Delhi District Court
State vs Raghunath Etc. on 16 January, 2009
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FIR no. 670/05
PS: Model Town
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS): TIS
HAZARI COURT: (WEST) DELHI.
FIR No. 670/05
P.S. Model Town
U/s 302/307/34 IPC
State V/s Raghunath Etc.
1. Session Case No. 37/06
2. Name of the accused 1 Raghunath @ Nanha
and parentage Bachcha s/o Sh.Jiya Lal
2 Hari Nath @ Bada
Bachcha s/o Sh.Jiya Lal
3 Soni @ Natul s/o Sh.Jiya
Lal
4 Seema d/o Sh.Jiya Lal
All r/o 38-A, Gur Mandi,
G.T.K.Road, Delhi
3. Date of commission of 17/11/2005
offence
4. Arguments concluded on 18/12/2008
5. Date of final order 14/01/2009
JUDGMENT
1. The prosecution case in brief is that accused Raghunath @ Nanha Bachcha used to tease wife and sister of complainant Arjun Panchal. On 14/11/2005 at about 4:00 pm - 5:00 p.m, the accused Nanha Bachcha @ Raghunath again teased Smt Durgesh ::2::
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PS: Model Town wife of Arjun Panchal/complainant who informed the complainant in that regard. The complainant informed his brother Ravi Panchal about the said incident. On 17/11/2005 at about 8:20 a.m accused Nanha Bachcha @ Raghunath was going in front of house of the complainant and Ravi Panchal (deceased) asked him as to why he had teased his sister and wife of his brother Arjun Panchal. The accused Nanha Bachcha @ Raghunath became furious and slapped deceased Ravi Panchal and left by threatening that he will return soon. The accused Nanha Bachcha @ Raghunath returned to the spot alongwith his elder brother Bada Bachcha @ Hari Nath, accused Natul @ Soni and accused Seema. Accused Nanha Bachcha @ Raghunath was carrying sharp edged knife (Chhurri) in his right hand and stabbed Arjun Panchal with the said weapon at his chest as a result he fell down on the spot. Before he could stand up and balanced himself, accused Seema and accused Natul @ Soni caught hold of him. In the meantime Ravi Panchal (deceased) came out of his house and accused Bada Bachcha caught hold of him and accused Nanha Bachcha @ Raghunath stabbed him with knife. Ravi Panchal (deceased) fell down and blood spread on his body. Complainant/ Arjun Panchal with his wife raised alarm and ::3::FIR no. 670/05
PS: Model Town all the four accused persons started pelting stones, in the mean time police came on the spot and apprehended accused Nanha Bachcha @ Raghunath and Bada Bachcha @ Hari Nath on the spot. Both the injured were rushed to the Bara Hindu Rao Hospital where Ravi Panchal was declared dead. On the statement of the complainant Arjun Panchal case was registered in Police Station Model Town. The Investigating Officer visited the spot alongwith Crime Team and photographer and on the identification of eye witnesses three accused persons namely Raghunath @ Nanha Bachcha, Harinath @ Bada Bachcha and Seema were arrested from the spot. The clothes of accused Raghunath @ Nanha Bachcha were having blood stains therefore, the same were seized by the police. The forth accused Soni @ Natul surrendered in the court and was accordingly arrested. The weapon of offence could not be recovered despite best efforts. On completion of challan the charge-sheet was filed in the court.
2. On completion of requirement of Section 207 and 208 CrPC, Ld Metropolitan Magistrate, Delhi committed the case to the court of Sessions vide order dated 07/6/2006. On 27/10/2006, all the four accused persons were charged with the offence u/s 302/307/34 IPC to which they pleaded not guilty and claimed ::4::
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PS: Model Town trial.
3. In support of its case, the prosecution has examined in total 22 witnesses. Brief discussion of their testimony is as under:
FORMAL WITNESSES
4. PW1 Ct.Chuni Lal has deposed that on 17-11-2005, he was posted in the Crime Team, North West as a photographer. On that day, he had gone to House No. 203, Gur Mandi, G.T.Karnal Road, Model Town Delhi and had taken six photographs of the spot. The same are Ex.P7 to Ex. P12 and negatives are Ex.P1 to Ex. P6.
5. PW2 HC Mahavir was posted as Duty Officer on 17-11-2005 between 9:00 a.m. to 5:00 p.m and has recorded FIR Ex. PW2/A and deposed that Ct. Rakesh brought a rukka at about 11:40 a.m. which was sent by Inspector Heera Lal on the basis of which he recorded FIR vide DD No.12A. Copy of DD No.12A is Ex. PW2/B. He had sent the copy of the FIR to the Sr. Officers and Magistrate through a special messenger through Ct. Krishan Kumar vide DD No.13A Ex.PW2/C.
6. PW9 Ct.Narender was working as Duty Constable at Hindu Rao Hospital on 17-11-2005 and deposed that at about 10:00/10:30 ::5::
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PS: Model Town a.m. two boys in injured condition were brought to the hospital. Their names were Ravi and Arjun. Doctor had declared Ravi brought dead whereas Arjun was admitted for treatment. Doctor had handed over to him a blood stained Baniyan (Vest) of Ravi alongwith the sample seal and he had handed over the same to Inspector Heera Lal, SHO Police Station Model Town who seized the same vide memo Ex. PW9/A. This witness again said that blood stained Baniyan and sample seal belonged to injured Arjun.
7. PW11 Ct. Krishan Lal has deposed that on 17-11-2005, he was posted at Police Station Model Town and was entrusted with three special reports by Duty Officer HC Mahavir Singh and he had delivered the same at Room No.154, Tis Hazari in the court of Smt. Preeti Aggarwal Gupta Ld MM. He had delivered one of the reports at the office of Joint CP, Northern Range PHQ and 3rd copy was delivered in the office of DCP , North West District.
8. PW14 SI Manohar Lal has deposed that on 29-12-2005 at the request of Inspector Heera Lal, SHO Police Station Model Town, he had gone to the Police Station Model Town from where he went to the spot i.e Main G.T.Karnal Road near H.No.203, Gur Mandi alongwith Inspector Heera Lal. He further deposed that ::6::
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PS: Model Town complainant Arjun Panchal met them and he prepared a scaled site plan Ex.PW14/A at the instance of Arjun Panchal.
9. PW16 Ct.Shaji John has deposed that on 03-02-2006, he was posted at Police Station Model Town and on that day at about 10:00 a.m. , MHC(M) handed over him 8 parcels with the direction to deposit the same at FSL, Rohini and vide RC No.91/21. He had deposited the same against acknowledgment. In his possession, the said parcels remained intact and were not tampered with.
10.PW17 HC Ramesh Kumar deposed that on 17-11-2005, he was working as MHC (M) at Police Station Model Town, Delhi. On that day, SHO Inspector Heera Lal deposited 7 parcels alongwith 2 sample seals of HRH and FM HRH alongwith Form -FSL and he had made relevant entry in malkhana register at Serial no. 3016 on 23-12-2005. On 23-12-2005, again Inspector Heera Lal deposited one parcel duly sealed alongwith Form -FSL and same was registered at Serial no. 3048. On 03-02-2006, on the directions of the SHO, he again handed over the sample duly sealed to Ct. Shaji John vide RC No.91/21 with the directions to deposit the same at FSL, Rohini. On 15-05-2006, the above parcels were received in the Police Station through Ct. Balwan ::7::
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PS: Model Town Singh and same were kept in malkhana and FSL result was given to IO Inspector Heera Lal. The Malkhana Register entries are proved as Ex.PW17/A and Ex.PW17/B. The copy of the RC is proved as Ex.PW17/C. PUBLIC/EYE WITNESSES
11.PW3 Arjun Panchal is the complainant and the star witnesses of the prosecution. He has deposed that on 14-11-2005 at about 8:00-8:30 p.m., a procession was being taken out in connection with the Birth Anniversary of Sh. Gurunanakji. He had gone out of his house but Raghunath @ Nanha Bachcha has teased his wife in his absence and when he returned to his house, his wife told about the said incident. He informed his brother about the incident on next day i.e. 16-11-2005. He further deposed that on 17-11-2005 at about 8:00-8:30 p.m., Raghunath @ Nanha Bachcha was passing in front of his house. His brother Ravi Panchal asked him as to why he had teased wife of his brother on 14-11-2005. The accused did not feel remorse and went away saying that he will repeat his acts and he (Ravi Panchal) could do whatever he wanted. The accused also threatened his brother to ::8::FIR no. 670/05
PS: Model Town teach him a lesson. After about 5-7 minutes accused Raghunath @ Nanha Bachcha accompanied with his brother Hari Nath @ Bada Bachcha, Natul @ Soni and sister Seema came to the spot. Accused Raghunath @ Nanha Bachcha was carrying a knife meant for slaughtering purpose. All the accused came abusing and accused Raghunath @ Nanha Bachcha gave a blow with the knife carried by him on his chest. In the meanwhile, his brother Ravi Panchal (deceased) came out of the house in order to save him (Arjun). At that time, accused Seema and Natul @ Soni had caught hold of him from his back. Accused Hari Nath @ Bada Bachcha caught hold of Ravi Panchal and meanwhile accused Raghunath @ Nanha Bachcha gave a knife blow on the chest of his brother. He further deposed that he could not rescue his brother because accused Seema and Natul @ Soni were holding him. His brother Ravi Panchal fell down to the ground after receiving the stab injuries. They raised a noise. The accused persons had started pelting stones on them. Police had reached the spot on hearing the cries. His brother was removed to Hindu Rao Hospital. His brother was declared dead whereas he was given medical treatment. He got discharged from the hospital as his brother had to be cremated. All the accused had killed his ::9::FIR no. 670/05
PS: Model Town brother in furtherance of their common intention and also inflicted injuries on him. He further deposed that police recorded his statement as Ex.PW3/A at Hindu Rao Hospital. On 29-12-2005, SI Manohar Lal had came to his residence and prepared a site plan at his instance.
In his cross examination PW3 deposed that the accused has teased my wife namely Durgesh @ Reshma, who is my second wife. The house of the accused is about 200/300 meters from our house. My brother Ravi Panchal had come back home on 15-11-2005. A number of persons had collected on the spot when the accused had inflicted injuries on my person as well as on the person of my brother. But I can not tell the number. I was removed to hospital alongwith my brother and at the said time I was semi-conscious. I had regained consciousness in the hospital. I have disclosed the name of the accused to the doctor.
12.PW4 Meenu deposed that on14-11-2005, there was a Nagar Kirtan on account of the birth anniversary of Sh. Gurunanakji. At about 4:00/5:00 p.m, her Bhabhi Durgesh Devi was standing outside her house. Accused Nanha Bachcha @ Raghunath was passing by that side and he teased her Bhabhi. She alongwith her brother Arjun was not present at the house at that time. Her ::10::FIR no. 670/05
PS: Model Town Bhabhi had told them on telephone that Nanha Bachcha @ Raghunath had misbehaved with her. They returned to house after about one hour.
13.She further deposed that on 17-11-2005 at about 8:00/8:15 a.m, her brother Ravi Panchal was standing outside their house.
Accused Raghunath @ Nanha Bachcha came there and her brother asked him as to why he had misbehaved with his Bhabhi. The accused rather than showing any remorse stated that he will continue to misbehave and will repeat his acts. Her brother asked him (accused) to desist from his acts, accused went away threatening to teach a lesson to her brother. After about 6/7 minutes accused Nanha Bachcha @ Raghunath came back and was having a Chhura meant for slaughtering of pigs. The accused attacked her brother Arjun Panchal who was standing outside. On hearing the cries of her brother Arjun, they came out and her brother Ravi Panchal went to rescue of her brother Arjun. Accused Hari Nath @Bada Bachcha, Natul @ Soni and Seema were also present there alongwith accused Raghunath @ Nanha Bachcha. Accused Hari Nath @Bada Bachcha, Seema and Natul @ Soni caught hold of her brother Arjun. Her brother Ravi tried to save him but accused Raghunath Nanha Bachcha gave a ::11::
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PS: Model Town Chhura blow on his person. Accused Raghunath @ Nanha Bachcha also gave a Chhura blows on the chest of her brother Ravi. Her brother Ravi fell down on the ground. They raised a noise which attracted some police personnels who came there. The police personnels apprehended accused Raghunath @ Nanha Bachcha after giving him a danda blow and disarming him. Accused Hari Nath @ Bada Bachcha and Seema were also apprehended on the spot, whereas accused Natul @ Soni was successful in escaping.
14.She further deposed that the police removed her brothers alongwith her Bhabi Krishna Devi to Hindu Rao Hospital in a tempo. Her brother Ravi was declared dead at the hospital. All the accused in furtherance of their common intention had killed her brother Ravi and caused injuries on the person of her brother Arjun. She further deposed that accused Raghunath @ Nanha Bachcha, Hari Nath @ Bada Bachcha and Seema were arrested in her presence vide memo Ex.PW4/A, Ex.PW4/B and Ex.PW4/C. Their personal search memo are Ex.PW4/D, PW4/E and PW4/F respectively. "In the court question she deposed that Accused Seema, Natul and Bada Bachcha had also given blows to her brother Arjun with fists and legs and as they raised a noise, they ::12::FIR no. 670/05
PS: Model Town pelted stones on them.
15.In her cross-examination PW4 deposed that on 17/11/2005 at about 8.00 a.m she was present inside her house. They did not raise any noise against the accused on his first appearance even after when he left giving a threat to come back and teach a lesson;
when she came out of her house, she saw accused Raghunath @ Nanha Bachcha giving a chhura blow on the person of her brother Arjun; She had received injuries on her back on account of pelting of stones but had not got herself medically examined because there was nobody except her at the house; the entire incident took place between 8.00 and 8.15 a.m.
16.PW6 Ms. Krishan Devi is wife of deceased Ravi Panchal and deposed that on 12/11/2005 she alongwith her sister-in-law Meenu and mother-in-law Kamla had gone to Sahibabad; her sister-in-law Durgesh telephonically informed that accused Nanha Bachcha had teased her and had harassed her; they returned on the same day; on 16/11/2005 her husband Ravi Panchal had returned to their house; on 17/11/2005 her husband Ravi Panchal left the house in the morning at about 8.00 am and accused Nanha Bachcha @ Raghunath met him in front of her house and her husband asked him as to why he had teased his ::13::
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PS: Model Town sister-in-law; the accused stated that he will continue to do so and left the spot abusing her husband; he came after some time accompanied by other accused persons and accused Nanha Bachcha was carrying a dagger (chhura) in his hand; he gave a blow with his chhura on the chest of her Dever Arjun Panchal; her husband tried to intervene but accused Nanha Bachcha @ Raghunath also gave a chhura blow on his stomach; her husband and Dever were removed to hospital and her husband was declared brought dead. This witness was declared hostile and was cross-examined by the Ld APP for the State in which she deposed that Nanha Bachcha @ Raghunath accused had come first time on 17/11/2005 and had grappled with her husband and had gone away while stating "mai aake thumhe netija chakhate hoon" ( I will return & teach you a lesson); accused Bada Bachcha @ Hari Nath present in the court had also accompanied the other accused person when they came second time; while accused Bada Bachcha @Hari Nath had caught hold of her husband, the accused Nanha Bachcha @ Raghunath had given a dagger blow on the chest of her husband; they raised a noise by saying "pakro pakro" on which all the four accused started pelting stones; accused Bada Bachcha @ Hari Nath, Nanha Bachcha @ ::14::FIR no. 670/05
PS: Model Town Raghunath and Seema had been apprehended on the spot; all the four accused in furtherance of their common intention to kill her husband, had attacked him; accused Nanha Bachcha @Raghunath had teased her sister-in-law Durgesh on 14/11/2005. In her cross-examination by Ld defence counsel PW 6 deposed that police had recorded her statement in the hospital on the same day; the house of accused falls three /four houses away from their house.
17.PW7 Smt Durgesh is wife of injured/complainant and deposed that on 14/11/2005 a Nagar Kirtan Procession was taken out in front of their house; at about 5.00/5.30p.m while she was passing through the said side, the accused Nanha Bachcha @ Raghunath present in the court came their and started teasing her; she returned to her house and nobody was present in the house at the said time; she gave a telephonic call to her mother-in-law who had gone to Sahibabad; her mother-in-law told her not to say anything to the accused and to remain silent; her husband returned to house within one hour and told her that they would wait for return of his brother; her mother-in-law returned to the house in the same night and on 16/11/2005 her brother-in-law Ravi Panchal had also returned to the house and her mother-in-
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PS: Model Town law told about the incident to him; on 17/11/2005 at about 8.00/8.15 a.m her brother-in-law Ravi Panchal was present outside the house where accused Raghunath @ Nanha Bachcha came; her brother-in-law asked her if he was the same person who had teased her and she replied in affirmative; her brother-in-
law asked the accused as to why he had teased her; the accused stated that he will continue to do so and he may do whatever he likes; they grappled with each other and she called everybody from the house and also called her husband and accused Raghunath @Nanha Bachcha had run away saying that he will teach a lesson; after about 5/7 minutes the accused returned accompanied by accused Hari Nath @ Bada Bachcha , Natul @ Soni and Seema ; accused Raghunath @ Nanha Bachcha was carrying a chhuri in his hand; accused Natul @ Soni and Seema and Bada Bachcha @Hari Nath caught hold on Arjun Panchal and while accused Raghunath @Nanha Bachcha gave a churri blow on his chest; as her brother-in-law Ravi Panchal tried to save Arjun Panchal, the accused Raghunath @ Nanha Bacha gave a churri blow on his chest; the accused had started pelting stones and police arrived at the spot and apprehended accused Raghunath @ Nanha Bachcha, Seema and Hari Nath @ Bada ::16::
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PS: Model Town Bachcha; thereafter he had gone to hospital where Ravi Panchal was declared dead and her husband was admitted for treatment; police met her in the hospital and recorded her statement; all the accused persons in furtherance of their common intention had inflicted injuries on the body of Ravi Panchal (deceased) and also caused injuries to Arjun Panchal in order to cause death.
18.PW8 is Harish Panchal son of deceased Ravi Panchal. He was aged about 13 years and some questions were put to him in order to find out if he could be a competent witness and understood the sanctity of Oath. He was found to be having understanding of the court proceedings and was found to be a competent witness and was administered Oath. He deposed that on 17/11/2005 his father Ravi Panchal was present in front of their house no. 203, Gurmandi, G.T Karnal Delhi; at about 8.00 a.m accused Raghunath @ Nanha Bachcha came there and his father asked him as to why he teased the sisters of others; the accused stated that he would continue to do so and he (Ravi Panchal) may do whatever he likes; the accused started grappling with his father on which his father called Arjun Panchal for help; accused Raghunath @ Nanha Bachcha left saying that he will come again ::17::
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PS: Model Town and to teach them a lesson; he came back after some time and was accompanied by his brothers and sister (the witness correctly identified and pointed out at the accused persons present in the court). He further deposed that accused Raghunath @ Nanha Bachcha was carrying a chhura in his hand and stated that he would teach a lesson and gave a chhura blow on the chest of his uncle Arjun Panchal who fell down on the ground; his father tried to rescue him but was caught by one Soni; accused Raghunath @ Nanha Bachcha gave a knife blow on the person of his father which hit him on his heart and he fell down; the other accused gave leg and fist blow on the person of his uncle; he alongwith his Aunt Meenu Panchal raised a noise; police came there and apprehended accused Raghunath @ Nanha Bachcha, Seema and Hari Nath @ Bada Bachcha, whereas accused Natul @ Soni escaped from there; accused also pelted stones on them when they were raising noise; his father and uncle were taken to Hindu Rao Hospital and the pant which he was wearing had got stained with blood and was taken into police possession vide memo Ex.
PW8/A. In his cross-examination he deposed that the police reached on the spot as soon as they raised alarm ; his school timing was 9 am to 1.30 p.m and the school was situated at a ::18::
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PS: Model Town walking distance of 5/7 minutes; he had not gone to the school on the day of occurrence.
OTHER MATERIAL WITNESSES AND POLICE WITNESSES
19.PW12 Ct.Kamal Singh deposed that on 17-11-2005, he was posted at Police Station Model Town and alongwith Ct. Deepak and Ct. Dhir Singh was present at Gur Mandi Police Picket in order to prevent and detect snatching of chain etc.; they were on duty from 7:00 a.m. to 9:00 a.m. and at about 8:50 a.m. they heard a noise "Bachao Bachao" from the side of House no. 203, Gur Mandi; they went there and saw accused Raghunath @ Nanha Bachcha running away with his two brothers the other accused present in the court. He further deposed that he had apprehended accused Raghunath @ Nanha Bachcha whereas Ct. Deepak had apprehended the accused Hari Nath @ Bada Bachcha (the witness has pointed out towards him); Ct.Dhir Singh had apprehended accused Seema; accused Raghunath @ Nanha Bachcha had received injury on his head and was removed to Bara Hindu Rao Hospital in a PCR; a person was lying on the ground in front of house no. 203, Gur Mandi; the wife and ::19::
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PS: Model Town children of the deceased were also present there.
20.This witness was cross-examined by Ld APP in which he deposed that on the spot Meenu and Harish Panchal had told him that the accused had given a Chhuri blow on the person of Arjun Panchal and Ravi Panchal; that accused Raghunath @ Nanha Bachcha, Hari Nath @ Bada Bachcha and Seema were arrested vide memo Ex.PW4/B, Ex.PW4/A and Ex. PW4/C respectively. He further deposed that on interrogation the accused had told that the weapon of offence i.e. the Chhuri had been handed over to accused Natul @ Soni who had run away from the spot; accused Natul had surrendered in the court on 22-12-2005 and was arrested and pointed out the place where he had thrown away the weapon of offence; the disclosure statement of accused Soni @ Natul and pointing out memo are signed by him and the same are Ex.PW12/A and Ex. PW12/B respectively. He has also proved the arrest memo and personal search memo of accused Soni @ Natul as Ex.PW12/C and PW12/D. In his cross examination by Ld. Defence Counsel he had deposed that they reached on the spot at about 8:50 a.m ; about 20/25 persons had gathered there; they remained on the spot for about 5/7 minutes.
21.PW13 Ct. Deepak Kumar has corroborated the version given by ::20::
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PS: Model Town PW12 Ct. Kamal and deposed that Ravi Panchal and Arjun Panchal were lying on the ground in an injured condition; accused Nanha Bachcha @ Raghunath and Harinath @ Bada Bachcha as well as Seema were present on the spot and were trying to run away; accused Seema was apprehended by Ct. Dhir Singh with the help of PW4 Meenu, accused Raghunath @ Nanha Bachcha was apprehended by Ct. Kamal and accused Harinath @ Bada Bachcha was apprehended by him; he had taken accused Harinath @ Bada Bachcha to the police station whereas accused Raghunath @ Nanha Bachcha was taken to hospital in a PCR Van by Ct. Kamal; on the spot PW4 Meenu and PW8 Harish Panchal had told them that accused Raghu Nath @ Nanha Bachcha had given Chhuri blows on the person of Ravi Panchal and Arjun Panchal; they had also learnt that accused Natul @ Soni was also present on the spot and had run away. This witness has also stated that all these three accused persons were arrested in his presence. In his cross examination by Ld. Defence Counsel he deposed that his statement was recorded on the spot besides those of the eye witnesses; only one PCR had reached the spot; Ravi Panchal and Arjun Panchal were removed to Hindu Rao Hospital in a Tempo as PCR van had not arrived by them and Ct.
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PS: Model Town Rakesh had accompanied the injured to the hospital.
22.PW18 Ct. Dhir Singh has also supported and corroborated the version of PW12 Ct. Kamal and PW13 Ct. Deepak regarding their presence at the police picket, Gur Mandi from 7:00 a.m. to 9:00 a.m. He deposed that at about 8:50 a.m. on hearing a noise of "Bachao Bachao", they went to the spot opposite house no. 203 Gurmandi and saw accused Raghunath @ Nanha Bachcha, Harinath @ Bara Bachcha and Seema running away from the spot; he had apprehended accused Seema and Ct. Kamal apprehended accused Raghunath and Ct. Deepak had apprehended accused Harinath; accused Raghunath @ Nanha Bachcha was having an injury on his head; PW4 Meenu had met him on the spot and Arjun Panchal was also present in injured condition. He further deposed that he took accused Seema and Ct. Deepak had taken accused Harinath @ Bada Bachcha to Police Station Model Town and produced before Inspector Heera Lal. Ct. Kamal had taken accused Raghunath @ Nanha Bachcha to hospital in a PCR van; accused Natul @ Soni had run away from the spot. In his cross- examination by Ld defence counsel he has deposed that the police picket was 15/20 paces from the spot.
23.PW19 Ct. Rakesh Kumar had joined the investigation alongwith ::22::
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PS: Model Town SHO Inspector Heera Lal and went to hospital. He has reached the spot alongwith ASI A.A. Khan. In the hospital the SHO obtained MLC of Ravi Panchal and Arjun Panchal and the duty Ct. at Hindu Rao hospital had handed over to Inspector Heera Lal a packet containing the vest of injured Arjun Panchal which was taken into possession vide memo Ex. PW9/A; Inspector Heera Lal recorded the statement of injured Arjun Panchal; then they returned to the spot where blood stained earth were taken by the IO in his presence vide memo Ex. PW10/A and Ex. PW10/B respectively. He further deposed that PW8 Harish Panchal son of deceased Ravi Panchal had handed over to the IO his blood stained pant which was also taken into possession vide memo Ex. PW8/A; Inspector Heera Lal then gave rukka to him and he went to Police Station for registration of the case. He further deposed that he returned to the spot alongwith copy of the FIR and gave the same to the IO. After postmortem of Ravi Panchal the doctor handed over to the IO the blood stained clothes of the deceased, sample of blood alongwith sample seal which were taken into possession vide memo Ex. PW19/A. The witness has further identified the pant of PW8 Harish Panchal as Ex. P1. The pajama and the shirt of accused Raghunath @ Nanha Bachcha as Ex. P2 ::23::FIR no. 670/05
PS: Model Town and Ex. P3 which were taken into possession in his presence vide memo Ex. PW10/E.
24.PW10 ASI Ashiq Ali has deposed that on 17/11/2005 he was on emergency duty in Police Station Model Town and had received DD no. 19B Ex. PW10/A at about 9 a.m and went to the spot alongwith Ct. Rakesh Kumar. The SHO Inspector Heera Lal had also reached on the spot and then SHO went to Hindu Rao Hospital alongwith Ct. Rakesh Kumar and he remained on the spot for the purpose of guarding the spot. He has successfully deposed about the investigation carried out on the spot by the IO and has corroborated other police witnesses on all material points.
25.PW21 is Inspector Heera Lal, investigating Officer who has fully supported and corroborated the other material witnesses on all material points of the investigation carried out in this case. He deposed that on 17/11/2005 he was present in Police Station Model Town as SHO and on receiving DD no. 19B he alongwith his staff reached to house no. 203 Gurmandi, Rana Pratap Bagh main road. He further deposed that he went to the hospital and obtained the MLC of injured Ravi Panchal and Arjun Panchal; on the MLC of the Ravi Panchal the doctor had declared him ::24::
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PS: Model Town brought dead and Arjun Panchal was declared fit for statement and on his MLC the injuries opined were as grievous; he recorded statement of Arjun Panchal in his own handwriting which was Ex. PW3/A and the same was endorsed as rukka Ex. PW21/A; he prepared the site plan Ex. PW20/B on the pointing out of PW8 Harish Panchal son of deceased Ravi Panchal; the pant of Harish Panchal which he was wearing having blood stains and was seized vide memo Ex. PW8/A and after converted it into a sealed parcel it was sealed with the seal of HL; the blood which was lying on the spot was taken as sample in a plastic container and converted into a cloth parcel and was sealed with the seal of HL; the earth control sample was also seized from the spot vide Ex. PW10/C and was converted into a sealed cloth parcel ; from the spot he went to the hospital where duty Ct. Narender Singh handed over him one sealed parcel containing the baniyan of Arjun Panchal alongwith sample seal; he prepared the inquest papers Ex. PW21/C; he received one seal parcel containing the clothes of deceased and one sealed blood sample alongwith sample seal; the sealed parcels were deposited in malkhana in intact condition. This witness has further corroborated the version of Ct. Kamal Singh, Ct. Dhir Singh and Ct. Deepak Kumar ::25::FIR no. 670/05
PS: Model Town with regard to the apprehension of the accused persons by them on the spot and also their disclosure statements, apprehending of accused Natul @ Soni and his disclosure statement regarding his pointing out to the place at Ganda Nala of Rana Pratap Bagh where he has allegedly thrown the knife used by accused Nanha Bachcha @ Raghunath in causing injury to the deceased and another injured. He further deposed that they tried to trace the knife on the night 22-23/12/2005 but the same could not be traced. He further deposed that the report of the Crime Team was produced before him which was Ex.PW21/G. He has correctly identified the pants of PW8 Harish Panchal Ex. P1, Pajama and Shirt of accused Raghunath @ Nanha Bachcha Ex.P2 and P3; printed shirt of accused Natul @ Soni as Ex. PX. In his cross examination by Ld. Defence Counsel he deposed that he had reached the spot within 10 minutes of receiving DD No19B and there was no crowd as it was a road and injured was shifted to Hospital; wife of the deceased and 1-2 relatives were present in the hospital; he made efforts to inquire the neighbourers but none agreed to join investigation.
MEDICAL AND FORENSIC WITNESSES ::26::FIR no. 670/05
PS: Model Town
26. PW5 Dr. M. K. Panigarhi, CMO Department of Forensic Medicine Hindu Rao Hospital, Delhi had conducted the postmortem on the dead body of deceased Ravi Panchal and had found three external injuries on his body. He has stated in his report Ex. PW5/A that on dissection of external injury no. 1 the stab wound after piercing the skin and subcutaneous tissues, vertically cut the sixth rib (left) into two pieces at the level of 11 cm away from the xyphisternum. Then it enters into the left plural cavity and cut the anterior edge of the lower border of the upper lobe of left lung measuring about 1.5 cm long. Then it pierces through the left side of the pericardium to enter into the pericardial sac and then pierces the post lateral wall of the left ventricle at the level of 2 cm above the apex of the heart to end in the left ventricle. The cut on the heart measuring about 5 cm long and cleanly cut. The length of the tract is about 11 cm long.
27. His opinion regarding death is as under :-
1. Death is due to hemorrhage and shock, consequent to puncture of the left ventricle of the heart by a sharp pointed cutting weapon.
2. All the injuries described above are ante-
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PS: Model Town mortem and recent in nature.
3. External injury no.1 is fatal in nature and could have been caused by thrusting of the sharp pointed end of a weapon; and is sufficient to cause death in ordinary course of nature.
4. External injury no.2 is superficial in nature and could have been caused by the sharp edge of a cutting weapon and is consistent with the defence wound. External injury no.3 could be possible by hard and blunt force impact.
5. Time since death at the time of postmortem examination is about 7 hrs. to 8 hrs.
28.In his cross-examination by Ld defence counsel PW5 has deposed as under :
" injury no.1 is possible by fall on a sharp and pointed object if it is placed in a vertical position . Injury No. 2 is not possible by fall on a sharp and pointed object as in this case a thrust has been used while inflicting the injury. Injury No.3 is possible by fall on a hard surface.
29.PW22 Dr. Pratibha Singh was working as Senior Resident in ::28::
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PS: Model Town Hindu Rao hospital on 17/11/2005 and deposed that on that day Ravi Panchal was brought to the hospital by Krishna his wife with case history of stab injuries and on examination the patient was having found no life signs and was accordingly declared brought dead. The MLC was prepared by her which was Ex. PW22/A. She further deposed that on the same day Arjun Panchal was also brought to the hospital by Krishna his Bhabhi with case history of stab wound injury and on his examination, she found the external injury i.e stab wound around 2.5 cm in just right to mid sternal point. The nature of injury was given as grievous and the weapon was written as knife on the MLC Ex. PW22/B. In his cross-examination by Ld defence counsel she has denied the suggestion that weapon of offence as knife was written at the instance of the Investigating Officer on the MLC Ex. PW22/B and the stab injury was mentioned on the MLC Ex. PW22/A at the instance of the Investigating Officer.
30.PW15 Shri Naresh Kumar Sr. Scientific Assistant, FSL, Rohini has proved the FSL report Ex. PW15/A and stated that on 3/2/2006 eight sealed parcels were received in the office of the FSL containing eight exhibits. In biological examination the blood was detected on Ex. 1,2,3, 4a, 4b, 4c, 4d and 4e, 5, 6, 7a and 7b.
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PS: Model Town The blood could not be detected on Ex. 8 (which was the shirt of accused Natul @ Soni). On Ex. 1 Baniyan Ex. 4a to Ex. 4c i.e shirt, pant and baniyan of the deceased and the injured alongwith Ex. 5 blood stain gouge and Ex. 6 (pant of PW8 Harish Panchal), the blood of "A" group was detected. The blood of the deceased Ravi Panchal and the injured Arjun Panchal is "A" group as per their blood samples. On Ex. P2 i.e Shirt of accused Nanha Bachcha @ Raghunath (Ex. 7a, as per the FSL report no human blood was detected) and on Ex. P3 i.e pajama of Nanha Bachcha @ Raghunath the blood detected was of "O" group.
1. The accused persons were examined u/s 313 CrPC. Accused Seema stated that she was innocent and has been falsely implicated after lifting her from her house because she is sister of accused Raghunath and she had nothing to do with the alleged offence. Accused Soni @ Natul has stated that he was innocent and falsely implicated because on the alleged date of incident , he was not present in Delhi and has gone to Balaji, Rajasthan for his treatment on 15/11/2005 and had returned to Delhi on 14/12/2005. On 20/12/2005 he had moved an application for surrender before the court and on 22/12/2005 he has surrendered in the court and was falsely implicated being younger brother of ::30::FIR no. 670/05
PS: Model Town accused Raghunath. Accused Harinath @ Bada Bachcha stated that he has been falsely implicated being elder brother of accused Raghunath @ Nanha Bachcha and was arrested from his house. Accused Nanha Bachcha @ Raghunath has stated that on 14/11/2005 he had not teased Smt Durgesh, Bhabhi of Ravi Panchal. In fact on 17/11/2005, he was going on the road alongwith his pigs, goats and ducks. In the meantime Ravi Panchal came there driving his motorcycle in rash and negligent manner and when he asked him not to drive in that manner, Ravi Panchal stated that he will continue to drive in the said manner as he liked. On that a quarrel has taken place and Ravi Panchal had given a danda blow on his head as a result he had lost consciousness and Ravi Panchal had fallen on "Aarra" as a result of which he had received injuries on his person. All the accused desired to lead evidence in defence.
2. The accused persons have examined two witnesses in their defence. DW1 Vishwanath deposed that on 15/11/2005 he went to Balaji alongwith Natul @ Soni and returned to Delhi on 14/12/2005; they went to Balaji Mehandipur because Natul @ Soni was having Bad Air (upari Hawa) influence. On return they came to know that Natto's name has been mentioned in a ::31::FIR no. 670/05
PS: Model Town criminal case, he made an application for surrender on 20/12/2005; the SHO told him that in case Natto surrendered, the looted property from their house would be got returned; despite surrender of Natto the property was never returned. He further stated that he alongwith Natto left Delhi on 15/11/2005 at 12.30 p.m by bus for going to Balaji Mehandipur and returned by bus on 14/12/2005. The tickets of the bus are Ex. DW1/A and DW1/B.
3. In his cross-examination by Ld Addl. PP for the State DW1 stated that accused Natul @ Soni was his younger brother; there was no number of bus and date on tickets Ex. DW1/A and Ex. DW1/B.
4. DW2 is Smt Maina Devi mother of accused persons and deposed that about 3 years ago at about 8 am a quarrel took place between Raghunath and Ravi Panchal and Arjun Panchal. At 9.00a.m police took away her alongwith Seema, Harinath @ Bada Bachcha and her husband Jiya Lal to the Police Station. They were let to go from Police Station at 7.00 p.m but Seema and Harinath @ Bada Bachcha were not allowed to go. Police asked them not to go their home and to produce Soni @ Natul; their household articles were looted and she had made application to various Authorities. In her cross-examination she stated that Raghunath @ Nanha Bachcha was taken from the spot as he had ::32::FIR no. 670/05
PS: Model Town sustained injuries.
5. I have heard the Ld. Amicus Curiae Ms. Sadhna Bhatia for accused persons. She has argued that there is no role of accused Natul @ Soni, Hari Nath @ Bada Bachcha and Seema. The investigation was biased because accused Raghunath @ Nanha Bachcha sustained severe injuries and got ten stitches in his head but no cross case was registered by the police. All the witnesses have improved their statement given to the police and have been confronted on various points which makes their evidence shaky and the same was not worthy of reliance. A quarrel took place between accused Raghunath @ Nanha Bachcha and deceased Ravi Panchal as a result deceased fell on an "Aarra" (Saw) and got injured. PW5 Dr. M.K. Panigrahi in his cross-examination stated that injury no.1 was possible by falling on sharp edged object.
6. It is further argued that no public witness was joined; no complaint of alleged teasing of Krishna Devi W/o Arjun Panchal and sister-in-law of deceased Ravi Panchal was made to the police and the story has been concocted just to impute a false motive to the accused persons; accused Natul @ Soni was not on the spot as he had gone to Balaji for his treatment and successfully proved his plea of Alibi by examining the DW1 and ::33::FIR no. 670/05
PS: Model Town DW2. The cross-examination of PW3 (at page 2) Arjun Panchal injured shows that he has improved his statement Ex.PW3/A for showing the presence of accused Natul and Seema on the spot; the statement of PW8 Harish Panchal regarding catching hold of his deceased father by the accused Natul @ Soni and Seema was contradictory to the deposition of PW3 in that regard. Ld. Defence Counsel further argued that it is admitted by PW3 Arjun Panchal that he used to do cycle rickshaw work and a SAW (AARRA) was installed there, hence the defence taken by accused persons was probable wherein they have alleged that deceased Ravi Panchal and injured Arjun Panchal sustained injuries by falling on the AARRA; the MLC of deceased Ravi Panchal does not mention the name of assailant despite the fact that he was got admitted in the hospital by his wife who has been cited as eye witness by the prosecution.
7. Lastly, it was argued that the weapon of offence has not been recovered which shows that accused persons have been falsely implicated.
8. Ld Addl. PP for the state on the other had argued that deposition of all the eye witnesses is reliable and has not been assailed during cross-examination. Their testimony can not be ::34::
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PS: Model Town discarded merely on the ground that they are relatives of the deceased Ravi Panchal. Secondly, no adverse inference can be drawn if name of the assailant is not mentioned in the MLC.
9. Thirdly, the deposition of material eye witnesses is supported and corroborated by other material witnesses PW12 Ct. Kamal Singh, PW13 Ct. Deepak Kumar and PW18 Ct. Dhir Singh who had reached on the spot after hearing the noise of the quarrel and shouts of witnesses.
10.Lastly, Ld Addl. PP for the state vehemently argued that all the witnesses have uniformly deposed regarding the injury caused by the accused persons to the person of the deceased and injured and they have uniformly deposed about the presence of all the accused persons and their active participation in the assault upon the injured Arjun Panchal and deceased Ravi Panchal which was done by accused persons in furtherance of their common intention. Ld Addl. PP for the state, therefore, submitted that prosecution has successfully proved its case against the accused person beyond any reasonable doubt and all the accused are, therefore, liable to be convicted.
11.I have considered the rival submissions and gone through the evidence on record.
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12. In order to prove the motive for commission of the offence by the accused persons, the evidence of PW7 Smt Durgesh has sufficiently proved that on 14/11/2005 three days before the incident accused Nanha Bachcha @ Raghunath had teased her while she was witnessing a Nagar Kirtan Procession outside her house; since the elders in the house including her husband were not present, therefore, she informed her mother-in-law telephonically about the incident and deceased Ravi Panchal was told about the incident on 16/11/2005 by her mother-in-law after her return from Sahibabad; she has further deposed that on 17/11/2005 at about 8.00/8.15 a.m her brother-in-law deceased Ravi Panchal was outside their house and accused Nanha Bachcha @ Raghnuath came there, on which Ravi Panchal asked him about the incident and questioned his behaviour by asking him as to why he has teased her (Ms. Durgesh); the accused retorted by saying that he would continue to do so and Ravi Panchal was free to do whatever he liked; on this they grappled with each other and Smt Durgesh called everybody in the house including her husband; the accused Nanha Bachcha @ Raghunath had run away by saying that he will teach a lesson. All the material eye witnesses including PW3 Arjun Panchal has ::36::
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PS: Model Town corroborated and supported the deposition of PW7 Ms. Durgesh and have uniformly deposed about the incident in the same manner. There is nothing in the cross-examination of all the material eye witnesses i.e PW3 Arjun Panchal, PW6 Krishna Devi, PW7 Durgesh and PW8 Harish Panchal so as to assail their deposition regarding the motive of the accused persons for committing the offence.
13.Ld defence counsel has strongly argued that the deposition of these material eye witnesses was not worthy of reliance because they were relative of deceased and injured and therefore were interested witnesses. Secondly, they have improved their statements made to the police and has been confronted with the same in their cross-examination. It is settled law that relationship is not a factor to affect the credibility of a witness so as to discard their testimony of being a partition witness. A reliance can be placed on Arjun Mahto Vs. State of Bihar , 2008 V AD (Cr.) (SC) 19. Para no. 5 and 6 are relevant and reads as under:-
Para. 5: Merely because the eye-witnesses are family members their evidence cannot per se be discard. When there is allegation of interestedness, the same has to be established. Mere statement that being ::37::FIR no. 670/05
PS: Model Town relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Para. 6 :In Dalip Singh and Ors. Vs. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There ::38::FIR no. 670/05
PS: Model Town is no such general rule. Each case must be limited to and be governed by its own facts.
14.Similarly in Vinay Kumar Rai and Another Vs. State of Bihar, 2008 V AD (Cr) (SC) 392. In para no. 6 and 13 it was held as under:-
Para no. 6: Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relative of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Para no. 13: The over insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house, it is upragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the ::39::FIR no. 670/05
PS: Model Town court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnesses the events and not those who have not seen it though the neighborhood may be replete with other residents also.
15.Thus all these material eye witnesses though being family member of the deceased are the natural witnesses to the occurrence which has happened in front of their dwelling house. It is not the case of the prosecution that any other public person has witnessed the actual commission of the offence by the accused persons and that public person has not been examined as a witness. Hence, the prosecution can not be said to be at fault by non-examining public persons as witnesses as was argued by Ld Amicus Curiae for the accused persons.
16. Once the motive for the commission of the offence stands established, the next question to be determined is whether the witnesses have successfully proved the causing of the injury to ::40::
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PS: Model Town the person of deceased Ravi Panchal and injured Arjun Panchal by the accused persons. In that regard the most natural witnesses to the incident is PW3 Arjun Panchal who is himself injured and has sustained knife injury at the hand of accused Raghunath @ Nanha Bachcha. Another witness who can be considered to be in the category of most natural witness is PW8 Harish Panchal son of deceased Ravi Panchal. Presence of PW8 Harish Panchal stands proved from the fact that his blood stained pant was taken into possession and was sent for chemical examination and the same was found containing human blood stains and the blood group has tellied with the blood group of deceased and injured.
17.The material portion of deposition of PW3 is as under:-
" On 17th November, 2005 at about 8.20/8.30 a.m, the accused Raghunath was passing in front of my house. My brother Ravi Panchal called him and asked him as to why he had teased my wife on 14th November, 2005. The accused did not feel remorse and went away saying that he will repeat his acts and my brother could do whatever he wanted. The accused also threatened my brother to teach him a lesson. After about 5/7 minutes, accused Raghunath, accompanied by his brother Hari Nath, Natul and sister Seema came to the spot. Raghunath was carrying a knife meant for ::41::FIR no. 670/05
PS: Model Town slaughtering purposes. They all came abusing. Accused Raghunath gave a blow with the knife being carried by him on my chest. In the meanwhile, my brother Ravi Panchal came out of the house in order to save me. Accused Seema and Natul had caught hold of me from my back. Accused Hari Nath caught hold of my brother Ravi Panchal. Accused Raghunath gave a knife blow on the chest of my brother. I could not rescue my brother as accused Seema and Natual were holding on to me. My brother fell down on the ground on receiving the stab injuries. We raised a noise. The accused had started pelting stones on us. Police had reached the spot on hearing our cries. My brother was removed to Hindu Rao Hospital along with me. Police had apprehended accused Hari Nath, Raghu Nath and Seema whereas Natul had been successful in escaping from the spot. Accused Hari Nath is also known as "Bada Bachcha" whereas accused Raghunath is known as " Nanha Bachcha". My brother was declared "Brought dead" at the hospital whereas I was given medical treatment. I got myself discharged from the hospital as my brother had to be cremated. All the accused had killed my brother in furtherance of their common intention and had also inflicted injuries on my person. My statement was recorded by the police at Hindu Rao Hospital which is Ex. PW3/A and bears my signatures at point-A."
18. Thus the above deposition of PW3 Arjun Panchal implicates the accused persons in the manner that after about 5/7 minutes of the quarrel between deceased Ravi Panchal and accused Raghunath @ Nanha Bachcha, the accused returned carrying ::42::
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PS: Model Town knife meant for slaughtering purposes and was accompanied by all the other 3 accused persons who came abusing and accused Raghunath @ Nanha Bachcha gave a blow with the said knife on his chest. When his brother Ravi Panchal (deceased) tried to save him, he was caught hold by accused Harinath @ Bada Bachcha and accused Raghunath @ Nanha Bachcha gave a knife blow on his chest. When PW3 Arjun Panchal tried to help his brother, he was caught hold by accused Seema and Natul @ Soni. PW3 Arjun Panchal further deposed that accused persons had also started pelting stones upon them and police came there and apprehended accused Raghunath @ Nanha Bachcha, Harinath @ Bada Bachcha and Seema and whereas accused Natul had escaped from the spot. Ld Amicus Curiae had pointed out the cross-examination of PW3 Arjun Panchal wherein he was confronted with statement Ex. PW3/A where it was not recorded that he has told to the police he could not rescue his brother as accused Seema and Natul had caught hold of him. It is not the case of the defence that the statement Ex. PW3/A was containing something contrary to the above deposition. Whatever is deposed by a witness in the court about the incident seen by him is not expected to be narrated in photographic manner to the ::43::FIR no. 670/05
PS: Model Town police at the time of recording of statements, hence, absence of those words from the statement Ex. PW3/A does not amount to contradiction or improvement in the deposition of PW3 Arjun Panchal so as to conclude that he has falsely implicated accused Raghunath @ Nanha Bachcha, Harinath @ Bada Bachcha, Seema and Natul @ Soni.
19. PW8 Harish Panchal has fully supported and corroborated the PW3 Arjun Panchal and has narrated the incident in the same manner. He has deposed that accused Nanha Bachcha @ Raghunath gave a churra blow on the chest of uncle Arjun Panchal who fell down on the ground and when his father Ravi Panchal tried to rescue him, he was caught by another accused Soni and accused Nanha Bachcha @ Raghunath gave a knife blow on the chest of his father which hit him on his heart as a result he fell down. PW8 Harish Panchal further deposed that at that time the other accused gave leg and fist blow on the person of his uncle and when they raised a noise, the accused persons had also pelted stones on them. Again the contention of Ld Amicus Curiae that the deposition of PW8 Harish Panchal was an improvement upon the statement Ex. PW8/DA recorded by the police, the same does not hold water. It is so because the deposition of PW8 ::44::
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PS: Model Town Harish Panchal who is aged about 13 years is spontaneous and natural, so as to leave any scope of falsehood in it. Whatever is not reduced into writing by the police and deposed in the court by the witness can not be said to be an improvement if the said witness has successfully withstood the test of cross-examination on the point as to what has been witnessed by him in reality.
20. Whatever deposed by the PW3 Arjun Panchal, PW8 Harish Panchal and other material eye witnesses also finds corroboration with the medical evidence. The injury as stated by PW8 Harish Panchal and PW3 Arjun Panchal finds corresponding mention in the MLC Ex.PW22/A and Ex. PW22/B and the postmortem report is Ex. PW5/A. PW8 Harish Panchal has stated that the knife blow given by accused Nanha Bachcha @ Raghunath to his father Ravi Panchal hit him on his heart finds corroboration from the testimony of PW5 Dr. M. K. Panigarhi who has conducted the postmortem on the body of Ravi Panchal and has deposed that there was a cut on the heart measuring about 5 cm long and cleanly cut and the length of tract was about 11 cm long. As deposed by PW4 Meenu the accused Nanha Bachcha @ Raghunath came back having a chhura meant for slaughtering of pigs in his hand has established the fact that the ::45::
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PS: Model Town knife was of such a nature which in all probability could have caused the injury sustained by injured as well as deceased.
21. Thus the deposition of these material witnesses supported by other eye witnesses has unequivocally established the role of each accused while sustaining injury by injured Arjun Panchal and deceased Ravi Panchal at the hand of accused Raghunath @ Nanha Bachcha. From the above discussion, it is established that all the accused persons have participated in the assault which resulted into grievous hurt to injured Arjun Panchal and fatal injury causing death of Ravi Panchal.
22. The next question which requires consideration is Whether the prosecution has proved the common intention of all the accused persons in furtherance of which accused Nanha Bachcha @ Raghunath gave the fatal blow with the knife to the injured as well as the deceased. As already discussed, the PW3 Injured Arjun Panchal has clearly deposed that accused Nanha Bachcha gave a chura blow to him and when his brother deceased Ravi Panchal came forward to protect him, he was caught hold by accused Hari Nath @ Bada Bachcha and accused Nanha Bachcha @ Raghunath gave chhura blow to the person of Ravi Panchal and when he ::46::
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PS: Model Town (Arjuan Panchal PW3) tried to save his brother, the accused Seema and Natul caught hold of him as a result he could not save his brother from the chhura blow given by accused Raghunath @ Nanha Bachcha. This deposition of PW3 has been corroborated and supported by all other material eye witnesses. There is no material contradictions in the deposition of these witnesses in that regard and there is nothing in their cross-examination which may make their deposition unbelievable to that effect.
23. In AIR 1993 SC 1899, Ch. Pulla Reddy and others Vs. State of Andhra Pradesh it was held that Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34 it is not necessary to show some overt act on the part of the accused. In the case in hand the witnesses have even assigned the overt act to each and every accused done by them during their murderous assault with deadly weapon upon the injured and the deceased.
24. In Ashok Kumar Vs State of Punjab, AIR 1977 SC 109, it was held that it is not necessary that the acts of the several persons charged with the commission of an offence jointly must be the ::47::
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PS: Model Town same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The existence of a common intention amongst the participants in a crime is the essential element for application of this section.
25. In 2009 I AD (Cr) (SC) 57, "Kilari Malakondiaah @ Malayadri @ Ors. Vs. State of Andhra Pradesh" the Hon'ble Apex Court has reiterated the principle of applicability of joint liability in the commission of criminal act u/s 34 of the IPC and was pleased to hold as under:-
"Para. no. 7 Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has establish by evidence, whether direct or circumstantial, that there was plan or ::48::FIR no. 670/05
PS: Model Town meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre- arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs State of Punjab (AIR 1997 SC 109), the existence of a common intention amongst the participants in a crime is the essential elements for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
Para:8 The section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part ::49::FIR no. 670/05
PS: Model Town was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. V. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34 it is not necessary to show some overt act on the part of the accused."
26. Accused Natul @ Soni has failed to prove his plea of alibi to the effect that on the date of incident he was in Balaji Mehandipur, Rajasthan for his treatment and had gone there on 15/11/2005 and returned on 14/12/2005. He has examined DW1 Shri Vishswanath his elder brother in that regard and who has placed on record two tickets Ex.DW1/A and Ex. DW1/B in order to prove that they had gone to Balaji Mehandipur, Rajasthan by bus on 15/11/2005. In cross-examination the DW1 admitted that there was no number of bus and the date mentioned on the tickets Ex. DW1/A and Ex. DW1/B. Ld APP for the state argued that such tickets could have been procured very easily in order to make a false defence. The accused has failed to place on record any evidence to prove that on the date of incident he was not in Delhi and was in Rajasthan.
27. Accused Harinath and Seema had taken the defence that they were lifted from their residence and were falsely implicated in this case for the reasons that they were brother and sister of ::50::
FIR no. 670/05
PS: Model Town accused Raghunath @ Nanha Bachcha. As already discussed, all the material eye witnesses and police witnesses Ct. Dhir Singh PW18, PW12 Ct. Kamal Singh and PW13 Ct. Deepak Kumar have deposed that all the three accused persons i.e Nanha Bachcha @ Raghunath, Harinath @ Bada Bachcha and Seema were present on the spot and when after the incident they tried to run away, were apprehended by these constables who had reached on the spot within minutes after hearing noise of "Bachao Bachao". The evidence of these material witnesses is highly believable and they have successfully withstood the test of examination in that regard. The evidence of DW2 Maina Devi, mother of the accused persons has also established the presence of accused Raghunath @ Nanha Bachcha and deceased Ravi Panchal and injured Arjun Panchal on the spot. She has deposed that about three years ago about 8.00 A.M a quarrel took place between Raghunath (Nanha Bachcha) and Arjun Panchal and Ravi Panchal. At 9.00 A.M police took away myself, Seema, Harinath and Jiyalal (her husband) to police station from their house. In her cross- examination she has stated that Raghnuath was taken from the spot as he had sustained injuries.
28. From the above discussion the presence of all the four accused ::51::
FIR no. 670/05
PS: Model Town persons on the spot at the time of alleged occurrence stands proved beyond any reasonable doubts. The prosecution has been successful in proving beyond any reasonable doubt that all the accused persons had participated in the commission of the offence with the common intention to commit murder of deceased Ravi Panchal and in pursuance of their said common intention accused Nanha Bachcha @ Raghnunath had also caused grievous hurt to injured Arjun Panchal and attempted to commit his murder, who was given a stab wound around 2.5cm in just right to mid sternal point (breast bone) which is vital part of the body. Causing stab injury with a deadly weapon i.e chhura on a vital part of body and causing death of a person who came forward to save Arjun Panchal is a circumstance which leads to the conclusion that accused Nanha Bachcha @ Raghunath had given a stab blow to Arjun Panchal with an intention to commit his murder. Arjun Panchal has survived of this murderous assault by luck as the blow has escaped from hitting his vital organs. It also stands established beyond any reasonable doubt that all the accused persons had participated in furtherance of their common intention to cause injury to the person of Arjun Panchal with an intention to commit his murder and further such a bodily ::52::FIR no. 670/05
PS: Model Town injury to deceased Ravi Panchal who had died because of the stab injury caused to him by accused Nanha Bachcha @ Raghunath with the deadly weapon Chhura.
29. The contention of Ld defence counsel that the weapon offence was not recovered hence it shows that accused persons have been falsely implicated, does not hold water, because PW21 Inspector Heera Lal Investigating Officer of this case has deposed that accused Raghnuath @ Nanha Bachcha has disclosed that he had handed over the chhuri to his brother Natul @ Soni who had run away from the spot. He further deposed that accused Natul @ Soni made an application in the court and had surrendered in the court of Ms. Preeti Aggarwal, Ld MM and with the permission of the court he was arrested. On interrogation, the said accused had made his disclosure statement Ex. PW12/A and had led the police party to the place of occurrence and on his pointing out, the pointing out memo Ex. PW12/B was prepared. It is further deposed by the IO that the accused further led them near the Ganda Nala of Rana Pratap Bagh and stated that he had thrown the knife in the Ganda Nala but he did not point out the particular place where he had thrown the chhuri. It is further deposed that they tried to trace the knife but it could not be ::53::
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PS: Model Town traced. There is nothing in the cross-examination of Investigating Officer (PW21) so as to assail his deposition in that regard. The prosecution has thus succeeded in proving its case against all the accused persons beyond any reasonable doubt. I therefore hold them guilty and convict them for the offence u/s 302/34 IPC and also u/s 307/34 IPC.
Announced in the open court
on 14/1/2009 (RAJ KUMAR CHAUHAN)
ASJ/SPECIAL JUDGE (NDPS)
(WEST)DELHI
::54::
FIR no. 670/05
PS: Model Town
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS):
TIS HAZARI COURT: (WEST) DELHI.
FIR No. 670/05 P.S. Model Town U/s 302/307/34 IPC State V/s Raghunath Etc. 1. Session Case No. 37/06 Name of the accused 1 Raghunath @ Nanha and parentage Bachcha s/o Sh.Jiya Lal 2 Hari Nath @ Bada Bachcha s/o Sh.Jiya Lal 3 Soni @ Natul s/o Sh.Jiya Lal 4 Seema d/o Sh.Jiya Lal ORDER ON SENTENCE Present: Ld Addl. PP for the state.
All Accused in judicial custody with Amicus Curiae Ms. Sadhana Bhatia advocate.
I have heard the Amicus Curiae for the accused persons who argued that none of them was previously convicted in any other offence. All accused are unmarried except accused Seema who is having two sons aged about 17 years and 12 years. Her elder son is suffering from Neuro problem and responsibility of these children is upon her because her husband is not living with her for the last many years. It is further submitted that other accused persons have the responsibility of aged parents and their unmarried sister. Hence, the Ld Amicus Curiae has prayed for a lenient view.
Ld Addl. PP for the state on the other hand submitted ::55::FIR no. 670/05
PS: Model Town that the deceased was aged about 38 years and life in its prime youth was lost because of the acts and the deeds of the accused persons. The brother of the deceased was seriously injured in the murderous assault perpetrated by the accused persons. Hence, the Ld Addl. PP for the state therefore submitted that seeing the gravity of offence maximum punishment be awarded to the accused persons.
Considering the gravity of offence and the facts and circumstances, all the accused persons are sentenced to imprisonment for life and fine of Rs. 2000/- each for the offence u/s 302/34 IPC. In default of payment of fine the accused shall undergo simple imprisonment for a period of two months.
All the accused persons are further sentenced to rigorous sentence for a period of 7 years and a fine of Rs. 1000/- each for the offence u/s 307/34 IPC. In default of payment of fine the accused persons shall undergo simple imprisonment for a period of one month.
Benefit of Section 428 CrPC is given to all the accused persons. Both the sentences of imprisonment shall run concurrent. Copies of the judgment and order on sentence be supplied to each accused free of cost.
File be consigned to record room.
Announced in the open court on 16/1/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIAL JUDGE (NDPS) (WEST)DELHI