Delhi District Court
State vs 1. Pradeep S/O Sh. Swaran Singh, on 26 May, 2011
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI
SC No.444/10
ID No.02404R0275212007
FIR No.185/07
PS S.P. Badli
U/s 302/34 IPC
State Vs.1. Pradeep S/o Sh. Swaran Singh,
R/o 11/457, Kalyan Puri,
Delhi.
2. Kapil S/o Sh. Lachhu,
R/o 17/10, Jalebi Chowk,
Kalyan Puri, Delhi.
3. Pradeep S/o Sh. Sukhbir,
R/o 16/334, Jalebi Chowk,
Kalyan Puri, Delhi.
4. Roshan S/o Birbal Singh,
R/o 20/449, Kalyan Puri,
Delhi. (died proceedings abated)
Date of transfer to this Court : 13.04.2010
Date of Judgment : 21.05.2011
State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66
2
JUDGEMENT:
1. In brief the prosecution story is that on 04.03.2007, on receipt of DD No.27A, Inspector Rajender Pathania went to the spot, Goyal Wali Gali, Swami Sardhanand Park, where SI Ram Niwas was present along with the other staff, and it was revealed that the injured had been shifted to BJRM Hospital. Thereafter, Inspector Pathania after leaving SI Ram Niwas and other staff at the spot reached BJRM Hospital and obtained the MLC of Kalo Singh, who had been declared brought dead with the alleged history of assault. Thereafter, the aforesaid I.O recorded the statement of brother of the deceased Sh. Shambhu Singh, which read as under:-
"That he was doing the work of mason and his elder brother Kalo Singh was residing in his neighbourhood on rent. Today, on 04.03.2007, on the occasion of Holi Festival, they were all present at their house. At around 2:00 p.m, he along with his brother Kalo Singh were going to the house of Ajab Lal Yadav, who was from their native place. On the way, in the Goyal Wali State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 3 Gali in the house of Prakash Yadav, their one more acquaintance Chhedu was residing and for meeting him, they went to the roof of the said house, but his room was locked, at that time two other persons residing in the same house, namely, Pradeep and Roshan met them along with two other persons.
They asked them about the whereabouts of Chhedu, to which they stated that "Chalo bihari bhago yaha se, kyo mood kharab karte ho". When, they objected to the same, at that time Roshan exhorted one Pradeep amongst them and other persons bhagao salon ko, thereafter, they came down and went to the house of Ajab Lal Yadav.
Around 1 hour after that, both he and Kalo Singh were returning back from the house of Ajab Lal Yadav, then they found that all those four boys were standing outside a house. At that time, Ajab Lal Yadav was also with them. He started discussing something with the Ajab Lal Yadav in the gali, and State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 4 Kalo Singh stated that he was going back, and when he reached near the house of Pradeep, all those four persons started following him, and when he reached near Goyal Wali Gali, jhuggies, all of them started beating him, and Kalo Singh tried to save himself. At that time, Roshan along with another boy caught hold of his hands and Pradeep assaulted him on his face and neck with knife. Somehow, Kalo Singh extricated himself and tried to run away, but after going some distance, Roshan and another boy by the same name Pradeep again caught hold of him and that Pradeep assaulted him with a knife blow on his back, as a result of which Kalo Singh fell down. They raised an alarm. He along with Ajab Lal Yadav shifted him in a private car to BJRM Hospital, where he was declared brought dead".
2. On the said statement an FIR U/s 302/34 IPC was registered, and investigation(s) were taken up by Inspector Pathania.
3. Crime team was also called to the spot. The statement of Ajab Lal Yadav was also recorded U/s 161 Cr. PC. Crime team also took State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 5 the photographs of the spot, and also lifted blood samples, earth control, chapples of the deceased, which were seized separately.
4. The accused persons were searched and thereafter accused Pradeep S/o Swaran Singh and Kapil S/o Lachhu were arrested. Their blood stained clothes were also seized. The other accused persons were found absconding. The statements of the relatives of the deceased, regarding the identification of the dead body were recorded. The dead body after postmortem was handed over to their relatives. The relevant samples, including the clothes of the deceased were seized.
That on 07.03.2007, other accused persons, namely, Roshan S/o Birbal and Pradeep S/o Sukhbir were arrested from red light Bhalaswa Chowk. Both of them made their separate disclosure statements, but the weapon of offence i.e the knife could not be recovered. Their blood stained clothes were also seized by the I.O.
5. The relevant exhibits were sent to FSL Rohini for forensic evaluation. Scaled site plan of the spot was got prepared. State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 6
6. After completion of investigation(s), a charge sheet U/s 302/34 IPC was filed in the court.
7. Upon committal of the case to the court of sessions, a charge U/s 302/34 IPC was framed against all the accused persons, vide order, dt. 18.07.2007, to which all of them pleaded not guilty and claimed trial.
8. Thereafter, the prosecution in support of its case has examined 16 witnesses. PW1 is Dr. Upender Kishore, autopsy surgeon, who has proved his postmortem report, Ex.PW1/A, PW2 is SI Ramo Devi, the duty officer, who has proved the copy of the FIR, Ex.PW2/1, PW3 is SI Ram Niwas, who along with the Ct. Bijender reached the spot on 04.03.2007 on receipt of DD No.27A, and who had carried out crucial investigation(s), PW4 is Dr. Sanjay Kumar, who has proved the MLC of the deceased, Ex.PW4/1, PW5 is SI Manohar Lal, who has proved the scaled site plan, Ex.PW5/1, PW6 is Ajab Lal, an eye witness, PW7 is Shambhu Singh, the complainant, PW8 is Ct. Manjeet, the special messenger, who had delivered the copies of the FIR to the State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 7 senior officers, PW9 is ASI Satpal Singh, who has proved the crime team report, Ex.PW9/1, PW10 is HC Ramesh Chander, who has proved the photographs of the spot, Ex.PW10/10 to Ex.PW10/18, and negatives, Ex.PW10/1 to Ex.PW10/9, PW11 is Inspector R.S. Pathania, the I.O of this case, who has deposed regarding the investigation(s), as were carried out by him during the course of the present case, PW12 is HC Om Prakash, who has proved the copy of the FIR, Ex.PW12/2 and has also proved DD No.30A, Ex.PW12/3 and DD No.31A, Ex.PW12/4. He has also proved the DD No.27A, Ex.PW11/1 and DD No.9A, Ex.PW12/5, DD No.25A, Ex.PW12/6, as well as DD No.30A and DD No.31A, Ex.PW12/3 & Ex.PW12/4 respectively, PW13 is HC Chander Mohan, who was the MHC(M) at the relevant time, with whom various case properties were deposited during the investigation(s), PW14 is Ct. Ashok Kumar, who had deposited the sealed pullandas of the present case with the FSL Rohini on 14.03.2007, PW15 is Ct. Bijender Singh, who took some part in the investigation(s), including the arrest of the accused State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 8 persons, PW16 is Sh. Naresh Kumar, Senior Scientific Assistant (Biology) FSL Rohini, who has proved his FSL report, Ex.PW16/2 & Ex.PW16/3.
9. Thereafter, separate statement of all the accused persons U/s 313 Cr. PC were recorded by Ld. Predecessor of this court on 16.08.2007, to which accused persons also stated that they wanted to lead evidence in defence. Thereafter, accused persons examined 3 witnesses in defence. DW1 is Shyam Kaur, DW2 is Sh. Rama Shankar, record clerk, BJRM Hospital, DW3 is Rai Singh.
10. After hearing the final arguments of the accused persons and that of Ld. Defence counsels, vide judgment, dt. 06.09.2007, all the accused persons were convicted U/s 302 IPC by my Ld. Predecessor and vide point of sentence vide order dt. 11.09.2007, all the convicts were sentenced to RI for life, and they were also directed to give compensation of Rs. 20,000/- each to the family/L.R's of the deceased Kalo Singh.
11. Thereafter, convicts/accused persons preferred an appeal State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 9 against the said judgment and point of sentence and vide order, dt. 06.04.2010 of the Hon'ble High Court the said judgment and point of sentence was set aside with the following observations:-
(17) With reference to the questions put to the accused, it is apparent that the incriminating circumstance of the eye witness account allegedly claimed as having been seen by Ajab Lal PW-6 and Shambhu Singh PW-7 has just not been put to the accused. (18) It has not been put to the accused as to what is the claim of the two eye witnesses of what they saw. It has not been put to the accused the claim of the two eye witness of having seen the incident spanning two different spots while standing from a spot on the street.
(19) Under the circumstances, we hold that there has been a denial of the right of all the accused in terms of Section 313 Cr.PC.
(20) This requires the impugned judgment and order convicting the appellants as also the order on sentence to be set aside with State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 10 the matter remanded before the learned Trial Judge to re-
examine the accused by properly framing questions under Section 313 Cr. PC.
(21) Ordered accordingly. (22) The appeals stand disposed of setting aside the impugned
judgment and order dated 6.9.2007 convicting the appellants of the offence punishable under Section 302 IPC. The order on sentence dated 11.9.2007 is also set aside.
(23) The matter is remanded to the learned Trial Judge with a direction that taking note of the law relatable to Section 313 Cr. PC and as explained herein above, all the accused would be properly examined under section 313 Cr. PC and thereafter, should the accused desire to lead defence evidence, an opportunity to lead defence evidence would be granted followed by arguments being heard and matter being decided afresh.
12. All the accused persons were also admitted to bail by the Hon'ble High Court.
State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 11
13. After being remanded back by the Hon'ble High Court, this matter was assigned to the undersigned.
14. Thereafter, separate detailed statements U/s 313 Cr. PC of all the accused persons were recorded, as per the directions of the Hon'ble High Court, accused Pradeep S/o Swaran Singh stated that he did not want to lead defence evidence, whereas Ld. Defence counsel for other accused persons stated that she was adopting the defence evidence already lead on the record, that of DW1 Shyam Kaur, DW2 Rama Shankar, DW3 Rai Singh and she does not want to lead any further defence evidence on behalf of the accused persons.
15. I have heard Ld. Defence counsel for the accused persons Ms. Anu Narula, who had appeared on behalf of three accused persons, and Ms. Bindiya Malhotra, who had appeared on behalf of accused Pradeep S/o Swaran Singh and I have also heard Ld. Addl. PP for the state Sh. A.K. Srivastava and perused the record.
16. The Ld. Defence counsel Ms. Anu Narula has argued that the testimony of PW6 & PW7 does not inspire any confidence, and they State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 12 were not reliable witnesses, and their statements were tailored to change sequence of event and there were material contradictions in their testimonies. PW7 had also not properly identified the accused persons in his examination-in-chief, which also goes to the root of the prosecution story. The recovery of weapon of offence has also not been effected, which also severely dents the prosecution version. The observations on the MLC suggest that two weapons had been used, which also goes to the root of the prosecution version. She has further argued no public witness was joined except the relatives of the deceased, who were interested witnesses, despite the presence of number of eye witnesses at the spot, as per the prosecution story and the prosecution had only examined those witnesses,who were favourable to them, leaving out those, who were knowing the true facts of the case.
17. Ld. Defence counsel Ms. Anu Narula has also argued in alternative that the case of accused persons falls under exception 300(4) IPC, as a case of sudden fight, even if the entire case of the State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 13 prosecution is taken as it is. Since, it is admitted case of the prosecution that neither the accused persons nor the deceased were having any previous enmity and the quarrel took place suddenly on a trivial issue, therefore the accused persons can only be convicted U/s 304 IPC. She has also relied upon the following judgments:-
1993 Crl. L.J 3565, Kashmir Singh Vs. State of Haryana, 1994 Crl. L.J 18 State of Karnataka Vs. Babu and Others.
18. The Ld. Amicus, Ms. Bindiya Malhotra has also more or less adopted the arguments of Ld. Defence counsel. She has also argued that from the testimony of PW6 & PW7, it appears that they were introduced as witnesses later on to strengthen the case of the prosecution, though they were not present at the spot and neither they had witnesses an incident, and prosecution had also not examined certain material witnesses, which were necessary for unfolding the truth and the version of the prosecution, namely, Mool Chand, Chhedu Lal and Prakash Yadav, therefore, the entire prosecution version was highly doubtful and the accused persons State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 14 were innocent and were liable to the acquitted.
19. On the other hand Ld. Addl. PP for the state has argued that there are no contradictions in the testimony of the prosecution witnesses, PW6 & PW7, and the said contradictions, if any, which were found in their testimony can only be said to be minor variations, which is bound to occur in the testimony of two truthful witnesses and parrot like repetition is not expected from two witnesses, deposing on the same aspect. He has also argued that the MLC, Ex.PW4/1 clearly proves that deceased was brought to the hospital by Ajab Lal Yadav, one of the material prosecution witness and it also shows that he was present at the spot at the time of the incident. He has further argued that the prosecution can only examine the witnesses, who were present at the spot and who had witnessed the incident, even if they are relatives of the deceased. He has further argued that recovery of weapon of offence in the present case was not fatal to the case of the prosecution, as admittedly two accused persons Roshan and Pradeep S/o Sukhbir were arrested on 07.03.2007, after 3 days of the incident.
State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 15 Therefore, they had ample opportunity to dispose off the weapon of offence during the said period. However, the MLC and the postmortem report clearly proves that the injuries which had resulted into the death of deceased Kalo Singh had been caused with a knife or sharp edged weapon, which is even otherwise corroborated by the direct testimony of PW6 & PW7. In these circumstances, he has argued that the prosecution has been able to prove this case against the accused beyond any shadow of doubt.
20. I have gone through the rival contentions.
21. PW7 Shambhu Singh, the complainant and the brother of the deceased has deposed in his testimonial deposition as under:-
" I am working as a Raj Mistri. Deceased Kalo Singh was my elder brother who was aged about 50 years and was also residing in my neighbour in Shardhanand Park itself on rent. On 4.3.2007, on the occasion of Holi at about 2:00 p.m, I along with Ajab Lal Yadav and my brother Kalo Singh went to meet one Mool Chand who was called with other name which I do not State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 16 know and was residing in the house of Prakash Yadav as tenant. The house of Prakash Yadav is also situated in Shardhanand Park near to my house. Ajab Lal Yadav and myself remained downstairs and Kalo Singh went upstairs and found the house of Mool Chand locked. Thereafter, he came downstairs and all the four accused present in the court today were standing there from whom my brother Kalo Singh had asked about Mool Chand. On this all the four accused told my brother "Bihari mood mat kharab karo, bhag jao" in the presence of Ajab Lal and myself. Thereafter, I along with Ajab Lal Yadav proceeded towards the residence of Ajab Lal and my brother Kalo Singh proceeded towards Goel Wali Gali. While, I and Ajab Lal were talking after 10-15 minutes we heard a Hall/noise in the gali. On hearing the noise I along with Ajab Lal went to Goel Wali Gali near jhuggis where I saw the accused Pradeep S/o Sukhbir present in the court today (the witness has identified the accused by touching State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 17 him) had a knife in his hand who hit my brother on his back while the other accused Roshan and Pradeep had caught hold of my brother Kalo Singh. At this stage the witness has identified the two accused who had caught his brother by touching their shoulders. He has identified Pradeep S/o Swaran Singh and Kapil.
Court Observation:- The witness has not identified Roshan but rather has touched Kapil on his shoulder by calling him Roshan.
After being stabbed for the first time my brother tried to run away but after a few paces he was again caught by the fourth boy caught hold of him and other two also caught hold of him when Pradeep S/o Sukhbir stabbed him on second time on his neck.
At this stage the witness has identified the fourth boy as Roshan by touching him on his shoulder".
Similarly, PW6 Ajab Lal Yadav has deposed in his testimonial State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 18 deposition as under:-
"On 4.3.2007 Shambhu Singh and deceased Kalo Singh had come to my house on the occasion of Holi. We were coming out of the house while playing Holi. At about 2:00 p.m, Kalu Singh went to meet Chhedu at the residence of Prakash Yadav while I and Shambu Singh was standing downstairs. When Kalo Singh came downstairs, Roshan and Pradeep S/o Sukhbir correctly identified by the witness in the court were standing downstairs so Kalo Singh asked them where Chhedu is residing. On this both Roshan and Pradeep S/o Sukhbir told Kalo Singh in my presence that "Sale Bihari Bhago, Mood kyon Kharab Karte Hoo'. On this Kalo Singh went towards Goel Wali Gali and I was talking with Shambhu Singh and after some time I heard a lot of hue and cry and found that Pradeep S/o Sukhbir, Roshan, Kapil and Pradeep S/o Swaran Singh were running after Kalo Singh. Pradeep S/o Sh. Sukhbir Singh was having a knife in his hand and Roshan and Kapil were holding Kalo Singh. State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 19 Court observation: The witness has correctly identified Pradeep S/o Sukhbir Singh, Roshan and Kapil in the court by specifically pointing out by finger.
On being hit for the first time in the lower back portion by Pradeep S/o Sukhbir, Kalo Singh ran on which Pradeep S/o Swaran Sing (correctly identified) and Roshan caught hold of Kalo Singh and Pradeep S/o Sukhbir again hit Kalo Singh on his neck and Kalo Singh fell down. All the four boys i.e Pradeep S/o Sukhbir, Roshan, Kapil and Pradeep S/o Swaran Singh ran away. I immediately dialed 100 number but nobody picked up the phone. Then I called one constable Bijender Singh who mobile No., I had and informed him what had happened. I along with Shambhu immediately picked up Kalo Singh and took him to BJRM Hospital in a private Sumo Car where Kalo Singh was declared brought dead by the doctors".
22. PW7 was extensively cross-examined by the Ld. Defence counsel. He in his cross-examination stated that accused Pradeep State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 20 S/o Swaran Singh and Roshan were residing in the house of Prakash Yadav and the other two persons were residing at Kalyan Puri. He also reiterated the presence of all the accused persons at the spot, at the time of the incident, i.e the at the time when his brother was stabbed. He also reiterated the manner of the incident in his cross- examination and the specific roles, performed by each of them. He also stated that the distance between his brother, when he was stabbed for the first time and himself was the same, as was between the witness box and the door of the court, which was assessed to be 20 paces. He also deposed that after his brother ran on being stab for the first time, he was also running towards his direction, but he could not reach there, before he was stabbed again for the second time.
He also clearly established the identity of the accused persons in his cross-examination, as he stated that he did not knew all the accused persons prior to the incident, but he had seen them in the area. He further clarified that he had personally identified all the State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 21 accused persons, having known them previously in the area.
23. The said witness also deposed that he had gone to the Chhedu Lal, who is also called Mool Chand to play Holi. He and his brother had no colours on their faces, and all the accused persons also did not have any colours on their faces and on their clothes. The Ld. Defence counsel has assailed this part of testimony of PW7 on the ground that it is next to impossible that neither the accused persons, nor the complainant party was having colour on their faces, despite the incident, taking place on the date of Holi, and in the said scenario the faces of all the accused persons must have been soaked in colours, therefore, it would have been difficult for the PW7 to identify the accused persons.
24. This argument is without substance, as PW7 has categorically stated that he identified the accused persons, as they were the residents of the same locality and two of them were residing in the house of Mool Chand @ Chhedu. Therefore, it was not impossible for him to identify the accused persons, more so, as he previously knew State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 22 them, being residents of the same area, where he was residing. Mere putting of some colours on the face of some person does not changes the identity of that person, so that a person, who previously knows him cannot identity him.
PW7 has also admitted in his cross-examination that it was correct that when the incident took place, many persons were present at the spot with Holi colours on their faces, therefore, the Ld. Defence counsel has argued that those persons, who had attacked his brother had escaped and PW7 under some confusion had named the accused persons, as the assailants. This argument of the Ld. Defence counsel is fallacious, as admittedly, PW7 had no previous enmity with the accused persons, nor such any evidence has brought on the record, therefore, it does not stand to reason, why would he let off the real offenders or screen them, while falsely implicating the present accused persons.
25. The probative force of the testimonial deposition of PW7 is diminished to the extent that he had not identified accused Roshan, State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 23 but had rather touched the shoulder of Kapil, calling him Roshan. To this extent, his testimonial deposition diminishes his probative force of his testimony vis-a-vis accused Roshan. Now, it is to be seen whether this diminishing of the probative force of his testimony qua the identification of the accused Roshan is restored by the testimony of PW6 Ajab Lal Yadav.
26. PW6 Ajab Lal Yadav has categorically identified all the accused persons in the court by pointing out finger towards them, as well as specifying their roles in the incident of stabbing, dt. 04.03.2007. In his cross-examination, he made some improvements like these words, Sale Bihari Bhago, Mood Kyo Kharab Karte Ho, was not found in his previous statement, Ex.PW6/3, when he was confronted with the same. However, despite those minor glitches in his cross- examination in this regard, nothing else has erupted, which could help the case of the defence. He reiterated his version, regarding the incident, in his cross-examination, when he stated that at the first time, when the deceased was stabbed by Pradeep S/o Sukhbir with State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 24 the knife blow, accused Roshan and Kapil had caught hold of him. They had both caught him by hand and he was stabbed by Pradeep s/o Sukhbir. Though, he also stated that he also remembers that one accused was having a rod, but he cannot tell, who was having the same. He further established the identity of all the accused persons, as he stated that he knows Kapil personally, as he was residing in the house of Prakash Yadav on rent and he can identify all the accused persons.
27. The presence of the PW6 Ajab Lal Yadav at the spot is clearly establish by the MLC, Ex.PW4/1 of deceased Kalo Singh, who was declared brought dead at BJRM Hospital at 4:20 p.m and in the said MLC, which has been proved by PW4 Dr. Sanjay Kumar, the person, who had brought him to the hospital was non other then Ajab Lal Yadav, which also categorically shows his presence at the spot, at the time of the incident. He also stated in his cross-examination that he and Shambhu Singh were together and they were at a distance of 100 feet from the place of occurrence. When, he came to the spot, he had State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 25 heard the halla, Kalo Singh was running, others were chasing him, stabbing took place in his presence and when the first stab was inflicted, he was as close as the distance between the witness box and the door of the court, which was opined to be 20 paces during the court observation.
28. The testimony of this witness clearly establishes that he had seen the occurrence from on 20 paces from the spot. The I.O has also proved the rough site plan Ex.PW11/4, and similarly the scaled site plan has been proved by SI Manohar Lal, as Ex.PW5/1. The position from where the incident was witnessed by the witnesses, PW6 & PW7 has also been shown in the scaled site plan at point D. No suggestion has been put to PW6 & PW7 in their cross- examination that their positions depicted in the said site plan were incorrect or they were not present at that particular positions and had not witnessed the incident. The rough site plans and the scaled site plans, prepared by the I.O or at his instance, during the investigations are at par with the statements, recorded U/s 161 Cr. PC, and they can State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 26 only be used or contradicting the witnesses in the manner prescribed, U/s 162 Cr. PC r/w section 145 Evidence Act. They are not substantive evidence themselves. Since, the positions of PW6 & PW7, as shown in the scaled site plan have not been assailed by putting the said site plan to them in their cross-examination or to the I.O. The testimony of PW6 & PW7 that they had witnessed the incident, from a distance of 20 paces, stands established.
29. As in the cross-examination of PW7, PW6 was also cross- examined on the aspect that due to Holi, there was colour on the faces of the persons, to which he stated that Holi started late and at the time of the incident, they had not started putting colour on each other, as the incident took place at 2:00 p.m. Specific court question was also put to him, whether there was colour on the faces of the accused persons and how he recognized them, to which he stated that he does not think that they were having Holi colour on their faces, and there was no colour on their faces. In these circumstances, this argument of the Ld. Defence counsel that accused persons were State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 27 having colour on their faces, therefore, it was difficult for PW6 to recognize them is not tenable, as PW6 has also stated that he knows all the accused persons. Therefore, it was not difficult for him to identify all the accused persons, having seen them before.
30. PW6 has clearly established the presence of himself and that of PW7 and that of deceased and accused persons at the spot at the time of the incident, which took place at 2:00 p.m in broad day light, as well as the manner of the incident, as well as the role performed by each of the accused persons, in the incident of stabbing. He has also established the identity of all the accused persons, who caused the stabbing, resulting into the death of deceased Kalo Singh.
31. From the direct testimony of PW6 the probative force of the testimony of PW7, which was somewhat diminished due to the fact that he could not identify one of the accused Roshan in his examination-in-chief and he instead identified Kapil as Roshan has been restored, due to the strong corroborative testimony of PW6, which has restored the probative force of the testimony of PW7 to State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 28 large extent, as any doubt regarding the identity of Roshan in the incident, dt. 04.03.2007 of stabbing has been done away with, by the direct testimony of PW6, who categorically specified the role of accused Roshan in the incident of stabbing, as the person, who had caught hold of Kalo Singh, when Pradeep S/o Sukhbir stabbed him for the first time.
32. The corroboration of the testimony of PW6 with the testimony of PW7 shows the absence of any discrediting circumstances in their testimonies. Though, the version of PW6 and PW7 in court, regarding the exact sequence of events or the manner in which deceased was stabbed by accused persons differs from that described by PW7 Shambhu in rukka, Ex.PW7/A. However, the same is not fatal to the case of the prosecution, as substantive evidence is the evidence of the witnesses, recorded in the court, and not their previous statements, recorded by the police, U/s 161 Cr PC or under the other relevant provisions of the Cr. PC. They can only be used for the purpose of contradicting a witness in the manner prescribed U/s 145 State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 29 Evidence Act, and those statements are not substantive evidence per se in themselves. Since, none of these sequence of events narrated by PW6 and PW7 differently in the court have been put to them or confronted to them in their cross-examination, the same does not dilute the evidentiary value of their testimonies in the court. The said previous statements could have only been used to contradict that part of their testimonies, qua their previous statement recorded by the police, to show the correct perspective of their testimonies as a whole.
33. In any case, whether the first injury was given on the back or on the neck of the deceased or vice versa does not impinge upon the probative force of the testimonies of PW6 & PW7. The crucial question is whether or not the accused persons stabbed the deceased twice on the back and neck in concert, which proved fatal, which fact has been clearly satisfied by the direct testimony of PW6 & PW7, as discussed above.
34. The difference in the testimonies of PW6 & PW7 arose mainly on account of on the fact, that whenever a person witnesses any State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 30 incident, three factors are involved in the same till the time of his deposition in the court. (a) Perception of the incident, as to how a particular person perceives or receives the incident, as it actually happens, depending upon his sensory organs. (b) Memory, as to how he is able to recollect the facts, which he had perceived during the incident. (c) Narration of the said incident in the court or before the tribunal. The differences in the narration of the incident by a particular person, depends upon first two factors, as to how he perceives a particular incident and how he is able to remember the said incident from his memory. Therefore, there are bound to be differences in the narration of the incident, by two different persons, who may have witnessed the same incident at the same time, due to difference of perception, memory and recollection of the incident. Therefore, the difference in narration of the incident by PW7 from that of PW6 was a natural incident of human mind and the said variations in the said testimony cannot be said to be unnatural, so as to diminish the probative force of their testimonies.
State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 31
35. Even otherwise, the doubt, regarding the identity of the accused Roshan, whom the PW7 had not correctly identified in his examination-in-chief, has been cleared by his further examination, as he also deposed that the accused Roshan was arrested along with accused Pradeep S/o Sukhbir on 07.03.2007, from Bhalswa Dairy red light on his identification vide arrest memo Ex.PW7/4. Nothing has come out in his cross-examination, as well on this aspect. Therefore, the PW7 had immediately after three days of the incident had identified the accused Roshan, as one of the assailant, when he was arrested at his instance by the police on said date. Therefore, any doubt regarding the identity of the accused Roshan had been even clarified by PW7 in his remaining testimony, as discussed above.
36. Taking the testimony of PW6 & PW7 as a whole, it does not appear that their testimonies are tainted by any observational error or bias running against the accused persons. So, as to discredit their testimonies. Both the aforesaid witnesses had stated in their cross- examination, that they had witnessed the incident from a very close State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 32 quarter, which distance was assessed to be 20 paces. Therefore, from such a close distance, there could not have been any major observational error in seeing the incident by them, so as to make their testimony doubtful. As discussed above, the accused persons have failed to show that they were having any previous enmity with them. Consequently, it does not stand to reason why would the PW6 & PW7 would let off the real offenders go scot free, while falsely implicating the present accused persons.
37. The medical evidence in the present case also corroborate the prosecution version, as PW1 Dr. Upender Kishore, autopsy surgeon had found the following injuries on his body at the time of postmortem of the deceased Kalo Singh:-
a. Lacerated wound of size of 5.5 cm x 1.5 cm x bone present over the middle front of forehead, more on right side in the form of inverted L shape extending to the nose 2 in number intermingled, place just above the right eye. b. Incised stab would of 2.8 x 1 cm x cavity deep ? 8 cm State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 33 present over the left side outer aspect nape of neck. The direction of the injury is inwards downwards from left to right. The skin, subcutaneous tissues, muscles and vessels of neck and into the left thoracic cavity upper aspect, the would is Wedge shaped.
c. Incised stab would of 2.8 x .5 cm x cavity deep present over the left side middle back of chest inner angle blunt, placed 9 cm outer to mid-line obliquely placed in to the cavity of chest cutting the skin, subcutaneous tissues, muscles of chest through the 8-9th intercostal space into the parenchyma of left lung cutting the middle lobe through and through. The direction of the injury is inwards upward from back to front. On internal examination extra vasation of blood found in the frontal reason under the scalp, fracture of the frontal bone also present, subdural haemorrhage present in the right frontal reason of brain, subarachenoid haemorrhage present over the brain, State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 34 extensive collection of blood in the left side neck reason, pleural cavity left contains 1.5 lt. Of fluid and clotted blood, left lung injury wedged shape would of size 2.5 x .5 cm present. All internal organs pale, stomach contains digestive yellowish food material.
The cause of death was opined by him, as shock due to haemmorhage, as a result of antemortem injury to the left lung produced by single edged sharp cutting/stabbing weapon sufficient to cause death in ordinary course of nature and injury No. a, b, c could also cause death independently and collectively in ordinary course of nature. He also proved his postmortem report, Ex.PW1/1, and he also stated that the injury No.a was produced by heavy blunt object. The medical evidence in the present case also corroborate the direct version of PW6 & PW7, regarding two injuries i.e injury No. b & c, which are stab injuries.
38. Regarding the injury No.a, it has been argued by the Ld. Defence counsel that the same had been caused as per the testimony State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 35 of autopsy surgeon by some heavy blunt weapon, whereas as per the case of PW6 & PW7 only knife was used in causing the death of deceased Kalo Singh, therefore, she has argued that prosecution has suppressed the true nature of the incident, and it clearly illustrates that two weapons were used in the incident, whereas as per PW6 & PW7 only knife was used, which discredits the case of the prosecution. The said arguments is without any substance, as firstly PW6 Ajab Lal in his cross-examination stated that at the time of stabbing, he remembers that one accused was having a rod, but he cannot tell, who was having the same. This reply given by PW6 in his cross-examination, clearly answers the aforesaid argument of the Ld. Defence counsel, with regard to the injury No.a. It may be that, due to difficulty in recollection of incident and lapse of memory, PW6 & PW7 could not give any account of the rod, used in the incident, dt. 04.03.2007, but PW6 in his cross-examination did specify that one of the accused was having the rod in his hand, and the same may have been used to cause the said injury. Even otherwise, both PW6 &PW7 State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 36 have stated that they had reached the spot, after hearing the halla in the gali and when they reached the spot, they saw some of the accused persons, holding deceased Kalo Singh and while accused Pradeep S/o Sukhbir stabbed him twice, once in his chest and second time on his neck. Therefore, it is quiet possible that the first injury may have been given to the deceased by the accused persons before PW6 & PW7 reached the spot, after being attracted by the noise of quarrel. This explains the query of Ld. Defence counsel.
39. Regarding the argument of the Ld. Defence counsel that one of the accused Kapil was having injuries on his body, since there was swelling on his right ankle and his MLC was also prepared, which is Ex.DW2/A, and as per DW2 the aforesaid accused was produced by the police at BJRM Hospital for plaster of right ankle. The said record clerk has also proved the MLC of the accused Kapil S/o Lachhu. The Ld. Defence counsel has argued that the prosecution has not come out with the true genesis of the incident, as it actually took place, as the prosecution has failed to prove how the accused Kapil received State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 37 those fracture injuries. Therefore, the prosecution version about the incident was false. The said argument is without any substance, as admittedly the accused Kapil was arrested on 05.03.2007, as per the testimony of the I.O Inspector R.S. Pathania, vide arrest memo Ex.PW3/3, and his MLC was got conducted on same day at 2:30 p.m. The time of the incident was 2:00 p.m on 04.03.2007 and time of his arrest as per arrest memo is 7:00 a.m on 05.03.2007.
40. Therefore, 17 hours elapsed between the time of his arrest and the incident. Therefore, it was quiet possible that the accused may have received the said injuries during said interval of 17 hours or he may have twisted his ankle while running away from the spot after the incident. Therefore, the same does not in any way diminishes the probative force of the prosecution evidence lead on the record.
41. The I.O Inspector R.S. Pathania, PW11 has deposed that he lifted exhibits from the spot, which included the chapples of the deceased, blood socked earth samples and earth control samples and he also lifted from front of H.No. E-131/25, blood with the help of State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 38 a gauze, earth sample, blood socked earth. On this, there has been no worthwhile cross-examination by the Ld. Defence counsel to point out any discrediting circumstances, that no such blood sample or sample earth were lifted from the spot.
42. The FSL report, Ex.PW16/3, also shows that the human blood stains were found on pair of chapples and gauze cloth piece, lifted from the spot, having "O" blood grouping, which was also found to be the blood grouping of the deceased. The presence of the human blood at the spot is also corroborated by the photographs of the spot, which are Ex.PW10/10 to Ex.PW10/18, wherein also blood stains have been found at two places. Rather, there appears to be a trail of blood in the photograph Ex.PW10/14, and pool of blood in the photograph, Ex.PW10/18. The presence of the blood stains at the spot, as per the testimony of I.O, which is proved by the FSL report and the photographs, having the same blood grouping, as that of deceased, clearly pins down the place of incident, as stated by PW6 & PW7 in their testimonial deposition and the same is additional State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 39 corroborative piece of evidence to show the truthfulness of their testimonies, having the incident, taken place at that very spot, as stated by them.
43. Regarding the arguments of the Ld. Defence counsel that the weapon of offence in the presence case i.e knife had not been recovered despite the arrest and the disclosure statement of all the accused persons, and the same is fatal to the prosecution story. The said argument is without any substance, as it is settled law that non recovery of the weapon of offence is not fatal to the prosecution story, if the same is otherwise credible and trustworthy and the recovery of the weapon of offence at the instance of one of the accused persons, would have been an additional piece of corroborative evidence in the entire mass of prosecution evidence, appearing against the accused persons. If, the probative force of the prosecution case is having high value and it is found that the testimonial deposition of prosecution witnesses is of good weightage, and it is trustworthy then the absence of said corroborative evidence would not be fatal to the case of the State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 40 prosecution. Even otherwise, it has been held in judgment Anwarul Haq vs. State of U.P. Reported in 2005 II AD (Criminal) 464 (SC) 466 as under:-
..... "merely because the knife has not been recovered during investigation the same can't be a factor to discard the evidence of prosecution witnesses"....
Therefore, the non recovery of weapon of offence would not be fatal to the case of the prosecution.
44. Even otherwise, two of the accused persons, namely, Kapil and Pradeep S/o Swaran Singh were arrested on 05.03.2007 and remaining accused persons, Pradeep S/o Sukhbir and Roshan were arrested on 07.03.2007, whereas the incident took place at around 2:00 p.m, on 04.03.2007, consequently, there was a considerable time gap between the arrest of the accused persons in this case, and the incident, therefore, accused persons had ample opportunity to dispose off the weapon of offence during this period.
45. Regarding the arguments of the Ld. Defence counsel that it State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 41 was very surprising that all the accused persons were wearing the same clothes, which they were allegedly wearing at the time of incident, and as per the testimony of the I.O PW11 Inspector R.S. Pathania, all the accused persons were made to change their clothes, having blood stains on it, and the same were seized and sent for forensic evaluation. Though, two accused persons were arrested on 05.03.2007 and two of them were arrested on 07.03.2007, which makes the prosecution story, regarding the blood stains of the deceased on their clothes highly doubtful.
46. I find sufficient merit in this argument of the Ld. Defence counsel, as admittedly two of the accused persons, namely, Kapil and Pradeep S/o Swaran Singh were arrested on 05.03.2007, and two of the accused persons Pradeep S/o Sukhbir and Roshan were arrested on 07.03.2007. As per I.O, all of them were made to change their clothes, which they wearing at the time of the arrest and they were later on deposited with MHC(M) and sent for forensic evaluation. This assertion of the I.O in his examination-in-chief does not appeal to my State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 42 mind, as it is inconceivable that all the accused persons would have been wearing the same clothes, which they were allegedly wearing at the time of the incident, though, two of the accused persons were arrested on the next day and the next two, three days after that. It is highly improbable, that the accused persons knowing fully well that their clothes were stained with the blood of the deceased would have continued wearing the same clothes, till the time of their arrest by the police officials, so as to present them evidence on a platter. No doubt on the alleged clothes of three accused persons, namely, Pradeep S/o Swaran Singh, Pradeep S/o Sukhbir and Roshan, same blood grouping "O" had been found on forensic analysis, as was found on the clothes of the deceased Kalo Singh.
47. However, in view of the aforesaid discussion, it is highly improbable that the accused persons continued to wear the same clothes, which they were wearing at the time of the incident, despite the fact that some of them were arrested one day after the incident and remaining two after three days of the incident. Even otherwise, State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 43 prosecution has not lead any evidence, that the said clothes belonged to the accused persons, as the accused persons have denied that the said clothes were theirs, nor the said clothes were made to be worn by them to show that the same fitted their size, nor the blood sample of the accused persons were taken to show that the blood grouping found on the clothes was not of them. The blood group "O" is very general blood grouping, which is found in number of persons, it is quiet possible that all the three accused persons, stated above may have same blood grouping "O". To exclude this eventuality, the blood sample of all the accused persons should have been taken, which is not the case of the prosecution.
48. In these circumstances, there appears to be some discrepancy in the prosecution case, regarding the recovery of blood stained clothes, allegedly having the blood stains of the deceased on it, which the accused persons were allegedly wearing at the time of the incident, at the time of their arrest.
49. However, merely because the IO and the police officials in this State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 44 case in their over zeal to strengthen the case of the prosecution had made certain embellishments in the story of the prosecution, does not mean that entire prosecution case is not worthy of trust, as it has to be seen whether de hors such embellishments, the case of the prosecution is still cogent and trustworthy.
It has been held in judgment Paras Yadav Vs. State of Bihar AIR 1999 SC 644 that:
"It is true that there is negligence on the part of investigating Officer. On occasions, such negligence or omission may give rise to reasonable doubt which would obviously go in favour of the accused. But, in the present case, the evidence of prosecution witnesses clearly establishes beyond reasonable doubt that the deceased was conscious and he was removed to the hospital by bus. All the witnesses deposed that the deceased was in a fit state of health to make the statements on the date of incident. He expired only after more than 24 hours. No justifiable reason is pointed out to disbelieve the State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 45 evidence of number of witnesses who rushed to the scene of offence at Ghogha Chowk. Their evidence does not suffer from any infirmity which would render the dying declarations as doubtful or unworthy of the evidence. In such a situation, the lapse on the part of the Investigating officer should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. For this purpose, it would be worthwhile to quote the following observations of this court from the case of Ram Bihari Yadav Vs. State of Bihar and Others, 1998(2)RCR(Crl.)403:
J.T.1998(3) SC 290:
"In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 46 obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice".
50. Further it has been held in judgment Ram Bihari Yadav Vs. State of Bihar AIR 1998 that:
"Before parting with this case we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by brining on record Ex. 5/4 and GD entry 517 and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 47 favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
51. It has also been held in judgment AIR 1988 SC 1998 State of U.P Vs. Anil Singh that:
"Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 48 doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject that prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The privy Council had an occasion to observe this. In Bankim Chander Vs. Matangini, 24 C.W.N 626 PC, the Privy Council had this to say:
"That in Indian litigation it is not safe to assume that a case must be false if some of the State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 49 evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence".
"In Abdul Gani Vs. State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J., speaking for this court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.
Further in Para 15 it has been held that:
"It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 50 has to perform."
52. In view of the aforesaid preposition(s) of law laid down by the Hon'ble Supreme Court, in above referred Judgments, it is clear that the lapses and omissions on the part of the investigating officer in this case are not fatal to the entire case of the prosecution, as the prosecution evidence is required to be evaluated and examined dehors such omissions and embellishments to find out, whether such evidence is reliable or not and it is an important duty of a judge who presides over the trial that a guilty man does not escape, as it is his duty to see that no innocent man is punished.
53. In view of the afore settled law and aforesaid discussion, the evidence produced on the record by the prosecution has been found to be trustworthy, reliable and cogent for the reasons given above and there is no reason to discard the testimony of the prosecution witnesses, merely because the IO had made certain embellishments/omissions in the prosecution case, in order to strengthen it and, therefore the said lapses and omissions on the part State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 51 of the IO does not effect the case of the prosecution as they are not very material in nature and does not go to the root of the prosecution case.
54. Regarding the argument of the Ld. Defence counsel that in the present case, the prosecution had not examined certain material witnesses, namely, Ravi, who had gave the information to the police, vide PCR form, Ex.PW2/1, regarding the incident, as his testimony would have clearly thrown some light about the incident in question. No doubt, the prosecution should have examined the aforesaid Ravi, who gave first of all information to the police, regarding the murder, taking place at Goyal Wali Gali on 04.03.2007. However, it is settled law, the prosecution is not bound to examine all the witnesses in any case, and it is not the quantity of the evidence, but the quality of the same. I am of the considered view that non examination of the said witness, who gave information to the police, regarding the incident of murder is not fatal to the case of the prosecution. In any case, if the said witness was so material, then what prevented the defence from State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 52 producing the said witness in the defence evidence. Further, Ld. Defence counsel has argued that in the said PCR form, Ex.PW2/1, it is mentioned that the dispute was of landlord and tenant, which gives severe blow to the prosecution story. The said argument is not tenable. No doubt, in the said PCR form an endorsement has been made by the PCR official, who visited the spot "makan malik, kirayedar ka jhagda". It is common knowledge that said endorsements are made by the PCR officials on the basis of hearsay evidence, which they gather from the spot, from the passer byes or on lookers and the same is not based upon any authentic source of information, if that was so, then where is the need of recording the statement of the witnesses, who claim to be the eye witnesses, later on. Even in the said PCR form, it is written chaku chlane se murder, which rather fortifies the case of the prosecution.
55. The Ld. Defence counsel has also argued that the prosecution has also not examined Mool Chand @ Chhedu, to whose house, PW6 & PW7 along with deceased Kalo Singh had gone on the fateful day, State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 53 as his testimony would have also revealed some interesting facts, relevant to the present case. Therefore, the same impinges upon the prosecution story. The said argument of the Ld. Defence counsel is also fallacious, as it is not the case of the defence, the said Mool Chand @ Chhedu was not residing in the house, as stated by PW6 & PW7 or some other person was residing there, and PW6 & PW7 never went to meet said person, as no such suggestion was even given in cross-examination of PW6 & PW7. Rather, a suggestion was given in the cross-examination of PW7 Shambhu Singh as under:-
"It is correct that we had gone to Chhedu Lal, who is also called Mool Chand to play Holi".
The giving of said suggestion by one of the Ld. Defence counsel shows that even the defence admits that PW6 & PW7 had gone to play Holi to Mool Chand @ Chhedu Lal, which rather supports the prosecution version. Therefore, the non examination of the said witness is not fatal to the case of the prosecution.
56. Regarding the veracity of the defence witnesses, examined by State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 54 the accused persons, namely, DW1 Shyam Kaur, who was deposed as under:-
"On 4.3.2007, on the day of the Holi, I was at my house cooking food, I heard a hue and cry outside my house. Pradeep S/o Swaran Singh and Kapil S/o Lachoo Singh who were both present in my house ran outside to seen what had happened. I also went out. Suddenly, the police came inside my house and apprehended Pradeep S/o Swaran Singh and Kapil S/o Lachoo. I ashed them what had happened but they did not tell me anything and took them away.
57. However, the testimony of this witness, regarding the plea of alibi, taken with regard to accused Pradeep S/o Swaran Singh and Kapil S/o Lachoo does not appears to be plausible, as first of all she has admitted that she had come to the court on the behest of accused Pradeep and Kapil and they were friends of his son Roshan, and secondly she had stated that at that time when they came Roshan was not at home. It is not clear, if Roshan was not at home, what the State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 55 aforesaid accused persons were doing at her house, in the absence of her son Roshan, who was their friend. Further, she has also stated that Pradeep and Kapil had come at 2:30 p.m, and she does not know, from where they had come. This also does not improve the case of the defence, as the incident took place at 2:00 p.m, therefore, the accused persons having come to the house of Shyam Kaur at 2:30 p.m, is quiet possible as the accused persons may have gone to said place to escape the long arm of law. Taking into totality of the testimony of this witness, it appears that she is a biased witness, predisposed to depose in favour of the aforesaid accused persons Pradeep S/o Swaran Singh and Kapil, who were friends of her son Roshan, who was non other than one of the co-accused person in this case, and therefore, her testimony does not inspire any confidence.
58. Regarding the testimony of DW3 Rai Singh, another defence witness, who has also propounded the plea of alibi, regarding the accused Roshan and Pradeep S/o Sukhbir. He has deposed as under:-
State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 56 "On 4.3.2007, my brother in law Roshan along with Pradeep S/o Sukhbir came to my house at about 10 a.m to play Holi and remained in my house till 5.3.2007. On 5.3.2007, he received a telephone call from his residence and both of them went away".
59. The testimony of DW3 also does not inspire confidence, as he also appears to be an interested witness, as he has stated in his cross-examination, that Roshan's real sister is married to him and it was correct that as per Hindu Tradition, brother does not come to the house of sister to play Holi and it is the brother-in-law, who goes to the house of Sala. He further admitted that he did not inform the I.O or any other police officials or made any application or complaint informing the concerning authorities that Roshan and Pradeep were present in his house, nor he informed the Pradhan of his area. The testimony of the aforesaid witness appears to be tainted one for another reason, as the mother of Roshan, DW1 Shyam Kaur did not state so, that on the date of the Holi, her son had gone to the house of State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 57 DW3 Rai Singh to play Holi, rather she stated that Roshan was not at home. She should have stated categorically in her testimony that Roshan had gone to the house of Rai Singh to play Holi. Even otherwise, if that was so, then what Pradeep S/o Swaran Singh and Kapil were doing at the house of Roshan in his absence, as discussed above. In these circumstances, this plea of alibi, by the accused persons Pradeep S/o Sukhbir and Roshan seems to have been invented by them to somehow wriggle out of the case of the prosecution, rather the testimony of DW1 & DW3 is mutually destructive to each other. Therefore, the defence version taking the plea of alibi, regarding the non presence of all the accused persons at the spot at the time of the incident, does not appears to be plausible one, same is consequently discarded.
60. The common intention of all the accused persons to commit the murder of deceased Kalo Singh is evident from the fact that some of the accused persons caught hold of the deceased Kalo Singh, when one of them i.e Pradeep S/o Sukhbir was stabbing him with knife. State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 58 Rather, after being hit for the first time in the lower back portion by the knife, deceased Kalo Singh ran for cover to escape the clutches of the accused persons. Thereafter, all the accused persons again caught hold of Kalo Singh, while accused Pradeep S/o Sukhbir again struck him on his neck with the knife. This shows pre-concert in the mind of all the accused persons to cause injuries to Kalo Singh and it shows collaboration on their part to do that particular act that was to cause death of deceased Kalo Singh, as if that was not so, then they would not have held him again after the first injury, when he ran for cover, rather they again held him while one of them i.e Pradeep S/o Sukhbir stabbed him on the neck with the knife, which proved fatal in the end for Kalo Singh.
61. The said act(s) of the accused appears to be in furtherance or advancement or in promotion of their acts to cause injuries upon the injured persons. It has been held in judgment Mahabir Vs. State AIR 1963 SC 118. "The meaning of the section is that if two or more persons intentionally do an act jointly, the position in law is just the State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 59 same as if each of them has done it individually by himself". It has been also held in judgment Mehboob Shah Vs. Emperor AIR 1945 PC 118. "To invoke the aid of sec. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then the liability for the crime may be imposed on any one of them persons in the same manner as if the act were done by him alone". In view of the aforesaid judgment the individual acts of both the accused persons can be said to be the joint acts of each other by the principle of agency, attracting common intention U/s 34 IPC.
62. Regarding the alternative plea of the Ld. Defence counsel that in the present case exception to Section 300(4) IPC applies, as it was the case of sudden fight, firstly there was no previous enmity of the accused persons with the deceased, and quarrel had taken place suddenly, as the accused had asked them regarding the whereabouts of Mool Chand @ Chhedu, which resulted into exchange of hot words State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 60 between them and further only two injuries were found on the body of the deceased and there were no multiple blows or injuries, which were found on the body of the deceased. Consequently, accused persons had no intention to kill the deceased. Further, the knife used in the offence was not recovered and consequently the prosecution could not prove that the knife was such, which is used by professional criminals.
63. It has been held in judgments judgment(s) AIR 2009 SC 1709; Criminal Appeal 534 of 2008,Crl. Appeal No. 577 of 2005 ,Crl. Appeal no. 130 of 1996 , Crl. Appeal no. 103 of 1995(supra) and more specifically judgment AIR 2009 SC 1709, in which it was held that:
"In fact Exception 4 deals with cases in which not withstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 61 footing. A sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so,, the exception more appropriately applicable deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused(a) without premeditation, (b) in a sudden fight;(c) without the offender's having taken undue advantage or acting in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found; It is to State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 62 be noted that the fight occurring in Exception 4 to Section 300 IPC is not ded in the IPC. It takes to to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner.
64. Regarding the alternative plea taken by the Ld. Defence Counsel that the case of the accused persons falls within the State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 63 exception under Sec.300(4) IPC. It is settled law that the onus to prove that his case falls under the exception, lies upon the person who so propounds, in this case, therefore, the onus was upon the accused persons to prove that their case fell within the said Exception.
65. The said judgment (supra) AIR 2009 SC 1709 does not help the case of the accused persons, as firstly it cannot be said that it was a case of sudden fight with the deceased Kalo Singh, rather the accused persons had pre-planned to kill Kalo Singh, on the slightest pretext, as PW6 & PW7 have deposed that deceased Kalo Singh had asked accused persons about the whereabouts of Mool Chand @ Chhedu, to whom they had gone to meet on the occasion of Holi along with the deceased Kalo Singh, and when he inquired from the accused persons about the whereabouts of Mool Chand @ Chhedu, whose house was found locked, he was snubbed with the reply "sale bihari bhago, mood kyo kharab karte ho" .
66. Further, the accused persons had not assaulted or killed State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 64 deceased Kalo Singh, at that time, but later on when Kalo Singh after sometime was going back towards Goyal Wali Gali, after visiting the house of PW6 Ajab Lal Yadav, while PW6 & PW7 were conversing with each other. Therefore, this act of the accused persons in picking up the quarrel with the deceased Kalo Singh on the slightest pretext at the first instance and later on stabbing him without any counter provocation on his part cannot be termed as sudden fight, rather it is apparent from those acts of the accused persons that the accused persons picked up the fight with Kalo Singh on the slightest pretext, as he had only asked them about the whereabouts of one Mool Chand @ Chhedu, whom he had come to visit on the occasion of Holi.
67. There is no evidence whatsoever, that there was any quarrel/fight between the deceased Kalo Singh and the accused persons at that moment of time, when he was assaulted or that there was exchange of any hot words or blows, in any case the deceased was heavily out numbered, as he was assaulted by four assailants, State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 65 while he was alone. Consequently, it was only one way traffic and it was a procured fight in which only the accused persons were interested and were the aggressors, and the act(s) of the accused persons were totally premeditated. Further, as per the testimony of PW6 & PW7, the deceased was firstly stabbed on his back and while he tried to run away he was again caught by some of the accused persons and was stabbed with the knife on the neck, which resulted into his death. Therefore, it cannot be also said that the accused persons had not acted in a cruel or unusual manner. In these circumstances, it cannot be said that the death of deceased Kalo Singh took place on account of sudden fight with the accused persons, consequently the case of the accused persons does not fall with the exception to section 300(4) IPC.
68. The net result of the aforesaid discussion is that the probative force of the entire mass of prosecution evidence is such and it has very high probative force on the probability scales, which only leads to one inference that it was only the accused persons, who had killed State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 66 deceased Kalo Singh in a premeditated manner with the intention to kill him, the probative force of the defence evidence is very minimal and the same cannot counteract against the overwhelming probative force of the prosecution evidence, so as to make it doubtful. As a resultant, all the accused persons stand convicted U/s 302/34 IPC.
69. At this stage, at the time of pronouncing judgment, death verification report of one of the accused, namely, Roshan S/o Birbal has come on the record, confirming his death. Consequently, proceedings qua the said accused stands abated vide separate order.
Now, to come up for hearing on the point of sentence qua the remaining three convict persons on 26.05.2011.
Announced in the open court (Sanjeev Aggarwal)
On 21.05.2011 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 67 IN THE COURT OF SHRI SANJEEV AGGARWAL: ADDITIONAL SESSIONS JUDGE - V (OUTER): ROHINI COURTS: DELHI. S.C. NO.444/10.
ID NO.02404R0275212007 FIR NO.185/07.
PS-S.P. BADLI.
STATE VS 1. Pradeep S/o. Sh. Swaran Singh R/o. 11/457, Kalyan Puri, Delhi.
2. Kapil S/o. Shri Lachhu R/o. 17/10, Jalebi Chowk, Kalyan Puri, Delhi.
3. Pradeep S/o. Shri Sukhbir R/o. 16/334, Jalebi Chowk, Kalyan Puri, Delhi.
ORDER ON POINT OF SENTENCE SENTENCE:-
26.05.2011.
Present: Shri A.K. Srivastava, ld. Addl. PP for the State.
Ms. Anu Narula, ld. Counsel for Convicts Pradeep S/o Sukhbir and Kapil.
Ms. Bindiya, Malhotra, Amicus Curiae for convict Pradeep S/o Swaran Singh.
State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 68 It is stated by Ms. Anu Narula, ld. Counsel for Convicts Kapil and Pradeep S/o Sukhbir. That convict Kapil is aged around 25 years at present, he is working in a private showroom and his father is around 50 years, who is having a rod in his leg, his mother is a patient of depression. He has responsibility of marrying his sister, and he does not have any previous record of involvement in any other case.
Regarding the convict Pradeep S/o Sukhbir, it is stated that he is aged around 24 years at present. He is also working in a private showroom, and he has a responsibility of three school going siblings. He also does not have any involvement in any other case. Therefore, it is prayed by Ld. Defence counsel that lenient view may be taken against the convicts.
Regarding the convict Pradeep S/o Swaran Singh, it is stated by Ld. Amicus, that he is aged around 24 years at present, and he was working as a labourer with the tent house and he had to look after his old and ailing mother, as his father has deserted his mother, and he also does not have any previous history of involvement in any State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 69 other case. Thereafter, it is prayed that lenient view may be taken against him.
On the other hand, it is submitted by the Ld. Addl. PP that convicts does not deserve any mercy, as they had killed one Kalo Singh mercilessly on mere asking by him about the whereabouts of some person, and thereafter, all the convicts had killed him by stabbing him on his neck and back, without any remorse. Therefore, strong message should go in the society that such kind of crimes do not pay.
I have gone through the rival contentions.
In the present case, all the convicts in furtherance of their common intention gave two deadly blows of knife to deceased Kalo Singh on his back and neck, despite the fact that after the first blow, the deceased tried to escape, but he was not allowed to do so, and he was given fatal blow with the intention to kill him. The rights of the family of the victim for justice in such cases, has to be balanced with the liberty of the convicts, merely because the convicts are poor State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66 70 person does not mean that they should be given unnecessary latitude by the courts, when the crime committed by them is most abominal in nature.
In these circumstances, the interests of justice shall be met, if all the convicts are sentenced to RI for life, each , U/s 302 IPC. They are further sentenced to pay a fine of Rs. 2,000/- each, U/s 302 IPC. In default of payment of fine, 2 months SI, each. The benefit of the section 428 Cr. PC be extended to the convicts, if applicable.
The Ld. Amicus Ms. Bindiya Malhotra is discharged from the present case. The copy of the judgment and that of point of sentence be given to convicts free of cost. File be consigned to record room.
ASJ/Rohini/Delhi/26.05.2011 State Vs. Pradeep etc. PS S.P. Badli FIR No.185/07 1-66