Inspector Banwari Lal, Constable Rajinder and complainant Raj Kapoor, reached the -:40:- house of accused Vikas at K-571, Mangolpuri, and on the identification of the witness, accused Vikas was apprehended from his house. His disclosure statement Ex. PW16/A was recorded. Thereafter, they again reached at SGM hospital and after the postmortem, the dead body was handed over to relatives of the deceased. In the cross examination, PW16 has again confirmed that accused Vikas was identified by complainant Raj Kapoor and has further confirmed that disclosure statement of accused was recorded by the IO in his presence at SGM hospital.
PW18 Inspector Banwari Lal has not been cross examined by learned defence counsel for accused Vikas regarding the arrest of the accused, as stated by the witnesses. PW18 Inspector Banwari Lal has denied the suggestion that accused Vikas and Sanjeev have been falsely implicated in this case. So, from the depositions of witnesses i.e. PW16 and PW18, it is clear that the arrest of accused Vikas is not in dispute in any manner from time and place, as stated by the witnesses.
According to PW18 Inspector Banwari Lal, after the arrest of accused Vikas, they reached at T Block, -:41:- Mangolpuri, for searching of co-accused persons and he made inquiries from Khuda Bax, father of accused Abdul Hamid. Meanwhile, he received a secret information that accused Abdul Hamid was present at Tis Hazari Courts. So, he alongwith his staff and complainant reached there and at the instance of the complainant, he apprehended accused Sanjeev @ Vishal, Abdul Hamid and Sunder @ Sanju and arrested them vide arrest memos Ex. PW18/F to Ex. PW18/H and he also conducted their personal search vide memos Ex. PW18/I to Ex. PW18/K. Thereafter, he interrogated all the accused persons and recorded their disclosure statements Ex. PW16/B to Ex. PW16/D. PW16 has also stated so that they reached at Tis Hazari Courts where accused Abdul Hamid, Sanjeev and Sunder were present and they were apprehended on the pointing out of Raj Kapoor. They were also interrogated and arrested.
PW18 has also deposed about arrest of accused Bhawishan Singh @ Vijay (same is not relevant here as accused Bhawishan Singh @ Vijay has been sent for trial before Juvenile Justice Board).
The main thrust of the learned defence counsels -:42:- is that there is no public witness to the incident and no independent witness has joined the investigation. In this regard, I rely upon Mutum Seityaban Singh Vs. State of Manipur 2008 CRI. L.J. 2263 wherein it has been held that:
"Only because of the failure of prosecution to examine the independent witnesses, the prosecution case could not be thrown out on that ground alone. Reference Appabei and another v. State of Rajasthan reported in AIR 1986 SC 896 (sic). It is also well settled that the Court while appreciating evidence must not attach undue importance to minor discrepancies. Regarding this point, we may refer to the decision of Apex Court in Sukhdev Yadav and others v. State of Bihar reported in (2001) 8 SCC 86: (2002 Cri LJ 80)."
PW11, PW16 and PW18 have corroborated each other regarding the proceedings conducted by them in the hospital and arrest of the accused persons, although PW8 has not stated before the Court that the accused persons were arrested on his pointing out, but from the above discussion, it is clear that identification of the accused persons is not in dispute at all as they were known to the witnesses already.
-:43:-
PW16 and PW18 both have stated that accused Sanjeev @ Vishal led the police party to a shop of Chauhan Hair Dresser, X-Block, and produced one knife, which was blood stained, to the IO. Sketch of the same was prepared Ex. PW16/E. It was sealed in a pullanda with the seal of "BL" and was taken into possession vide memo Ex. PW16/F. PW16 has identified the knife as Ex. P1. PW18 has also identified the knife as Ex. P1.
PW17 is Ravinder. He was working in the shop of barber at X Block, Mangolpuri. He has identified accused Vikas and Vishal, brother of accused Vikas, who used to visit the shop for hair cutting, but has denied that on 16/04/2000, accused Vishal came to his shop. He has also denied that he made any statement to the police. In cross examination conducted by learned defence counsel, he has stated that the knife was not recovered from his shop at any time nor police recorded his statement at any time.
Learned defence counsel for accused Sanjeev @ Vishal has stated that PW8 Raj Kapoor has specifically stated that no knife was got recovered by accused Sanjeev in his presence. He has also denied the suggestion that accused -:44:- Sanjeev got recovered the knife and same was taken into possession and was sealed in a pullanda. Learned defence counsel for accused Sanjeev @ Vishal has drawn the attention of the court towards the evidence of PW18 Inspector Banwari Lal and has contended that PW18 even does not remember if he had obtained the signatures of owner of shop of hair dresser on the seizure memo and has admitted that there are no signatures on the seizure memo of owner of shop of hair dresser on Ex. PW16/F. PW18 has further admitted that even he did not obtain signatures of owner of the shop on the sketch of the knife Ex. PW16/E. No public person has been joined. PW18 has stated that none became ready.
Learned defence counsel has stated that in cross examination, PW16 has stated that he does not know about the owner of the shop. There was no customer in the shop and the knife was recovered from store room. It is contended by learned defence counsel that from the evidence of PW8 and cross of PW16 and PW18, it is clear that the recovery of knife is doubtful on the pointing out of accused Sanjeev @ Vishal.
-:45:-
In this respect I rely upon Tama @ Tamal Mal Vs. State of W.B. AIR 2008 Supreme Court 12 wherein it has been held that :
"In our opinion, the fact whether the blood stains collected from the place of occurrence by the Investigating Officer had been sent to the Forensic Expert for chemical examination or not, pales into significance. We are furthermore of the opinion that whether the knife was recovered or not is also not of much importance."
In view of above judgment of Hon'ble Supreme Court of India, even if we presume that no knife was recovered, then it does not mean that accused persons did not commit murder of Sanjay.
The scaled site plan was prepared by SI Manohar Lal, who has stated that he prepared the scaled site plan, blue print of which is Ex. PW13/A. Learned defence counsel has contended that the site plan is also doubtful because the particulars mentioned in the scaled site plan are of at the time when Section 302 of IPC was not added and previous particulars of this case have been given U/s. 307/324/34 IPC, whereas site plan has been prepared on a much later date. In -:46:- my opinion, it is not so. The IO might have given the particulars to PW13 at initial stage and PW13 might have prepared the site plan at a later stage and had not verified the facts from the IO in between. So, Section 302 of IPC was not added in the particulars of the case as mentioned in Ex. PW13/A. I have also gone through Ex. PW13/A. Position of both PW8 and PW9 has been shown and the distance between the place of occurrence and their presence is not too far to presume or held that they were unable to see the incident in the manner in which it took place. PW13 has stated that it was prepared in the presence of complainant Raj Kapoor. He has denied the suggestion that PW8 was not present at the spot.
Learned defence counsel for accused Abdul Hamid and Sunder @ Sanju has drawn the attention of the Court towards the deposition of PW18 Inspector Banwari Lal regarding the investigation conducted by him in respect of accused Abdul Hamid and Sunder @ Sanju that father's name and particulars of these accused were not verified or checked.
As already discussed above, identity of the -:47:- accused persons is not in dispute as they were known to the witnesses already. Hence, the cross examination in this respect, as conducted by learned defence counsel, is not helpful to the accused persons in any manner.
Learned defence counsel has contended that PW18 has admitted in his cross examination that he did not obtain opinion regarding the nature of injuries sustained by Raj Kapoor and Lakhpati with knife and has also not got conducted the TIP of Chappal of the deceased. Nature of injuries has been shown of PW8 as simple with sharp object, in MLC Ex. PW3/B. MLC of Lakhpati Ex. PW3/C showing the nature of injuries as simple with blunt object. PW3 has not been cross examined on any aspect by the learned defence counsel, hence, such objections cannot be raised in any manner and MLCs have been proved by PW3 and as such prosecution has been able to prove MLCs of PW8 and PW9 and also nature of injuries as simple. PW8 has sustained injuries of simple nature with sharp object, which corroborate with the deposition of PW9, who has stated that accused Vikas stabbed with a knife on the chest of PW8 Raj Kapoor, but PW9 has sustained injury of simple nature with blunt -:48:- object, which does not corroborate with her deposition, wherein she has stated that she was also stabbed by accused Vikas on her head. In this respect, I would like to rely upon D. Sailu Vs. State of A.P.AIR 2008 Supreme Court 505 wherein it has been held:
"Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant"."
In view of the same, this contradiction does not lead to conclusion that no such incident took place and it was not seen by the witnesses and further that witnesses had not sustained injuries at the hands of accused at the time when they tried to save Sanjay from the accused persons.
An application of the prosecution U/s. 311 CrPC was allowed. Thereafter, PW18 was again examined regarding deposit of sealed parcels with the MHC(M), which has been corroborated by PW20 HC Havel Singh, who was -:49:- working as MHC(M) at that time. Nothing came out from the cross examination of the witnesses to disbelieve this part of their testimony.
Learned defence counsel for accused Vikas and Sanjeev has contended that such evidence cannot be read as it is an attempt on the part of the prosecution to fill up the lacuna, but in my view, order of learned Predecessor of this Court allowing the application U/s. 311 CrPC has not been challenged by the accused persons. Hence, now the same cannot be agitated. The judgment relied upon by learned defence counsel in this respect is not applicable to the facts and circumstances of the present case because it has not caused any prejudice to the defence of the accused as all such witnesses examined U/s. 311 CrPC have been cross examined by learned defence counsels for the accused persons.
PW21 is HC Jogender. He has sent the sealed parcels to FSL, Malviya Nagar and also received back the same after examination. None tampered the same till it remained in his custody or in the custody of the Constable, who took the parcels to FSL and or in the custody of -:50:- Constable, who brought back the parcels from the FSL and deposited the same with the MHC(M). Only one suggestion has been given to the witness and the witness has not been cross examined on any material aspect.
To prove FSL result, prosecution has examined PW19 Sh. A.K. Srivastava, Assistant Director, Biology. He has examined the parcels and his biological report is Ex. PW19/A. Serological report is Ex. PW19/B. According to Ex. PW19/A, concrete material having dark stains Ex. 1 and concrete material Ex. 2 were found to be containing blood. Ex 1 i.e. earth control was found to be containing blood of human of "A" group. One pair chappal has also been examined as Ex. 3. The same was also having blood of human of "A" group. It has come in the cross examination of PW18 that chappals were of deceased. So, prosecution has been able to connect the fact that chappals were of deceased Sanjay and blood stained earth was also having blood of "A" group of deceased Sanjay. Blood stained gauze cloth i.e. Ex.7 Sealed with the seal of "DKS" after the postmortem was handed over to the police, which was seized vide memo Ex. PW18/E. According to Ex. PW19/A and Ex. PW19/B, it was -:51:- also found having human blood of "A" group. So, it is also connected with the deceased and it has been proved by the prosecution that the deceased was having blood group "A", which has been connected with one pair of Hawai Chappal and gauze cloth.
According to PW8, one pant and one underwear of accused Sanjeev @ Vishal were seized and sealed with the seal of "BL". These were also sent for examination and according to Ex. PW19/A, these are Ex. 6a and Ex. 6b. According to the report, blood was detected on Ex. 6A, but could not be detected on Ex. 6b. According to serological report Ex. PW19/B, Ex. 6A was found having human blood of "A" group. According to seizure memo Ex.PW8/D, after the incident, accused Sanjeev @ Vishal carried the knife in his pocket and the same pant was seized from the accused. PW8 has also testified that pant of accused Sanjeev @ Vishal was also taken into possession alongwith the underwear vide memo Ex. PW8/D. The witness has not been cross examined in this respect by learned defence counsels. So, the prosecution has been able to prove the fact that accused Sanjeev carried out the knife used in this murder in his pocket -:52:- after the incident.
Ex. 8a and Ex. 8b are one jeans pant and one full sleeve T-shirt. Human blood of "A" group was detected on these. These are of accused Bhawishan @ Vijay, who has been sent for trial before Juvenile justice Board. So, the same is not relevant here.
Blood stained clothes of the deceased Ex. 4a and Ex. 4b were also seized vide memo Ex. PW15/C. According to reports Ex. PW19/A and Ex. PW19/B, both Ex. 4a and Ex. 4b were also having blood of "A" group. So these have been also connected with the deceased. According to Ex. 4b, there was one cut/torn on T-shirt, which shows that deceased Sanjay was stabbed with the knife as deposed by PW8 and PW9.
Even if there are any discrepancies in the depositions of witnesses examined by the prosecution, even then in my view, these are minor discrepancies and it would not be justified to reject the testimonies of the witnesses on the ground of these minor discrepancies. In this respect, I rely upon Shivappa and Ors. Vs. State of Karnataka AIR 2008 Supreme Court 1860 wherein it has been held that : -:53:-
"minor discrepancies or some improvements would not justify rejection of the testimonies of the eye witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of witnesses as also time gap between date of occurrence and the date on which they give their depositions in Court".
The motive of false implication of accused Abdul Hamid and accused Sunder is very weak and both the accused have not been able to prove the same against the prosecution.
From the depositions of the witnesses examined by the prosecution as discussed above and the judgments relied upon by me, prosecution has been able to prove beyond reasonable doubts that all the four accused persons,namely, Vikas @ Amit, Sanjeev @ Vishal, Sunder @ Sanju and Mohd. Abdul Hamid @ Kannu were present at the spot on the day, time and place, as stated. They were having motive to kill deceased Sanjay, who humiliated them in a dance competition before the day of the incident.
The prosecution has also been able to prove beyond reasonable doubts that they entered into a criminal conspiracy to commit the murder of deceased Sanjay and come prepared with the same, which is clear from the -:54:- depositions of PW8 and PW9 and that the accused,namely, Vikas @ Amit was having knife with him. Direct evidence of criminal conspiracy cannot be collected, so, inference can be drawn from the circumstances coupled with the motive of the accused persons. It is further proved from the depositions of PW8 and PW9 that accused Vikas @ Amit gave knife blow to deceased Sanjay. He also exhorted that he will not leave Sanjay alive. Remaining accused persons caught hold of the deceased and accused Vikas @ Amit stabbed deceased Sanjay.
PW8 and PW9 have corroborated each other and their depositions inspire confidence and they are credible. They have seen the incident. So, prosecution has been able to prove beyond reasonable doubts that accused persons,namely, Vikas @ Amit, Sanjeev @ Vishal, Sunder @ Sanju and Mohd. Abdul Hamid @ Kannu in furtherance of their criminal conspiracy committed murder of deceased Sanjay. Accordingly, all the four accused persons,namely, Vikas @ Amit, Sanjeev @ Vishal, Sunder @ Sanju and Mohd. Abdul Hamid @ Kannu, are held guilty and convicted for offence U/s. 120B of IPC read with Section 302 of IPC and -:55:- offence U/s. 302 read with Section 120B of IPC.
PW8 and PW9 both have sustained injuries of simple nature. Both have stated that they were stabbed by accused Vikas @ Amit with a knife and MLC of PW8 Raj Kapoor is showing the nature of injuries as simple with sharp object, whereas injuries of PW9 Lakhpati are of simple nature showing to be caused with blunt object. I have already discussed above and relied upon the judgments as cited therein. According to depositions of PW8 and PW9, they were stabbed by accused Vikas @ Amit, when they tried to save Sanjay from the accused persons and when the accused persons were fleeing away from the spot. Accordingly, prosecution has been able to prove beyond reasonable doubts that all the four accused persons,namely, Vikas @ Amit, Sanjeev @ Vishal, Sunder @ Sanju and Mohd. Abdul Hamid @ Kannu caused injuries to PW8 and PW9 with sharp object and they are also held guilty and convicted for offence U/s. 324/34 of IPC.
Announced in Open Court on dated 7th of September, 2009 ( Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi -:56:- IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 46/01 Date of Institution: 15/07/2000 Date of Sentence: 09/09/2009 State Vs.
1) Vikas @ Amit Son of Kishori Lal R/o L-571, Mangolpuri, Delhi.
2) Sanjeev @ Vishal Son of Kishori Lal R/o L-571, Mangolpuri, Delhi.
3) Sunder @ Sanju
Son of Nathi Lal
R/o T-1268, Mangolpuri,
Delhi.
4) Mohd. Abdul Hamid @ Kannu
S/o Khuda Bux
R/o T-327, Mangolpuri,
Delhi.
FIR No. 339/2000
PS - Mangolpuri
U/s. . 120B r.w. Section 302 of IPC
U/s. 302 r/w. Section 120B of IPC &
U/s. 324/34 of IPC.
-:57:-
ORDER ON SENTENCE
09/09/2009
Present. Ld. Addl. PP for the State.
All the convicts in J.C.
Sh. Ajay Mahla, Advocate for accused Vikas and Sanjeev.
Sh. S.P. Yadav, counsel for Sunder & Mohd. Abdul Hamid.
Learned defence counsel submits that it is not a case of rarest of rare case and all the convicts are of young age.
All the above convicts have been convicted U/s. 120B r.w. Section 302 of IPC, U/s. 302 r/w. Section 120B of IPC & U/s. 324/34 of IPC.
Section 120B of IPC is punishable in the same manner as if the accused has abetted such offence, it offence is punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. There is no express provision in the Code for punishment of such a conspiracy of offences in which accused all have been convicted.
According to Section 109 of IPC, where the act abetted is committed in consequence of the abetment and no -:58:- express provision is made in the Code, then the same is punishable with the same punishment provided for the offence.
Offence U/s. 302 of IPC is punishable with death or imprisonment for life and with fine also.
Offence U/s. 324 of IPC is punishable with imprisonment of either description for a term which may extend to three years or with fine or with both.
Convict Vikas @ Amit is aged about 29 years years. He is having widow mother and himself is unmarried.
Convict Sanjeev @ Vishal is aged about 25 years. He is unmarried. He is also having widow mother.
Convict Sunder @ Sanju is 26 years of age. He is unmarried, having aged parents. He has done Computer diploma during the period he remained on bail in this case.
Convict Mohd. Abdul Hamid is aged about 27 years. He is unmarried, having old aged parents.
Ld. Addl. PP has contented that considering the nature of offence committed by the convicts, as they all have committed murder of Sanjay and caused injuries to one Raj Kapoor and Lakhpati Devi, maximum punishment be -:59:- awarded, as provided.
Accordingly, considering the gravity of the nature of offence where Lakhpati Devi has lost her son in this incident, who was murdered by the convicts on a very petty issue and submission of learned defence counsels, the following sentence is awarded to convicts,namely, Vikas @ Amit, Sanjeev @ Vishal, Sunder @ Sanju, Mohd. Abdul Hamid @ Kannu:
Sentence in respect of accused Vikas @ Amit S.N Offence Substantiative Fine Sentence I.D of Imprisonment in Rs. payment of fine u/s.
(R.I.) (R.I.)
1) 120B Imprisonment Rs.25,000/- Three year S.I.
r/w Sec. for life
302 of
IPC
2) U/s. 302 Imprisonment Rs.25,000/- Three years S.I. of IPC for life r/w Sec.
120 B IPC
3) U/s. 324 Three years Rs. 5,000/- Nine months of IPC R.I. S.I. r/w Sec.
34 IPC -:60:- Sentence in respect of accused Sunder @ Sanju, S.N Offence Substantiative Fine Sentence I.D of Imprisonment in Rs. payment of fine u/s.
(R.I.) (R.I.)
1) 120B Imprisonment Rs.25,000/- Three year S.I.
r/w Sec. for life
302 of
IPC
2) U/s. 302 Imprisonment Rs.25,000/- Three years S.I. of IPC for life r/w Sec.
120 B
IPC
3) U/s. 324 Three years Rs. 5,000/- Nine months
of IPC R.I. S.I.
r/w Sec.
34 IPC
Sentence in respect of accused Sanjeev @ Vishal S.N Offence Substantiative Fine Sentence I.D of Imprisonment in Rs. payment of fine u/s.
(R.I.) (R.I.)
1) 120B Imprisonment Rs.25,000/- Three year S.I.
r/w Sec. for life
302 of
IPC
2) U/s. 302 Imprisonment Rs.25,000/- Three years S.I. of IPC for life r/w Sec.
120 B
IPC
3) U/s. 324 Three years Rs. 5,000/- Nine months
of IPC R.I. S.I.
r/w Sec.
34 IPC
-:61:-
Sentence in respect of accused Mohd. Abdul Hamid @
Kannu
S.N Offence Substantiative Fine Sentence I.D of
Imprisonment in Rs. payment of fine
u/s.
(R.I.) (R.I.)
1) 120B Imprisonment Rs.25,000/- Three year S.I.
r/w Sec. for life
302 of
IPC
2) U/s. 302 Imprisonment Rs.25,000/- Three years S.I. of IPC for life r/w Sec.
120 B
IPC
3) U/s. 324 Three years Rs. 5,000/- Nine months
of IPC R.I. S.I.
r/w Sec.
34 IPC
Learned counsels for convicts submit that convict Vikas @ Amit is in custody since the day of his arrest; convict Sanjeev @ vishal remained in custody for one year and 24 days during trial; convict Mohd. Abdul Hamid remained in custody during trial for one year 20 days and convict Sunder @ Sanju remained in custody during trial for three years, three months and four days.
Accordingly, benefit of Section 428 of CrPC be given to each of the convicts for the period for which they have already undergone custody.
-:62:-
All the substantiative sentences awarded shall run concurrently.
Fine not deposited. If deposited, then out of fine, Rs. One lac be given as compensation to the mother of the deceased after the expiry of the period of limitation of appeal or if no appeal is filed.
Copy of this order be given to all the convicts free of cost.
File be consigned to record room.
Announced in open court. (VIRENDER KUMAR GOYAL) Dated:9th of September, 2009 ADDL SESSIONS JUDGE FAST TRACK COURT ROHINI: DELHI