Delhi District Court
State vs . (1) Vijay @ Kalia on 27 April, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Session Case No. 998/09
Unique Case ID No.: 02404R0007592009
State Vs. (1) Vijay @ Kalia
S/o Sh. Akhari Mandal
R/o 94, First Floor,
Ravi Dass Colony,
Sarai Pipal Thala, Delhi
(Convicted)
(2) Pawan Kumar
S/o Sh. Ram Chander
R/o 94, Second Floor,
Ravi Dass Colony,
Sarai Pipal Thala, Delhi
(Convicted)
(3) Sharwan Kumar @ Shahrukh
S/o Sita Ram Mehtu
R/o 94, Second Floor,
Ravi Dass Colony,
Sarai Pipal Thala, Delhi
(Convicted)
(4) Mukesh Singh
S/o Murari Singh
R/o House No. 101,
Ravi Dass Colony,
Sarai Pipal Thala, Delhi
(Convicted)
FIR No.: 186/08
Police Station: Adarsh Nagar
Under Section: 392/394/397/307/302/411/34 IPC
St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 1
Date of committal to sessions court: 9.1.2009
Date on which orders were reserved: 16.3.2011
Date of Judgment: 8.4.2011
JUDGEMENT:
As per the allegations on 16.8.2008 at about 3:30 am at D-Block Corner in an open road, Azadpur Mandi all the accused namely Vijay @ Kalia, Pawan Kumar, Sharwan Kumar and Mukesh in furtherance of their common intention committed robbery upon Sushil Kumar and the murder of Pappu by causing injuries with a sharp edged weapon i.e. ice prick (Sua). As per allegations all the accused in furtherance of their common intention committed robbery of Rs.14,800/- from the person of Pappu and in committing theft voluntarily caused the death of Pappu and attempted the cause the death of Sushil Kumar and caused hurt on chest and left arm of Sushil by using the deadly weapons i.e. ice pricks (Sua) with such an intention and knowledge and under such circumstances if they all by that act, caused the death of Sushil they all would have been guilty of culpable homicide amounting to his murder. Further, as per the allegations the accused Vijay @ Kalia and Mukesh were found in possession of Rs.7,000/- which were a part of the booty of robbery committed by them.
BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 16.8.2008 DD no. 29-A was received at Police Station Adarsh Nagar on which SI Arvind Pratap Singh along with ASI Surender Singh and Ct. Prabhu St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 2 reached at D Block Corner, Azadpur Mandi, Delhi where they came to know that the injured had been taken to BJRM Hospital. Thereafter SI Arvind Pratap Singh reached the BJRM Hospital where he found the injured Pappu and Sushil Kumar admitted and the injured Sushil Kumar was declared fit for statement whereas injured Pappu was declared unfit. SI Arvind Pratap Singh recorded the statement of injured Sushil Kumar who informed them that he is a vegetable vendor and he along with his friend Pappu had come to Azadpur Subzi Mandi to purchase vegetables and after purchasing the vegetables from D Block when they were going towards the main gate at about 3:30 am they were encircled by four persons out of which two snatched Rs.14,800/- from his pocket and when he protested the other two boys who were having ice pricks in their hands, attacked them and caused injuries to them after which the said persons ran away from the spot.
On the basis of the said statement of Sushil Kumar the present FIR was got registered. The injured Pappu could not survive and expired after a few hours of the incident. On 17.8.2008 pursuant to a secret information the accused Vijay @ Kalia, Pawan Kumar and Sharwan Kumar were arrested from DDA Park, Subzi Mandi Azadpur, Delhi. Further, on 20.8.2008 the accused Mukesh Singh was also arrested on the basis of secret information who got recovered the blood stained ice prick (sua) with which he had committed the offence. After completion of investigations all the accused were charge sheeted.St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 3
CHARGE:
The Ld. Predecessor of this court has settled the charges under Sections 302/392 read with 397/34 Indian Penal Code and also under Sections 307/34 Indian Penal Code against the accused to which they pleaded not guilty and claimed trial. Further, charges under Section 411/34 Indian Penal Code was framed against the accused Vijay @ Kalia and Mukesh Singh to which they pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as sixteen witnesses as under:
Public witnesses/ eye witnesses:
PW1 Sushil Kumar is the eye witness and had received injuries in the incident. He has deposed that he used to sell vegetable near Shahdara Metro Station and on 16.08.2008 he along with his friend namely Pappu came to Azadpur Subzi Mandi to purchase vegetables. According to him, they had purchased some vegetable from the D Block of Azadpur Subzi Mandi and were going towards the IN Gate/ Main gate and at about 3.30 AM when they were near the STD PCO on the D Block corner, they were encircled by four persons. He has further deposed that two of the accused persons snatched Rs.14,800/- from his pocket. He has identified the accused Sharwan Kumar and Pawan to be the persons who had snatched money from him. According to PW1, when he protested, two of the other accused persons who were armed with Ice pricks started St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 4 attacking him and Pappu. He has identified the accused Vijay @ Kalia to be the person, who had stabbed him and has also pointed towards the accused Mukesh as the person who was armed with ice prick. According to him, the accused persons namely Vijay and Mukesh caused injuries to with the help of ice pricks on the persons of Pappu and also to him on the left side of chest and abdomen in three places and also on his right hand and after snatching money the accused ran away. The witness has further testified that he had been gheroed by the accused persons, when he was entrapped in the traffic of trucks and when he moved out of the traffic he saw that his companion Pappu was also lying in an injured condition on the road on which he called up the PCR from his Mobile Phone and requested the public to take them to the hospital. According to the witness they were taken to a private nursing home but the guards at the Nursing Home did not let them enter the same on the pretext of police case and in the meantime, PCR officials reached there and took them to BJRM Hospital. The witness has proved having given his statement to the police in BJRM Hospital which is Ex.PW1/A. PW1 has also deposed that his mobile phone number is 9210415252 and the denomination of currency note was Ten currency notes of Rs.1000/-, Nine currency notes of Rs.500/- and Three currency notes of Rs.100/- each. According to the witness, he had identified the accused persons on 15.09.2008 in the Rohini court Complex when the accused persons had produced in the some court. He has testified that his blood stained clothes were seized at the hospital and has identified his clothes i.e. a white shirt with cuts on St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 5 the left chest side which is Ex.P1 and a vest bearing a cut corresponding to the cut in the shirt which is Ex.P2. The witness has further deposed that within a month of the occurrence he was again called at the hospital which his blood sample was taken by the doctor. The witness has been shown the currency notes on which the witness has stated that the currency notes may be among from the ten currency notes of Rs.1000/- which were snatched. In respect of ice pricks the witness has deposed that he may not be able to identify the ice pricks as the same were in the hands of accused persons and all because ice pricks look similar.
In his cross-examination the witness has deposed that the occurrence took place between 3.15 am to 3.30 am and it was pretty dark, but there was sufficient street light and the yellow coloured lamps were lit and there was sufficient light to see the faces. He has further deposed that accused persons had not muffled their faces at the time of occurrence and that when they snatched money from him though there was a scuffle but the currency notes did not scatter. According to him, during the snatching, his pocket was not torn. He has testified that he did not have any previous enmity with the accused persons and he had not seen them prior to the occurrence. The witness has also deposed that Pappu (deceased) was also a vegetable seller but was not his partner or relation and the money snatched did not have any share of deceased Pappu. According to him, the notes were not kept in a purse and he was not carrying any Voter ID Card. He has also deposed that he had studied upto 11th class and he had read his statement Ex.PW1/A before signing the same. The witness has testified that he had stated to the police that St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 6 he had been gheroed by the accused persons, when he was entrapped in the traffic of trucks and when he moved out of the traffic he saw that his companion Pappu was also lying in an injured condition on the road and thereafter he called up PCR from his Mobile Phone and requested the public to take them to hospital. He has deposed that they were taken first to a private nursing home, the guard at the Nursing Home did not let them enter the same saying that it was a police case. The witness was confronted with his statement Ex.PW1/A where it is not so recorded. He has admitted that D- Block of Azadpur Mandi and the place of occurrence has heavily traffic throughout the day and is a crowded area and even in the early morning hours a large number of public persons are present, who may be workers of the Mandi or Adhatis and also Truck Drivers but states that being the month of August, the number of persons present was very less. PW1 has also admitted that on each of the entry gate of the Mandi Security guards are present but has denied the suggestion that the STD/PCO and other tea shops were open at the time of occurrence. He has also admitted that there were a large number of trucks which were queued up to enter the Mandi but according to him, the drivers were busy in entering the Mandi and avoiding the traffic snarls. Witness has further denied the suggestion that large number of labours' to unload the truck were present at the sot and he had gone to the Azadpur Mandi on a truck bearing No.2737 alongwith other Vegetable Vendor of the area of Shahdara. He has further admitted that for any vehicle which enters the Subzi Mandi an Entry Pass is issued to it. He has further deposed that he had not stated to the Investigating Officer about the user of Truck by St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 7 him or of any Entry pass having been issued to them by the Mandi staff. Witness has, however, denied the suggestion that there is a presence of large number of public persons even during the early hours in the Mandi Area or that it was pitch dark at the spot of occurrence or that he could not have seen any of the assailants. He has also denied that he was unconscious at the time of admission to the Hospital and has deposed that he does not remember the time when he reached BJRM Hospital but according to him the Investigating Officer had reached within about half hour of his reaching the hospital. The witness has further deposed that his treatment took about 45 minutes and his statement was recorded thereafter when the Investigating Officer met him about 30-45 minutes after his medical treatment which he was alone with his family members. PW1 has further denied the suggestion that he was semi-conscious when his statement was recorded and states that he was fully conscious. He has testified that had started from his house carrying Rs.70,000/- and had purchased about 16-17 bags of cauliflower, peas capsicum etc. from different Adhtis and prepared the parchis regarding the vegetable from different adhtis which were removed from his pocket along with the money. The witness has deposed that he had not stated to the Investigating Officer about carrying Rs.70,000/- or maintaining record of vegetable purchase by way of parchis. According to him, he had gone to the Police Station Adarsh Nagar only once after the occurrence, that was for visiting the hospital for his blood sample and had again met the police officials in the Rohini Court Complex when he identified the accused persons. The witness has denied the suggestion that he had been shown the St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 8 accused persons at the Police Station by the police officials. PW1 Sushil Kumar has deposed that he did not raise alarm when he was encircled by the accused persons or during the scuffle and at the time of occurrence the trucks was moving in three lanes parallel to each other and he was entrapped by the accused persons between two lanes. He has further deposed that the trucks were separated by about two and half feet and he had walked past the front of one of the trucks and the drivers as he was not afforded any time and states that the truck drivers were making noise by honking the horns. He has admitted that he had not seen the occurrence taking place with his companion Pappu and has deposed that about 15-20 persons were present to whom he had made a request to shift him and Pappu to Hospital but he does not remember the name of the Nursing Home where they were taken by the public. According to him, the PCR had reached there in about ten minutes after making a call by him and he had given the description of assailants to the investigating officer in his first statement and he had stated that the person who stabbed him was dark in complexion and had cut marks on his face. The witness was confronted with his statement which is Ex.PW1/A where no such description is mentioned. He has testified that before the occurrence had taken place, he and Pappu had consumed tea and had counted his money at the tea shop and then proceeded further, when the occurrence took place. The witness has further deposed that the distance between the tea shop and place of occurrence is about half kilometer but has denied the suggestion that the tea shop is a at a distance of fifteen steps from the STD/PCO of D-Block. PW1 has also admitted that a sub station of NDPL is across the road from the St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 9 STD/PCO but has denied the suggestion that security guard is always present at the NDPL sub station or that the road was badly damaged. According to him, it took about 30-60 minutes in recording his statement Ex.PW1/A. He has denied the suggestion that accused Vijay did not cause any injuries to him or that no occurrence took place or that the accused persons were not present at the spot or that he was identifying them on the asking of the investigating officer. The witness has also denied the suggestion that there was a scuffle between him and Pappu, wherein they caused injuries to each other or to build a false case to save himself, he concocted a false story. PW1 has further admitted that when the assailants gheroed him, few of them were on his front side and others were on his back side. He has further deposed that only one of the assailants had inserted his hand in his pocket and he had clearly seen the face of only one assailant, that was the person who stabbed him. He has denied the suggestion that accused Pawan was not present at the spot or involved in any occurrence with him or that he had identified him at the asking of the investigating officer.
PW4 Pradeep is the brother of the deceased Pappu who has deposed that he is a vegetable seller and on 16.08.2008 he along with his brother Pappu and one Sushil came to Azadpur Subzi Mandi for purchasing vegetable at around 3.00 a.m. and Pappu and Sushil went towards D Block for purchasing vegetables whereas he went towards onion shed. According to him, at around 3.30 AM he saw that four boys had surrounded his brother Pappu and friend Sushil and one of them had taken out the purse of his brother from his pocket and when his brother objected the accused Mukesh and St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 10 Vijay (whom the witness has correctly identified in the court by pointing out towards them but not by name), gave ice prick blow on various parts of his body and the other two accused who had surrounded his brother and Sushil had taken out the money. The witness has identified the accused Pawan and Sarwan correctly by pointing out towards them in the court. He has further deposed that accused gave ice prick blow to Sushil and Pappu on which he raised alarm and thereafter all the four accused ran away towards D Block on which Somebody informed to the police on No.100 and police came there and took his brother and Sushil to BJRM Hospital. The witness has also deposed that he went to his house to inform about the incident and later on he came back at the spot when he came to know that his brother had already expired. According to him, the Police met him at the spot and SHO Ram Chander recorded his statement He has testified that Pappu was having black colour purse and used to keep one small diary and some telephone diary, voter I card etc. He has proved that after postmortem examination dead body of his brother was received vide receipt which is Ex.PW4/A and has deposed that later on he identified the accused Pawan and Vijay in the judicial test Identification Parade in in Rohini jail. He has proved his statement recorded during the Test identification Parade of accused Pawan and Vijay which are Ex.PW4/B and Ex.PW4/C respectively. According to him, subsequently he was again called in Tihar jail for the Test Identification Parade of other two accused but they refused to participate in the same and thereafter he had not identified them St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 11 anywhere before the police.
Some leading questions were put to the witness Pradeep by the Ld. Addl. PP for the State wherein he has admitted that on 15.09.2008 he had come to court complex Rohini and outside the court of Ld. MM Shri Prashant Kumar he had identified accused Sharvan and Mukesh and also the accused Pawan and Vijay to the investigating officer being the four persons who were involved in the incident. He has further deposed that in the incident accused Sharvan had blocked the way of his brother and Sushil and Mukesh had attacked them with ice prick.
In his cross examination by the Ld. Defence counsels the witness has admitted that no scuffle (hathapai) took place between him and any of the four accused persons and has deposed that he had not stated in his statement under Section 161 code of Criminal Procedure that he had raised a hue and cry upon seeing the incident. He has denied that he had not stated so in his statement as he was not present at the time of incident. PW4 has admitted that he had not made any telephone call to the police about the incident and states that he is not aware as to who made the call to the police. He has further deposed that he helped his injured brother but blood was not oozing out from his injuries and hence the blood did not fall on his clothes. According to him, police came within 15-20 minutes of the incident and when he had seen his injured brother having serious injuries, so he rushed out to fetch some TSR etc so that he may remove him to hospital but by the time he came back, he found that the police has already removed his injured brother to hospital. The witness has also admitted that police had removed his injured brother St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 12 to hospital in his absence and deposed that there was movement of trucks at near the place of incident at the time of incident and he had come back to the spot along with a TSR but his brother was already removed to hospital. According to him, he went to his home in the said TSR and did not go from there to the hospital and he reached his house at around 5.00/5.15 AM and again reached the hospital from his house along with his other relatives at around 6.00 AM. The witness has testified that he had again gone to the place of incident when site plan was prepared and on that day when site plan was prepared his statement was not recorded by the police and he again went to spot after about 5-6 days of the incident when the site plan was prepared and he had not visited the spot again thereafter. He has denied the suggestion that he was not present at the spot or that he had not witnessed the incident or that he had not took his brother to the hospital as he was not present at the spot or that he was shown the accused persons in the Police Station. He has also denied that he had identified the accused persons at the instance of the investigating officer or that he was shown the photographs of the accused persons prior to the time he participated in Test Identification Parade. The witness has further deposed that he does not remember the address of his brother Pappu but states that he was residing near Khera Banquet Hall Shahdara and was residing near the Shahdra Mandi. According to him, on that day they all three had hired a TSR for Rs.100/- and had gone together to Azadpur Mandi but usually they used to go on a motorcycle. He has also deposed that they got down from the TSR so hired by them outside the Mandi itself and Sushil had made the payment to TSR Driver. He has admitted that security guards are St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 13 always present at the gate of Azadpur Subzi Mandi and has deposed that no police vehicle was present outside the gate of Subzi Mandi but police officials were present. According to PW4, he was not having any mobile phone at the time of incident and the onion shed was about 500mtr/ 600mtr away from the spot and it was not one kilometer away. He has further admitted that near the place of incident trucks were moving on both directions at that time and the traffic was moving very slowly as on account of large of number of trucks there used to be some jam also in between. PW4 has also admitted that by the time of incident his brother Pappu and Sushil had already purchased the vegetable which they had to purchase and that labourers' carried their goods from the shop in the mandi to their vehicle in which they have to ferry it. He has however, denied that he had prepared a kachcha (rough) note of the total vegetable purchased by him or that the labourer who is to carry the vegetable is given a paper slip maintaining the number of the vehicle in which the goods are to be loaded or that due to pollution of the vehicle the visibility was poor at the time of incident. According to the witness, at the time of incident there was phone installed at his house but it was out of order at that time and states that after he had reached his house then the brother of Sushil had come to his house and informed that he has received a phone call from his brother Sushil that they have been removed to BJRM hospital. He has admitted that he had gone to Rohini jail with some police official of Police Station Adarsh Nagar and has deposed that he stayed at Police Station Adarsh Nagar for about five to ten minutes and he did not notice as to whether photographs of criminals of the area were pasted on the wall of St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 14 Police Station Adarsh Nagar or not. He has denied that before proceeding to Rohini jail the police officials had shown to him the photographs of accused Vijay and Pawan or that he was told about the physical description of the accused persons by the police officials. According to the witness, he met the police officials on two to three occasions in connection with the present case but his statement was recorded only once and his statement was not read over to him by the police officials. He has further deposed that he had stated in his statement under Section 161 Code of Criminal Procedure that his brother was attacked thrice with ice prick but he had not stated that he was attacked at various parts of his body. The witness was confronted with his statement Ex.PW4/DA where nothing is mentioned about the number of ice prick blows given to Pappu. He has admitted that on 15.09.2008 also before coming to Rohini Courts he had first gone to Police Station Adarsh Nagar and had come along with police officials to Rohini Courts but has denied that he had identified accused Sharvan and Mukesh on the pointing out of the investigating officer at Rohini Complex. According to PW4, he had told to the investigating officer when he met him for the first time after the incident as regards the physical description of the four assailants and had given their physical description in his statement. He has been confronted with his statement Ex.PW4/DA where it is not so recorded. According to him, at the time of incident the labour hired by him to carry his vegetable was not with him and he had not carried with him the onion and garlic bag in the TSR as they were already loaded in their common vehicle which goes to Shahdara and the said vehicle was parked opposite to the power house. He has St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 15 admitted that the driver of the vehicle was given a slip while entering the mandi. He has denied that he was not present at the time of incident or that he has been subsequently planted by the investigating officer as an eye witness.
Medical evidence/ witnesses:
PW3 Dr. Gopal, Medical Officer from BJRM Hospital has deposed that on 16.08.2008 one patient Sushil S/o Ramdass aged 42 years, male was brought to the hospital with the alleged history of physically assault and was examined by Dr. Nadeem Sr. Resident under his supervision. According to the witness, as per the MLC Ex.PW3/A on local examination one punctured wound over middle of chest and abrasion over left palm of the injured was found and the patient was referred to surgery for further opinion where the patient was examined by Dr. Kamlesh, Sr. Surgeon and had also observed the same injury.
The witness has further deposed that on the same day one patient Pappu S/o Sobran Singh, aged 45 years male was also brought to hospital with the alleged history of physical assault and was also examined by Dr. Nadeem under his supervision and on local examination there was punctured wound over sternal area of the patient and thereafter patient was referred to Sr. Surgery where he was examined by Dr. Kamlesh who had also observed the same injury. According to him, Dr. Nadeem and Dr. Kamlesh are not working in the hospital and their present whereabouts are not known and he was well acquainted with their handwriting and signatures of as he had seen them while signing and writing during the course of St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 16 his duty. He has proved the MLC of the Pappu which is Ex.PW3/C. The said witness has not been cross-examined by the counsels for the accused.
PW12 Dr. R.P. Singh has proved conducted the postmortem examination on the dead body of deceased Pappu on 16.8.2008 which report is Ex.PW12/A. He has deposed that the body was brought to the hospital with the alleged history of assault on 16.8.2008 at about 3:30 am on Road D-Block Corner, Mandi Azadpur for which he was admitted in BJRM Hospital vide MLC No. 566 dated 16.8.2008 and later expired at about 6:00 am. According to him, on general examination it was found that the dead body was of an adult male wearing green white check shirt, gray pants, white baniyan, shirt showing a hole on right side, opposite second button place and the second button was missing, another hole present just above left cuff, pant showing a hole on left side, Rigor Mortis was in developing stage and Postmortem staining was present on back and fixed. He has deposed that on External Examination the following injures were found present:
1. A Reddish abrasion of size 4 cm x 0.3 cm was present on left thigh on medial aspect 25 cm below anterior superior iliac spine.
2. A penetrating wound with lacerated margins of size 0.3 cm x 0.4 cm was present on anterior aspect of right side of chest, 1 cm from mid line and 5.5 cm below supra sternal notch. Further it is cutting sternum opposite second inter costal space, cutting pericardium and then cutting aorta through and through and then making a nick in pulmonary artery in the pericardium itself.
Pericardial cavity contains about 500 ml clotted blood. Depth of St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 17 the wound is 10 cm and direction of the wound was horizontal, backward and slightly to the right side.
3. Penetrating lacerated wound of size 0.2 cm x 0.2 cm x 1 cm was present at lateral aspect left lower forearm. 6 cm above wrist joint.
4. Penetrating lacerated wound of size 0.2 cm x 0.2 cm x 1cm was present on lateral aspect of left thigh, 20 cm below anterior superior iliac spine.
The witness has proved that the cause of death in this case was shock due to cardiac temponade as a result of injuries to great vessels produced by pointed stabbing object and the Injury no.2 is ante-mortem and sufficient to cause death in ordinary course of nature and time since death is about eight hours. PW11 has further deposed that after postmortem examination, blood in gauze pieces and clothes were sealed and handed over to the police. He has further deposed that on 22.10.2008 an application was moved before him by Inspector Ram Chander for taking the subsequent opinion whether the injury on the body of deceased could be caused with the recovered Sua or anyone of them and the investigating officer produced two separate pullandas marked 3831/08 and 3833/08 respectively with seal of RCS. According to him, on opening pullanda mark 3831/08 it was found to contain an ice prick with wooden handle marked LAZER whose sketch is drawn separately and on opening pullanda mark 3833/08, it was found to contain an ice prick with wooden handle marked TRISHUL whose sketch is drawn separately. The witness has testified that both the pricks had reddish St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 18 brown stains on the lower aspect (near the tip). He has proved his opinion that the injuries mentioned in the postmortem report no. 822/08 dated 16.8.2008 on the body of Pappu S/o Shobha Ram are possible by the weapons produced before him or by similar such type of weapons, which opinion is Ex.PW12/B. According to the witness, weapons were re-sealed with the seal of FMT and handed over to police persons and the sketch prepared by him are Ex.PW12/C & PW12/D. The witness has correctly identified one ice prick on which LAZER is written which is Ex.P-4 and another ice prick on which TRISHUL is written which is Ex.P-5.
PW15 Dr. Rohit Kumar, Junior Specialist, BJRM Hospital has deposed that on behalf of Dr. Kamlesh. According to him, on 16.08.2008 Dr. Kamlesh was working as senior resident in department of Surgery of BJRM hospital and had examined the patient Pappu, S/o Sobhran Singh, aged about 45 years Male, with alleged history of physical assault vide MLC Ex.PW3/C. He has further proved the death certificate of Pappu issued by BJRM hospital which is Ex.PW15/A and Death Summary which is Ex.PW15/B. In his cross examination by defence counsels the witness has deposed that he had worked with Dr. Kamlesh in the same department. He has admitted that the permanent address of all doctors are maintained in the administrative department or that they used to write the time when they declare the patient as fit for giving his statement. He has further deposed that as he has no concerned with the forensic science and hence he is unable to comment whether an injury is caused using an pointed iron object whether the skin of St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 19 the body from where it enters blackens. He has admitted that the time of preparation of death summary is not mentioned on the death summary Ex.PW15/B and states that the same was prepared at 8 AM and as the same is mentioned in the death summary.
Police/ official witnesses:
PW2 HC Raghubir Singh has deposed that on the night intervening 15/16.08.2008 he was working as duty officer from 1 AM in the night till 9AM on the next day and at around 6 AM he received a rukka Mark X brought by ASI Surender and the same was sent by SI Arvind Pratap Singh, on the basis of which rukka he got an FIR no.186/08, under Section 394/397/307/34 IPC registered by dictating it to the computer operator, print out of which FIR is Ex.PW2/A. According to him, another print out of the said FIR along with original rukka was handed over to ASI Surender Singh for delivery to investigating officer SI AP Singh and he also recorded DD No.31A. The witness has further proved that he made an endorsement to that effect on the rukka which is Ex.PW2/B. He has also proved the DD No.31A copy of which is Ex.PW2/C. In his cross-examination the witness has denied the suggestion that the FIR in the present matter was ante timed.
PW5 HC Mahender has deposed that on 16.08.2008 on receipt of information he had gone to Azadpur Subzi Mandi and at the road D Block corner inside the mandi he took seven photographs of the place of incident which was near to an STD Booth and later on after developing them he handed over the said seven photographs to the investigating officer Inspector. Ram Chander. He has proved that St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 20 the photographs were taken on the direction of the investigating officer the negatives of which are Ex.PW5/A (1to7) and the corresponding positive photographs are Ex.PW5/B (1to7). He has not been cross-examined by the Ld. Counsels for the accused.
PW6 SI Satpal Singh has deposed that on 16.08.2008 on receipt of information he along with his Crime Team members comprising of Constable Mahender the photographer and finger print expert Constable Ramesh went to the place of incident i.e D Block corner Azadpur Mandi and inspected the spot. He has further deposed that since the spot was wet on account of water lying over there, hence no incriminating evidence could be found over there by them. He has proved having prepared his crime team report which is Ex.PW6/A which he handed over to the investigating officer. The said witness has not been cross-examined by the Ld. Defence counsels.
PW7 HC Prahalad Singh has deposed that on 16.08.2008 Inspector Ram Chander handed over to him one sealed pullanda sealed with seal of BJRM Hospital Delhi FMT stated to be containing the clothes of the deceased Pappu besides one white envelops sealed with the Seal of BJRM Hospital Delhi, FMT stated to be containing the blood sample in gauze piece of deceased Pappu and along with sample seal of BJRM Hospital, Delhi FMT. He has further deposed that the Investigating Officer also gave him another sealed pullanda sealed with the seal of MS BJRM Hospital Jahangirpuri Delhi stated to be containing the clothes of the inured Sushil Kumar along with sample seal and he deposited all the aforesaid three pullandas and two sample seals in the malkhana vide St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 21 entry no.3830 of Register No. 19. According to him, on 17.08.2008 Inspector Ram Chander handed over to him one sealed pullanda sealed with the seal of RCS stated to be containing a blood stained "SUAN" allegedly recovered at the instance of accused Vijay @ Kalia and he also gave to him one more pullanda stated to be containing a purse and some documents also sealed with the seal of RCS. The witness has further deposed that the Investigating Officer also gave to him jamatalashi articles of accused Pawan Kumar, Sharwan Kumar and Vijay which were in unsealed pullandas and he deposited all the aforesaid pullandas and the articles in the malkhana vide entry No.3831 of Register No.19. PW7 has also deposed that thereafter on 20.08.2008 Inspector Ram Chander handed over to him one more pullanda sealed with the seal of RCS stated to be containing a "SUAN" allegedly recovered at the instance of accused Mukesh;
one more pullanda sealed with the seal of RCS stated to be containing seven currency notes of Rs.1000 each and one unsealed pullanda containing the jamatalashi articles of accused Mukesh and deposited all the aforesaid articles vide entry no.3833 of Register No19. The witness has further testified that on 22.09.2008 Inspector Ram Chander also handed over to him one sealed pullanda sealed with the seal of BJRM Hospital stated to be containing the blood sample of the injured Sushil Kumar and the sample seal of BJRM and he deposited them in the malkhana vide entry no.3871 of Register No.19. He has placed on record the photocopy of entry no.3830 which is Ex.PW7/A, copy of entry no.3831 which is Ex.PW7/B, photocopy of entry no.3833 which is Ex.PW7/C and copy of entry no.3871 which is Ex.PW7/D. According to him, later on 27.10.2008 he had sent all St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 22 the aforesaid articles comprising of six sealed pullandas and four sample seal to FSL Rohini through Constable Rakesh Kumr No.1510 NW vide RC No.83/21, photocopy of which is Ex.PW7/E. He has further deposed that he made an entry to that effect in Register No. 19 and the copy of the said entry is Ex.PW7/F. The witness has testified that on 17.02.2009 Constable Jakir No.1112/NW deposited in the malkhana six sealed pullandas sealed with the seal of FSL Rohini along with one envelope containing FSL Result pursuant to which he made entry in Register No. 19, copy of which is Ex.PW7/G. He has also deposed that on on 22.10.2008 prior to sending the pullandas to FSL the two pullandas containing the "SUAN"sealed with the seal of RCS were handed over to the investigating officer Inspector Ram Chander since he had to obtain opinion from the doctors and the investigating officer deposited them back in the malkhana on that day itself but the pullandas were sealed with the seal of FMT, BJRM Hospital. He has proved the two endorsements made by him in this regard in Register No. 19 which are Ex.PW7/H and Ex.PW7/J respectively. The witness has proved that as long as the case property remained in his custody nobody tampered with them. He has also not been cross-examined by the Ld. Defence counsels.
PW8 SI Manohar Lal Draftsman has deposed that on 6.11.2008 he was posted as Draftsman in NW district and on that day he was called by the Investigating Officer Inspector Ram Chander at the spot i.e D-Block Road, New Subzi Madni, Azadpur, Delhi where the investigating officer and witness Pradeep Kumar met him and on the pointing out of witness Pradeep, he took rough notes and measurement. According to him, thereafter, on 7.11.2008 on the basis St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 23 of these rough notes and measurements he prepared the scaled site plan which is Ex.PW8/A and thereafter he destroyed the rough notes.
In his cross examination by Ld. Defence counsel the witness has deposed that the investigating officer had recorded statement of Pradeep Kumar on 6.11.2008 regarding the taking of rough notes and measurements at his instance. He has further deposed that he reached at the spot at about 11-12pm and left the spot at about 1:00 pm. PW9 Ct. Rakesh has deposed that on 27.10.2008 he was posted as Constable in Police Station Adarsh Nagar and on that day on the instructions of the investigating officer he took six sealed pullandas and four sample seals along with FSL Form for depositing in FSL Rohini vide RC No.83/21/08 and accordingly he deposited the same in FSL and thereafter deposited the receipt with the MHC(M). He has proved that the sealed pullanda remained intact during his custody and he did not interfere with the same nor allowed anyone to interfere with it.
PW10 SI Arvind Pratap Singh has deposed that on 16.8.2008 he was posted as Sub Inspector in Police Station Adarsh Nagar and on that day on receipt of DD No.29A, copy of which is Ex.PW10/A he along with ASI Surender Singh and Ct. Prabhu reached at Gate No.2, Azadpur Mandi, Delhi where he came to know that incident took place at D-Block Corner, Azadpur Mandi. According to him, thereafter he along with his staff i.e ASI Surender and Ct. Prabhu reached at D Block corner, Azadpur Mandi but no injured/complainant found there. He has deposed that he made inquiry and came to know that injured has been taken to BJRM St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 24 Hospital, Jahangir Puri by the PCR van after which he left Ct. Prabhu at the spot and he along with ASI Surender went to BJRM Hospital, Jahangir Puri where he found injured Pappu admitted vide MLC No.566 and injured Sushil Kumar admitted vide MLC No.567 where Doctors had opined Sushil Kumar fit for statement and Pappu was declared unfit for statement. He has proved having recorded the statement of injured Sushil Kumar which is Ex.PW1/A on which he prepared the rukka Ex.PW10/B and handed over the same to ASI Surender Singh at 5.45am for getting the FIR registered. He has further deposed that after some time Duty Officer informed him on phone that Pappu had expired and thereafter SHO Inspector Ram Chander reached the Hospital at 7.05am to whom the further investigation was handed over. The witness has deposed that he apprised to Inspector Ram Chander of the entire facts and also handed over the cloth pullanda of injured Sushil which were handed over to him by Duty Constable Devender Kumar along with sample seal "MS BJRM Hospital, Jahangir Puri, Delhi" which were seized by the Inspector Ram Chander vide memo Ex.PW10/C and the cloth pullanda of injured Sushil were sealed with the seal of MS BJRM Hospital, Jahangir Puri, Delhi and after that Inspector Ram Chander recorded his statement. He has testified that on 17.8.2008 he along with Inspector Ram Chander and Ct. Baljit and Ct. Prabhu proceeded for investigation and when they reached at GTK Road in front of Petrol Pump then informer met them and informed them that three boys, who committed the crime on 16.8.2008 at D Block corner at about 3.30am were sitting in DDA Park and if raided they could be apprehended. According to the witness, on this information the St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 25 investigating officer asked three to four passer-byes to join the raiding party but none agreed and went away without telling their names and addresses and thereafter, they along with informer reached near DDA Park, Azadpur Mandi and on pointing out of secret informer they tried to apprehend three accused, who were sitting in the DDA Park and as soon as they raided on them the said persons tried to ran away towards TPT Center. He has further deposed that he apprehended one of them, whose name came to know after inquiry Vijay @ Kalia; the second accused was apprehended by Ct. Baljit and whose name he came to know after the inquiry as Pawan Kumar and the third accused was apprehended by Inspector Ram Chander whose name they came to know after inquiry was Sharwan Kumar. The witness has also testified that they were interrogated and arrested and were kept in muffled faces. He has proved the arrest memos of accused Vijay, Pawan and Sharwan which are Ex.PW10/D, Ex.PW10/E and Ex.PW10/F respectively; their personal search memos which are Ex.PW10/G, Ex.PW10/H and Ex.PW10/J and thereafter they made disclosure statement which are Ex.PW10/K, Ex.PW10/L and Ex.PW10/M. The witness has further deposed that all the three accused took them at D Block corner and pointed out the place of occurrence vide pointing out memo Ex.PW10/N after which the accused Vijay @ Kalia took them at the stairs of Adarsh Nagar Railway Station from where he had taken out one black purse from the bushes containing one voter Identity card of Pappu, one pocket dairy which contained 54 pages and three visiting cards and informed them that he had robbed this purse from the pocket of deceased Pappu and told that purse was containing Rs.1,250/- out of which he St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 26 had paid Rs.400/- to Pawan and Rs.400/- to Sharwan and remaining amount he had spent. According to the witness, the purse along with its belonging were put up into pullanda and sealed with the seal of RCS and seized vide memo Ex.PW10/O. According to him, thereafter the accused Vijay accused also took them at his house at First Floor, House No. 94, Ravi Dass Colony, Sarai Peepal Thala, Delhi from where the accused took out one blood stained ice prick (SUA) from the cloth bag with which he had attacked on 16.8.2008 while committing robbery. He has further deposed that the investigating officer prepared the sketch of the "SUA" and the total length of SUA was 25.5cm, length of the blade was 14.5cm and handle was of 11cm, which sketch is Ex.PW10/P and the same was put up into pullanda and sealed with the seal of RCS and seized vide memo Ex.PW10/Q. He has further deposed that the seal after use was handed over to Ct. Baljit and thereafter, all accused were taken to BJRM Hospital where they were medically examined and thereafter they were sent to police lockup and case property was deposited in the malkhana. The witness has testified that on 18.8.2008 he along with other staff produced all the three accused in the court in muffled face and they were sent to judicial custody and he moved an application for conducting the Test Identification Parade which was marked to learned link MM who adjourned the application for 20.8.2008. The witness has also testified that thereafter, he handed over the case file to Inspector Ram Chander. According to him, on 20.8.2008 he reached at Rohini Jail where witness Pradeep met him and Ld. link MM Sh. Rajesh Kumar Goel conducted the Test Identification Parade of Vijay @ Kalia and Pawan Kumar after which St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 27 the copy of the Test Identification Parade proceedings were collected. The witness has further deposed that on 20.08.2008 in the evening he along with Inspector Ram Chander and Ct. Baljit proceeded for investigation and when they reached at Out Gate, Azadpur Mandi one informer met them and informed that the fourth accused wanted in this case was present behind the onion shed near Mall Godown and if raided he could be apprehended. The witness has testified that on this information the investigating officer asked four to five public persons to join the investigation but none agreed and went away without telling their names and addresses and thereafter, they along with secret informer reached behind the onion shed near Railway Track, Mall Godown from where at the pointing out the secret informer they apprehended accused Mukesh Singh, whose name they came to know after inquiry. He has proved that the accused Mukesh was interrogated and arrested vide memo Ex.PW10/R and his personal search was conducted vide memo Ex.PW10/S after which the accused made a disclosure statement which is Ex.PW10/T and the accused was kept in muffled face. He has further deposed that thereafter accused took them at the spot i.e. D Block Corner Azadpur Mandi, Opposite STD/PCO Shop and pointed out the place of occurrence vide pointing out memo Ex.PW10/U and thereafter took them at his house i.e. House No. 101, Ravi Dass Colony, Sarai Peepal Thala. According to the witness, the accused took them in a room on the ground floor and took out Rs.7,000/- (consisting of seven notes of Rs.1000/- denomination) from an iron box and one ice prick (SUA) and handed over to Inspector Ram Chander and told that this sum of Rs.7000/- was the remaining amount out of looted amount of St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 28 Rs.14,800/- and he also informed that the ice prick was the same with which he had inflicted injury to the victim. The witness has testified that the same were put into an envelope and sealed with the seal of RCS and seized vide memo Ex.PW10/V and the investigating officer prepared the sketch of the 'SUA' which is Ex.PW10/W and measured the 'Sua' which was found to be having length of 22.5 cm, the length of the prick was 12cm and the length of the handle was 10.5cm, and the same was put into pullanda and sealed with the seal of RCS and seized vide memo Ex.PW10/X. According to PW10, the seal after use was handed over to Ct. Baljit and after completing the investigation accused was brought to Police Station and accused were sent to lockup and case property was deposited in the malkhana and his statement was recorded by the investigating officer. The witness has correctly identified all the accused persons in the court as well as the case property i.e. one black coloured purse containing three visiting cards and voter ID Card of the deceased Pappu and one pocket diary which are collectively Ex.P3, the ice prick "SUA" got recovered by the accused Vijay @ Kalia which is Ex.P4; another ice prick (Sua) for recovered by the accused Mukesh which is Ex.P5; Seven currency notes of Rs.1000/- denomination got recovered by accused Mukesh which are Ex.P6.
In his cross-examination the witness has deposed that he reached gate no.2 Subzi Mandi at about 4.05 AM but he is unable to tell the name of the person who had informed him about the incident and states that it was a public person who was standing in the crowd. He has admitted that he did not record any statement at the spot at St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 29 that time and has deposed that he must have hardly stayed at the spot for about two minutes and thereafter immediately started for BJRM Hospital on having come to know that the victim had been shifted there. According to him, he was not aware that the injured was not taken to BJRM Hospital but was first shifted to nearby hospital and states that he was informed that the injured was taken to BJRM Hospital. The witness has testified that he reached BJRM Hospital at about 4.15am and did not make any inquires from the PCR regarding the whereabouts of the injured and states that there was no need since he was already told by public persons standing at the spot. He has further deposed that it took him hardly ten minutes to record the statement of Sushil which was concluded by 5:15 am but he is not aware whether the same doctors were attending upon Sushil and Pappu. According to him, he did not meet the PCR officials at the spot and does not remember in which ward but states that he certainly recorded the statement of Sushil. He has admitted that the hospital staff was also present when he was recording the statement of Sushil but states that they were coming and going only to attend to the patients but were not standing when he was recording the statement. According to the witness, he did not call any doctor or nurse before recording the statement of Sushil and also did not ask Sushil whether he was in a position to make a statement or not and states that he only asked the doctor who told him that he was fit for statement. He has denied the suggestion that when he recorded the statement of Sushil he was not in a position to make a statement or that at the time when he allegedly recorded statement of Sushil he was unconscious. The witness has testified that before taking the signatures of Sushil on the St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 30 statement he did not call any doctor or inform him that he was taking his signatures and he did not take the thumb impression of Sushil on his statement and apart from the MLC he had taken the death summary of deceased Pappu but he did not collect any other medical record from the hospital. He has further deposed that he is not aware if the pullanda of the shirt and baniyan was not handed over to the Duty Constable by the hospital staff but states that he was handed over the same by duty constable. He has denied the suggestion that the pullanda was handed over to Inspector Ram Chander and it is for this reason that an endorsement to this effect was made by the doctor and states that the reason is that by the time he had sent the tehrir the deceased Pappu was still alive but, during this period he expired and therefore the provision of Section 302 IPC were added and the investigations were handed over to Inspector Ram Chander, who on reaching the hospital at 7.05am completed the necessary formalities. According to him, the tehrir was sent back at about 5.45 am and at the time when he reached the hospital at about 4.15am and he made inquiries from the doctor after about ten minutes he was told that Sushil was fit for statement. He has testified that he did not collect the MLC as soon as he reached the hospital because the injured were still under treatment at that time. He has admitted that he handed over both the MLCs to Inspector Ram Chander and that in the MLC of deceased Pappu which is Ex.PW3/C the time of arrival is mentioned as 4.50 am and states that when he reached the hospital he was informed by the doctors that the injured was very serious and they were trying to save him and the entries would be made later, whereas only the MLC number was given. He has further admitted St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 31 that the charge sheet does not mention the second MLC and states that the MLC of the injured Sushil was deposited with the hospital for result and the result was received late and it was placed on record after the filing of the charge sheet. The witness has admitted that Mark 'DX1' is the MLC of Sushil which he handed over to the investigating officer or that the time of arrival of Sushil has been mentioned in the MLC as 5.20 am. According to him, he left the hospital at about 7.30am. The witness has testified that he is not aware if a PCR van stationed outside gate no.2 Subzi Mandi. He has deposed that he had carried out a cursory glance on the spot of the incident but not a detail inspection. He has denied the suggestion that the spot of incident is exactly on the middle of the road and states that it is slightly to one side from the middle as was told to him. The witness has admitted that there is a frequent movement of vehicles particularly heavy trucks on the spot of the incident or that there was a lot of rush in the mandi. He has further deposed that he is not aware if a large number of pointed glass pieces were also found lying on the spot of the incident and he does not remember whether he had made an entry after his arrival at the Police Station from the hospital. The witness has testified that when they went to the spot he was on his scooter and Ct. Prabhu and ASI Surender were on the motor cycle. According to him, the complainant Sushil had not disclosed about the description and facial features of the accused who allegedly assaulted him and deceased Pappu. He has deposed that he does not remember at what time he along with Inspector Ram Chander and Ct. Baljit left the Police Station but states that it was afternoon. According to the witness, he does not remember whether St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 32 any departure entry was made on 17.8.2008 when they left for investigation from the Police Station. He has further deposed that they had started from the Police Station in the official gypsy which they had to leave on the way as there was a traffic jam and then they proceeded on foot and left the gypsy at GTK Road in the jam when the informer met them at about 4 pm. According to him, the petrol pump is at a walking distance of five to ten from the DDA park and the passersby were requested at the petrol pump to join the proceedings. He has admitted that no notice was given by the investigating officer to the passersby for joining the investigation and no legal action was taken against them on refusal. Witness has also admitted that there were some persons in the park but none of the persons in the park were requested to join the investigation. He has admitted that there was a lot of vegetation and shrubs inside the park but he is unable to tell the exact location from where accused were apprehended and states that it was slightly on one side from the middle of the park. According to him, no crowd collected at the time when the accused were apprehended but there were a large number of passersby who were coming and going but they did not stand there. He has further deposed that he prepared the memos at the instance of investigating officer Inspector Ram Chander and the entire arrest memos and search memos of three accused persons were prepared at the place of apprehension. According to him, he is not aware if the investigating officer had reduced the secret information regarding the presence of the accused in the park in writing. PW10 SI Arvind Pratap has admitted that he had not met the witness Pradeep before 20.8.2008 but has denied that accused Pawan Sharvan have been St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 33 illegally arrested from their house or that accused Pawan and Sharwan are the vegetable vendors. He has also deposed that there was a booth of the RPF but not the chowki and that when they reached the Adarsh Nagar Railway Station there was nobody in the RPF booth so they did not call anybody from there. He has denied the suggestion that the purse was got recovered from a spot which is easily accessible and visible. The witness has further deposed that he does not remember if the investigating officer had made any specific mark of identification on the purse recovered. He has further deposed that at the time when the investigation was being done at Railway Station no crowd gathered though a large number of persons were coming and going. According to him, at the spot the seal was not handed over to anybody after the recovery of the alleged purse and states that it was handed over to Ct. Baljit after recovery of the SUA from the residence of Vijay @ Kalia. According to the witness, he is not aware if any persons from the neighbourhood were called by the investigating officer before conducting the proceedings at the residence of Vijay @ Kalia but states that the investigating officer had asked four to five persons outside the house but he is not aware whether such persons were simply passersby or neighbourers. He has further deposed that the investigating officer had told the persons residing on the ground floor to join the investigations but, the names and details were not taken down by the investigating officer and at the time when they went to the house of Vijay @ Kalia the room was closed but was not locked and there was nobody inside and there were more rooms on the first floor but Vijay @ Kalia was in possession of only one room and the other rooms were locked. He St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 34 has further deposed that the cloth bag from which Vijay @ Kalia had allegedly removed the blood stained ice prick was not taken into possession and no finger prints were lifted from the ice prick. The witness has admitted that the SUA which was handed over to them by accused Vijay are easily available in the market and they stayed for about half an hour at the residence of Vijay @ Kalia. He has further deposed that there were more rooms on the ground floor of the house of accused Mukesh which were inhabited and persons were staying but he does not remember whether the other rooms were opened or locked or whether some persons were present. He has admitted that the photographs of the persons wanted and involved in various cases are normally displayed on the notice board of the Police Station. He has denied the suggestion that the photograph of Vijay @ Kalia was also present on the notice board of the Police Station and has deposed that it is not in his knowledge that Vijay @ Kalia is also involved in two other cases prior to this case. The witness has further admitted that a log book is maintained in the official vehicle and has deposed that in his presence no signatures have been made by the investigating officer in the log book whi had made the DD entries on 'vapsi'. He has denied the suggestion that they the accused have been falsely implicated in this matter as both of them refused to pay 'hafta' to the local police.
PW11 SI Kishan Lal has deposed that on 30.8.2008 he was posted as Sub Inspector in Police Station Adarsh Nagar and on that day Inspector Ram Chander, SHO handed over the case file to him for getting the Test Identification Parade of accused Mukesh, Vijay, Pawan and Sharwan. According to him, he reached the St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 35 concerned court and the Ld. MM had marked the application to Ld. Link MM Sh. Rajesh Kumar for 1.9.2008. He has testified that on 1.9.2008 the Test Identification Parade of accused Vijay, Mukesh and Pawan was fixed for 2.9.2008 and Test Identification Parade of accused Sharwan was fixed for 3.9.2008. The witness has further testified that on 2.9.2008 he reached Rohini Jail. According to PW11, the accused were to be identified by witness Sushil and Mukesh was to be identified by Pradeep Kumar. He has deposed that the accused persons refused to participate in the Test Identification Parade proceedings. According to him, on 3.9.3008 the Test Identification Parade of accused Sharwan was conducted who had also refused to participate in the Test Identification Parade proceedings. He has deposed that he collected the copy of the same and thereafter the case file was handed over to the SHO. The witness has testified that on 15.9.2008 he along with SHO Ram Chander came in the court where they met Sushil and Pradeep and they identified all the four accused while they were being produced in the court for taking the judicial custody remand. According to SI Kishan Lal, the witnesses pointed out towards the accused Pawan and Sharwan as the persons who had surrounded Sushil and Pappu and they also pointed out the accused Mukesh as the persons who had taken out the money from the pocket of Sushil and accused Vijay as the person who had taken out the money of Pappu and attacked them on them with ice pricks on 16.8.2008. According to him, on 22.9.2008 on the instructions of the investigating officer he took injured Sushil Kumar to BJRM Hospital for taking the blood samples and the doctor took the blood samples of Sushil Kumar vide ME No. 76093/08 which were sealed with the seal St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 36 of MS BJRM Hospital and doctor handed over to him blood samples along with sample seal which he handed over to the investigating officer vide memo Ex.PW11/A. The witness has testified that on 7.10.2008 on instructions of the investigating officer, he went to BJRM Hospital mortuary where he collected the postmortem report of deceased Pappu and thereafter he handed over the same to the investigating officer.
In his cross-examination the witness has denied the suggestion that the witness accompanied him from the Police Station to Rohini Jail on 2.9.2008 when the Test Identification Parade was fixed or that the witnesses have identified the accused on their pointing out and on their instance. According to him, the witness Pradeep and Sushil had come to the court in connection with the present case only on 15.9.2008.
PW13 Inspector R.C. Sangwan is the investigating officer of the present case who has deposed that on 16.8.2008 he was posted as SHO of Police Staiton Adarsh Nagar and on that day SI Arvind Pratap has got registered the present case on the statement of Sushil Kumar and after receiving the information that one injured Pappu had died in the BJRM Hospital, he had taken over the investigation of the present case and reached BRJM Hospital where he met SI Arvind Pratap Singh who briefed him about the case and handed over to him all the documents and he also handed over to him pullandas containing clothes of complainant Sushil alongwith sample seal. He has further deposed that he had seized the same vide memo Ex.PW10/C and dead body had already been shifted to mortuary and he inspected the dead body. According to the witness, he alongwith St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 37 complainant Sushil Kumar reached at the spot i.e. D Block corner, near STD Booth, New Subzi Mandi, Azadpur where he met ASI Surender who handed over to him a copy of the FIR and original rukka. The witness has deposed that the Crime Team inspected the spot and handed over to him their report. He has further deposed that the photographs of the spot were also taken which are Ex.PW13/A-1 to Ex.PW13/A-7 and he prepared the site plan at the instance of Pradeep Kumar brother of the deceased who is also an eye witness in this case which site plan is Ex.PW13/B. According to the witness, thereafter, he reached Mortuary and conducted the inquest proceedings and prepared the brief facts which are Ex.PW13/C and filled up the form 25.35 which is Ex.PW13/D. PW13 has also deposed that the dead body was identified by Pradeep vide statement Ex.PW13/E and by Bhagwati Devi vide statement Ex.PW13/F and the request for postmortem is Ex.PW13/G. According to him, the Postmortem examination was conducted and thereafter the dead body was handed over to the LRs of the deceased vide receipt Ex.PW4/A and after the postmortem examination pullanda containing clothes and blood sample of the deceased alongwith the sample seal were handed over to him by Ct. Prabhu which were seized by him vide memo Ex.PW13/H. The investigating officer has further deposed that on 17.8.2008 he along with SI Arvind, Ct. Baljit and Ct. Prabhu proceeded for the investigations of this case and when they reached at GTK Road, Opposite Petrol Pump there he received a secret information that three boys who had committed the crime on 16.8.2008 at D Block Corner are sitting in DDA Park Subji Mandi St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 38 Azadpur, who if raided they could be apprehended. On this information he asked three to four public persons to join the raiding party but none agreed and went away without telling their names and addresses. According to the witness, thereafter they reached DDA Park and on the pointing of secret informer, they tried to apprehend the boys who were sitting there and on seeing the police party they tried to flee away but they surrounded them. He has proved that SI A.P. Singh had apprehended accused Vijay @ Kalia, accused Pawan was apprehended by Ct. Baljit and he apprehended the accused Sharwan who were interrogated and kept in muffled faces. He has proved that accused Vijay, Pawan and Sharwan were arrested vide memos Ex.PW10/D to Ex.PW10/F respectively and their personal search was conducted vide memo Ex.PW10/G, PW10/H and PW10/J and they made disclosure statements which are Ex.PW10/K, PW10/L and Ex.PW10/M. The witness has deposed that thereafter all the accused took them to D Block Corner and pointed out the place of occurrence vide pointing out memo Ex.PW10/N. According to him, first of all accused Vijay @ Kalia took them to Railway Station Adarsh Nagar and took out one black purse from the bushes on the left side of the entry gate of the station and the purse contained one pocket diary, three visiting cards and voter I card of Pappu and informed that he had robbed the purse from the pocket of Pappu along with his associates and the purse was having Rs.1,250/- out of which he has paid Rs.400/- to Pawan and Rs.400/- to Sharwan and remaining amount he had spent. The witness has testified that the purse along with the belonging were taken in to pullanda and sealed with the seal of RCS and seized vide memo Ex.PW10/O and St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 39 thereafter the accused took them at this house on the first floor House No. 94, Ravidas Colony, Sarai Pital Thala from where the accused took out one blood stained ice prick from the cloth bag and informed him that it was the same Sua with which he had attacked on a person on 16.8.2008 while committing robbery. He has proved that he had prepared the sketch of the Sua and on measuring the total length was 25.5 cm, length of the blade was 14.5 cm and the length of the handle was 11 cm which sketch is Ex.PW10/P after which it was put up in a pullanda sealed with the seal of RCS and seized vide memo Ex.PW10/Q which seal after use was handed over to Ct. Baljit. He has further deposed that thereafter all the accused were taken to BJRM Hospital and after the medical examination they were sent to police lock-up in muffled face and the case property was deposited in the Malkhana. According to the witness, Test Identification Parade of the accused was got conducted by SI A.P. Singh and during the Test Identification Parade accused Vijay and Pawan were identified by Pradeep and third accused Sharwan refused to participate in the Test Identification Parade proceedings later on. He has testified that on 20.8.2008 in the evening he along with SI A.P. Singh and Ct. Baljit were present at Outer Gate Azadpur Mandi where he received a secret information that the fourth accused Mukesh wanted in this case was present behind the Onion Shed near Mall Godown and if raided he could be apprehended. On this information he asked four to five public persons to join the investigations but none agreed and went away without disclosing their names and addresses. The witness has further deposed that thereafter they reached behind the Onion Shed and on the pointing of secret informer they apprehend the accused St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 40 Mukesh who was interrogated and arrested vide memo which is Ex.PW10/R, his personal search was conducted memo Ex.PW10/S and the accused made disclosure statement which is Ex.PW10/T after which the accused was kept in muffled face. According to him, accused Mukesh took them to the spot and pointed out the place of occurrence vide pointing out memo Ex.PW10/U and thereafter the accused led them to his house at House No.101, Ravidas Colony, Sarai Pipal Thala in a room on the ground floor and took out Rs.7,000/- consisting of seven currency notes of Rs.1000/-, from an Iron Box and one ice prick which was blood stained. He has testified that the currency notes were put in an envelope and sealed with the seal of RCS and seized vide memo Ex.PW10/V and thereafter he prepared the sketch and on measuring the length of Sua was 22.5 cm, length of the blade was 12 cm and of handle was 10.5 cm which sketch is Ex.PW10/W and the same was put up into a pullanda and sealed with the seal of RCS and seized vide memo Ex.PW10/X which seal after use was handed over to Ct. Baljit. PW13 Inspector Ram Chander has further deposed that after completion of investigations, accused was sent to police lock up and the case property was deposited in the Malkhana and he collected the postmortem report of the deceased. He has testified that on 22.10.2008 he moved an application Ex.PW13/J, for taking the subsequent opinion of the weapon of offence and the Doctor had opined that injury could be possible by the weapons produced or similar such weapons after which the pullandas were again re- deposited with the MHCM. According to him, on 27.10.2008 exhibits of this case were sent to FSL through Ct. Rakesh and St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 41 thereafter he deposited the receipt with the MHCM. He has also deposed that on 6.11.2008 SI Manohar Lal took the rough notes and measurements for preparing the scaled site plan and later on he handed over the scaled site plan to him. According to the witnesses, he recorded the statement of witnesses and after completing the investigations challan was prepared and filed in the court. The witness has proved having collected the FSL result which is Ex.PX (not disputed by the Ld. defence counsels who have no objection in exhibiting the same without examination of the concerned witness). He has correctly identified all the accused persons and the case property i.e. one ice prick/ Sua got recovered by the accused Vijay @ Kalia which is Ex.P-4; another Sua got recovered by the accused Mukesh which is Ex.P-5; one black colour purse, three visiting cards, voter I card of deceased Pappu and one pocket diary got recovered by the accused Vijay @ Kalia which are collectively Ex.P-3; Seven currency notes of Rs.1000/- denomination got recovered by the accused Mukesh which are collectively Ex.P-6.
In his cross examination by Ld. Defence counsels the witness has deposed that he received the information regarding the incident at about 5:00 am from ASI Surender and at that time he was present in the police station and he got the information about the registration of the FIR at about 6:00 am. He has further deposed that he received the information regarding the death of deceased Pappu at about 7:00 am from Duty Officer and reached BJRM Hospital at about 7:30 am. According to him, the statement of Sushil Kumar was already recorded when he reached the hospital and to his knowledge it was recorded at about 5:30 am. The witness has testified that he St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 42 received the MLC and death summary from SI A.P. Singh but no seizure memo to this effect was prepared. He has denied the suggestion that since he has not received the MLC and death summary hence, he has not prepared any seizure memo to that effect. He has admitted that he had not filed the MLC of Sushil alongwith the Challan and states that the same has been filed later on after the directions of this Hon'ble Court. The witness has further deposed that he was not in possession of the MLC of Sushil during the said period and remained at BJRM hospital for about half an hour and he went to the spot from BJRM Hospital. According to the witness, he is not aware of the time of the discharge of injured Sushil and he did not collect any discharge summary or document regarding the discharge of injured Sushil from BJRM Hospital. The investigating officer has testified that injured Sushil joined the investigations of this case at about 8:00 am and ASI Surender reached the spot after five to six minutes of his reaching there at about 8:10 am. According to him, the witness Pradeep met him at the spot after about 15 minutes of his reaching there and he recorded the statement of Pradeep on the spot itself at about 9-9:30 am. He has further deposed that he made inquiries from the owner of STD booth but he had not reduced into writing the statement of the STD booth owner. According to the witness, he had not recorded any body features/ description from the STD booth owner as he had told him that he had not seen the alleged incident. The witness has further deposed that he had not made inquiries from anybody from nearby shops as at the time of incident the same were closed and more over the incident had taken place on the road in between the trucks when there was a jam St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 43 on the said road. He has further deposed that Crime Team official remained at the spot for about thirty minutes and left the spot at about 9 am but he does not remember as to who had signed as attesting witness on Ex.PW13/B. PW13 has admitted that there was mud and waste (Kichar) on the road where the alleged incident had taken place but has denied the suggestion that there were broken glass bottle pieces and nails lying on the said road. According to him, he had made inquiries from the security guards posted on the gate of Azadpur Mandi and did not make any inquiries from the PCR officials posted outside the gate as they were not present when he reached at the spot. He has testified that he left the spot at about 10:00 am and had not found any blood spots at the spot nor he noticed any torn clothes or buttons at the spot. He has further deposed that he had recorded his arrival entry at Police Station Adarsh Nagar but he does not remember the time and the DD number. PW13 has also admitted that he had used his official vehicle on 16.8.2008 for conducting the investigations in the present case and that they maintain a log book for official vehicles but states that he had not recorded any entry in the log book pertaining to the investigations made by him with regard to present case on 16.8.2008 since the log entries are being made by the driver of the vehicle. The witness has also admitted that he has not reduced into writing the secret information received by him regarding the presence of accused persons in DDA Park on 17.8.2008 nor did he convey the receipt of secret information to police station which information he received at about 4 to 4:30 pm. He has admitted that no legal action was taken against those public persons who left the spot without disclosing their St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 44 names and address and refused to join the investigations. According to him, he had not requested any person inside the DDA park to join the investigations and he does not remember how many entry and exit points were there in DDA Park. The witness has further admitted that the entry from where they entered the DDA Park is easily visible from the spot where the accused persons were found sitting. PW13 has admitted that public persons had gathered after the accused persons were apprehended but none joined the investigations but has deposed that he had not initiated any legal action against those persons who had left without disclosing their names and addresses and he had not visited the house of accused Pawan in respect of the present case. The witness has testified that witnesses Pradeep and Sushil never visited the police station regarding the investigation of this case and after 16.8.2008 the witness Pradeep and Sushil did not join the investigations of this case except that they participated in the Test Identification Parade proceedings. He has further deposed that the witness Pradeep and Sushil came to Rohini Courts to see the accused persons as they had asked him about the date of appearance of accused persons in the court. He has denied the suggestion that the witness Pradeep and Sushil are not the eye witnesses of the present case or that the accused Pawan was shown to the witnesses while they were lodged in the police lock-up or that the photograph of the accused persons had been shown to the witnesses. PW13 Inspector Ram Chander has admitted that the arrest memos, personal search memos and disclosure statements of accused persons were prepared after the arrest of the accused by accompanying staff i.e. SI A.P. Singh on his directions. According to him, they reached Adarsh St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 45 Nagar Railway Station at about 9:40 pm and he had not informed to RPF or Station Master about their presence at railway station Adarsh Nagar as the same was not necessary as they had not entered the railway station. He has denied the suggestion that there is heavy rush of people at the entry gate of Adarsh Nagar railway station. The witness has testified that he had not paged the dairy however, he had counted the number of pages. He has further deposed that he had not mentioned the case particulars on the diary, visiting cards and voter I-Card of Pappu. According to PW13, he had not made inquiries regarding the fact that house no. 94 Ravidas Colony is a rented accommodation or that the accused is the owner of the said house. He has testified that the house was opened when they went there and the wife and mother of the accused were present but he had not joined wife and mother of the accused Vijay @ Kalia in investigations and did not obtain their initials on any of the document. The witness has also deposed that he had not seized the cloth bag from which the alleged Sua was recovered and has admitted that he had not prepared Ex.PW10/H but the same was prepared by accompanying staff on his directions. According the investigating officer he received back the seal of RCS from Ct. Baljit after two to three months of sending the samples to the FSL. The witness has further deposed that he left the house of Vijay @ Kalia at about 10 - 15 minutes. He has denied the suggestion that he had not conducted the investigations fairly and properly or that nothing incriminating was recovered from the possession of accused or at their instance or that the entire writing work and memos were prepared while sitting in the police station or that accused were forced to sign on blank papers which were later on St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 46 converted into various memos including their disclosure statements.
PW14 HC Kanwarpal Singh has deposed that in the intervening night of 15/16.8.2008 he was posted as Incharge PCR van Comm. 35 and was on duty from 8:pm to 8am. According to him, at about 3:50 am they received the information that two persons have been stabbed at gate no.2 Azadpur Mandi. He has further deposed that thereafter he along with staff reached gate no.2 Azadpur Mandi from where he came to know that the incident had taken place at D- Block corner near STD booth and thereafter, they reached there and found two persons namely Sushil Kumar and Pappu in injured conditions. According to him, they took the injured to BJRM Hospital and got them admitted there for treatment.
In his cross examination by Ld. Defence counsels the witness has deposed that they had reached the spot at about 3:55 am and the injured were admitted within fifteen minutes but they did not meet any relatives of the injured at the hospital.
PW16 Sh. Rajesh Kumar Goel the then ACMM, Rohini Courts, Delhi has deposed that on 18.8.2008 he was posted as Metropolitan Magistrate and on that day an application for conducting the Test Identification Parade of accused persons namely Sharwan Kumar, Vijay @ Kalia and Pawan Kumar was moved by the Investigating Officer before Sh. Prashant Kumar Ld. MM Rohini, Delhi, which was marked to him by the Ld. MM. According to him,he proceeded to conduct the Test Identification Parade of aforesaid accused persons and had gone to District Jail, Rohini for conducting the Test Identification Parade which was fixed for 2.9.2008. He has further deposed that Investigating Officer SI St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 47 Krishan Lal along with witness Sh. Sushil Kumar S/o Sh. Ram Dass met him outside the main gate of the jail who identified the witness and they all were asked to wait outside and was directed to be sent only when called after which he conducted the Test Identification Parade proceedings in respect of the accused Mukesh which proceedings are Ex.PW8/A. According to the Ld. MM, the accused Mukesh refused to participate in the proceedings and he thereafter conducted the Test Identification Parade proceedings in respect of the accused Vijay @ Kalia which proceedings are Ex.PW8/B and the accused Vijay had also refused to participate in the proceedings. The witness has testified that he thereafter proceeded to conduct the Test Identification Parade proceedings of accused Mukesh which are Ex.PW8/C and the accused Mukesh refused to participate in the proceedings. He has also deposed that thereafter the investigating officer moved an application to obtain a copy of the proceedings which application is Ex.PW16/A and the proceedings were sent back in the sealed envelope to the concerned court. The witness has further deposed that on 30.9.2008 an application for conducting the Test Identification Parade of accused Sharwan Kumar S/o Sita Ram Mehtoo was moved by the Investigating Officer before Sh. Prashant Kumar, Ld. MM which was marked to him for disposal. According to him, on 30.9.2008 he proceeded to conduct the Test Identification Parade of accused Sharwan Kumar at Tiar Jail and conducted the Test Identification Parade of accused Sharwan Kumar vide Ex.PW8/E wherein the accused Sharwan Kumar refused to participate. He has also deposed that an application for providing the copy of the proceedings was moved by the investigating officer which is St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 48 Ex.PW16/B which was allowed. The envelopes are Ex.PW16/C & Ex.PW16/D and the applications of the investigating officer for conducting the Test Identification Parade which are Ex.PW16/E & Ex.PW16/F. He has not been cross-examined by the Ld. Defence Counsels for the accused.
Statement of the accused/ defence evidence:
After completion of prosecution evidence, statements of the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to them which they have denied. The accused Vijay @ Kalia has stated that he is innocent and has been falsely implicated in the present case. He has admitted having refused to participate in the judicial Test Identification Parade and states that he had already been shown to the witnesses in the Police Station. According to him, he was lifted from his residence.
Similarly the accused Pawan has similarly stated that he is innocent and has been falsely implicated in the present case. He has admitted having refused to participate in the judicial Test Identification Parade and states that he had already been shown to the witnesses in the Police Station. According to him, he was lifted from his residence.
The accused Sharwan Kumar has also stated that he is innocent and has been falsely implicated in the present case. He has admitted having refused to participate in the judicial Test Identification Parade and states that he had already been shown to the witnesses in the Police Station. According to him, he was lifted from St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 49 his residence.
Further, the accused Mukesh has stated that that he is innocent and has been falsely implicated in the present case. He has admitted having refused to participate in the judicial Test Identification Parade and states that he had already been shown to the witnesses in the Police Station. According to him, he was lifted from his residence.
The accused has, however not to lead any evidence in their defence.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State as well the as the counsels/ Amicus curiae appearing on behalf of the accused persons. I have also gone through the testimonies of the various witnesses examined by the prosecution. I propose to first deal with all the allegations/ averments individually in a tabulated form and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
PUBLIC WITNESSES/ EYE WITNESSES
1. Sushil Kumar He is the eye witness to the incident and had also
(PW1) received injuries during the incident. He has
deposed on the following aspects:
1. That on 16.08.2008 he along with his friend
namely Pappu came to Azadpur Subzi Mandi to
purchase vegetables.
2. That they had purchased some vegetable from the D Block of Azadpur Subzi Mandi and were going towards the IN Gate/ Main gate and at about 3.30 AM when they were near the STD PCO on the D Block corner, they were encircled by four persons.St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 50
3. That two of the accused persons snatched Rs.14,800/- from his pocket. He has identified the accused Sharwan Kumar and Pawan to be the persons who had snatched money from him.
4. That when he protested, two of the other accused persons who were armed with Ice pricks started attacking him and Pappu. He has identified the accused Vijay @ Kalia to be the persons, who stabbed him and has also identified accused Mukesh as the person who was armed with ice prick.
5. That the accused persons Vijay and Mukesh caused injuries with the help of Ice pricks on the persons of Pappu and also to him on the left side of chest and abdomen in three places and also on his right hand.
6. That after snatching money the accused persons ran away.
7. That he had been gheroed by the accused persons, when he entrapped in the traffic of trucks and when he moved out of the traffic he saw that his companion Pappu was also lying in an injured condition on the road on which he called up PCR from his mobile phone bearing number 9210415252 and requested the public to take them to hospital.
8. That they were taken to a private nursing home but the guard at the Nursing Home did not let them enter the same on the pretext of police case and in the meantime, PCR officials reached there and took them to BJRM Hospital.
9. He has proved having given his statement to the police in BJRM Hospital which is Ex.PW1/A.
10.That the denomination of currency note was Ten currency notes of Rs.1000/-, Nine currency notes of Rs.500/- and Three currency notes of Rs.100/- each.
11.That he had identified the accused persons on 15.09.2008 in the Rohini court Complex when the accused persons had produced in the some court.St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 51
12.That his blood stained clothes were seized at the hospital which he identified in the court i.e. a white shirt with cuts on the left chest side which is Ex.P1 and a vest bearing a cut corresponding to the cut in the shirt which is Ex.P2.
13.That within a month of the occurrence he was again called at the hospital when his blood sample was taken by the doctor.
2. Pradeep Kumar He is the brother of deceased Pappu and also the (PW4) alleged eye witness to the incident. He has deposed on the following lines:
1. That on 16.08.2008 he along with his brother Pappu and one Sushil came to Azadpur Subzi Mandi for purchasing vegetable at around 3.00 a.m. and Pappu and Sushil went towards D Block for purchasing vegetables whereas he went towards onion shed.
2. That at around 3.30 AM he saw that four boys had surrounded his brother Pappu and friend Sushil and one of them had taken out the purse of his brother from his pocket and when his brother objected then the accused Mukesh and Vijay (whom the witness has correctly identified in the court by pointing out towards them but not by name), gave ice prick blow on various parts of his body and the other two accused who had surrounded his brother and Sushil had taken out the money.
3. He has identified the accused Pawan and Sarwan correctly by pointing out towards them in the court.
4. That accused gave ice prick blow to Sushil and Pappu on which he raised alarm and thereafter all the four accused ran away towards D Block on which somebody informed the police on No.100 and police came there and took his brother and Sushil to BJRM Hospital.
5. That he went to his house to inform about the incident and later on he came back at the spot when he came to know that his brother has already expired.St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 52
6. That deceased Pappu was having black colour purse and used to keep one small diary and some telephone diary, voter I card etc.
7. That after postmortem examination dead body of his brother was received vide receipt which is Ex.PW4/A.
8. That later on he identified the accused Pawan and Vijay in the judicial test Identification Parade in Rohini jail. He has proved his statement recorded during the Test identification Parade of accused Pawan and Vijay which are Ex.PW4/B and Ex.PW4/C respectively.
9. That subsequently he was again called in Tihar jail for the test Identification Parade of other two accused but they refused to participate in the same and thereafter he had not identified them anywhere before the police.
10. Some leading questions were put to the witness Pradeep by the Ld. Addl. PP for the State wherein he has admitted that on 15.09.2008 he had come to court complex Rohini and outside the court of Ld. MM Shri Prashant Kumar he had identified accused Sharvan and Mukesh also besides accused Pawan and Vijay to the investigating officer being the said four persons who were involved in the incident.
11.That in the incident accused Sharvan had blocked the way of his brother and Sushil and Mukesh had attacked them with ice prick.
MEDICAL EVIDENCE/ WITNESSES
3. Dr. Gopal (PW3) This witness has proved that on 16.08.2008 one patient Sushil S/o Ramdass aged 42 years, male was brought to the BJRM hospital with the alleged history of physical assault and was examined by Dr. Nadeem Sr. Resident under his supervision. He has proved the MLC of injured Sushil which is Ex.PW3/A. He has also proved that on the same day one patient Pappu S/o Sobran Singh, aged 45 years male was also brought to hospital with the alleged history of physical assault and was also examined by Dr. Nadeem under his supervision vide MLC which is Ex.PW3/C. St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 53
4. Dr. R.P. Singh This witness has proved having conducted the (PW12) postmortem examination on the dead body of deceased Pappu on 16.8.2008 which report is Ex.PW12/A. He has also proved that the cause of death in this case was shock due to cardiac temponade as a result of injuries to great vessels produced by pointed stabbing object and the Injury no.2 is ante-mortem and sufficient to cause death in ordinary course of nature and time since death is about eight hours.
He has also proved that on 22.10.2008 on an application moved before him by Inspector Ram Chander, he gave his opinion that the injuries mentioned in the postmortem report no. 822/08 dated 16.8.2008 on the body of Pappu S/o Shobha Ram are possible by the weapons produced before him or by similar such type of weapons, which opinion is Ex.PW12/B. He has proved that the sketch prepared by him which are Ex.PW12/C & PW12/D. He has correctly identified the ice pricks examined by him which are Ex.P-4 and Ex.P-5.
5. Dr. Rohit Kumar This witness has proved the death certificate of (PW15) Pappu issued by BJRM hospital which is Ex.PW15/A and Death Summary which is Ex.PW15/B. POLICE/ OFFICIAL WITNESSES (Proving Investigations)
6. HC Raghubir He is a formal witness being the Duty Officer who Singh (PW2) has proved having received the rukka on the intervening night of 15/16.08.2008 at around 6 AM which was brought by ASI Surender and sent by SI Arvind Pratap Singh, on the basis of which rukka he got an FIR no.186/08, under Section 394/397/307/34 IPC registered by dictating it to the computer operator, print out of which FIR is Ex.PW2/A. He has also proved having made an endorsement on the rukka which is Ex.PW2/B and having recorded the DD No.31A copy of which is Ex.PW2/C. St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 54
7. HC Mahender He is also a formal witness being the photographer (PW5) who has proved having taken seven photographs of the place of incident on the direction of the investigating officer the negatives of which are Ex.PW5/A (1to7) and the corresponding positive photographs are Ex.PW5/B (1to7).
8. SI Satpal Singh This witness is the Crime Team Incharge who has (PW6) proved having inspected the spot of incident on 16.08.2008 and having prepared his report which is Ex.PW16/A which he handed over to the Investigating Officer.
9. HC Prahlad Singh He is the formal witness being the MHCM who has (PW7) proved having received the various case properties from the Investigating Officer and later on sent to same to FSL. He has placed on record the photocopies of the various entries in Register No. 19 and the RC which are Ex.PW7/A to Ex.PW7/J. He has proved that the sealed pullanda remained intact during his custody and he did not interfere with the same nor allowed anyone to interfere with it.
10. SI Manohar Lal He is the Draftsman who has proved having (PW8) prepared the scaled site plan of the spot of incident which site plan is Ex.PW8/A.
11. Ct. Rakesh (PW9) He is a formal witness who has proved that on 27.10.2008 he took six sealed pullandas and four sample seals along with FSL Form for depositing in FSL Rohini vide RC No.83/21/08. He has proved that the sealed pullanda remained intact during his custody and he did not interfere with the same nor allowed anyone to interfere with it.
12. SI Arvind Pratap He is the initial investigating officer who has proved Singh (PW10) the following documents:
Ex.PW10/A DD No. 29A
Ex.PW10/B Rukka prepared by him
Ex.PW10/C Seizure of pullanda containing the
clothes of injured Sushil.
Ex.PW10/D Arrest memo of accused Vijay @
Kalia
Ex.PW10/E Arrest memo of accused Pawan
Ex.PW10/F Arrest memo of accused Sharwan
St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 55
Ex.PW10/G Personal search memo of accused
Vijay
Ex.PW10/H Personal search memo of accused
Pawan
Ex.PW10/J Personal search memo of accused
Sharwan
Ex.PW10/K Disclosure statement of accused
Vijay
Ex.PW10/L Disclosure statement of accused
Pawan
Ex.PW10/M Disclosure statement of accused
Sharwan
Ex.PW10/N Pointing out memo
Ex.PW10/O Seizure of Purse along with its
belonging got recovered by the
accused Vijay @ Kalia
Ex.PW10/P Sketch of the ice prick got recovered
by the accused Vijay @ Kalia.
Ex.PW10/Q Seizure of the ice prick
Ex.PW10/R Arrest memo of accused Mukesh
Ex.PW10/S Personal search memo of accused
Mukesh
Ex.PW10/T Disclosure statement of accused
Mukesh
Ex.PW10/U Pointing out memo
Ex.PW10/V Seizure of currency notes recovered
by the accused Mukesh
Ex.PW10/W Sketch of the ice prick got recovered
by the accused Mukesh
Ex.PW10/X Seizure of ice prick got recovered by
the accused Mukesh.
13. SI Kishan Lal This witness has proved having got conducted the
(PW11) Test Identification Parade of the accused persons
during which they have refused to participate. He has also proved having got the witness Sushil Kumar medically examined in BJRM Hospital and the seizure of blood samples of the accused vide memo Ex.PW11/A. St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 56
14. Inspector R.C. He is the subsequent investigating officer who has Sangwan (PW13) proved the various investigation proceedings conducted by him. Apart from the document proved by SI Arvind Pratap he has proved the following documents:
Ex.PW13/A-1 Photographs of the spot to A-7 Ex.PW13/B Site plan Ex.PW13/C Brief Facts Ex.PW13/D Form 25.35 Ex.PW13/E & Dead body identification statement Ex.PW13/F of Pradeep and Bhagwati Ex.PW13/G Request for postmortem Ex.PW13/H Seizure of pullanda containing clothes of the deceased Ex.PW13/J Application for seeking subsequent opinion Ex.PX FSL result (not disputed by the Ld. Counsels for the accused persons)
15. HC Kanwarpal He was the PCR van Incharge and has deposed that:
Singh (PW14) 1. In the intervening night of 15/16.8.2008 at about 3:50 am they received the information that two persons have been stabbed at gate no.2 Azadpur Mandi.
2. Thereafter he along with staff reached gate no.2 Azadpur Mandi from where he came to know that the incident had taken place at D-Block Corner near STD booth and thereafter, they reached there and found two persons namely Sushil Kumar and Pappu in injured conditions.
3. They took the injured to BJRM Hospital and got them admitted there for treatment.
16. Sh. Rajesh Kumar This witness has proved having conducted the Test Goel, Ld. ACMM Identification Parade proceedings of accused (PW16) persons namely Sharwan Kumar, Vijay @ Kalia and Pawan Kumar and Mukesh. He has proved the following documents:
Ex.PW8/A Test Identification Parade of
accused Mukesh
St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 57
Ex.PW8/B Test Identification Parade of
accused Vijay @ Kalia
Ex.PW8/C Test Identification Parade of
accused Pawan
Ex.PW16/A Application of the investigating
officer for obtaining the copies of
the proceedings
Ex.PW8/E Test Identification parade of accused
Sharwan
Ex.PW16/B Application of the investigating
officer for obtaining the copies of
the proceedings
Ex.PW16/C & Envelopes containing the Test
Ex.PW16/D Identification Parade proceedings Ex.PW16/E & Application moved by the PW16/F investigating officer for conducting Test Identification Parade Now coming to the microscopic examination in respect of the evidence against the accused persons.
Ocular Evidence:
The best evidence in any case is the ocular evident or the eye witness account. In the present case, according to the prosecution there are two eye witnesses to the incident. The prosecution has examined two eye witnesses i.e. Sunil Kumar who has been examined as PW1 and Pradeep who has been examined as PW4. The most material witness is Sunil Kumar (PW1) who is the eye witness to the incident and had also received injuries. Sunil Kumar and the deceased Pappu were both vegetable vendors and on the date of the incident i.e. 16.8.2008 they purchased the vegetables from D Block Azadpur Suzi Mandi and were going towards the In Gate/ Main when at about 3:30 am and they reached near the STD/PCO on the D St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 58 Block Corner, they were encircled by four persons. The witness Sushil Kumar (PW1) in the court has correctly identified the accused Sharwan Kumar and Pawan as the boys who snatched Rs.14,800/- from his pocket and when he protested two other persons who were armed with ice pricks started attacking him and the deceased Pappu. The witness has duly identified the accused Vijay @ Kalia who had stabbed him and the accused Mukesh who was armed with ice prick. According to him, it was the accused Vijay @ Kalia who caused injuries with the help of ice pricks on the person of the deceased Pappu and also to him on the left side of chest and abdomen in three places and also on his right hand and after snatching money the accused persons ran away. According to Sushil Kumar he had been gheored by the accused persons when he entrapped in the traffic of trucks and when he moved out of the traffic he saw that Pappu was lying on the road in an injured condition on which he immediately called the PCR and requested the public to take them to the hospital. Initially they were taken to a private nursing home but the guard did not permit them to enter as it was a police case and in the meanwhile the PCR reached and took them to BJRM Hospital. He has identified his complaint given to the police which is Ex.PW1/A on the basis of which the present FIR was registered. He has also given his mobile phone no. 9210415252 from which he had made the PCR call. The PCR form which is present on the record shows that call had been made by Sushil Kumar from telephone no. 9210415252 belonging to the witness Sushil Kumar. This information had been received at 3:48 am and as per the report received from PCR, two injured were St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 59 found at the spot who were carried to the hospital namely Sushil Kumar aged 42 years and Pappu aged 45 years and snatching had been committed on the victim by four boys aged about 18 - 20 years and had been injured with the pointed object like Sua. It is also mentioned in the PCR Form that Sushil had received three injuries on the chest and one on the finger and deceased Pappu had received one injury on the chest. I may observe that this PCR Form has not been duly exhibited by the prosecution yet it is a document maintained in the regular course of business and there is a valid presumption of its correctness and can always be read into evidence for the purposes of corroboration since PW14 HC Kanwarpal Singh a witness from the PCR has testified that information regarding a stabbing incident was received and they took the injured to BJRM Hospital and got them admitted there for treatment. The witness has further specified that the currency notes which were snatched from him. According to him, ten currency notes were of Rs.1000/- denomination, nine were Rs.500/- and three currency notes were of Rs.100/- each. He has testified that he had identified the accused persons on 15.9.2008 in Rohini Court Complex when they were produced in the court and has proved that his blood stained clothes were seized in the hospital which he has duly identified in the court. He has identified his shirt which is Ex.P-1 and the vest worn by him at the time of the occurrence which is Ex.P-2. The said witness has been duly cross- examined in detail by the counsels for the accused but nothing much has come out. A suggestion has been put to him that he was unconscious at the time of admission to the hospital and that it was pitch dark at the spot of occurrence due to which reason he could not St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 60 identify the accused persons but he has denied the same and states that he was fully conscious and could have identified the accused persons. Rather, the MLC of this witness shows that when he was brought to the hospital he was conscious. The said witness was confronted with his earlier statement given to the police with regard to the identity of the accused which identity is not mentioned in his statement but that in itself will not be prove fatal to the case of the prosecution.
The perusal of the record shows that all the accused Vijay @ Kalia, Pawan Kumar, Sharwan Kumar and Mukesh have refused to participate in Test Identification Parade. The Test Identification Parade proceedings have been duly proved by Sh. Rajesh Kumar Goel (PW16), the then ACMM, Rohini Courts. The Test Identification Proceedings of accused Mukesh are Ex.PW8/A, that of accused Vijay @ Kalia Ex.PW8/B; Test Identification Proceedings of accused Mukesh are Ex.PW8/C and that of accused Sharwan Kumar which are Ex.PW8/D. The only explanation given by the accused for their refusal is that they photographs were shown to the witnesses. Onus of proving that the photographs had been shown to the witness, now shift upon the accused persons but they have not lead any evidence in support of their allegations that they had been photographed by the police which photographs were shown to the witnesses. Rather the testimony of Sushil Kumar (PW1) who had also received injuries shows that he has not only identified all the accused in the court but has attributed specific roles to each and every accused and there is no reason to doubt the same. Under the given circumstances, an adverse inference is drawn against all the St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 61 accused for their refusal to participate in the judicial Test Identification Proceedings. It is in this background that the witness Sushil Kumar (PW1) identified all the accused when they were produced before the Ld. MM on 15.9.2008.
Pradeep (PW4) is the brother of the deceased Pappu and has similarly deposed that he had gone to Azadpur along with his brother Pappu and Sushil Kumar. I may observe that Sushil Kumar (PW1) in his testimony does not say that Pradeep had accompanied them. He had simply stated that he and Pappu had gone to Azadpur Subzi Mandi. The brother of the deceased has identified all the four accused i.e. Vijay @ Kalia, Pawan Kumar, Sharwan Kumar and Mukesh and has corroborated the testimony of PW1 Sushil Kumar in toto. He has identified the accused Mukesh and Vijay as the persons who had given ice prick blows to the various parts of his deceased brother and other two accused i.e. Sharwan Kumar and Pawan as the persons who had taken out the money from the pocket of Sushil Kumar on which he raised an alarm. This testimony of Pradeep (PW4) does not find corroboration from the testimony of Sushil Kumar (PW1). Further, the documentation done at the spot and the record of the hospital do not establish the presence of Pradeep (PW4) at the spot. He is the real brother of the deceased and according to him, when the incident took place rather than attending to his injured brother, he went to his house to inform his family members about the incident and later on when he came to the spot he was told that his brother was expired. This testimony of witness Pradeep does not inspire confidence of the court as his behaviour and conduct immediately after the incident is not a natural behaviour of any St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 62 reasonable man or a prudent person. The real brother of the witness having been injured, he would not have left him dying on the road when he himself ran away to inform his family members.
Rather it is Sushil Kumar (PW1) who made a call to the PCR and requested the public persons to take them to the hospital. The possibility of Pradeep (PW4) being a planted witness cannot be ruled out but in so far as Sushil Kumar (PW1) is concerned his presence at the spot stand established. He had even received ice- prick injuries on the left side of chest, abdomen and also on his right hand, which fact stands established from his MLC which is Ex.PW3/A and there is no reason to doubt the same.
Allegations against the accused Vijay @ Kalia, Mukesh Singh, Pawan Kumar and Sharwan Kumar:
The testimony of Sushil Kumar (PW1) is very clear and specific. He has identified all the accused Vijay @ Kalia, Pawan Kumar, Sharwan Kumar and Mukesh as the persons who had stopped and surrounded him and the deceased Pappu. He has identified the accused Sharwan and Pappu who had snatched the money from him and has further identified the accused Vijay @ Kalia as the person who stabbed him with ice prick when he (Sushil) protested as a result of which he received injuries on the left side of chest and abdomen on three places and also on his right hand. He has further identified the accused Vijay @ Kalia and Mukesh as the persons who had who had inflicted ice prick injuries on deceased Pappu. A suggestion had been put to the witness that there was a scuffle between him and the deceased Pappu where they caused injuries to St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 63 each other or that to make a false case he had concocted a false story which he has denied. There is no document to show that the deceased Pappu and the injured Sushil Kumar had any kind of previous animosity. Rather, it is evident that they both are vegetable sellers and had come to Azadpur Mandi to purchase the vegetables while they were surrounded and attacked by the accused. Therefore, under these circumstances, I find no reason to disbelieve the testimony of Sushil Kumar (PW1) and I hereby hold that the accused Vijay @ Kalia and Mukesh had inflicted fatal injuries to the deceased with ice pricks whereas the accused Vijay @ Kalia inflicted injuries on the vital organs of the injured Sushil Kumar (PW1).
Medical evidence:
Dr. R.P. Singh (PW12) has proved the postmortem of the deceased Pappu S/o Shobha Ram who had been brought to the Trauma center with the history of 16.8.2008 at 3:30 am and later expired at about 6:00 am. He has proved that the following injuries were found on the body of the deceased:
1. A Reddish abrasion of size 4 cm x 0.3 cm was present on left thigh on medial aspect 25 cm below anterior superior iliac spine.
2. A penetrating wound with lacerated margins of size 0.3 cm x 0.4 cm was present on anterior aspect of right side of chest, 1 cm from mid line and 5.5 cm below supra sternal notch. Further it is cutting sternum opposite second inter costal space, cutting pericardium and then cutting aorta through and through and then making a nick in pulmonary artery in the pericardium itself.
Pericardial cavity contains about 500 ml clotted blood. Depth of St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 64 the wound was 10 cm and direction of the wound was horizontal, backward and slightly to the right side.
3. Penetrating lacerated wound of size 0.2 cm x 0.2 cm x 1 cm was present at lateral aspect left lower forearm. 6 cm above wrist joint.
4. Penetrating lacerated wound of size 0.2 cm x 0.2 cm x 1cm was present on lateral aspect of left thigh, 20 cm below anterior superior iliac spine.
He has further proved his opinion that the injury no.2 i.e. penetrating wound with lacerated margins of size 0.3 cm x 0.4 cm present on anterior aspect of right side of chest, 1 cm from mid line and 5.5 cm below supra sternal notch, was sufficient to cause death in the ordinary course of nature. Dr. R.P. Singh (PW12) has also proved his opinion that the injuries can be caused with the ice pricks (sua) produced before him or similar type of weapons. He has identified the ice prick on which LAZER was written which is Ex.P-4 and another ice prick on which TRISHUL was written which is Ex.P-5 both were having reddish brown stains on the lower aspect (near the tip) as the weapons which were produced before him on which he had given the opinion that the injuries mentioned in the postmortem report no.822/08 dated 16.8.2008 on the body of Pappu S/o Shobha Ram are possible by these weapons. The said witness has not been cross-examined at all by the counsel for the accused. Dr. Rohit Kumar (PW15) has proved the Death Certificate of deceased Pappu which is Ex.PW15/A and the Death Summary report of the deceased which is Ex.PW15/B. St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 65 Further, the MLC of the injured Sushil Kumar has been proved by Dr. Gopal (PW3) which MLC is Ex.PW3/A . Perusal of the said MLC shows that there was one punctured wound over middle of chest and abrasion over left palm. The nature of injuries were opined as simple and when the injured was brought to the hospital, he was conscious and oriented but was complaining of chest pain and breathlessness. The above MLC of injured Sushil proved that the injures caused to him was on vital organs i.e. over middle of chest.
Forensic evidence:
The FSL report which is Ex.PX has not been disputed by the Ld. Defence Counsels. Perusal of the same shows that blood has been detected on the shirt and baniyan of the injured Sushil; shirt, baniyan and pant of the deceased Pappu and the weapons of offence i.e. ice pricks recovered from the accused. The Serological Report do not show any reaction on the weapons of offence and other articles and is not conclusive but that in itself would not make any difference since it is evident that the examination of the exhibits was done after almost five months of the incident and therefore, under these circumstances, the possibility of samples being putrefied on account of improper preservation cannot be ruled out.
Arrest of the accused and recovery of weapons of offence:
The arrest of the accused was made on the basis of the secret information duly proved by SI Arvind Pratap (PW11) on the next day i.e. 17.8.2008. The testimony of SI Arvind Pratap finds due St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 66 corroboration from the testimony of Inspector Ram Chander (PW13). It has been proved that the accused Vijay @ Kalia was apprehended by SI Arvind Pratap (PW10), accused Pawan Kumar was apprehended by Ct. Baljit and the accused Sharwan Kumar was apprehended by Inspector Ram Chander (PW13) and they were arrested vide memos Ex.PW10/D, Ex.PW10/E and Ex.PW10/F respectively. Later again on the basis of secret information on 20.8.2008 the accused Mukesh was apprehended behind the onion shed near Railway Track, Mall Godown and was arrested vide memo Ex.PW10/R. It has been proved that the accused Vijay @ Kalia had taken the police party to the stairs of Adarsh Nagar Railway Station from where he took out one black purse from the bushes containing the voter Identity card of the deceased, one pocket diary and three visiting cards. Thereafter the accused led the police party to his house at First Floor, House No.94, Ravi Dass Colony, Sarai Peepal Thala, Delhi from where he had taken out one blood stained ice prick (Sua) from the cloth bag which ice prick. The said ice prick was measured and its sketch was prepared which is Ex.PW10/P and it was duly seized vide memo Ex.PW10/Q. Further, it has been proved that after his arrest the accused Mukesh led the police party to his house i.e. House No. 101, Ravi Dass Colony, Sarai Peepal Thala and took them in a room at ground floor and got recovered Rs.7,000/-
from an iron box and one ice prick (Sua) and handed over to Inspector Ram Chander and according to him the amount of Rs.7,000/- was the remaining amount of looted amount of Rs.14,800/. The sketch of the ice prick (Sua0 got recovered by the accused Mukesh was also measured and its sketch was prepared which is St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 67 Ex.PW10/W and was thereafter seized vide memo Ex.PW10/X. Both SI Arvind Pratap and Inspector Ram Chander have identified the ice prick got recovered by the accused Vijay @ Kalia which is Ex.P4 and the ice prick got recovered by the accused Mukesh which is Ex.P5.
Motive:
The motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. Motive is indicated only to heighten the probability that the offence was committed by the person who was impelled by such motive but if the crime is alleged to have been committed for a particular motive, it is St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 68 relevant to inquire whether the pattern of the crime fits in which the alleged motive. Motive is best known to the perpetrator of the crime and not to others.
In the present case, it is evident from the record that the accused and victims are not known to each other and the sole motive for the offence in the present case was robbery. The accused were not previously known to the victims and had surrounded them in the Subzi Mandi when they entrapped in the traffic of trucks and asked to hand over their valuables. It is also evident that it was only the accused Vijay @ Kalia and Mukesh Singh who were armed with ice pricks and not the accused Sharwan Kumar and Pawan Kumar. It is further evident that it was on the resistance shown by the victims that the accused Vijay @ Kalia and Mukesh Singh who were carrying ice pricks, used these deadly weapons by hitting and attacking the victims on their vital organs as a result of which Pappu succumbed to his injuries and Sushil Kumar by sheer providence escaped by simple injuries.
Common intention/ joint liability:
Ld. counsels appearing on behalf of the accused have vehemently argued that all the convicts cannot be held liable jointly and did not share common intention. In this regard, I may observe that Section 34 Indian Penal Code has been enacted on the principal of joint liability in the doing 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 St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 69 another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of 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 to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if pre-arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is 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 reported in AIR 1997 (1) SCC 746 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. The Section does not say "the common intentions of all" nor does it say "an 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 doing of a criminal act in furtherance of such intention. As a result of the application of St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 70 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 was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. 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 over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.
Applying the settled principles of law to the facts of the present case it is evident that the accused were not known to the victims prior to the incident and had no history of animosity. The main object was to snatch the money from the victims who had come to purchase vegetables in the market. It was all the four accused who surrounded the injured Sushil and Pappu (deceased) and while the accused Sharwan Kumar and Pawan Kumar snatched money from Sushil Kumar who protested when Vijay @ Kalia and Mukesh Singh who had ice pricks in their hands, caused injuries to Pappu (deceased). It was the accused Vijay @ Kalia who caused injuries with the ice pricks to Sushil Kumar and Pappu. Pappu succumbed to his injuries later on. It is writ large from the testimony of Sushil Kumar (PW1) the surviving victim and eye witness that only two St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 71 accused were carrying ice pricks and used the same while committing robbery. The common intention of all the accused hence was to commit robbery but in so far as the accused Vijay @ Kalia and Mukesh Singh are concerned, they had come armed with ice pricks, a deadly weapon and there is nothing on record to show that the accused Sharwan and Pawan were aware of the same or had exhorted Vijay @ Kalia and Mukesh Singh to use the same. In so far as the accused Vijay @ Kalia and Mukesh Singh are concerned their intention was to clearly scuttle the resistance offered by the victims by use of these deadly weapons i.e. ice pricks which they did as a result of which both Pappu and Sushil Kumar received injuries on vital organs. By sheer providence Sushil survived but Pappu, however, succumbed to his injuries. I hold that the existence of the common intention between all the accused Vijay @ Kalia, Pawan Kumar, Shawan Kumar and Mukesh Singh to commit robbery stands established and proved.
Discrepancies and Contradictions/ non joining of public witnesses:-
Ld. Counsels/ Amicus Curiae appearing on behalf of the accused persons have pointed out the various contradictions in the testimonies of the various witnesses of prosecution. It is argued that at the time of alleged incident Sushil Kumar (PW1) had not seen as to who had committed the offence and caused injuries to the deceased Pappu since Sushil Kumar has specifically deposed that he had been gheored by the accused persons when he was entrapped in the traffic of trucks and when he moved out of the traffic he saw that his companion was lying in an injured condition. It is also pointed St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 72 out that the fact regarding the witness Sushil Kumar (PW1) and the deceased Pappu being taken to a private nursing home where the PCR officers arrived and taken them to BJRM Hospital has not been mentioned in the earlier statement given by Sushil Kumar to the police. It is further argued that the witness Sushil Kumar has admitted that he has concealed the fact of his going to Azadpur Mandi on a truck bearing no. 2737 along with other vegetable vendors of the area of Shahdara, from the investigating officer which creates a doubt on the version of the witness Sushil Kumar (PW1). It is also argued that no public witness has been joined by the investigating officer either at the time of arrest of the accused persons or at the time of recovery of various articles and hence the testimony of the police witnesses are liable to be discarded.
I have considered the rival contentions. Before coming to the discrepancies as pointed out by the Ld. Defence Counsel, I briefly discuss the ratio laid down by the various courts on the aspect of inconsistencies and discrepancies found in the testimonies of the witnesses.
In the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 73 occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
In so far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish Vs. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 74 however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
Applying the settled principles of law to the facts of the present case it is evident from the record that the identity of the accused persons stand established. Sushil Kumar (PW1) the eye witness who had also received injuries in the incident, has identified the accused Sharwan Kumar and Pawan as the persons who had snatched his money and the accused Vijay @ Kalia and Mukesh as the persons who had inflicted injures upon him as well as the deceased Pappu with the help of ice pricks. It is further evident that on the basis of a secret information the accused Vijay @ Kalia, Sharwan Kumar and Pawan Kumar were apprehended on the next St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 75 date of the incident i.e. 17.8.2008 pursuant to which the accused Vijay @ Kalia got recovered the ice prick (sua) with which he has committed the offence. It is also evident that after four days of the incident the accused Mukesh was also apprehended on the basis of secret information, who also got recovered another ice prick (sua). Inspector Ram Chander (PW13) has specifically stated that he had asked certain public persons to join the proceedings but they refused to join. Understandably so since most of the public persons do not wish to get themselves involved in such court cases. Therefore, a valid explanation is forthcoming for non joining of the public witnesses. Further, I do not find any force in the submission of the counsel for throwing out the case of the prosecution merely on the ground of certain discrepancies/ contradictions in the deposition of various PWs which discrepancies are bound to occur in the deposition of various witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution. Further, even if the fact of the witness Sushil Kumar (PW1) having gone to the Mandi in a truck with other vegetable vendors has been suppressed, this in my view will not affect the merits of the findings since the incident took place much later after they had already reached the Mandi and made purchases. How they reached the Mandi is immaterial.
Defence of the accused:
The defence of the accused is that the complainant Sushil Kumar (PW1) was unconscious and hence, he could not see St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 76 any of the accused persons. This defence raised by the accused appears to be improbable in view of the fact that both the injured Sushil Kumar and Pappu were taken together to the hospital by PCR and as per their MLC Ex.PW3/A and Ex.PW3/C were conscious at the time of their admission to the BJRM Hospital. They had told the doctors that they received injures on account of physical assault.
FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 77 conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. The identity of the accused persons has been established. They have been correctly identified by Sushil Kumar (PW1). The role attributed to all the accused have also been established by the prosecution. It stands established that on 16.8.2008 the deceased Pappu and Sushil Kumar (PW1) who were vegetable vendors, had gone to Azadpur Subzi Mandi to purchase vegetables. It also stands established that at about 3:30 am when they were near the STD/PCO on the D Block Corner, they were encircled by the accused Vijay @ Kalia, Sharwan Kumar, Pawan Kumar and Mukesh Singh. The prosecution has been able to prove that the accused Sharwan Kumar and Pawan were the persons who had snatched the money from the pocket of Sushil Kumar. It stands proved that when Sushil Kumar protested the accused Vijay @ Kalia and Mukesh who were armed with ice pricks, inflicted injuries upon both Sushil Kumar and Pappu (deceased). It has also been established that the injury no.2 on the body of the deceased Pappu i.e. penetrating wound with lacerated margins of size 0.3 cm x 0.4 cm present on anterior aspect of right side of chest, 1 cm from mid line and 5.5 cm below supra sternal St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 78 notch, was sufficient to cause death in the ordinary course of nature. The recovery of the ice pricks also stands established and the FSL report shows that blood was found on both the ice pricks got recovered by the accused Vijay @ Kalia and Mukesh.
There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
It also stands conclusively proved that the accused Vijay @ Kalia, Sharwan Kumar, Pawan Kumar and Mukesh Singh in furtherance on their common intention robbed Sushil Kumar (PW1) of Rs.14,800/- thereby committed an offence under Section 392/394 St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 79 Indian Penal Code. It also stands conclusively established that the accused Vijay @ Kalia while committing robbery inflicted injures to Sushil Kumar with ice pricks with such an intention that knowledge and under such circumstances if he by this act caused the death of Sushil Kumar, he would be guilty of culpable homicide. It further stand established that while committed robbery upon Sushil Kumar the accused Vijay @ Kalia also showed him the ice prick which he was carrying, thereby committed an offence under Section 307 read with Section 397 Indian Penal Code. It has also been proved by the prosecution that the accused Vikay @ Kalia and Mukesh in furtherance of their common intention inflicted injuries on anterior aspect of right side of chest, 1 cm from mid line and 5.5 cm below supra sternal notch which injury cut sternum opposite second inter costal space, pericardium and then cut aorta through and through and then making a nick in pulmonary artery in the pericardium itself, which injury was sufficient to cause death in ordinary course of nature as a result of which the injured Pappu who was taken to the hospital by PCR van had expired on the same day; thereby committed an offence under Section 397 read with 302 Indian Penal Code. However, in so far as the recovery of the purse belonging to the deceased Pappu alleged to be containing the voter ID of deceased Pappu and pocket diary from the accused Vijay @ Kalia and the recovery of Rs.7,000/- at the instance of the accused Mukesh Singh is concerned, there is nothing on record to show that the Judicial Test Identification Parade of the said purse and the currency notes has been conduced. Also, at the time of recovery no public witnesses had been joined despite there being sufficient opportunity for the same.
St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 80The description of the purse has not been given in the FIR and in so far as the currency notes are concerned, there is nothing to link the recovered amount to the incident. Even the complainant Sushil Kumar (PW1) has not been able to identify the currency notes put to him and in the court he has deposed that these currency notes may be amongst the ten currency notes which were snatched from him. I, therefore, hold that the prosecution has not been able to prove and substantiate the recovery of purse belonging to the deceased and robbed amount from the accused Vijay @ Kalia and Mukesh Singh beyond reasonable doubt due to which reason benefit of doubt is being given to the accused Vijay @ Kalia and Mukesh for the offence under Section 411 Indian Penal Code for which they are acquitted.
In view of the aforesaid discussion, I hereby hold all the accused Vijay @ Kalia, Pawan Kumar, Sharwan Kumar and Mukesh guilty of the offence under Section 392/394 read with Section 34 Indian Penal Code. Further, accused Vijay @ Kalia is also held guilty of the offences under Sections 397 read with Section 307 Indian Penal Code and for the offence under Section 302 Indian Penal Code. Further, the accused Mukesh Singh is held guilty of the offence under Section 397 read with Section 302/34 Indian Penal Code. All the accused are accordingly convicted.
Case be listed for arguments on sentence on 20.4.2011.
Announced in the open court (Dr. KAMINI LAU)
Dated: 8.4.2011 ASJ-II(NW)/ ROHINI
St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 81
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI Session Case No. 998/09 Unique Case ID No.: 02404R0007592009 State Vs. (1) Vijay @ Kalia S/o Sh. Akhari Mandal R/o 94, First Floor, Ravi Dass Colony, Sarai Pipal Thala, Delhi (Convicted) (2) Pawan Kumar S/o Sh. Ram Chander R/o 94, Second Floor, Ravi Dass Colony, Sarai Pipal Thala, Delhi (Convicted) (3) Sharwan Kumar @ Shahrukh S/o Sita Ram Mehtu R/o 94, Second Floor, Ravi Dass Colony, Sarai Pipal Thala, Delhi (Convicted) (4) Mukesh Singh S/o Murari Singh R/o House No. 101, Ravi Dass Colony, Sarai Pipal Thala, Delhi (Convicted) FIR No.: 186/08 Police Station: Adarsh Nagar Under Section: 392/394/397/307/302/411/34 IPC St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 82 Date of Conviction: 8.4.2011 Arguments heard on: 20.4.2011 Date of Sentence: 27.4.2011 APPEARANCE:
Present: Sh. Taufiq Ahmed, Additional Public Prosecutor for the State.
Sh. Aseem Bhardwaj, Advocate/ Amicus Curiae for the convict Vijay @ Kalia.
Ms. Sindhu Sakarwal, advocate/ Amicus Curiae for the convicts Pawan Kumar and Sharwan Kumar.
Sh. Raj Kumar Advocate for the convict Mukesh. All the four convicts in judicial custody.
ORDER ON SENTENCE:
Vide my detailed judgment dated 8.4.2011, this court has held all the four accused namely Vijay @ Kalia, Pawan Kumar, Sharwan Kumar and Mukesh guilty of the offence under Sections 392/394/34 Indian Penal Code and convicted accordingly. Further, the accused Vijay @ Kalia has been held guilty of the offences under Section 397 read with Section 307 Indian Penal Code and also of the offence under Section 302 Indian Penal Code and convicted accordingly. The accused Mukesh Singh has also been held guilty of the offence under Section 397 read with 302/34 Indian Penal Code and convicted accordingly. The accused Vijay @ Kalia and Mukesh Singh, have however been acquitted of the offence under Section 411 St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 83 Indian Penal Code.
Sushil Kumar and Pappu, two vegetable vendors who were residing at East Delhi, had gone to Azadpur Subzi Mandi in the early morning hours to purchase vegetables little knowing that Pappu would not return. While they had made purchases of the vegetables from D- Block and were going towards the main gate, at about 3:30 am, they were encircled by the accused persons. The accused Sharwan Kumar and Pawan Kumar snatched Rs.14,800/- from the pocket of Sushil Kumar and when he protested, the accused Vijay @ Kalia and Mukesh who were armed with ice pricks, attacked them and caused injuries to Pappu and Sushil Kumar. Thereafter all the accused ran away from the spot and the injured Sushil Kumar informed the PCR on which they were taken to BJRM Hospital. Pappu unfortunately, could not survive and expired after a few hours of the incident on account of shock due to cardiac temponade as a result of injuries to great vessels produced by pointed stabbing object which injury is sufficient to cause death in ordinary course of nature.
The complainant/ injured Sushil Kumar has appeared in the court and has supported the case of the prosecution. He has duly identified all the accused as the boys who had surrounded him and deceased Pappu. He has also identified the accused Sharwan Kumar and Pawan Kumar as the boys who had snatched Rs.14,800/- from his pocket; the accused Vijay @ Kalia as the boy who had inflicted injures upon him with the help of ice prick and the accused Vijay @ Kalia and Mukesh as the boys who has inflicted injuries upon deceased Pappu. On the basis of the testimony of the complainant/ injured Sushil Kumar and also on the basis of the other St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 84 corroborative material on record, this court has held all the four accused namely Vijay @ Kalia, Pawan Kumar, Sharwan Kumar and Mukesh guilty of the offence under Sections 392/394/34 Indian Penal Code and convicted accordingly. Further, the accused Vijay @ Kalia has been held guilty of the offences under Section 397 read with Section 307 Indian Penal Code and also of the offence under Section 302 Indian Penal Code and convicted accordingly. The accused Mukesh has also been held guilty of the offence under Section 397 read with 302/34 Indian Penal Code and convicted accordingly.
I have heard the arguments on the point of sentence. The convict Vijay @ Kalia is a young boy of 22 years having a family comprising of aged widow mother and wife. He is totally illiterate and is a vegetable vendor by profession. He is also involved in another case bearing FIR No.426/07, Police Station Adarsh Nagar, under Sections 307/394/398/34 IPC and has been acquitted in case FIR No.3/07, Police Station Adarsh Nagar, under Section 399/402 IPC. The convict Pawan Kumar is also a young boy of 22 years and has a family comprising of father, mother, three brothers and two sisters. He is fifth class pass and is a vegetable vendor by profession. He is not involved in any other case. The convict Sharwan Kumar is a young boy of 21 years having a family comprising of aged father who is mentally disturbed, three brothers and four sisters. He is totally illiterate and is a vegetable vendor by profession. He is not involved in any other case. The convict Mukesh Singh is also a young boy of 23 years of age and has a family comprising of St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 85 grandparents, two widow mothers (his father having married twice), wife, three brothers and two sisters. He is 5th class pass and is a vegetable vendor by profession. He has no other case against him.
Ld. Counsels appearing on behalf of the convicts have vehemently argued that all the convicts are young boys and at the time of the incident they were in their early twenties. It is also argued that the convicts Sharwan Kumar, Pawan Kumar and Mukesh are first time offenders and they are not involved in any other criminal case. It is submitted that though the convict Vijay @ Kalia is involved in two other cases but he has not been convicted in any other case so far. They request that a lenient view be taken against the convicts.
The Ld. Additional Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts Vijay @ Kalia and Mukesh. It is also stated that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life. He has also argued that a strict punishment be awarded to the convicts Sharwan Kumar and Pawan Kumar.
I have considered the submissions made before me. At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 86 (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.
The necessity of there being a proportion between the offences and punishment has been long felt. However off late various judgments of the higher courts of the land and various jurists have tried to provide certain rules to this moral arithmetic.
(i) The punishment sought to be inflicted for any given offence should be such that the evil of the punishment must be made to exceed the advantage of the offence.
ii) The more deficient in certainty a punishment is, the severer it should be.
iii) The greater an offence is, the greater reason there is to hazard a severe punishment for the chance of preventing it, and
iv) Same punishment for the same offence ought not to be inflicted upon all delinquents. It is necessary to pay some regard to the circumstances which effect sensibility.
However, at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 87 the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
In criminal appeal no.528/2009 and death reference number 1/2009 Hon'ble High Court of Delhi in its judgment dated 31/8/2009 observed that the Court has to see as to whether the case falls in the category of the Rarest of Rare i.e an extreme form of being extremely rare within the larger category of rare or not. Thus, it has to be established that the case falls in the category of the rarest of the rare. Making a reference to their earlier decision as rendered in death reference number 1/2008, titled State Vs. Raj Kumar Khandelwal Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble Ms. Justice Indermeet Kaur of the Delhi High Court further referred to the summary of various judicial pronouncements as made by them while considering the mitigating factors and the aggravating factors. The various judicial pronouncements in this regard are summarized as under:-
A bird's eye view of various judicial decisions reveal that Courts have considered the under noted circumstances, as mitigating: lack of any prior criminal record as held in the decision reported as 2006 EWHC 1555 (OQ) In Re. Butters'; the age of the offender being too young or too old as held in the decision reported as AIR 1974 SC 799 Ediga Anamma St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 88 Vs. State of Andhra Pradesh; the character of the offender i.e how the offender is perceived in the society by men of social standing; the probability of the offenders' rehabilitation, reformation and re-adaptation in the society; whether the offence was committed under a belief by the assailant that he was morally justified in doing so; or that the accused acted under the duress or domination of another person as held in the decision reported as 1982 (3) SCC 24 Bachan Singh Vs. State of Punjab; commission of the offence at the spur of the moment without any premeditation; or the offender being provoked (for instance by prolonged stress) in a way not amounting to the defence of provocation, as held in the decisions reported as 2008 EWHC 36 (QB) Re. Rahman and AIR 1998 SC 2821 A. Devendran Vs. State of Tamil Nadu; a belief by the offender that the murder was an act of mercy as held in the decision reported as 1994 (Supply) 3 SCC 143 Janki Dass Vs. State (Delhi Administration); a guilty plea by the offender or his voluntarily surrendering before the authorities and his being genuinely remorseful as held in the decisions reported as St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 89 (2008) EWHC 92 (QB) In Re. Rock and (2006) EWHC 1555 (QB) In Re. Butters';
that the offender acted to any extent in self defence; that his intention was merely to cause serious bodily harm rather than to kill; that the victim provoked or in any way contributed to the crime, as held in the decision reported as AIR 1999 SC 1699 Kumudi Lal Vs. State of U.P. Lastly, in the decisions reported as AIR 2007 SC 2531 Swami Shradhanand @ Murali Manohar Mishra Vs. State of Karnataka and 2007 Cri. L.J. 1806 Shivu & Anr. Vs. High Court of Karnataka & Anr., it was held that in cases of conviction being based on circumstantial evidence a lenient view should be taken on the issue of sentence.
Aggravating factors/circumstances have been opined to be; the accused having undergone previous convictions and his proving to be a future danger/threat or menace to the society considering aspects like criminal tendencies, vagabond lifestyle, drug abuse etc. as per the decision reported as (2008) EWHC 719 (QB) In Re. Miller; offender being in a dominating position to the victim or in a position of trust and has abused the trust; anti social or socially abhorrent nature of the crime i.e St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 90 where the offence arouses social wrath and shakes the confidence of the people in any social institution; a crime committed for a motive which evinces total depravity and meanness for instance, a financial gain; where the magnitude of the crime is large i.e there are more than one victim; where the crime is committed in an extremely brutal, grotesque, diabolical revolting or dastardly manner so as to arouse extreme indignation of the community as held in the decision reported as 1983 (3) SCC 470 Machhi Singh Vs. State of Punjab; significant degree of planning or premeditation and lack of remorse as held in the decision reported as AIR 2005 SC 2059 Holiram Bordoli Vs. State of Assam; the victim being vulnerable due to age or physical infirmity as held in the decision reported as 2008 (110) Bom. LR. 373 State of Maharashtra Vs. Haresh Mohandass Rajput; mental or physical suffering inflicted on the victim before the death; victim being a public service provider or performing a public duty at the time when the crime was committed, as held in the decision reported as (1977) 431 US 633 Roberts Vs. Louisiana. Lastly, the offender attacking sovereign democratic institutions as St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 91 held in the decision reported as 2003 (6) SCC 641 Navjyot Sandhu @ Afsan Guru Vs. State".
Hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.8.2009 examined another important facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249 wherein the Hon'ble Supreme Court of India had observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through the instrumentality of law. That ought not to be done, save in the rarest of rare cases, when the alternative option is unquestionably foreclosed.
The Hon'ble Mr. Justice Pradeep Nandrajog further considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the ordinary category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a higher category, where the Court, in a rare St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 92 case, but not the rarest of the rare, would clip said benefit being extended by directing that the accused shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of rare cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years. It is, therefore, evident that the courts are required to draw a virtual balance sheet listing the mitigating and the aggravating circumstances against each other and then forming an opinion as to where does the fulcrum rest. The various aggravating circumstances are to be considered in the light of the aforesaid mitigating circumstances which also includes in itself the aspect of young age of the convict and his conduct during the course of trial.
Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 93 factors in the present case is that the convicts Vijay @ Kalia and Pawan belong to very poor families. The convict Mukesh is a first time offender and is not involved in any other case. Though the convict Vijay @ Kalia is involved in one other case but he has not been convicted so far and both the convicts were hardly aged about 20 years at the time of incident. They are in judicial custody for the last more than two years. The aggravating factors are that the murder of deceased Pappu had been committed in cold blood without any instigation and the injured Sushil Kumar had survived the attack by his own sheer luck. There was no previous animosity between the convicts and the victim and the intent was solely monetary gain. The convicts are all desperate criminals for whom life has no value and they do not hesitate to take law in their hands and kill at slightest resistance.
Law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, as has happened in the present case are rising. They unhesitatingly and indiscriminately use dangerous weapons on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 94 manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463). No leniency can be shown to persons who have no respect for life. Anyone who does not hesitate to take the law into his hands for pure monetary reasons does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced.
In view of my aforesaid discussion, I am of a considered opinion that this case cannot be put on the same pedestal as other ordinary murder cases. It is also true that punishment in every case does send a message to the community at large. Thus besides a number of other factors to be considered one of the relevant factor also to be kept in mind by the court while deciding or awarding any punishment to a convict for any given offence is the sentiments of the community or the message which may travel to the community at large and the fact that it may deter similar other such like offenders. In so far as the convict Vijay @ Kalia is concerned, the allegations against him are of causing death of Pappu and causing injuries to Sushil Kumar on vital parts with intention and knowledge that if he by this act causes death of Sushil Kumar, he would have been guilty of culpable homicide. Hence, the present case can be easily classified as a 'Rare Case' which calls for the exercising of alternative options by the court. I therefore, award the following sentences to the convict Vijay @ Kalia:
1. The convict Vijay @ Kalia is sentenced to Rigorous Imprisonment for life with the direction that he shall not be St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 95 considered for grant of remission till he undergoes an actual sentence of 20 years and fine for a sum of Rs.25,000/- for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of three months. The total fine of Rs.25,000/-, if recovered, shall be given to the family of the deceased Pappu as compensation under Section 357 Cr.P.C.
2. Further the convict is sentenced to Rigorous Imprisonment for a period of Seven Years and fine of Rs.5,000/- for the offence under Section 392/394/397 read with 307 Indian Penal Code.
In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of fifteen days.
All the sentences shall run concurrently.
Further, I award the following sentences to the convict Pawan Kumar:
1. The convict Pawan Kumar is sentenced to Rigorous Imprisonment for a period of Three Years and fine of Rs.2,000/- for the offence under Section 392 read with Section 394 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week.
In so far as the convict Sharwan Kumar is concerned, I award the following sentences to him:
St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 961. The convict Sharwan Kumar is sentenced to Rigorous Imprisonment for a period of Three years and fine of Rs.2,000/- for the offence under Section 392 read with Section 394 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week.
Further, in so far as the convict Mukesh Singh is concerned, he is a first time offender and has no criminal background and his case is distinguishable from that of Vijay @ Kalia and I hereby award the following sentences to him:
1. The convict Mukesh Singh is sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.25,000/- for the offence under Section 397 read with 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of three months. The total fine of Rs.25,000/-, if recovered, shall be given to the family of the deceased Pappu as compensation under Section 357 Cr.P.C.
2. Further the convict is sentenced to Rigorous Imprisonment for a period of Five years and fine of Rs.2,000/- for the offence under Section 392 read with Section 394 Indian Penal Code.
In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week.
Both the sentences shall run concurrently.
St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 97The convicts are already in judicial custody. They are sent to custody for serving the remaining sentence. Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period undergone by them during the trial.
The convicts are informed that they have has a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 27.4.2011 ASJ-II(NW)/ ROHINI
St. Vs. Vijay @ Kalia Etc. FIR No. 186/08, PS Adarsh Nagar Page No. 98