Delhi District Court
Sc: 01/08 State vs . Satender & Ors. on 27 January, 2010
:1:
In the Court of Ms. Shalinder Kaur
Additional Sessions Judge-FTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 01/08
State
versus
1. Satender @ Sanju
S/o Gulab Rai
R/o 6216, Gali no. 1
Block No. 1, Dev Nagar
Delhi
2. Dharambir
S/o Prabhu Dayal
R/o 6203/1,
Block No. 1, Dev Nagar
Delhi
3. Pradeep
S/o Dharambir
R/o 6216/1, Gali no. 1
Dev Nagar, Delhi
4. Pravesh
S/o Sh. Ram Singh
R/o 6216, Gali no. 1
Block No. 1, Dev Nagar
Delhi
5. Gulab Rai
S/o Prabhu Dayal
R/o 6216, Gali no. 1
Block No. 1, Dev Nagar
Delhi
6. Devender @ Bittoo
S/o Gulab Rai
SC: 01/08 State vs. Satender & Ors.
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R/o 6216, Gali no. 1
Block No. 1, Dev Nagar
Delhi
7. Mahender
S/o Prabhu Dayal
R/o 6205, Gali no. 1
Block No. 1, Dev Nagar
Delhi
Case arising out of:
FIR No. : 365/99
Police Station : Prashad Nagar
Under Section : 302/307/452/147/148/149/34 IPC &
25/54/59 Arms Act
Judgment reserved on : 18.01.10
Judgment pronounced on : 27.01.10
JUDGMENT
Case History:
1. The brief prosecution version is, FIR Ex. PW5/A bearing no.365/99 U/s 302/307/452/147/148/149/34 IPC and U/s 25/54/59 Arms Act was registered at police station Prashad Nagar on 28.11.99 at 2.30 AM on the statement of Rajender Kumar @ Raju S/o Late Sh. Maan Singh. He stated to the police that on 27.11.99 at about 7.10 PM at the corner of their gali, a stone in a wall naming the gali as Prabhu Dayal Pareva Street was laid and its inauguration was done by MP Chand Paharia. The family members of Sh.
Prabhu Dayal resided in this gali who belonged to Khatik Samaj and the family of the complainant also resided in the same street who SC: 01/08 State vs. Satender & Ors.
:3:belonged to Raigar Samaj. Around 8.30 PM, when the Procession of Baba Durbal Nath was passing from there, members of Pareva family namely Bittoo, Sanju, Mahender, Pradeep, Parvesh, Gulab Rai and Dharambir etc. were abusing in the gali and were saying that whosoever has broken the wall of the stone in the name of their grand father on the day of its inauguration, the Pareva family shall not spare that person and then they went away from there. Around 11 PM, Bittoo, Sanju, Mahender, Pradeep, Parvesh, Gulab Rai and Dharambir etc. came to the house of Rajender Kumar. Sanju called the name of the complainant and said" Saale Bahar Aao, Tumhe Diwar Todne Ka Mazaa Chakhate Hai" . The complainant came out and told that they had not broken the wall, then Gulab Rai @ Billu caught hold of his right hand and Dharambir held his left hand. They pulled him from inside the house. Sanju was pushing him from behind and dragged him. They brought him down from the 2nd floor to 1st floor of the house. At that time, his nephew, Veer on hearing the racket came out, Bittoo said, to take him also down stairs and to kill him, so that Raigars of the gali may learn a lesson. On this, Pradeep held Veer from his right hand, Parvesh caught him from his left hand, Mahender caught his collar from back and all three of them dragged Veer and brought him on the road near the wall where stone was laid. The complainant was brought down by Gulab Rai, Dharambir and Sanju on the road who kept on holding him. On coming down, Bittoo and Sanju took out their knives. Bittoo gave a knife blow on the chest of Veer and told Sanju that they have finished Veer and he should finish Raju. On hearing this, Sanju aimed the knife on the chest of complainant and gave a blow. But SC: 01/08 State vs. Satender & Ors.
:4:the complainant managed to get his right arm free from the hold of Billu with help of Raghuvir Singh who was already present there and tried to save the knife blow but he sustained knife injury on his right hand. Before this, Raghubir Singh had tried to save Veer but Mahender had pushed him aside. On hearing noises, many people gathered and saved them. Veer was removed by PCR to hospital and the complainant along with Raghubir Singh on a scooter reached hospital. There complainant came to know that Veer had expired. He has alleged that Bittoo, Sanju, Mahender, Pradeep, Parvesh, Gulab Rai @ Billu and Dharambir etc. had together caused the death of his nephew Veer and had also attempted to kill him. He knew and identifies all these persons distinctly and legal action be taken against them.
2. In the backdrop of this complaint, the matter was investigated by Inspector Dinesh Tiwari. The place of occurrence was got photographed, site plan was prepared. MLC of injured, deceased and accused persons were obtained and postmortem was got conducted on the dead body of the deceased. A knife and a dagger were got recovered at the instance of accused Satender @ Sanju and Devender @ Bittoo. The exhibits lifted from scene of crime and obtained from the hospital were sent to CFSL. On completion of the investigations, charge sheet for offence punishable U/s 302/307/452/147/148/149/34 IPC and U/s 27/54/59 Arms Act IPC was laid.
3. After the case was committed for trial to the Sessions, SC: 01/08 State vs. Satender & Ors.
:5:Charge for offence punishable U/s 452/149 IPC was framed against all the seven accused persons, Charge for offence punishable U/s 307/34 IPC was framed against accused Satender @ Sanju, Gulab Rai @ Billu, Dharambir and Mahender and Charge for offence punishable U/s 302/34 IPC was framed against accused Devender @ Bittoo, Pradeep and Pravesh. The accused persons pleaded not guilty to the charges and claimed trial. The prosecution has examined 23 witnesses in order to substantiate the charge against the accused persons.
Evidence:
4. PW1 Constable Brahmpal was posted as Duty Constable in RML Hospital on 28.11.99. He had collected one sealed parcel and sample seal of CMO, RML Hospital from the doctor which he had handed over to the IO who had seized the same vide seizure memo Ex.PW1/A.
5. PW2 Constable Ramesh Chand had guarded the dead body of the deceased on the night intervening 27/28.11.99.
6. PW3 Rajender Kumar is the complainant as well as the injured. His testimony shall be adverted to in detail subsequently.
7. PW4 Dr. G. Prakash has examined the accused persons Pradeep, Parvesh and Sanju who had also been injured, vide MLCs Ex.PW4/A, Ex.PW4/B and Ex.PW4/C. He had also examined the SC: 01/08 State vs. Satender & Ors.
:6:complainant Raju @ Rajender Kumar who had received multiple stab injuries, vide MLC Ex.PW4/D. Besides injured Veer was also examined by PW4 vide MLC, Ex.PW4/E.
8. PW20 Dr. M.P. Arora has proved the opinion regarding the nature of injuries and the nature of object, on the MLCs Ex.PW4/A, Ex.PW4/B, Ex.PW4/C & Ex.PW4/D.
9. PW5 ASI Jagmal Singh was the Duty Officer in police station Prashad Nagar on 28.11.99. He had registered the FIR of the case on the rukka, brought by Constable Satish. He proved the FIR as Ex.PW5/A. He had also made endorsement on the rukka vide Ex.PW5/B.
10. PW6 Om Prakash had identified the dead body of Veer in RML Hospital Mortuary and his statement Ex.PW6/A was recorded.
11. PW7 Constable Shishu Pal on 15.12.99 had accompanied the IO, Inspector Dinesh Tiwari to Mortuary of JPN Hospital where they had collected the postmortem report and IO had seized two pulandas, bearing seal of 'MAMC' and two sample seals vide Ex.PW7/A.
12. PW8 Constable Lakhpat Singh had joined the investigations with IO on 17.12.99. Accused Devender and Mahender were with them. Accused Devender had got recovered a knife Ex.P-5 from a nala from behind Kalindi College. The witness SC: 01/08 State vs. Satender & Ors.
:7:proved the sketch of the knife as Ex.PW8/A and the seizure memo as Ex.PW8/B. He also proved the seizure memo Ex.PW8/C vide which the clothes of the accused Devender were seized and the disclosure statements made by accused Devender and Mahender as Ex.PW8/D and Ex.PW8/E respectively. The pointing out of the place of recovery made by the accused persons has also been proved by the witness as Ex.PW8/F.
13. PW9 HC Bhura Mal on 27.11.99 was posted in PCR Oscar
39. He deposed that at about 8.30 PM, he was called at Gali No.1, Block No.1, Dev Nagar by Incharge of PCR Van Oscar 47. He went there and met three injured namely Pradeep, Sanju and Gulshan whom he took to RML Hospital and got them admitted in emergency.
14. PW10 Constable Satish has deposed that on 27.11.99, he along with SI Ganesh had gone to Padam Singh road on receipt of a call regarding some quarrel. On reaching there, they had found the call to be incorrect. While they were returning back in the police station, Constable Inder Dev met them on the way and informed them about a call regarding quarrel at H.No.6205, Gali No.1, Block No.1, Dev Nagar. Accordingly, they went there. On reaching the place, they came to know that the injured had been removed by PCR to RML Hospital. He along with SI Ganesh went to RML Hospital where SI Ganesh obtained the MLC of the injured and recorded the statement of one Raju and prepared the rukka which he took to police station for registration of FIR. Thereafter he went to SC: 01/08 State vs. Satender & Ors.
:8:Dev Nagar where he met the Additional SHO and handed over rukka and copy of FIR to him.
15. PW11 Constable Narain Singh deposed that on 28.11.99, he along with Additional SHO Dinesh Tiwari, Constable Ramesh and Constable Satish reached RML Hospital where Additional SHO collected the MLC of the injured and deceased and then they came back to the spot. Complainant Rajender @ Raju was with them. The spot was pointed out by the complainant which was inspected and photographed. Site plan was prepared and exhibits were lifted. After about 9.35 AM, they came back to the police station and IO deposited the case property with MHC (M). Then they went to RML Hospital from where they collected the dead body and went to JPN Hospital for postmortem of the dead body. After postmortem, the dead body was handed over to Raghuvir, Chacha of the deceased. The witness deposed that thereafter they came back to H.No.6126, Block No.1, Gali No.1 i.e house of Gulab Rai where they made search for the accused persons. Accused Sanju, Gulab Rai, Dharambir, Parvesh and Pradeep @ Bittoo were found sitting there. He was sent by the Additional SHO to call the complainant and the complainant identified all the accused persons who were arrested. The witness proved the disclosure statement of accused Sanju as Ex.PW11/A. He also deposed that accused Sanju got recovered one dagger from the bed under the mattress which was seized vide seizure memo Ex.PW3/C. The witness also proved the pointing out of the place of occurrence by all these five accused persons vide memo Ex.PW11/B to Ex.PW11/F. SC: 01/08 State vs. Satender & Ors.
:9:16. PW12 Constable Chainpal is the witness of arrest of accused Devender @ Bittoo and Mahender who were arrested on 16.12.99 while they surrendered in Tis Hazari Court. The witness proved the personal search memos of the accused persons as Ex.PW12/A & Ex.PW12/B. The pointing out memo of the place of occurrence by the accused are Ex.PW12/E & Ex.PW12/F.
17. PW13 Constable Chander Bhan had recorded DD Entry No.69-B on 27.11.99 which he proved as Ex.PW13/A.
18. PW14 Raghubir Singh is brother of the complainant Raju. He has deposed that on 27.11.99 at about 10.30/11 PM, he was present on the 3rd floor of his house. He had peeped through the window as he heard noises coming from the gali and found a crowd of 60-70 people gathered in the street. He went down and at the road, saw his nephew Veer lying on road in injured condition. Within five minutes, PCR Van reached and with their assistance, his nephew Veer was removed to the hospital. Later on he was told by the doctors that he had expired. The witness was declared hostile by Learned APP as he was found to be resiling from his previous statement made to the police but the witness did not support the prosecution version during his cross-examination by Learned APP.
19. PW15 Retd. SI Ganesh Prashad Singh is the first IO of this case who has proved the partial investigations done by him.
SC: 01/08 State vs. Satender & Ors.
:10:20. PW16 SI Mahesh Kumar is the Draftsman who had prepared the scaled site plan which he proved as Ex.PW16/A.
21. PW17 Umedh Singh is the LDC from MCD Engineering Department who deposed that vide an administrative order Ex.PW17/A, the name of the Gali No.1, Dev Nagar was made as Prabhu Dayal Pareva and the copy of its resolution is Ex.PW17/B.
22. PW18 Dr. Anil Aggarwal had conducted autopsy on the dead body of the deceased. He has proved his report as Ex.PW18/A and the diagram prepared by him as Ex.PX-1.
23. PW19 Constable Anoop delivered the information regarding the incidence to Joint Commissioner, DCP, ACP and concerned MM.
24. PW21 Constable Yatinder deposed that on 04.12.99, at the instance of Inspector Dinesh Tiwari he had taken the injured Rajender @ Raju to Lady Harding Hospital to get his blood sample which he had brought and handed over to IO. The same was seized vide seizure memo Ex.PW21/A. He is also a witness to the arrest of accused Devender and Mahender and recovery of knife at the instance of accused. He has proved the documents, pertaining to the said arrest and recovery.
25. PW22 Inspector Dinesh Tiwari is the main IO of the case who has proved the investigations done by him.
SC: 01/08 State vs. Satender & Ors.
:11:26. PW23 Retd. SI Lal Dhar deposed that on 27.11.99, he was Incharge of PCR on vehicle O.47. At about 11.30 PM, one person came on scooter and informed him that a fight had taken place at Sindhi Heeranand Ghoriwala at Ravi Dass Marg. He went there along with staff and found that crowd had collected and one person was lying near Patri on road and he took the injured to RML Hospital. He informed another PCR Van having number O-39 to reach the place of incident. The person whom he had taken to the hospital was declared brought dead on reaching the hospital.
27. This is the entire evidence oral as well as documentary brought on record by the prosecution as noted above.
28. The accused persons have denied the case of the prosecution in their statements, recorded U/s 313 Cr.P.C. They have alleged their false implication in this case. In their defence, accused Pradeep & Dharambir have examined Sh. Brahmanand as DW1 and Sh. Darshan Kumar as DW2, accused Mahender has examined Sh. Neeraj Mukhiya as DW3 and accused Devender @ Bittoo has examined Sh. Bhole as DW4. The other accused persons did not lead any evidence in defence.
Contentions:
29. Learned APP submitted that the case of the prosecution has been established through the testimony of PW3, the injured. His SC: 01/08 State vs. Satender & Ors.
:12:evidence is cogent and reliable which firmly brings out the common intention / object formulated by the accused persons who were the members of an unlawful assembly / assailants. They had a clear motive to commit the offence as they wanted to teach a lesson to the persons who had broken the wall of the stone which was laid in the name of their grandfather. To achieve this motive they went to the house of PW3 and brought him and his nephew Veer dragging down to the road from the 2nd floor and 1st Floor of their houses. Two accused persons were armed with a knife and a dragger with which they caused injury to the complainant and a stab wound was inflicted on the deceased which proved to be fatal. PW3 was saved due to the intervention of his brother and other public persons who had come there. The identity of the accused persons has been established clearly as they are named in the FIR. The accused persons, the injured as well as the deceased resided in the same street. Thus, the prosecution case has been established beyond any doubt.
30. Per contra on behalf of accused persons, though different advocates had made submissions but the main contention raised by them are:- the identity of the accused persons has not been established. PW3 could not have identified the assailants as there was total darkness due to electricity failure in the area. It was vociferously argued that the accused persons had also received injuries in this case. They were admitted in the hospital even prior to admission of PW3. But the prosecution has failed to explain the injuries suffered by the accused persons. The Investigation Officer SC: 01/08 State vs. Satender & Ors.
:13:did not record their statement and in case, they were the assailants as they were named in the FIR, he did not arrest them in the hospital. It was also submitted that FIR is ante time and has been fabricated. As per the testimony of PW9, the incident with the accused persons had occurred at 8:30 PM and the PCR Van had removed the injured persons who are the alleged assailants in the hospital. Thus, it seems that the injured and the deceased had suffered injuries at the hands of some other persons at 11PM and the accused persons were falsely implicated in this case. Various contradictions were pointed out in the testimonies of the witness and it was urged that accused persons cannot be convicted on such flimsy evidence as adduced by the prosecution in this case.
Findings:
31. The foremost crucial question raised on behalf of the accused persons is their identity as assailants of the incident. It was argued that prosecution case hinges on the testimony of PW3 who is the alleged eye witness of the case as the other eye witness PW14, brother of PW3 has turned hostile. Even PW3 has not supported the prosecution version for proving the identity of accused persons as the said witness has deposed that when the incident took place, there was absolute darkness and not a shade of light was there. Although he has deposed that he identified the accused persons by their voices which he could not have done as he had no occasion to communicate with them and this fact has been admitted by the witness. To support this argument, the judgment reported as Baldev Singh Vs. State of Punjab; AIR SC: 01/08 State vs. Satender & Ors.
:14:1991 SC 31 was cited on behalf of the accused persons.
32. PW14 Sh. Raghubir Singh has supported the prosecution case to the extent that the community of Raigar Samaj also lived in the same gali and on the date of incident and in the evening, the Procession of Baba Durbal Nath had passed. He deposed that around 10.30 / 11 PM he had heard noises coming from the gali and on coming down he found his nephew Veer injured lying on the road. Within five minutes, PCR Van came and with their assistance, he removed him to the hospital. However, the witness has turned hostile with respect to the identity of the accused persons.
33. PW3 Rajinder Kumar has deposed about inauguration of stone lying ceremony, naming the street in the name of Prabhu Dayal and passing of Procession of Baba Durbal Nath from there on the fateful day. He further deposed that he knew the accused persons by names and by faces also prior to the incident and they belonged to Khatik Samaj. It is not denied by accused persons that PW3 belonged to Raigar Community and also resided in the same street.
34. The witness was examined-in-chief by the prosecution on 29.07.02. His cross-examination was conducted on different dates by the accused persons. In his cross-examination conducted on 15.03.08, for the first time identity of the accused persons has been challenged. The witness has deposed that the electricity supply was not there in the area when he was brought from 2nd floor and it was dark. But he testified that he had seen the faces of the accused SC: 01/08 State vs. Satender & Ors.
:15:persons. Subsequently, he admitted he could not clearly see the faces on that day as it was dark but could hear the voices clearly. In response to court querry the witness stated that he was very scared and could not see the faces clearly but could identify the persons by their voices.
35. From this evidence, first of all it emerges that the witness was cross examined for identity of the accused persons almost after five years of recording of his examination-in-chief. Whether this part of cross examination is sufficient to throw away the testimony of witness on the point of identification of the accused persons has to be seen.
36. In the judgment reported as Alagarsamy and Ors. vs. State by Deputy Superintendent of Police JT 2009 (13) SC 491, it was observed by Hon'ble Supreme Court :-
Much was said against Krishnan (PW1), who was declared hostile at the fag end of his cross- examination. He was also taken to Chennai to file a Writ Petition, questioning the correctness of the prosecution. However, the Courts below have chosen to rely on part of the evidence. The High Court has noted that his Examination-in-Chief was recorded on 02.04.2001 and on the same day, he was cross-examined by the three defence counsel. Then only later, on 26.06.2001, when he was recalled, he was treated as a hostile witness. We agree with the comment of the High Court that the witness was tried to be won-over after his cross-examination.
SC: 01/08 State vs. Satender & Ors.:16:
It is further observed :- The High Court has dealt with it and had chosen to rely on the earlier part of his evidence. The law is now well settled that merely because the witness is declared as hostile witness, whole of his evidence is not liable to be thrown away. We agree with the High Court in its appreciation of the evidence of this witness and the acceptance thereof.
37. In the judgment reported as Khujji @ Surendra Tiwari vs. State of Madhya Pradesh Criminal Appeal No.413 of 1982, Decided on 16.07.1991, it is held by Hon'ble Supreme Court :-
The examination-in-chief of this witness was recorded on November 16, 1976 when he identified all the assailants by name. He stated that he knew the six accused persons in Court and they were the persons who had surrounded the rickshaw and launched an assault on PW4 and the deceased Gulab. His cross-examination commenced on 15th December, 1978. In his cross- examination, he stated that the appellant Khujji and Gudda had their backs towards him and hence, he could not see their faces while he could identify the remaining four persons. He stated that he had inferred that the other two persons were the appellant and Gudda.
It is also held :- We are satisfied on a reading of his entire evidence that his statement in cross- examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief. We agree with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants.
SC: 01/08 State vs. Satender & Ors.:17:
38. Thus in view of the above laid law, the identity proved by the PW3 of the accused persons cannot be discarded merely because in cross- examination conducted of witness a large gap of time he has tried to wriggle out of it.
39. Moreover, the fact cannot be ignored that accused persons, injured Raju and deceased resided with their families in the same street. So PW3, could recognize and identify them distinctly. He has clearly deposed that he identified the accused persons from their voices. Although it was argued that since PW3 did not have any contact or communication with the accused persons, he could not have identified them by their voices. Interestingly no suggestion has been given to PW3 that he never heard the voices of the accused persons or could not have identified them by their voices. It cannot be believed that being residents of same gali, PW3 would have never heard the voices of the accused persons.
40. Moreso, PW3 was dragged from inside his house, even though there was no electricity in the area, it was not possible that he would have opened the door of his house at night, in dark without ascertaining about the identity of the persons who were asking him to open the door. PW3 has also deposed that accused persons had received injuries at that time. If he was not certain about their identity then how could he depose about their injuries.
41. Furthermore, the accused persons have raised contradictory defence. In their statement U/s 313 Cr.PC they have SC: 01/08 State vs. Satender & Ors.
:18:stated they received injuries at the hands of unknown persons on the said day. PW3 has been put that whether he inflicted any injury to anyone which he has denied. He has also been suggested that on 24.11.99 at about 11:55 PM accused Gulab Rai was attacked at his house by members of Raiger Community as a result of which he sustained injury on his ankle which was fractured. This suggestion has been denied by the witness. Thus it is apparent that accused persons had also received injuries on the said day, PW3 was cross examined to explain their injuries.
42. Therefore, in view of this overwhelming evidence, it cannot be said that identity of accused persons is not established beyond doubt.
43. It was also argued that PW3 has admitted in evidence that he was told by the police officials that accused persons were involved in the crime, so their identification by PW3 in the Court becomes doubtful. This argument of the defence is not at all impressive. PW3 has deposed in his cross-examination that he had seen the accused persons in the police station and the police officials had told him that accused persons present there were involved in the incident. However, the said deposition is not material as PW3 had already named the accused persons in his statement Ex.PW3/A, recorded by the police in the hospital. Thus to say that PW3 identified the accused persons as told to him by the police does not stand to reason.
SC: 01/08 State vs. Satender & Ors.
:19:44. The judgment Baldev Singh Vs. State of Punjab (Supra) cited by defence is distinguishable from the facts of the present case, in that case the witness and accused were stranger and the witness had seen the accused for the first time on the day of incident. But in this case complainant and the accused persons are residents of same street and had sufficient opportunity of recognizing each other even before the incident.
45. The Learned defence counsel placed strong reliance on the testimony of PW9, HC Bhura Mal and submitted that he was the Incharge of PCR Oscar 39 which had reached the spot on the information given by PCR Van Oscar 47. According to this witness, he had met the accused persons Pradeep and Sanju at 8.30 PM, who were injured and he had removed them to RML Hospital whereas PW3 had received the injuries around 11 PM. Thus, the accused persons were already lying admitted in the hospital and they could not possibly have injured PW3. He would have sustained injuries at the hands of some other persons subsequently and he has falsely named the accused persons in this case.
46. According to the testimony of PW3 & PW14, the incident had occurred around 10.30/11 PM. DD No.26A Ex.PW5/C has been recorded at 11.55 intimating about a quarrel at house no.6205, Dev Nagar, Gali No.1, Block No.1 which is the house of accused Dharambir. According to MLC of accused Pradeep Ex.PW4/A, he was admitted in the hospital at 12.15 AM. As per MLC of accused Pradeep Ex.PW4/A, of accused Sanju Ex.PW4/C and of accused SC: 01/08 State vs. Satender & Ors.
:20:Gulab Rai Ex.PW4/DA, they were admitted in RML Hospital by HC Bhura Mal on 28.11.99 at 12.15 AM. Thus, it emerges from the testimony of PW9 HC Bhura Mal and the MLCs of these three accused persons that PW9 has inadvertently testified the time of his reaching the place of occurrence as 8.30 PM. May be it is due to lapse of time but actually the accused persons were admitted in the hospital after midnight. Accordingly, it demolish the defence of the accused persons that they were injured at 8:30 PM and were already admitted in the hospital when PW3 received injuries and his nephew Veer was killed.
47. The accused persons also challenged the prosecution case on the ground that it has failed to explain the injuries on the person of accused persons namely Pradeep, Sanju, Gulab Rai and Parvesh. It was contended these four accused persons had sustained multiple sharp injuries. The police had obtained their MLCs before sending the rukka, still their statements were not recorded and if they were assailants, they were not arrested and were allowed to go scott free which is fatal to the prosecution. Learned defence counsel has relied upon the judgment Laxmi Singh and Others Vs. State of Bihar ; AIR 1976 SC 2263 in support of the above argument. Hon'ble Supreme Court has held in the said judgment :-
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes improbability with that of the SC: 01/08 State vs. Satender & Ors.:21:
prosecution one.
48. As per MLCs of the above mentioned four accused persons, accused Pradeep, Sanju and Parvesh sustained simple injuries whereas accused Gulab Rai sustained fracture of ankle i.e grievous injury. Accused Pradeep suffered injuries by blunt object and accused Parvesh received injuries by sharp weapon.
49. In the judgment reported as Ramdeo Kahar & Ors. vs. State of Bihar; AIR 2009 SC 1803, it was observed :-
But the fact that they suffered simple injuries itself shows that non-explanation thereof would not be sufficient to brush aside the prosecution case.
50. The Hon'ble Supreme Court in Rajendra Singh & Ors. Vs. State of Bihar; 2000 Cri.LJ 2199 has held :-
The question was considered by a three Judge Bench of this Court in the case of Vijayee Singh vs. State of UP (1990) 3 SCC 190 and this Court held that if the prosecution evidence is clear, cogent and credit worthy and the Court can distinguish the truth from the falsehood, the mere fact that the injuries are not explained by the prosecution cannot by itself be a basis to reject such evidence and consequently the whole case and much depends on the facts and circumstances of each case. In Vijayee Singh's case (supra) the Court held that non-explanation of injury on the accused persons does not affect the prosecution case as a whole.
It is further held, This question again came up before a three Judge Bench recently in a case of Ram Sunder Yadav vs. State of Bihar (1998) 7 SC SC: 01/08 State vs. Satender & Ors.:22:
365 where this Court affirmed the statement of law made by the earlier three Judge Bench in Vijayee Singh's case (supra) and also relied upon at other three Judge Bench decision of the Court in Bhaba Nanda Sarma vs. State of Assam (1977) 4 SCC 396 and as such accepted the principle that if the evidence is clear, cogent and creditworthy then non-explanation of the injury on the accused ipso facto cannot be a basis to discard th entire prosecution case.
51. In the statement recorded of the accused persons U/s 313 Cr.P.C, they have themselves explained the injuries suffered by them. Accused Satender @ Sanju and Gulab Rai have stated that they had collected outside house no.6205 as grand mother / mother of both was unwell. There was electricity breakdown in the area. They heard noises in gali and came out. Somebody from crowd gave blow with iron rod to accused Gulab Rai and a cut on the face of accused Satender. Accused Parvesh stated that somebody gave him injury on his stomach and accused Pradeep has merely stated that his MLC was got prepared.
52. Thus, it emerges from the evidence that injuries of the accused persons are self explained. They have not alleged that PW3 or any of his associate injured them. Neither they have taken the defence that due to some sudden fight between them and PW3, they had sustained injuries. Therefore, the argument raised qua non explanation of injuries cannot hold. Firstly the accused have sustained simple injuries which they themselves have explained. Secondly, all the accused persons were discharged from the SC: 01/08 State vs. Satender & Ors.
:23:hospital on 28.11.99 in the morning. The rukka Ex.PW15/A has been sent from the hospital at 2 AM on 28.11.99. The FIR Ex.PW5/A has been registered at 2.30 AM on the same day in which about the MLCs of accused persons have been mentioned stating they had received injuries during quarrel while the public tried to save. So, the injuries on the person of accused persons have been well explained by them as well as by prosecution. PW3 has also deposed that public persons saved him from the accused persons and they had also sustained injuries but he could not tell whether all or some of them received injuries.
53. As per prosecution case, the accused persons were not arrested in the hospital while they were admitted there but were arrested from the house of the accused Gulab Rai on 28.11.99 around 5 PM. This is a lacuna in the investigation but the same does not effect the prosecution case. The accused persons have not lodged any complaint about the injuries suffered by them and have not suspected any person. If the police did not record their statement in the hospital, they also did not make an effort to lodge a complaint about the injuries caused to them.
54. The judgment Laxmi Singh and Ors. Vs. State of Bihar (Supra) is distinguishable as in the present case the injuries on accused persons have been explained by the the prosecution and the accused have also admitted that they were injured by unknown persons from the gathered public. In Laxmi Singh and Ors. Vs. State of Bihar (Supra), two of the accused persons had taken the SC: 01/08 State vs. Satender & Ors.
:24:defence that :
The defence of Dasrath Singh and Ramsagar Singh was that the two deceased persons and Dasain Singh had trespassed into their plantain orchard and were cutting away a number of plants and leaves, and when Dasrath Singh protested he was assaulted by Dasain Singh and others and thereafter in the mutual fight the two deceased were assaulted in exercise of the right of private defence by the accused and others who had assembled nearby. Thus, a very significant factor which we find in this case is that there are two groups of accused who are totally unrelated to one another. Jagdhar Singh is the father of Jagdish Singh and Lakshmi Singh. Ramprasad Sah and Chhathu Singh, though not relations, appear to have been the supporters of these three accused. None of these accused, however, appear to have any concern or connection with the deceased or the members of their family, but they have been in inimical terms with PWs 1 to 4. In fact the evidence shows that there were two warring factions in the village - one headed by PWs 1 to 4 - and various types of cases were fought between these two groups.
55. This brings me to the next argument raised on behalf of accused persons which is regarding delay in conducting inquest proceedings and names of assailants being not mentioned in the brief facts prepared by IO. It was urged that it shows FIR was fabricated and antetime. The defence counsel supported this argument on the basis of judgment 1. Balwant Singh Vs. State 1976 C.L.R. (Delhi), 2. Ghanshyam Vs. State CRLA no. 100/2004 decided on 05.02.07 by Hon'ble Delhi High Court.
SC: 01/08 State vs. Satender & Ors.
:25:56. In Ghanshyam Vs. State (supra) it was held that the Investigating Officer would have mentioned these names, firstly, in the inquest form and then in the brief facts which he had prepared at the time of making an application for postmortem examination. In these documents, as noticed already, names of the assailants were note mentioned and therefore, the only inference which we can draw is that by 6.4.1988, the names of the assailants were not known to the police and even PW-5 Mahesh Chand had not made himself available to the police by that time claiming himself to be an eye-witness of the incident.
57. In the judgment Balwant Singh Vs. State (Supra) it is observed :-
The inquest report has to be prepared promptly because it has to be sent to the doctor alongwith the dead body when the body is sent for autopsy. It has a column for writing out in brief the facts of the case. If facts about the occurrence are stated in the inquest report, it would show that at least by that time the version of the occurrence has been given. If it does not mention the fact about the occurrence, the argument that investigating officer was not sure of the facts when the inquest report was drawn out would carry weight.
58. In the application Ex.PW-18/B moved for conducting postmortem, the IO has mentioned the brief history as on 27.11.99, deceased Veer Singh and his uncle Raju was brought down from SC: 01/08 State vs. Satender & Ors.
:26:the stairs at about 1 PM by the accused persons and deceased was stabbed with knife by one of the accused. The names of the accused persons were already mentioned in the FIR which is quite apparent from Ex.PW-18/B. Otherwise the IO would have mentioned about " unknown persons" instead of " accused persons" . Moreover, it has not been put to the PW22 Investigation Officer of the case that why he did not specifically write the names of all accused persons in Ex.PW-18/B to seek his explanation. According to deposition of PW22, he had started the inquest proceeding at 9 A.M.. Thus there is not much delay in holding the inquest proceedings which could be fatal to the prosecution case.
59. There has been criticism of the prosecution case by the defence on the ground that there was delay in lodging the FIR. PW3 has admitted that none of his family members went to police station to report the incident though the police station was at a distance of about 5 minutes from his house. He himself did not go to police station which was on his way to hospital to report the matter. Reliance was placed on the judgment reported as Thulia Kali Vs. State of Tamil Nadu; AIR 1973 SC 501.
60. It has come in evidence of the witnesses that investigating agency was set in motion on receipt of information about a quarrel taking place at H.No. 6205, Dev Nagar, Gali no.1, Block No. 1 recorded as DD No. 26A at 11:55 PM on 27.11.99 which is Ex.PW- 5/C. PW15 SI Ganesh Prasad Singh had reached the spot and found the injured removed RML Hospital by PCR Van. Thus he went SC: 01/08 State vs. Satender & Ors.
:27:to RML hospital. PW22 IO Inspector Dinesh Tiwari has deposed that he had recorded his departure from police station vide DD no. 2A at 12:05 AM at night to the place of occurrence. PW 23 Retd. SI Lal Dhar who was posted in PCR Van 047 as deposed by him had reached the spot around 11:30 PM and he removed injured Veer to RML Hospital whereas other 3 injured accused persons namely Pardeep, Sanju and Gulab Rai were taken to hospital by PW9 in PCR van Oscar 47. The time of the incident has been stated to be 11 PM on 27.11.99. Rukka has been sent at 2 AM & FIR was registered at 2:30 AM. Thus from the recording of all the above documents and oral testimony of PW5 , PW10, PW15, PW22 it is evident that there is no delay in registration of FIR. As the incident was already informed in the police station and police had arrived at place of occurrence thus the family members of PW3 may not have felt the need to again go to police station. Even PW14 has supported this fact and has deposed when he came down on the road after hearing noises and found his nephew lying injured on the road, PCR van arrived within 5 minutes and he with their assistance removed his nephew to hospital. As far as the question regarding PW3 not first going to police station is concerned, it has not been put to him during his examination, so that he would have explained the same. Nevertheless, being injured himself his first priority would have been to reach the hospital and not to police station.
61. On behalf of accused persons it was further pointed that testimony of PW3 is not reliable and same is also in contradiction to prosecution case. It was argued that PW3 has deposed, his SC: 01/08 State vs. Satender & Ors.
:28:statement was recorded by the police at his house and he was discharged from the hospital at 2:30 AM at night on 28.11.99 whereas PW20, Dr. M.P. Arora has deposed that on 28.11.99 in the morning at 8 AM he had examined PW3 and he must have remained in the hospital upto 9 AM. On the other hand case of the prosecution is the rukka was prepared in the hospital on the statement of PW3 at 2 AM on 28.11.99 and FIR was registered at 2:30AM. Thus this is a major contradiction appearing in the case of the prosecution which shows that FIR has been fabricated.
62. PW3 during his cross examination recorded on 16.12.08 has stated that he was discharged from hospital at about 2/2:30 in the midnight and Inspector Dinesh Tiwari had recorded his statement at his residence. The witness admitted Ex.PW-3/A as his statement recorded by Inspector Dinesh Tiwari at his residence. However, the witness could not have been discharged from hospital at night around 2/2:30 AM. The patients are usually discharged from hospital during day time. The discrepancies occurring in the statement of PW3 regarding his discharge time and place of recording of his statement are due to normal errors of memory due to lapse of time. The incident had occurred in the year 1999 and witness has been examined qua this aspect in the year 2008. Thus such contradictions are bound to occur due to lapse of time. Moreover, the witness has admitted his statement Ex.PW- 3/A as made to the IO which is most material and significant. So the place of recording of the statement of PW3 is not of much importance once the witness has admitted the said statement. Moreover, the SC: 01/08 State vs. Satender & Ors.
:29:rukka was prepared by PW15 SI Ganesh & not by PW22 Inspector Dinesh. PW15 has not been cross examined on the aspect that at which place he had prepared the rukka. As the witness has admitted his statement Ex.PW-3/A to be correct and PW15 has deposed that it was recorded in the hospital and rukka was prepared on the same. Thus it cannot be said FIR has been fabricated.
63. It was argued that DD No. 26 A, Ex.PW- 5/C mentions that quarrel had taken place at H.No. 6205 which is the house of one of the accused and which is also probable with defence of accused that they got injured by some public persons so they were not the assailants. DD No. 26A merely records an information about happening of a quarrel at H.No. 6205 which is situated in the same gali in which the incident had occurred and not the house of PW3. So the mere mentioning of H.No. 6205 does not demolish the case of the prosecution. Also, the informant has not given his name while conveying this information to police.
64. Argument was raised that PW3 has deposed that accused Gulab Rai did not receive any injury and nor he was aware about it so his testimony is not reliable as he has deliberately suppressed material facts. The said argument does not has much force, as PW3 was himself injured so he must have been bothered about his own treatment. Moreover, his nephew was declared dead thus he would have been upset on this fact also. It is also possible he may not have noticed about injuries of accused Gulab Rai. Even if PW3 has not deposed about the injuries of accused Gulab Rai same is not of SC: 01/08 State vs. Satender & Ors.
:30:much relevance.
65. It was urged that accused Devender, Pradeep and Parvesh have been wrongly charge sheeted and charged for offence punishable under Section 302/34 IPC. As per prosecution story it is a case of sudden fight in which it could not have been ascertained that a particular injury was intended to kill the deceased. During this fight accused persons had also sustained injuries thus the case if it all falls under Section 304 (Part II) IPC and not under Section 302 IPC. To appreciate the said argument the evidence of PW3, and PW 18 Dr. Anil Aggarwal who conducted the postmortem on the body of the deceased becomes relevant.
66. PW 18 Dr. Anil Aggarwal, has deposed that on 28.11.99 at 1 PM he conducted the postmortem examination on the dead body of Veer Singh son of Inder Singh. On examination of dead body the witness had found following external injuries on the body. There was a stab wound obliquely placed over left front of chest the lower end 3.5 cm upper and inner to the left nipple and the upper end 6 cm outer to midline. The size of the wound was 2.8 cm x 1.2 cm x chest cavity deep.
67. On the internal examination PW18 found that the front wall of the left chamber of the heart showed a through and through cut which was 1.2 cm in length. The wall between the two chambers and the back wall of the left chamber did not show any cut. The cavity which surrounds the heart contained about 500 cc of blood amongst which the heart was lying compressed. Injury No. 1 went SC: 01/08 State vs. Satender & Ors.
:31:through the skin muscles, the space between 3rd and 4th rib of the left side and then entered the heart. The direction of the track was backwards and slightly inwards and the length of the track was 8 cm.
68. According to PW 18 the death in this case was as a result of stoppage of heart which occurred as a result of collection of blood in the cavity surrounding the heart. This blood collected via injury no. 1 caused to the heart. Injury no.1 was anti-mortem in nature, recent in duration and was produced by some single edged sharp stabbing weapon. Injury no.1 was sufficient to cause death in ordinary course of nature. Although the witness was cross examined at length on behalf of accused persons but nothing material could be brought forth during his cross examination.
69. PW 3 has deposed that he was residing on the second floor and his nephew Veer resided at the first floor. On hearing his alarm his nephew came out from his house and in the meanwhile he heard accused Bittoo saying " Iska bhi Kam Tamam Karna Hai" . Accused Mahender caught hold of Veer from collar and brought him down on the road, dragging him. Accused Parvesh and Pradeep caught hold of him and accused Bitto gave a dagger blow at his chest. Accused Bitto told at that moment that he had finished Veer (" Kam Tamam Kar Diya" ) and he asked Sanju that he should finish (" Kam Tamam" ) Raju i.e. PW-3. PW3 has not been cross examined on the fact of accused Pradeep and Parvesh holding the hands of deceased Veer while he was stabbed by accused Devender @ SC: 01/08 State vs. Satender & Ors.
:32:Bitto. Significantly, in the lengthy cross examination of PW-3 spread over a number of hearings nothing has been asked about inflicting of knife injuries to the deceased Veer and PW-3.
70. The question that whether a case would false u/s. 300 " thirdly" , the Hon'ble Supreme Court in the judgment reported as Virsa Singh Vs. State of Punjab, AIR 1958, Supreme Court, 465, held ; ''the prosecution must prove the following facts before it can bring a case under S. 300 " thirdly" ; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.''
71. From the evidence on record it clearly emerges that deceased Veer was brought from the first floor of the house while dragging him on the road. Accused Parvesh and Pardeep caught hold of his SC: 01/08 State vs. Satender & Ors.
:33:hands while he was stabbed by accused Devender @ Bitto. He also exhorted to finish Veer when he was being dragged to be brought down. Then he gave a knife blow on the chest of Veer which as per deposition of PW 18 was found to be chest cavity deep. Thus, it shows that the knife blow was given with full force that it went through the skin muscles and entered the heart creating a track of 8 CM and the injury has been opined to be sufficient in ordinary course of nature to cause death.
72. As far as the argument that there was a sudden fight in which the accused persons had also received injuries does not appeal at all. According to the testimony of PW-3 the accused persons were assailants who had dragged PW3 and the deceased out of their houses and caused injury on his person and also caused the death of his nephew Veer. According to the accused persons they had received injuries on their person at the hands of un-known people from the crowd. When the police had reached the place of occurrence the incident was already over. Thus it was for the injured and the accused persons to explain the occurrence of the incident. According to the testimony of PW3, the accused persons were aggressor. The accused persons have not claimed that PW3 or any other known person also to be aggressor. Thus, it emerges that PW3 and deceased were not the aggressor and nor they were accompanied by any of their associates who may have caused injuries on the accused persons. Accordingly, thus vis a viz PW3, deceased and the accused persons no sudden fight took place between them. But the accused persons had suffered injuries at the SC: 01/08 State vs. Satender & Ors.
:34:hands of some third persons. There is no evidence of group fight amongst PW3 and deceased making one group and the accused persons comprising of another group. Thus, plea raised by the accused that the offence if it all falls under Section 304 (Part II) IPC is not sustainable.
73. Accused persons have challenged the recovery of knife and dragger i.e. weapons of offence used by accused Satender @ Sanju and Devender @ Bittoo. It was also argued that alleged recovered weapon have not been shown to the doctor, who had prepared MLC of the PW3 and to the doctor who had conducted the postmortem on the body of the deceased. PW-8 Constable Lakhpath Singh PW 15 SI Ganesh Prashad, PW 21 Constable Yatender and PW22 Inspector Dinesh are the witnesses to recovery of knife at the instance of accused Mahender and Davender @ Bittoo, PW 11 Constable Naryan Singh, PW 15 SI Ganesh Prasad and PW 22 Inspector Dinesh Tiware are the witnesses to recovery of dragger at the instance of accused Satender @ Sanju. According to the testimony of these recovery witnesses the dragger was got recovered by accused Satender from his residence from under a gadda on the bed in his room which was kept in brown ragzin cover. It is evident from the cross examination of these witnesses that no photograph or videograph was prepared at the time of recovery. PW3 who is also a witness of recovery of the dagger has not supported the recovery. He has deposed that police had done some kariyawahi there but he did not know what proceedings were conducted by them. He could not tell for how long the police SC: 01/08 State vs. Satender & Ors.
:35:remained present there. Even for the sake of arguments if it is assumed that the prosecution has failed to establish the recovery of dagger at the instance of accused Satender same is immaterial as there is direct evidence of PW-3 regarding the occurrence of entire incident.
74. The MLCS of PW3 and deceased corroborate the deposition of PW3 that they had received injuries with sharp weapon. PW18 has deposed that injury on deceased was caused by some single edged sharp stabbing weapon.
75. As far as the recovery of the knife at the instance of accused Davender @ Bitto and Mahender is concerned. The witnesses to the recovery have deposed that accused Davender took out the knife from the ganda nala. PW 22 IO has deposed that on 16.12.99 the accused Davender had disclosed that he could get the dragger used by him recovered however, no recovery could be effected on the said day. On 17.12.99 both the accused persons namely Mahender and Davender again made disclosure statements that they had thrown the dragger in ganda nala behind Kalindi colony. At the time of recovery, accused Mahender kept standing at one side and accused Davender took out one dragger from the nala which was covered with mud.
76. It was urged on behalf of accused persons that no public witness was joined for said recovery and the sketch of the knife prepared at place of recovery is not soiled which creates a doubt SC: 01/08 State vs. Satender & Ors.
:36:about the recovery of the knife at the instance of accused Devender. From the evidence it was emerges that the knife was recovered only at the instance of accused Davender and not accused Mahender.
77. The said knife was sent to FSL Malviya Nagar. As per the FSL result the knife was having soily stains. The sketch of the knife Ex.PW-8/A shows that its blade was having length of 19 cm and handle is 11 cm long. Although the width of the blade has not been mentioned but on measuring with scale from tapering end it comes around 2.2 cm and on broadening it comes to 2.4 and more thereafter.
78. According to postmortem report Ex.PW-18/A there has been a stab wound obliquely placed over left front of chest of the deceased. The size of the wound is 2.8 x 1.2 cm, chest cavity deep. Thus it can be ascertained that the injury to the deceased could have been possible with the knife recovered at the instance of accused Devender. Therefore, even if the opinion of the concerned doctor were not obtained with respect to recovered weapons of offence is not of much relevance as the inquiries have been proved from the testimony of PW3 and medical evidence adduced on the record.
79. From the evidence it emerges that all the accused persons had climbed up to the Second Floor of the house of deceased with a common object to take revenge from PW3 Rajender @ Raju for SC: 01/08 State vs. Satender & Ors.
:37:breaking the wall. They also wanted to cause hurt to him while dragging PW3 they also brought down accused Veer to teach a lesson to Raiger Community. However, PW3 in his cross examination has categorically stated that accused Parvesh had come up to the 2nd Floor while accused Gulab Rai did not up up. Thus, it is evident that accused Gulab Rai had remained on the road and did not go upstairs whereas all the other six accused persons had gone up to the second floor of the house of PW3. As regards, accused Mahender, PW-3 has deposed that while the accused persons were coming down, on the extortion given by accused Devender he had dragged deceased from the Ist floor and brought him to the ground. Though he has also been charged with offence punishable U/s 307 IPC for causing injury to PW3 but no overt act has been assigned to accused Mahender in causing an injury to PW3. The prosecution has also not been able to prove the recovery of knife with which the deceased was stabbed at his instance. Thus the prosecution has not produced clinching evidence to connect accused Mahender for having committed offence punishable U/s 307 IPC.
80. Now we come to the last leg of arguments advanced on behalf of accused persons that offence U/s 307 IPC is not made out as simple injury has been caused on the arm of PW3. The injury is not on any vital organ.
81. From the testimony of PW3, it emerges that accused Satender @ Sanju who was armed with a dagger, at the extortion given by SC: 01/08 State vs. Satender & Ors.
:38:accused Devender @ Bittoo to assault Raju he caused blow on his right arm. PW3 has deposed that with the help of his brother Raghuvir he had saved his hand from accused Gulab Rai. Thus the blow by dagger was given on his right arm. The MLC Ex.PW- 4/D of PW3 shows that he had received one clean incised wound on his right arm medieval side 1 ½ inch length sharp, clean incised wound on right arm (with clear margins). Although the injury has been opined to be simple but from the testimony of PW3 it is evident that while accused Gulab Rai and Dharambir were holding him accused Satender had given him a knife blow which PW3 was able to save and the injury was received on his right arm. Thus it cannot be said that since the injury is simple, the offence U/s 307 IPC is not made out.
82. In view of the foregoing discussions, the prosecution has been able to establish beyond reasonable doubt the offence punishable U/s 302/34 against accused Devender @ Bittoo, Parvesh and Pradeep. The prosecution has also been able to prove beyond reasonable doubt offence punishable U/s 307/34 IPC against accused Satender, Dharambir and Gulab Rai. Offences punishable U/s 452/149 IPC stand proved beyond reasonable doubt against accused Accused Satender @ Sanju, Dharambir, Mahender, Devender @ Bittoo, Pradeep and Parvesh. All the accused persons are held guilty accordingly accused Mahender is SC: 01/08 State vs. Satender & Ors.
:39:acquitted for offences punishable U/s 307/34 IPC after giving him benefit of doubt and accused Gulab Rai is acquitted for offences punishable U/s 452/149 IPC after giving him benefit of doubt.
Announced in the Open Court On 27.01.10 (Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 01/08 State vs. Satender & Ors.
:40:State Vs Satender & Ors.
FIR No. 365/99PS : Prashad Nagar SC No. : 01/08 27.01.10.
Present : None for State.
Vide separate judgment announced of even date on separate sheets, accused Devender, Pradeep and Parvesh are held guilty for offences punishable U/s 302/34/452/149 IPC and accused Satender and Dharambir are held guilty U/s 307/34/452/149 IPC and they are taken into custody.
Accused Mohinder is held guilty for offences punishable U/s 452/149 and accused Gulab Rai is held guilty for offences punishable U/s 307/34 IPC.
Accused Pradeep has submitted that he is a heart patient and he regularly requires medicines which he is not carrying. The accused has not shown any prescription to me, however, Jail Superintendent is directed to produce the convict immediately before the Medical Officer / Jail Doctor on his arrival to discuss with him about his medicines and prescription and to provide necessary medicines. The relatives of the convict may produce the medical documents of the convict before the Jail Superintendent for his proper medical care.
Put up for orders on sentence on 29.01.10.
(Shalinder Kaur) ASJ- FTC (Central) : Delhi.
27.01.10 SC: 01/08 State vs. Satender & Ors.
:41:In the Court of Ms. Shalinder Kaur Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 01/08 State versus
1. Satender @ Sanju S/o Gulab Rai R/o 6216, Gali no. 1 Block No. 1, Dev Nagar Delhi
2.Dharambir S/o Prabhu Dayal R/o 6203/1, Block No. 1, Dev Nagar Delhi
3.Pradeep S/o Dharambir R/o 6216/1, Gali no. 1 Dev Nagar, Delhi
4.Pravesh S/o Sh. Ram Singh R/o 6216, Gali no. 1 Block No. 1, Dev Nagar Delhi
5.Gulab Rai S/o Prabhu Dayal R/o 6216, Gali no. 1 Block No. 1, Dev Nagar Delhi SC: 01/08 State vs. Satender & Ors.
:42:6. Devender @ Bittoo S/o Gulab Rai R/o 6216, Gali no. 1 Block No. 1, Dev Nagar Delhi
7.Mahender S/o Prabhu Dayal R/o 6205, Gali no. 1 Block No. 1, Dev Nagar Delhi Case arising out of:
FIR No. : 365/99 Police Station : Prashad Nagar Under Section : 302/307/452/147/148/149/34 IPC & 25/54/59 Arms Act ORDER ON SENTENCE:
1. Heard on the point of sentence.
2. It is stated on behalf of the convicts that they are members of the same family, facing agony of trial from the last 11 years, and they are not previous convicts.
3. It is stated by counsel Sh. Mukesh Kalia on behalf of the convict Mahender that he is 53 years of age, marriage of his son is fixed for 15.02.10, he has a marriageable daughter who is getting married on 13.05.10.
4. It is stated by counsel Sh. Mukesh Kalia on behalf of the convict Satender that he has a 2 years old son and family to look after, his SC: 01/08 State vs. Satender & Ors.:43:
brother has expired recently. It is submitted that the injury has not been caused on any vital part of the body of the injured and nature of injury is simple. The injured was discharged from the hospital after giving first aid treatment on the same day. For convict Devender it was submitted that his case does not fall under the category of rarest of rare case.
5. It is stated by Sh. Rajesh Harnal Counsel on behalf of the convict for Gulab Rai. He is 65 years of age and the eldest member of the family, that one of his son has expired recently and the burden of widow of his son and minor children is also on his shoulders. Role assigned to this convict is only of catching hold of injured and as such he had not caused any injury. Convicts Satender and Devender are his sons convicted in this case. He had also suffered fracture on his ankle on the same day.
6. It is stated by Counsel Sh. Jitender Sethi on behalf of the convicts Pradeep and Dharambir that it is not rarest of rare case. Convict Dharambir is of 55 years of age, his son Pradeep has been convicted in this case and he also has a daughter of marriageable age and family to look after, and he has to look after the minor children of convict Pradeep also, he is disabled being deaf to the extent of 50%.
SC: 01/08 State vs. Satender & Ors.
:44:in both ears.
7. It was also submitted that convict Parvesh is also similarly placed.
8. It is prayed on behalf of the convicts that a lenient view be taken against them.
9. It is submitted by Learned Addl. PP that convicts were members of unlawful assembly and a heinous offence has been committed.
Thus, they do not deserve leniency.
10. Keeping in view the submissions made by on behalf of State as well as the convicts, their antecedents and family history of the convicts placed before me and also the fact that the convicts are facing this trial since last 11 years. The case does not fall in the category of rarest of rare cases qua convicts U/s 302/34 IPC.
Moreover, convicts U/s 307/34 IPC had inflicted only one single blow and injury is opined to be simple in nature.
11. Accordingly, Convict Mahender is sentenced to RI for 2 ½ years and is directed to pay fine of Rs. 1000/- in default SI for one months for offence punishable U/s 452/149 IPC.
12. Convict Gulab Rai is sentenced to RI for 3 years and is directed to pay fine of Rs. 2000/- in default SI for two months for offence SC: 01/08 State vs. Satender & Ors.
:45:punishable U/s 307/34 IPC.
13. Convicts Satender and Dharambir are sentenced to RI for 2 ½ years each and to pay fine of Rs. 1000/- each in default SI for one month each for offences punishable U/s 452/149 IPC, they are further sentenced to RI for 3 years each and to pay fine of Rs. 2000/-
each in default SI for two months each for offence punishable U/s 307/34 IPC.
14. As regards convicts Devender, Pradeep and Parvesh their case does not fall under rarest of the rare cases, they are sentenced to life imprisonment each and to pay fine of Rs. 3000/- each in default SI for three months each for offences punishable U/s 302/34 IPC. They are also sentenced to RI for 2 ½ years each and to pay fine of Rs.
1000/- each in default SI for one month each for offence punishable U/s 452/149 IPC.
15.I Sentences to run concurrently. Benefit of section 428 Cr.PC be given. Copies be given free of cost to the convict.
Announced in the Open Court On 29.01.10 (Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC: 01/08 State vs. Satender & Ors.
:46:State Vs. Satender etc. FIR No. 365/99 PS : Prashad Nagar SC No. : 01/08 29.01.10 Present : Ms. Promilla Singh, Substitute Addl. PP for State.
All the convicts produced from JC.
Sh. Mukesh Kalia - Counsel for convict Devebder, Mahender, Satender.
Sh. Rajesh Harnal - Counsel for convict Gulab Rai. Sh. Jitender Sethi - Counsel for convicts Pradeep and Dharambir Arguments heard on point of Sentence.
Vide Order on Sentence announced of even date on separate sheets, the Convict Mahender is sentenced to RI for 2 ½ years and is directed to pay fine of Rs. 1000/- in default SI for one months for offence punishable U/s 452/149 IPC.
Convict Gulab Rai is sentenced to RI for 3 years and is directed to pay fine of Rs. 2000/- in default SI for two months for offence punishable U/s 307/34 IPC.
Convicts Satender and Dharambir are sentenced to RI for 2 ½ years each and to pay fine of Rs. 1000/- each in default SI for one month each for offences punishable U/s 452/149 IPC, they are further sentenced to RI for 3 years each and to pay fine of Rs. 2000/- each in default SI for two months each for offence punishable U/s 307/34 IPC.
As regards convicts Devender, Pradeep and Parvesh their case does not fall under rarest of the rare cases, they are sentenced to life SC: 01/08 State vs. Satender & Ors.
:47:imprisonment each and to pay fine of Rs. 3000/- each in default SI for three months each for offences punishable U/s 302/34 IPC. They are also sentenced to RI for 2 ½ years each and to pay fine of Rs. 1000/- each in default SI for one month each for offence punishable U/s 452/149 IPC. Sentence is to run concurrently. Benefit of section 428 Cr.PC be given. Copies be given free of cost to the convict.
An application U/s 389 Cr.PC moved on behalf of accused Mahender, Satender, Gulab Rai and Dharambir. Arguments heard, It is stated that fine for the convicts have been deposited. Reader has furnished the report that convicts have been deposited fine. It is submitted that convicts had been in custody for 6 months.
In view of the above submissions already made on behalf of above convicts, convicts Mahender, Satender, Gulab Rai and Dharambir they are admitted to bail for 30 days on furnishing a personal bond in the sum of Rs. 10,000/- each and one surety in like amount each. Bail bonds furnished and accepted.
File be consigned to Record Room.
(Shalinder Kaur) ASJ- FTC (Central) : Delhi.
29.01.10 SC: 01/08 State vs. Satender & Ors.