Delhi District Court
In Virsa Singh vs . State Of Punjab, 1958 Scr 1495, It Was on 8 December, 2011
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE-II (NORTH) : DELHI
S.C. No. 43/10
ID No. 02401R0205092010
State
Vs.
1 Sanjeev Kumar alias Kalia
S/o Tila Sahu
Vagabond fountain,
Chandni Chowk, Delhi
Permanent R/o Village Meer Ganj,
Mohalla and Distt. Beghu Sarai,
Bihar
2 Vishal Kumar alias Rajesh Totla
S/o Ram Bachan
Vagabond fountain,
Chandni Chowk, Delhi
Permanent R/o Village Kasya,
Distt. Kushi Nagar,
U.P.
3 Rajesh alias Rajesh Rickshewala
S/o Ram Sewak
R/o Vagabond fountain,
Chandni Chowk, Delhi
Permanent R/o Village and P.O. Joth
P.S. Rasulabad, Distt. Kanpur, U.P.
Sessions Case No. 43/10 Page 1/25
2
FIR No. 39/10
P.S. Kotwali
U/S 302/34 IPC and 25/27/54/59 Arms Act
Date of Institution: 12.05.10
Date of reserving for judgment: 26.11.11 and 07.12.11
Date of pronouncement: 08.12.11
JUDGMENT
In the present case, charge U/S 302 IPC has been framed against accused Sanjeev Kumar alias Kalia, Vishal Kumar alias Rajesh Totla and Rajesh alias Rajesh Rickshewala in respect of offence U/S 302 r/w Section 34 IPC. The allegation in the charge is that on 10.02.10 at about 11:00 PM in front of shop No. 1472, Fountain Chowk, Chandni Chowk, they [accused] in furtherance of their common intention committed murder of an unknown person. 2 A separate charge has also been framed against accused Sanjeev Kumar alias Kalia in respect of offence U/S 25/27 Arms Act. The allegation in the charge is that on 15.02.10, he [accused Sanjeev] got recovered a buttondar knife, which he used in the commission of murder of unknown person on 10.02.10 at 11:00 PM in front of shop No. 1472, Fountain Chowk, Chandni Chowk and he was possessing the same without any licence and permit.
3 Accused pleaded not guilty to said charges and claimed trial.
Sessions Case No. 43/10 Page 2/25 34 To prove its case, prosecution has examined 20 witnesses. They are Constable Ravinder(PW-1), ASI Jagat Singh(PW-2), Raju(PW-3), ASI Naresh Kumar(PW-4), W. Constable Rekha(PW-5), HC Sanjay Singh(PW-6), Sarvesh(PW-7), SI Devender(PW-8), HC Hansraj(PW-9), ASI Mahender Singh(PW-10), HC Rakesh(PW-11), Dr. S.Lal(PW-12), HC Sonu Kaushik(PW-13), Constable Isub Ali(PW-14), SI Vimal Kumar(PW-15), Constable Shakil Ahmed(PW-
16),Subhash Chand Sharma(PW-17), Constable Neeraj Kumar(PW-
18), Inspector I.K. Jha(PW-19), and Inspector P.S. Chahal(PW-20). 5 Statements of accused have been recorded U/S 313 CrPC, wherein they have denied the allegations of prosecution. Accused Sanjeev Kumar alias Kalia has submitted that on the intervening night of 09/10.02.10 he was serving as a waiter in a party at Jahangirpuri. He had come back to his jhuggi at Jamuna Pusta from the said party at about 4:00 AM on 10.02.10. He does not know Subhash Chand Sharma, Sarvesh and Raju as to who they are and whether they were sleeping at Fuwara Chowk or not. He has not killed anyone. He does not know accused Vishal and Rajesh. He was not present at the spot. He is picking the rags. He had refused to pay Rs. 200-/ as monthly to the beat officer of PS Kotwali. The police had called him from his jhuggi on the pretext of giving the licence for picking and collecting the rags and thereafter, he was not allowed to leave P.S. Kotwali. His thumb impressions were taken on few blank papers on the pretext of Sessions Case No. 43/10 Page 3/25 4 applying for rag picking licence from MCD. He was told that he has been arrested because he was picking the rags from the area without licence from MCD. He has further stated that he is a poor man, able to barely earn Rs. 100/- a day by picking the rags from the area of Yamuna Pushta, Red fort, Gurudwara Sheesh Ganj, Jama Masjid and Chandni Chowk. His work starts at 4:00AM in the morning, when everybody else is sleeping. He was many times threatened by a police constable, who was sitting at a khatta near night shelter [Ren basera] to pay him a monthly of Rs. 200/-, which he had always avoided as it was very big sum for him. Police constable always used to threaten him that 'Sale kisi din aisa phasaunga ki yaad rakhega". 6 Accused Vishal alias Rajesh Totla has stated that he is working as a coolie and residing at Railway Platform Parking at Old Delhi Railway Station. On the intervening night of 09/10.02.10 he was doing his work at platform No. 12. Police called him to P.S regarding an enquiry of theft of luggage from the platform. The police took his thumb impressions on some blank papers. He is a poor person and is working as an unlicensed coolie [porter] at Old Delhi Railway Station. On the complaint of licensed coolies, the police personnel posted at Railway Station used to demand a hafta from him which he was unable to pay. The police officials always extract money from all unlicensed coolies and implicate them in false cases, on refusal to pay hafta. Since, he had not paid the hafta from December, 2009, he has been Sessions Case No. 43/10 Page 4/25 5 falsely implicated in the present case.
7 Accused Rajesh alias Rajesh Rickshewala has stated that he is a rickshaw puller and living with his family at jhuggi camp, Shashtri Park. He was not present at the spot. At the relevant time, he was pulling rickshaw in front of Old Delhi Railway Station. He plies his rickshaw everyday from Old Delhi Railway Station. On 14.02.10 he was plying his rickshaw in front of Old Delhi Railway Station. On 22.02.10 a police official took his rickshaw from Novelty Cinema for P.S. Kotwali. On reaching P.S. Kotwali, when he demanded Rs. 10/- from him, the police official slapped him and pulled him inside the P.S stating that "saale police walon se aise mangta hai". He has been falsely implicated in this case.
8 Accused did not examine any witness in their defence. 9 I have heard arguments from ld. counsel for accused and ld. Addl. PP for State.
10 Ld. counsel for accused persons has prayed for acquittal of accused by submitting that accused were not present with deceased on the day of incident. All the material witnesses have been planted by the police, as they were drug addicts. Material witnesses did not support the prosecution case and they have deposed under the pressure of police. Knife has been planted upon accused. No shopkeeper was joined by the I.O during arrest of accused at Hanuman Mandir. Deceased was under the influence of alcohol. Accused have been Sessions Case No. 43/10 Page 5/25 6 falsely implicated by police to work out the case. No chance prints were taken by I.O from the spot. The motive has not been proved by prosecution as material witness namely, Bombaiya has not been examined.
11 On the other hand, Ld. APP has prayed for conviction of deceased by submitting that material witnesses i.e. PW-3, PW-7 and PW-17 have supported the prosecution case by identifying the accused. Case stands proved beyond reasonable doubt against the accused. The testimonies of public witnesses are supported with the medical as well as forensic evidence. Prosecution has proved the motive behind the murder. There was human blood on the clothes of accused and knife.
12 In the present case, out of 20 witnesses, PW12 Dr. S.Lal has conducted postmortem on the dead body of deceased on 19.02.10 vide postmortem report Ex. PW12/A. He [Dr. S. Lal] has opined the cause of death as "haemorrhagic shock due to stab injury on the abdomen. All injures were ante-mortem in nature, recent in duration and could be caused by pointed single sharp edged weapon. Injury No. 1 and 2 were sufficient to cause death in ordinary course of nature individually and collectively. Time since death was about 9 to 10 days."
Sessions Case No. 43/10 Page 6/25 713 He [PW-12] has further deposed that on 25.03.10 he received an application from Inspector P.S. Chahal for subsequent opinion alongwith sealed pulanda containing the weapon of offence i.e. buttondar knife and clothes of deceased. After examining the weapon of offence and the clothes of deceased, he [PW-12] opined that the injury No. 1 and 2 were possible to be caused by the weapon of offence and the cut marks in the clothes of deceased could also be caused by the weapon of offence. His detailed subsequent opinion Ex. PW12/B is in his own handwriting. 14 In cross-examination by ld. counsel for accused, PW-12 has deposed that there were two wounds on the body of deceased. The injuries mentioned in the postmortem report could have been caused by the weapon of offence i.e. buttondar knife, which was produced before him for examination.
15 In the present case, the charge against the accused is that they committed the murder of deceased. The offence of murder has been defined in Section 300 IPC, which is reproduced here for ready reference:
"Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly-If it is done with the intention of causing such Sessions Case No. 43/10 Page 7/25 8 bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
In Virsa Singh Vs. State of Punjab, 1958 SCR 1495, it was observed by Hon'ble Supreme Court that the prosecution must prove the following facts before it can bring a case under Section 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 Sessions Case No. 43/10 Page 8/25 9 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.
16 Now the question that arises for consideration is as to all ingredients, which are defined in Virsa Singh's Case are present to cover the case of accused under Clause Thirdly to Section 300 IPC. 17 In the present case, from the postmortem report Ex. PW12/A, the first two ingredients have been proved as PW-12 Dr. S. Lal has categorically deposed and proved that there are two stab injuries on the body of deceased.
18 Now, the next question that arises for consideration is as to whether the injuries inflicted by accused on the body of deceased were incidental or accidental. To prove that fact prosecution has examined three witnesses. They are Raju [PW-3], Sarvesh alias Time Pass [Pw- 7] and Subhash Chand Sharma [PW-17].
19 In the present case, PW-17 has fully supported the prosecution case in his examination-in-chief. But, in cross- examination, he turned hostile and did not support the prosecution case by deposing that one boy told him that there was a quarrel between one Sessions Case No. 43/10 Page 9/25 10 boy and Rajesh, Vishal and Sanjeev. He does not remember the name of that boy, who informed him about the quarrel. He went to spot. He saw that some hathapai was going on between accused Rajesh, Vishal, Sanjeev and one unknown boy. He did not see anything else except hathapai. None of the three accused, present in court, gave knife blow to the unknown deceased in his presence. He did not tell the police that accused Sanjeev gave knife blow to the deceased in his presence. Since PW-17 has not fully supported the prosecution case, his testimony is not discussed in detail.
20 Other material witness is PW-3 Raju alias Kachchua. He has deposed that he is living on footpath and doing the job of collection of garbage. On 9.2.10 at about 11.00/11.30 PM he heard the noise of abuses. He woke up and saw that in front of the fountain, hot talking and abusing was taking place between one person of long height and the accused persons, [namely, Sanjeev, Vishal and Rajesh Thakur] present in court. He knew the accused persons very well as they also used to live in Chandni Chowk. Accused Sanjeev told his companions Vishal and Rajesh that the deceased had beaten him alongwith his companion namely Paua @ Bambia. Then the accused starting beating the deceased, who was abusing the accused persons. Accused Vishal @ Totla and Rajesh Thakur caught hold of the deceased. Accused Sanjeev @ Kalia took out a knife from his pocket Sessions Case No. 43/10 Page 10/25 11 and gave knife blow on the stomach of the deceased. The intestines of the deceased came out from the abdomen and he died on the spot. All the accused persons fled away from the spot. One Sarvesh @ Time Pass was also with him and he had also seen the incident. Sarvesh also fled away from the spot. Later, on 10.2.10 at about 11.00 / 12.00 noon he went to PS, where the police recorded his statement. When he went to PS on 10.2.10, police showed him the photographs of the dead body of deceased. He identified the same and stated that it was the dead body of the same person, who was stabbed by the accused persons, in the night. He has deposed that the two knife blows were given on the stomach of the deceased by the accused.
21 He [PW-3] has further deposed that on 13.02.10 police brought the accused Vishal and Sanjeev @ Kalia at Phawara Chowk, Chandni Chowk, where he [PW-3] identified the accused persons and stated to the police that those are the same persons, who alongwith one Rajesh had beaten one person and gave knife blows, due to which he died. Thereafter, on 22.02.10, the police brought accused Rajesh on the spot, at Phawara Chowk, Chandni Chowk. He [PW-3] identified accused Rajesh, as the same person who alongwith his two companions had beaten one person, who died on the spot on 9.2.10. The police recorded his statement in this regard. He cannot identify the knife, which was used by the accused persons, as he could not see the Sessions Case No. 43/10 Page 11/25 12 knife properly, but it was a buttondar knife. Accused, present in court have committed the offence.
22 In cross-examination by ld. counsel for accused, PW-3 has deposed that he is living in the Khatta (Kudedan), which is next to MCD Rain Basera. The Rain Basera is on the upper portion of Kudedan. He was sleeping at his usual place on the night of the incident. He has denied that he did not see anything. He woke up when he heard the cry. He did not hear the words spoken by the accused persons and the deceased to each other as he was not very near to them. But he heard accused Sanjeev Kalia saying to co-accused persons that the deceased had beaten him alongwith his friend Bambia, as he had reached near the accused persons at that moment, when these words were spoken. The accused had spoken these words in his presence. The incident took place in front of the shop of Ghantewala/Mama Ki Dukan i.e near Phuwara. The shop of Ghantewala is situated at the distance of about 15 ft. from the place, where he was sleeping. He has denied that he was sleeping at the distance of 150 ft. away from the place of occurrence. He did not know the deceased prior to the occurrence. The accused were calling the deceased by the name of Lambu but he was looking like a Khan (Muslim). He has denied that the distance between the place of his sleeping and place of occurrence is very far and noise cannot be heard Sessions Case No. 43/10 Page 12/25 13 from such a distance. He has denied that he does not have any kind of enmity with the accused persons. He has deposed that accused persons were not indulged in the job of collection of garbage. He has denied that Totla did not catch hold of the deceased. The deceased was under
the influence of liquor and was in standing position, while he was caught by accused. When the knife blow was given to the deceased, accused Rajesh Thakur was standing near to him. He has no problem in his eyes. The incident took place under the mercury light. He had seen the accused very clearly. He had seen the incident from the distance of 10/15 ft. He cannot say as to from which pocket accused Kalia had taken out the knife. But he had taken out the knife from the right portion of his wearing pant. The deceased was not having any knife in his hand. Accused Sanjeev Kalia gave knife blow with his right hand. He gave the knife blow on the stomach of the deceased. After receiving the stab injury, the deceased fell down on the road. Thereafter, accused persons fled away from the spot. The deceased was stabbed while he was standing. He reached the spot within 2/3 minutes. He has denied that his name is not Raju. He has denied that PW Sarvesh was not sleeping with him on that day. He has denied that police tutored him to depose in the court. He has denied that there is no mercury light on the spot. He has deposed that Sessions Case No. 43/10 Page 13/25 14 apart from him, Sarvesh and one another person had also witnessed the incident. He has denied that police pressurised and had beaten him for deposing in the court today. The police had shown him the photograph of the deceased. The photograph was of the same person i.e Lambu, who was murdered in the night.
23 Another material witness is PW-7 Sarvesh. He has deposed that he is residing at Phawara Chowk Patri, Chandni Chowk and doing the work of garbage collection. On 9.10.10, he was sleeping near Phuwara Chowk. At about 11.00 PM he heard some noise. He woke up and saw that one person was abusing the accused persons namely, Vishal @ Rajesh Totla, Sanjeev @ Kalia and Rajesh Thakur Rickshewala, to whom he knew already, as they also used to live on the footpath. Accused Sanjeev was telling to accused Vishal @ Totla and Rajesh Thakur that the person, who was abusing, had beaten him alongwith his friend bambaiya and also said 'Aaj Moka Hai Isse Maja Chakhana Hai'. The accused persons started beating that person, who was abusing and made him fall on ground in front of the shop. Accused Vishal @ Rajesh Totla and accused Rajesh Thakur caught hold of that person, who was abusing and accused Sanjeev @ Kalia took out one knife from his pocket and gave knife blow on the stomach of that person, who was abusing. The accused persons fled away from the spot. After receiving the Sessions Case No. 43/10 Page 14/25 15 injury, the intestines came out from the stomach of the injured. He [PW-7] also fled away from there. Later on, he came to know that the incident had come into the notice of the police. On the next morning he went to PS, where his statement was recorded by the police. 24 He [PW-1] has further deposed that on 10.2.10 he went to PS, where the photographs of the dead body were shown to him. He identified the the photographs of dead body as the body of the same person, who was beaten by the accused persons, on the last night and whose intestine had come out of his stomach, due to the stab injury. He has deposed that on 13.2.10 the police brought the accused persons Vishal @ Rajesh Total and accused Sanjeev @ Kalia at Phuwara Chowk Chandni Chowk, where he and one Raju identified both the accused persons. They told to the police that they were the accused, who alongwith their companion one Rajesh Thakur had committed the murder of one person on the night of 9.2.10 with the knife. Thereafter, on 22.02.10 when he was present at Chandni Chowk fountain chowk, alongwith Raju, police brought the accused Rajesh Rickshewala, who was identified by him and Raju, as the accused, who alongwith his companions Vishal and Sanjeev committed the murder of one person with the knife. The police recorded his statement in this regard. Raju had also seen the incident.
25 In cross-examination by ld. counsel for accused, he [PW-7] has deposed that he used to sleep inside the khatta, which is situated Sessions Case No. 43/10 Page 15/25 16 next to toilet. It was about 11/10.45 pm when the incident occurred. The shop of lala, near khatta, used to be closed at about 10.00 pm/10.30 pm. It was about 10.00/10.30 pm, when he got up from the khatta where he was sleeping. These people namely Sanjeev alias Kalia and Rajesh were fighting with the deceased. He heard the accused persons saying to deceased that 'he had stabbed him earlier now he would take revenge'. He had seen the accused stabbing the deceased with knife. At that time, deceased was standing. Accused Vishal had caught hold of deceased. Deceased was under the influence of liquor. He has denied that the distance between the shop of Lala and the khatta is about 260 feet. He was sleeping in shop of Lala at the time of incident along with his friends. Accused were wearing pant shirt but he does not know the colour of wearing clothes of accused. He was the under the influence of smack. Accused Vishal was wearing T-Shirt and pant, it was jeans pant and black colour shirt. The deceased was also wearing a shirt and pant. The deceased was wearing cream colour shirt but he does not notice the colour of his pant. At that time, garbage was being loaded from khatta in the MCD bulldozer. The police chowki is just across the road,. He cannot say, whether any policeman was posted in the police chowki at the time of quarrel. He immediately ran away from the spot after seeing the body falling on the road after the incident. He came back to khatta at about Sessions Case No. 43/10 Page 16/25 17 1.00/1.30 am and slept. He did not give any statement to police on 9.02.2010. He informed police about the murder on 10.02.2010. He did not give any statement after 10.02.2010 to police. He has denied that he did not see the incident.
26 After going through the testimonies of PW-3 Raju and PW- 7 Sarvesh alias Time Pass, I am of the considered view that it is proved on record that there was an intention on the part of accused to inflict stab injury on the body of deceased. Both witnesses have specified the role of each accused, by submitting that accused Vishal and Rajesh had caught hold of deceased and accused Sanjeev alias Kalia gave knife blows on the stomach of deceased due to which intestines of deceased came out of his stomach and he died on the spot. I do not find any ground to discredit the testimonies of PW-3 Raju and PW-7 Sarvesh only because they are vagabonds and drug addicts and are engaged in the work of garbage collection. Further, their presence on the spot cannot be denied as PW-3 Raju is living in Khatta, which is next to MCD Ren Basera. He [PW-3] has categorically deposed that he woke up when he heard the cry. He heard accused Sanjeev Kalia saying to other accused that deceased alongwith one Bombaiya had beaten him. These words were spoken by accused Sanjeev in his presence. The occurrence took place in front of shop of Ghantewala/Mama Ki Dukan near Phuwara. He has denied that he Sessions Case No. 43/10 Page 17/25 18 was sleeping at a distance of 150 feet from the place of occurrence. He has further denied that he was having any kind of enmity with the accused. Similarly, PW-7 Sarvesh has also denied that he did not see the incident. He was also known to all accused as all accused used to live on the footpath. The testimonies of PW-3 and PW-7 are trustworthy and reliable. Nothing has come in their cross-examination to disbelieve their testimonies. They have witnessed the incident. It cannot be said that they have deposed under the pressure of police as PW-3 has categorically denied that police tutored him to depose in court. He has further denied that he was beaten and pressurised by police to depose in the court.
27 Further, knife Ex. P-1 has been got recovered by accused Sanjeev alias Kaliya on 15.02.10, when he was taken on police remand. Accused Sanjeev led the police party to Metro Station Gate No. 1 Chandni Chowk, where knife, used in commission of offence, was thrown by him. The knife, which was lying in grass, was picked up by accused Sanjeev alias Kaliya and was handed over to the I.O. The knife was seized vide memo Ex. PW2/J. 28 During the investigation of case on 13.04.10, PW-20 Inspector P.S. Chahal, who is the I.O of case, sent the knife and other exhibits of case, to FSL, Rohini through Constable Shakil [PW-16] vide road certificate Ex. PW11/A7. It is worth noting that as per FSL Sessions Case No. 43/10 Page 18/25 19 result Ex. PW20/X and Ex. PW20/X-1, human blood has been detected on the knife, which was recovered at the instance of accused Sanjeev alias Kaliya.
29 In the present case, the clothes of accused Vishal Ex. P-2 to Ex. P-4 were seized by the I.O. Inspector P.S. Chahal vide seizure memo Ex. PW2/H2. Clothes Ex. P-5 to P-7 of accused Sanjeev Kaliya were seized vide seizure memo Ex. PW2/H-1 as both accused disclosed that they were wearing the same clothes on the day of incident. On 22.02.10, accused Rajesh was also arrested from Cycle Market, Chandni Chowk on the identification of PW-17 Subhash Chand Sharma and the clothes of accused Rajesh were also seized vide seizure memo Ex. PW14/F. Clothes of all accused have also been sent to FSL by the I.O and as per FSL result Ex. PW20/X and Ex. PW20/X1, human blood has been detected on the clothes of accused Vishal alias Rajesh Totla. Since, blood has been detected on the weapon of offence and clothes of once of accused persons, I am of the considered view that the true and reliable testimonies of PW-3 and PW-7 are corroborated with the forensic evidence, which further strengthens the prosecution case.
30 Further, prosecution has also proved the motive behind the murder. In the present case, PW-3 and PW-7 have categorically deposed that accused gave beatings to deceased because prior to this Sessions Case No. 43/10 Page 19/25 20 incident, deceased had beaten accused Sanjeev alias Kalia alongwith one Bombaiya. I am of the considered view that the true and reliable testimonies of PW-3 and PW-7 cannot be disbelieved only because that Bombaiya has not been examined by the prosecution. It is settled law that it is the quality of evidence and not the quantity of evidence, which plays an important role .
31 Ld. counsel for accused has contended that recovery of knife, in this case is planted one and therefore, the accused should be acquitted. But, I am of the considered view that there is no substance in the arguments of ld. counsel for accused as PW-2 ASI Jagat Singh has categorically deposed in his cross-examination by ld. counsel for accused that on 15.02.10 knife was recovered, which was lying in the grass, outside Metro gate No. 1 Chandni Chowk. He has further deposed that place of recovery is not a thoroughfare, and it is accessible to those persons only, who travel by Metro Rail. It is further significant to note that efforts were also made on 13.02.10 by the I.O for the recovery of knife by taking the accused to Metro Gate No. 1, Chandni Chowk but on that day, the knife was not recovered due to darkness. Further, PW-2 has also deposed in his cross- examination that grass of the park was not grilled at the time of recovery of knife. In view of above facts, it cannot be said that the knife was lying in an open place and the same has been planted by police to work out the case.
Sessions Case No. 43/10 Page 20/25 2132 Moreover, the arrest of accused persons from Hanuman Mandir and Cycle Market Chandni Chowk cannot be disbelieved only because no shopkeeper was joined by the I.O during the arrest of accused Sanjeev alias Kaliya, Vishal and Rajesh Rickshewala. In the present case, PW-20 has categorically deposed that he requested 3-4 public persons to join the investigation before the arrest of accused from Hanuman Mandir but none agreed to join the investigation. Similarly, at the time of arrest of accused Rajesh, PW-20 requested 2-3 persons to join the investigation but none of them agreed. Moreover, PW-2 ASI Jagat Singh has also deposed that on 13.02.10 on receipt of secret information, SHO asked 3-4 persons to join the investigation but none agreed.
33 In the present case, ld. counsel for accused has also contended that accused have been falsely implicated in this case by police as no chance prints were lifted by I.O from the spot. I am of the considered view that this contention of ld. counsel for accused is also without any force as PW-8 SI Devender, who was the Incharge of Mobile Crime Team on the relevant day, has categorically deposed in cross-examination that he did not give any direction to Finger Print Expert, to lift finger prints from the spot as there was no need for that as no weapon of offence was found there. He has further deposed that in his opinion, in this particular case, finger prints could not be traced from the clothes of deceased. He did not feel it necessary to lift or Sessions Case No. 43/10 Page 21/25 22 trace the finger prints from the cap as it was a woolen cap. 34 It is significant to note that the conduct of accused in this case cannot be ignored. PW-3 and PW-7 have deposed that after commission of murder, the accused fled away from the spot. Further, on the date of their arrest, accused Sanjeev and Vishal started running from the spot, after seeing the police party. Thus, conduct of accused which is relevant under Section 8 of Indian Evidence Act also points towards their guilt.
35 It is worth noting that accused did not examine any witness in their defence. Accused Sanjeev did not examine any witness to prove that he was not present at the spot on the relevant day or that he was serving at a party at Jahangirpuri and had come back from the party at 4:00 AM on 10.02.10. and straightaway went to his jhuggi at Yamuna Pushta. It is significant to note that at one place, accused Sanjeev has stated in his statement U/S 313 Cr.PC that he was serving at a party at Jahangirpuri. But at the same time, he has also deposed that he was called by the police in P.S for false implication, on the pretext of giving licence to him for picking rags from the area without paying monthly.
36 Similarly, accused Vishal has also not examined any witness to prove that he is working as unlicensed coolie at platform no. 12, Old Delhi Railway Station and was not present at the spot on the relevant day or that on the complaint of licensed coolies, the police has Sessions Case No. 43/10 Page 22/25 23 implicated him in this case as he was unable to pay hafta. Similarly, accused Rajesh has not examined any witness to prove that he used to ply rickshaw from Old Delhi Railway Station and has been falsely implicated in this case.
37 In the present case, the date of commission of offence in the charge has been mentioned as 10.02.10 instead of 09.02.10. I am of the considered view that the fact will not materially affect the case of prosecution and no prejudice will be caused to accused as all the material witnesses have deposed that the incident had occurred on the intervening night of 09/10.02.10 i.e. 11:00/11:30 PM of 09.02.10. Further, the information to PCR has been received about the commission of offence, at 12:32 AM on 10.02.10 as per testimony of PW-5 Lady Constable Rekha, who was posted in PCR at PHQ. The PCR call was received in the P.S. By PW-10 ASI Mahinder Singh at 12:40 AM, which was reduced into writing vide DD No. 4A Ex. PW10/A. 38 Thus, in view of above analysis of reliable and trustworthy pieces of evidence and particularly, the testimonies of PW-3 and PW- 7, it is concluded that the knife blows given by accused were not accidental or unintentional and were rather, intentional. Thus, the third ingredient, as discussed in Virsa Singh's case, is also existing in the present case.
Sessions Case No. 43/10 Page 23/25 2439 Now, the last element i.e. whether the injury was sufficient to cause death in an ordinary course of nature is present in this case or not, is to be considered.
40 PW-12 Dr. S.Lal, who has conducted postmortem on the body of deceased vide postmortem report Ex. PW12/A, has proved on record that the injuries No. 1 and 2 as mentioned in postmortem report, were sufficient to cause death, individually and collectively, in the ordinary course of nature. All the injuries were ante-mortem in nature and could be caused by single sharp edged weapon. He [PW- 12] has further deposed that the injuries mentioned in the postmortem report could be caused by weapon of offence [buttondar knife], which was produced before him for examination by Inspector P.S. Chahal on 25.03.10 for seeking opinion regarding injury mentioned in postmortem report. After examining the weapon of offence and clothes of deceased, PW-12 has opined that injuries No. 1 and 2 were possible to be caused by knife and the cut marks as mentioned on the clothes of deceased, could have been caused by the knife.
41 Thus, all the four ingredients as discussed in Virsa Singh's case are existing in the present case. In other words, prosecution has proved on record that its case is squarely covered under Clause 'Thirdly' of Section 300 IPC.
Sessions Case No. 43/10 Page 24/25 2542 Thus, in view of above discussion and analysis of evidence, I am of the considered view that prosecution has successfully proved its case beyond reasonable doubt against the accused. Accordingly, accused Sanjeev alias Kaliya, Vishal alias Rajesh and Rajesh Rickshewala are convicted of the offence U/S 302 IPC. Since, prosecution has also proved its case U/S 27 Arms Act, accused Sanjeev alias Kaliya is also convicted in respect of offence U/S 27 Arms Act.
Announced in the open court today
on 08.12.11 (Smt. Bimla Kumari)
Additional Sessions Judge-II(North)
Tis Hazari Courts, Delhi.
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