Delhi District Court
State vs 1) Shiva @ Uwan on 21 May, 2012
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 26/10
State versus 1) Shiva @ Uwan
S/o Late Sh. Niranjan
2) Vicky
S/o Late Sh. Niranjan
3) Surjeet @ Bacha
S/o Late Sh. Niranjan
All R/o 9717, Gali No. 8,
Multani Dhanda, Pahar
Ganj
Delhi
4) Manish @ Lulu
S/o Sh. Shyam Singh
R/o 9717, Gali No. 8,
Multani Dhanda, Pahar
Ganj
Delhi
Case arising out of:
FIR No. : 189/2010
Police Station : Pahar Ganj
Under Section : 452/423/324/307/302/201/34 IPC
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Judgment reserved on : 10.5.12
Judgment pronounced on : 21.5.12
JUDGMENT
Case of the Prosecution: The brief facts of the case are that on receipt of DD No. 3A on 25.7.10 at PS Pahar Ganj, ASI Pritpal along with HC Kailash Chand reached in front of house No. 9626, Gali No. 12, Multani Dhanda, Paharganj, Delhi and found blood lying in the staircase and gallery of the house. It was revealed that the injured have been taken to LHMC Hospital. Accordingly, ASI Pritpal left HC Kailash Chand at the spot and he himself went to LHMC Hospital and obtained MLC of Golu S/o Charan Dass who had been declared 'brought dead' by doctor. As per MLC of Charan Dass S/o Bhajan Lal and Reena D/o Charan Dass, both of them sustained sharp injuries while on the MLC of Meena W/o Golu, it has been recorded that there was history of assault.
ASI Pritpal recorded statement of Complainant at the hospital who contended that he is residing with his family members at H. No. 9626 Gali No. 12, Multani Dhanda, Pahar Ganj along with his :3: family members. On 24.7.10 at about 3.30 PM while his son was present at Video Game Parlour where some children were playing video games, Accused Shiva @ Uwan and Manish came to the shop and told his son Golu that they wanted to play videco game upon which Golu objected to same stating that video games are meant for children. Both the Accused threatened the deceased Golu and left the spot stating that they will see him later.
The Complainant further contended on the same day at about 11.50 PM, Accused Shiva @ Uwan, Manish, Vicky and Bachhe @ Kala came to their house and started fighting with him and his family members. He alleged that Accused Shiva was having one iron rod while other three Accused were carrying knives. Accused Vicky caught hold of his daughter Reena and gave knife blow upon her left arm. Thereafter, Accused Shiv @ Uwan and Bachhe caught hold of his son Golu and Accused Manish stabbed in stomach and neck of his son. Accused Uwan hit his daughter in law Meena on her arm by means of an iron rod while Accused Manish, Bachhe and Vicky attacked him with help of knives and caused injuries upon his eye, on the back of his :4: head and on his back. The Complainant further contended that in order to escape his liability, Accused Shiva also caused injuries on his head himself. He further contended that he took his son Golu and daughter in law in a TSR to LHMC Hospital while his daughter Reema also reached there on her own. Golu was declared 'brought dead' at the Hospital.
On the basis of aforesaid complaint, case under Section 452/323/324/307/302/34 IPC was registered. The body of the deceased was preserved in the mortuary. The investigation of the case was assigned to Insp. Subhash Chand who inspected the scene of crime and got the same photographed by the Crime Team. The body of the deceased was handed over to his relatives after postmortem and all the four Accused were arrested.
It is further the case of the Prosecution that during the course of investigation, Accused Shiva @ Uwan got recovered one iron rod from waste lying in front of house No. 9717, Gali No. 8, Multani Dhanda. The other three Accused Vikcy, Surjeet @ Bachhe and Manish also got recovered knives from the roof of aforesaid house :5: under wooden planks where they were found concealed. It is further the case of the Prosecution that recovered knives had already been wiped and cleaned by Accused persons and accordingly Section 201 IPC was added. Sketch of recovered knives were prepared after which they were taken into police possession and sent to FSL for subsequent opinion. After completion of investigation, chargesheet was submitted before the court.
Charges: Plea of the Accused: Pursuant to committal of the case and on the basis of material on record, Accused were charged for offence punishable under Section 452/302/307/323/324/34 IPC vide order dated 04.12.10. When the charges were read over and explained to all four Accused, they pleaded not guilty and claimed trial.
The Prosecution in order to establish its case examined 19 witnesses on record. The statement of Accused were recorded under Section 313 CrPC on 05.3.12. All of them pleaded innocence and claimed that they have been falsely implicated in this case by Complainant due to previous enmity. None of the Accused chose to :6: lead any evidence in their defence.
I have heard the arguments advanced by Ld. APP as well as by Ld. Amicus Curiae Sh. Dinesh Sharma representing Accused Vicky, Surejeet @ Bachha and Manish and by Ms Chitra Mal, Ld. Legal Aid Counsel representing Accused Shiva @ Uwan. I have also carefully gone through the evidence on record.
Prosecution Evidence and Arguments: The Complainant Charan Dass was brought into the witness box as first witness by the Prosecution. He deposed that he is running a Video Game Parlour on ground floor of house No. 9626, Gali No. 12, Multani Dhanda, Pahar Ganj, Delhi and he is residing on the first and second floor of the said house. He deposed that on 24.7.10 while he was having his lunch just outside his shop and his son Golu was inside his shop, Accused Manish and Shiva @ Uwan came to the shop and tried to play video games by moving other children who were already playing. However, his son objected to the same and both the Accused left the shop while threatening that they will not leave his son.
PW1 further stated that on the same day at about :7: 11.3011.45 PM, all the four Accused entered his house and Accused Vicky stabbed his daughter Reema with knife. When his son Golu objected to the same, Accused Vicky and Manish caught hold of his son and Accused Surejeet stabbed him with a knife on both sides of stomach. PW1 further deposed that Accused Shiva @ Uwan was having an iron rod (saria) in his hand and he attacked him with the said on his head and other Accused persons attacked him with knives which they were carrying. He further deposed that Accused Shiva attacked his daughter in law Meena, who was in family way, with a saria on her hand. PW1 clearly deposed that Accused persons killed his son Golu in his presence and also caused injuries upon him, his daughter in law and his daughter.
He further deposed that they went to the hospital in TSR where his statement was recorded by the police which is Ex. PW1/A. PW1 further deposed that Accused Shiva was also present in the hospital as he had inflicted injuries upon himself and he was arrested by the police in the hospital itself. He further deposed regarding arrest of remaining Accused persons on the next day and also deposed that :8: Accused Manish, Vikcy and Bachha got recovered three knives which were concealed under a fatta (wooden plank) from the roof of their house. He correctly identified the knives recovered at the instance of above named Accused.
The daughter of the Complainant namely Reema was examined as PW2. She also deposed that on 24.7.10 Accused Uwan and Manish came to their Video Game shop where her brother Golu was present. When her brother Golu objected to the Accused playing Video Games, both of them left after threatening her brother by saying "Tujhe Baad Mein Dekh Lenge". She further deposed that on the same night at about 11.30/12 midnight, all the four Accused came to their house on first floor and attacked her brother Golu and started beating him. She deposed that when she tried to save her brother, Accused Vicky stabbed her with a knife on her left forearm. She further deposed that Accused Uwan was carrying an iron rod and Accused Manish, Vicky and Bachha were having knives in their hands. The witness also showed mark of stabbing on her left forearm during her deposition before the court.
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She further deposed that when her Bhabi Meena tried to save her brother, Accused Uwan hit her with the rod on her hand and Accused Uwan and Bachha caught hold of her brother and Accused Manish stabbed him with the knife firstly on his stomach and then at the back of his neck. She further deposed her father was also present there and attacked by Accused Vicky, Bachha and Manish with knives and rod while Accused Uwan also caused injuries to himself.
PW2 Reema deposed before the court that on hearing their cries, neighbours gathered there and all the Accused persons fled away from the spot. Thereafter, her father, her brother and her bhabhi were taken to the hospital and she was taken by one neighbour to the hospital where her brother was declared 'brought dead'.
The daughter in law of the Complainant namely Meena W/o Golu stepped into the witness box as PW9. She deposed that she was present in the Video Game Parlour run by her husband on 24.7.10 when at about 3.30 or 4.00 PM, Accused Vikcy and Shiva entered into the shop and forcibly removed the children who were playing video games and started playing the games. She further deposed that when :10: her husband objected and requested them to stop playing games as games are meant for children, both of them left the spot after threatening her husband by saying "Tujhe toh hum baad mein dekh lenge".
PW9 further deposed that on the same night at about 12.00 midnight, all the four Accused entered into our house on the first floor where they were residing. Accused Shiva was carrying iron rod in his hand while remaining three Accused persons were having knives in their hands. She deposed that immediately after entering into the their house, Accused Surjeet and Vicky caught hold of her husband from the hands and Accused Manish attacked with a knife and stabbed him in the chest. Thereafter, Accused Vicky also attacked on her nanad Reema and caused injuries with knife on her arm. PW9 also stated that she was beaten by Accused Shiva with an iron rod which he was carrying and she sustained injuries on wrist of right hand. She further deposed that when her father in law intervened, he was also beaten with iron rods and caused knife injuries by the Accused.
PW10 Inder, resident of H. No. 9629, Gali No. 12, Multani :11: Dhanda, Paharganj deposed that on the intervening night of 24/25.7.10, at about 12 midnight, he heard noise of 'bachho'bachho' coming from the house of his immediate neighbour Charan Das i.e. H. No. 9626. He deposed that on hearing the noise, he immediately came out of his house and saw all the four Accused persons running out from the house of his neighbour Charan Dass. He further deposed that three of them were carrying knives in their hands and one of them was having an iron rod in his hand. He pointed out towards Accused Shiva stating that said Accused was carrying an iron rod in his hand and other three Accused persons were carrying knives with them. He further deposed that they were running after kiling Golu and after causing injuries to Charan Dass and his family members.
Besides the aforesaid witnesses, Prosecution also relied upon deposition of PW8 Dr. Rajiv Sharma who proved postmortem report of deceased Golu Ex. PW8/A. He opined that cause of death was haemorrhage and shock as a result of stab injury to the chest. All injuries were anti mortem in nature and fresh in duration and could have been caused by single edged sharp cutting pointed weapon. PW8 :12: Dr. Rajiv Sharma also exhibit his subsequent opinion which he gave after examining weapon of offence i.e. knives vide his report Ex. PW8/B. In order to prove the MLC of the injured persons, Prosecution examined two witnesses namely PW13 Dr. Nitin Sardana and PW16 Dr. Monika Sarangal to prove MLC of Charan Dass, Reema, Meena and deceased Golu and deposed regarding injuries sustained by them. As per PW13 Dr. Nitin Sardana, injured Charan Dass sustained simple injuries on his fact and stab injury on his back and deposed that on examining him, he opined the following injuries:
i) Laceration 3 cm above right eyebrow.
ii) Laceration 4 cm above left eyebrow
iii) Laceration 1 cm length lateral to right lateral canthus of eye.
iv) Small laceration on left ear lobule and left pinna (ear).
v) Incise wound of length 4 cm (superficial) behind left pinna.
vi) Stab wound over left lower back (muscle deep)
vii) Abrasion over left side of chest.
He further deposed that injured Reema had sustained CIW :13: over dorsum (extensor) of right forearm about 6 cm length and as per surgical opinion, injuries were simple in nature and his opinion is Ex. PW13/B. PW16 deposed that injuries sustained by Meena as per MLC Ex. PW16/B were sustained abrasions on right hand referred to Obsst. And Gynae Department and X ray Department.
Prosecution further examined various formal witnesses including PW17 SI Mahesh Kumar who proved scaled site plan Ex. PW17/A; PW3 HC Diwan Singh Duty Officer who registered FIR upon receipt of rukka; PW4 SI Dhan Singh from Crime Team reached the place of occurrence and prepared scene of crime report Ex PW4/A. Photographer who took the photographs of scene of crime was examined as PW5 Ct. Ramesh; PW6 Ct. Kapil deposed regarding deliver of copy of FIR to Ilaka Magistrate; PW7 Ct. Venu deposed that he took the sealed pullandas from MHC(M) to FSL, Rohini. PW8 W/Ct. deposed regarding receipt of information in CPSR at PHQ on the intervening night of 24/25.7.10 which was recorded as Ex. PW8/A. The witnesses to the investigation of the case examined by the Prosecution include PW11Ct. Rajbir Singh, PW12 Ct. Mahesh :14: Kumar, PW14 ASI Pritpal Singh, PW15 HC Satbir Singh, PW16 Dr. Monika Sarangal and PW17 SI Mahesh Kumar.
PW11 deposed that on 27.7.10, he joined investigation of the case along with IO/Insp. Subhash Meena, HC Ssatbir, HC Ashok and Complainant Charan Dass. On the basis of secret information, they reached at Punjabi Academy at Sadar Road in the evening and all the three Accused persons were apprehended upon identification of Complainant Charan Dass. He deposed that Accused Vicky was apprehended by him and arrested vide arrest memo Ex. PW1/E. Accused Surjit was apprehended by HC Satbir and Accused Manish was apprehended by HC Ashok. All the three Accused persons were interrogated and their disclosure statements were recorded. He further deposed that on 28.7.10 in pursuance of their disclosure statement, all the Accused persons led the police team to the roof of H. No. 9717, Gali No. 8, Multani Dhanda, Paharganj which house belonged to Accused Vicky. From the roof of said house, three knives which were concealed under wooden planks were got recovered by the Accused persons by pointing out respective weapons used by them. All the three :15: knives were sealed in separate pullandas. The seizure memo of knife recovered by Accused Vicky is Ex. PW1/H. He deposed that sketch of knife recovered by Accused Vicky is Ex. PW1/B. PW11 also correctly identified the knife before the court as one which was recovered at the instance of Accused Vicky from the roof of his house.
PW15 HC Satbir Singh also deposed regarding arrest of Accused Vicky, Manish and Surjeet from Punjabi Academy on 27.7.10 pursuant to receipt of secret information. He also deposed that Accused led the police party to the roof of their house from where Accused got recovered weapon used by them. He exhibited the sketch of recovered knife prepared at the instance of Accused Surjeet @ Bachha as Ex. PW1/C and deposed that same was seized vide seizure memo Ex. PW1/I. He also correctly identified the said knife before the court.
PW18 HC Ashok deposed that he apprehended Accused Manish on 27.7.10 and also identified the knife which was recovered at the instance of said Accused from the roof of his house.
PW14 ASI Pritpal deposed regarding reaching house No. 9626, Street No. 12, Muntani Dhanda, Paharganj on 25.7.10 on receipt :16: of DD No. 3A. He also deposed that he recorded statement of injured Charan Dass at LHMC Hospital and got the case registered through PW12 Ct. Mahesh who also reached the spot. PW14 further deposed that blood stained clothes of Charan Dass were also taken into police possession vide seizure memo Ex. PW14/B. The blood stained clothes of injured Meena were seized vide memo Ex. PW14/C. The place of occurrence was got inspected and photographed by crime team. Blood spread at the spot was lifted, earth control, one chappal having blood stains etc. were lifted from the spot and taken into police possession vide seizure memo Ex. PW12/A. Accused Shiva @ Uwan was arrested from LHMC Hospital vide seizure memo Ex. PW12/B and his blood stained phjama was seized vide seizure memo Ex. PW12/E. He further deposed that Accused pointed out the place of incident vide memo Ex. PW12/F and led them in front of house No. 9717, Gali No. 8, Multani Dhanda, Paharganj from where he got recovered one iron rod used by him in the incident from the garbage which was seized vide memo Ex. PW12/D. Witness also correctly identified clothes seized by him during the investigation and the iron rod recovered at the instance of :17: Accused Shiva.
IO/Insp. Subhash Chand who stepped into the witness box as PW19 also deposed regarding investigation conducted by him pursuant to transfer of investigation by him. He also deposed regarding arrest of Accused Shiva from LHMC Hospital on the date of the incident itself and regarding apprehension of remaining Accused on 27.7.10. He further deposed regarding recovery of various weapons used by Accused persons at their instance from the roof of their house and also correctly identified the case property before the court.
Relying on the aforesaid evidence, Ld. APP strongly contended that the Prosecution has been able to prove the guilt of all four Accused beyond any reasonable doubt.
Arguments of the Defence: On the other hand, Ld. Legal Aid Counsel for Accused Shiva @ Uwan and Ld. Amicus Curiae for Accused Vicky, Surjeet and Manish opposed the case of the Prosecution on various grounds. It was contended during arguments that there are material contradictions in the deposition of the Prosecution witnesses and thus case of the :18: Prosecution cannot be said to be established beyond reasonable doubt.
My attention was drawn to the deposition of PW1 Charan Dass wherein he deposed that Accused Vicky stabbed his daughter Reema with knife and when the deceased objected to the same, he was caught hold by Accused Vicky and Manish while Accused Surjeet stabbed him with knife on both sides of his stomach. On the other hand, PW2 deposed that immediately after entering the house, all the four Accused attacked her brother. She also deposed that when she tried to save him, Accused Vicky stabbed me with the knife on her left forearm.
It was further contended that though as per PW1 Charan Dass, Accused Vicky and Manish had caught hold of deceased Golu while Accused Surjeet had stabbed him and as per PW2 Reema, Accused Uwan and Bachha had caught hold of his deceased brother Golu and Manish stabbed him with knife. The Defence also sought to brought out contradictions in the deposition of aforesaid witnesses and PW9 Meena. She also deposed that immediately on entering their house, Accused Surjeet and Vicky had caught hold of her husband i.e. :19: deceased Golu and Accused Manish stabbed him with a knife. Thereafter, Accused Vikcy also attacked on his Nanad (Reema) and caused injuries on her forearm. It was further contended by Ld. Defence Counsel that deposition of PW1, 3 and 9 cannot be taken on its face value and accepted inasmuch as all the three are interested witnesses, being closely related to the deceased. It was further pointed out that as per MLC Ex. PW16/B, PW2 Reema sustained injury on her left arm, whereas as per her deposition and complaint Ex. PW1/A, the injury was inflicted by Accused Vicky.
Besides pointing out aforesaid contradictions, Defence also assailed the deposition of PW10 Inder on the ground that he is tenant and relative of Complainant Charan Dass, as admitted by him in his crossexamination and thus he cannot be relied upon.
The next contention raised on behalf of Accused persons is that no other person of the locality was examined by the Prosecution despite the fact that Complainant PW1 himself stated in his cross examination that some neighbours had collected at the spot. He also stated names of some of the neighbourers who had gathered on the spot :20: after the incident in question. Similarly, other Prosecution witnesses have also not disputed presence of other residents of locality who for reasons best known to the Investigation Agency not brought into witness box.
The next contention of the Defence is that Accused persons as per crossexamination of PW1 dated 04.11.11, continued to beat PW1 and other family members for about 2025 minutes. It is also deposed by said Prosecution witness that they were raising alarm. It is contended that in these circumstances the fact that none of the neighbour reached the place of occurrence to intervene or to help the deceased and his family members cannot be believed. Rather the defence raised is that incident did not take place in the house of Complainant and the deceased was in fact killed at some other place in the gali in an altercation which took place between him and some other person.
Extending this argument further, the Defence relied upon the PCR form Ex. PW8/A as per which a quarrel was reported to have taken place at 1:01:17 on 25.7.10 between two groups of boys. Shiva :21: was reported to have sustained minor injury with a brick. Ld. Defence Counsels further contended that in fact the deceased was killed by some other persons and Accused have been falsely implicated by the Complainant in this case owing to their previous enmity.
With regard to the recovery of weapon of offence also, the Defence has strongly opposed the case of the Prosecution to this extent. It was contended that admittedly there is no independent public witness to the recovery of weapons of offence. The iron rod alleged to have been recovered at the instance of Accused Shiva was recovered from an open place i.e. from garbage lying in front of house of Accused and the recovery thereof can certainly be considered doubtful.
The Defence also pointed out that there was delay in sending of the FIR to the area MM as noted by the court vide order dated 25.7.10 and thus there is noncompliance of mandatory provisions of Section 157 CrPC.
On the basis of aforesaid arguments, it has been contended by Ld. Legal Aid Counsel for Accused Shiva and Ld. Amicus Curiae for other Accused that Prosecution has failed to prove its case beyond :22: reasonable doubt.
Findings and Analysis: I have considered the rival submissions made before me, in the light of evidence on record. It certainly cannot be doubted that eye witnesses examined by the Prosecution i.e. PW1, 2 and 9 are closely related to the deceased. This by itself, however, cannot be considered a ground to discard their testimonies. It is pertinent to note that as per the case of the Prosecution, the incident occurred inside the house of deceased at about 11.50 PM on the intervening night of 24/25.7.10. At that time, the presence of family members of the deceased in the house is most natural.
It is also brought out from the evidence led by the Prosecution that all the family members present in the house at the time of the incident also sustained injuries which were caused to them by the Accused. The injuries sustained by them have been proved on record by their respective MLCs, as discussed herein above. Hon'ble Supreme Court in a judgment titled as State of UP Vs Naresh & Ors. Reported as 2011 Crl. L. J. 2162 observed that "The evidence of an :23: injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared thte actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein".
Similar, view has also been taken by Hon'ble Supreme Court in Ranjit Singh & Ors. Vs State of Madhya Pradesh 2011 Crl. L. J. 283 wherein it is held "Undoubtedly, all the eye witnesses including the injured witnesses are closely related to the deceased. :24: Thus, in such a fact situation, the law requires the court to examine their evidence with care and caution. Such close relatives and injured witnesses would definitely not shield the real culprits of the crime, and name somebody else because of enmity. The defence did not ask the injured witnesses as to how they received the injuries mentioned in the medical reports".
In the light of the aforesaid observations of Hon'ble Supreme Court, I find that deposition of relatives of the deceased, who themselves had sustained injuries during the incident in question, cannot be discarded and rather, must be accorded special status. It may be noted that in the present case also the Defence did not put any questions to the injured witnesses as to how they received the injuries, as mentioned in the respective MLCs. The case of the Prosecution to this extent, thus remained unrebutted.
Insofar as the contradictions in their depositions, as pointed out by Defence is concerned, I am of the opinion that same cannot be said to be fatal to the case of the Prosecution. Hon'ble High Court in its recent judgment titled as Rajinder @ Lala and etc. Vs State 2010 Crl. :25: L. J. 15 observed that "witness cannot be expected to possess photographic memory. It is a general handicap attached to all eye witnesses if they fail to speak with precision their evidence is assailed as vague and evasive, on the contrary if they speak of all the events very well and correctly their evidence become vulnerable to be attacked as tutored. Both the approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen".
Similar, view was also taken in another judgment of Hon'ble High Court titled as Joginder Vs State reported as 2010 Crl. L. J. 1770 wherein it was laid down "ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up with interrogated later on about the sequence of events which happened on the incident in question". :26:
The Hon'ble Apex Court in its judgment titled as Mallappa Siddappa Alakanur and Others Vs State of Karnataka titled as (2009) 14 Supreme Court 748 observed that "contradictions, inconsistencies, exaggerations or embellishments, minor discrepancies or variance in the evidence do not make the Prosecution doubtful. On the other hand, they led credibility to the Prosecution version".
Considering the above discussion, I find that aforesaid contradictions sought to be highlighted by Defence in the deposition of PW1, 2 and 9 cannot be said to be fatal to the case of the Prosecution. It must be borne in mind that all the said witnesses clearly identified the Accused persons as the same who had entered their house on the intervening night of 24/25.7.10 and had inflicted injuries upon person of deceased Golu. All the said witnesses also correctly identified the weapons which were carried by the Accused persons at the time of the incident. The fact that Accused Manish and Shiva had threatened the deceased in the afternoon of same day i.e. 24.7.10 at his Video Game Parlour has also been clearly brought out by the deposition of the said witnesses. It has thus been established that after threatening the :27: deceased in the afternoon on the same day, when he objected to their playing video games at their shop, both Accused i.e. Accused Shiva and Manish along with other two Accused persons came to the house of the deceased and stabbed him in furtherance of their common intention to kill him. When the other family members including PW1, 2 and 9 tried to intervene, Accused persons caused various injuries upon them also. The said injuries also stand corroborated by way of their MLCs.
Insofar as recovery of weapons of offence is concerned, the same has been proved by the deposition of recovery witnesses namely PW11 Ct. Ranbir Singh, PW14 ASI Pritpal Singh, PW15 HC Satbir, PW18 HC Ashok and PW19 Insp. Subhash. The argument of the Defence that witnesses to the recovery of weapons of offence being police witnesses are unworthy of reliance, cannot be accepted. I am supported in my view by judgment of Hon'ble Supreme Court titled as Gurjinder Singh Vs State of Punjab 2011 Crl. L. J. 1693 wherein it has been categorically laid down by Hon'ble Apex Court that "the fact that recovery was made in presence of policeman does not make it unreliable and police officials can be reliable witness if court finds him :28: truthful". Similar view was taken by Hon'ble Supreme Court in a recent judgment titled as C. Ronald and Anr. Vs Stae of U. T. of Andaman and Nicobar Islands 2012 Crl. L. J. 672 wherein it was laid down "There is no principle of law that a statement made in court by a police personnel has to be disbelieved. It may or may not be believed. It is not that all policemen will tell lies. There are good and bad policemen as well. We cannot assume that every statement of a policeman is necessarily false". In the present case there is nothing on record to show that police witnesses deposed falsely before the court or that they had any reason by way of enmity or otherwise to depose false against Accused.
Ld. Defence Counsel also drew my attention to order dated 25.7.10 as per which there is delay in sending copy of FIR to the area MM as contemplated under Section 173 CrPC. It was contended by Ld. Defence Counsels that said delay in sending copy of the FIR to the area MM clearly indicate that investigation of the case is tainted and case of the Prosecution is false. However, recent judgment of Hon'ble High Court titled as Ashok Kumar Vs State reported as 2012 III AD :29: (Delhi) 776 it has been held that "Delay in recording FIR and its dispatch to MM, not fatal"
Further, in Anil Rai Vs State of Bihar reported as AIR SC (2001) 3173, Hon'ble Supreme Court while relying on its earlier pronouncements reported as AIR 72 SC 2679 and AIR 1976 SC 2304 held that where FIR is shown to have actually been recorded without delay and investigation started on the basis of FIR, the delay in sending the copy of the report to the Magistrate cannot by itself justified conclusion that investigation was tainted and Prosecution unsupportable.
Keeping in view the aforesaid observations of Hon'ble Superior Courts, I find that in the present case, FIR was registered without any delay and the case of the Prosecution cannot be thrown out merely due to delay in sending copy of FIR.
The next contention with regard to recovery of an iron rod from the garbage in front of house of Accused Shiva. Refence may again be made to Gurjinder Singh Vs State of Punjab (Supra) where Hon'ble Apex Court while dealing with plea of weapon of offence from :30: public place, observed that "weapon infact was recovered from the place which could not be easily located and it was buried in the earth. In these circumstances, it was held that it cannot be held that recovery was effected from public place". Applying the same analogy to the present case, I find that as per case of the Prosecution, Accused Shiva got recovered one iron rod from inside the dustbin in front of house No. 9717, Gali No. 8, Multani Dhanda, Pahar Ganj. The recovery was effected immediately on the following morning i.e. 25.7.10 from inside the garbage bin at the instance of Accused Shiva implying thereby that place of of hiding the weapon of offence was within the exclusive knowledge of Accused and thus the argument of the Defence regarding recovery thereof from public place must be rejected.
With regard to the PCR form Ex. PW8/A, I find that the Accused failed to examine the informant named in the PCR form (Attaur Rehman), who could have been the only witness to prove the truth of the information recorded in the said PCR form. In absence of the said witness having been examined, I find that the Defence cannot take benefit of the contents of the PCR form Ex. PW8/A, as such :31: information could have been got recorded by anyone, even by the culprits for that matter, in order to create false evidence. Thus, the information as recorded in Ex. PW8/A per se, in absence of examination of the informant, can certainly not be said to be sufficient to throw out the case of the Prosecution or to cast any doubt on the eye witness account of PW1, 2 and 9.
I also find that the Defence failed to prove any previous enmity between the Complainant and Accused. The deposition of PW1 in his crossexamination that father of Accused Vicky, namely Niranjan used to taunt me and call him 'saap ka bachha' and he used to call him 'Kana' does not indicate even remotely, any previous enmity to such an extent which could lead to false implication of the Accused. In its recent judgment, titled as Ashok Kumar Vs State (Supra) Hon'ble High Court clearly laid down "No ulterior motive imputed to them for falsely implicating himOccurrence took place inside deceased's house, presence of PW1 and PW2 being residents was natural and probablePW1 sustained injuries, as depicted in MLC Injuries establish her presence at spotEvidence of injured witness :32: cannot be disbelieved without assigning cogent reasons".
PW1 Charan Das clearly deposed that Accused Manish and Shiva @ Uwan had left the shop of his son i.e. Golu at about 3:30 PM on 24.07.2010 after extending threats to kill him as he had objected to their playing of video games. On the same night, at 11:30/11:45 PM Accused Shiva @ Uwan and other coAccused Surjeet and Vicky entered their house, though in his crossexaminationinchief PW1 Charandas stated that his son Golu was caught hold by Accused Vicky and Manish and Accused Surjeet stabbed his son with a knife on both sides on his stomach. This witness was confronted with his statement Ex.PW1/A in his cross wherein it was recorded that Accused Shiva @ Uwan and Bachey had caught hold of his son while Manish had stabbed him on his stomach and neck.
PW2 Reema also deposed that Accused Shiva @ Uwan and Baccha caught hold of her brother and Accused Manish stabbed him with the knife firstly on his stomach and then at the back of his neck.
PW9 Meena also categorically deposed that the Accused :33: Surjeet and Vicky caught hold of her husband from their hands and Accused Manish attacked him with knife and stabbed him. However, in view of the judgment of the Hon'ble Superior Courts in Rajinder @ Lala and etc. Vs State (Supra) and Joginder Vs State (Supra) , I am of the opinion that the said contradiction can certainly not said to be fatal to the case of the Prosecution.
The incident occurred within a short span of time and the witnesses who himself sustained injuries through this incident cannot be expected to have photographic memory and recall each and every minute incident in detail. Rather, from a conjoined reading of the testimonies of PWs 1, 2 & 9, the guilt of the Accused persons stand proved beyond reasonable doubt. All the witnesses have deposed that the above named four Accused had entered their house on the intervening night of 24/25.07.2010. They were armed with 'Saria' and knives and while acting in furtherance of their common intention they inflicted injuries upon the deceased Golu and killed him.
It is also noteworthy that PW8 exhibited subsequent opinion Ex. PW8/B was not crossexamined by the Defence and the :34: deposition of PW8 thus remained unrebutted and the case of the Prosecution that injuries sustained by deceased Golu were caused by the knife in question thus stands duly established on record.
From the aforesaid eye witnesses account, the post mortem report of the deceased (Ex.PW8/A), the identification of the weapon of offence by the prosecution witnesses, the subsequent opinion Ex.PW8/B regarding the knife used by the Accused Manish in stabbing the deceased Golu and the factum of recovery of the weapons at the instance of the Accused persons, I am of the opinion that the prosecution has established its case for offence under Section 302/34 IPC against all the above named Accused beyond reasonable doubt.
Further, in the light of the depositions of PW1, 2 & 9 it has duly proved on record that the Accused Shiva @ Uwan, Vicky, Surjeet and Manish entered the house of the Complainant armed with saria and knives on the intervening night of 24/25.07.2010 after having made preparation for causing hurt to the Complainant and his other family members following the incident which occurred at the video game shop of the deceased. Thus, the charge under Section 452/34 IPC :35: also stands proved against the above named Accused beyond reasonable doubt.
Insofar as the allegations of offence under Section 307/34 IPC is concerned, it is contended by Ld. Defence Counsels that as per complaint Ex.PW1/A the Complainant Charandas was given injuries by means of knives by Accused Manish, Bacchu and Vicky. However, when the Complainant stepped into the witness box as PW1, he improved upon his earlier version and deposed that Accused Shiva @ Uwan was haing an Iron Rod (Saria) in his hand with which he attacked upon the Complainant on his head while the other Accused persons attacked him with knives which they were carrying.
I have considered the said submissions. However, his statement to the fact that he was given knife injuries by the Accused persons on his neck and above his eyes (forehead) stands duly corroborated not only by depositions of PW 1, 2 and 9, but also by the MLC Ex.PW13/A which shows the presence of lacerated wounds above his both the eyebrows and small laceration to right lateral canthus of eye and near the left ear. The MLC also shows the presence :36: of superficial incise wounds behind left pinna and stab wound over left lower back as also abrasion over left side of chest.
Considering the aforesaid and coupled with the deposition of PW13 Dr. Nitin Sardana, it is apparent that PW1 Charandas had sustained multiple injuries and stab injuries on his back.
The law regarding offence under Section 307 IPC is now fairly well settled. Hon'ble Supreme Court in Girija Shankar Vs State of UP reported as (2004) 3 SCC 793 while dealing with provisions of Section 307 IPC laid down: "To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often given considerable assistance in coming to a fiding as to the intention of the Accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all the actual wounds. The section makes a distinction between an act of the Accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was :37: done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof". In the light of the aforesaid law as laid down by Hon'ble Apex Court and the facts and circumstances of the case, I find that offence under Section 307/34 IPC is clearly made out against Accused. It is pertinent to note that Prosecution has been able to prove its case that after extending threats to the deceased in the afternoon of 24.7.10, all the Accused tresspassed into the house of Complainant Charan Dass armed with deadly weapons. They not only killed Golu to whom they had extended threats, but also inflicted injuries on other family members who were present in the house. Complainant Charan Dass suffered various injuries as detailed herein above. Eye witnesses account and medical evidence clearly establish that such injuries were caused by knives and despite the fact that injuries were opined to be simple, yet the intention of the Accused is writ large and can be clearly inferred from the over all circumstances. In these circumstances, I find that charge under Section 307/34 IPC stands proved against Accused :38: beyond reasonable doubt.
Insofar as Section 323/324/34 IPC are concerned, it is the case of the Prosecution that Accused caused simple hurt to PW9 Meena, wife of deceased Golu in furtherance of their common intention and also voluntarily caused hurt to Reema, daughter of Complainant by means of knife and thereby committed offence punishable under Section 324/34 IPC. It is contended by Ld. Defence Counsel that though as per complaint Ex. PW1/A Reema had sustained stab injury on her left forearm and PW2 Reema also deposed that Accused Vicky caused stab injury on her left forearm. As per her MLC Ex. PW16/B, she had received CLW on her right forearm. Ld. Defence Counsel thus pointed out that case of the Prosecution to this extent does not stand proved.
On the other hand, Ld. APP contended that the fact that Accused Vicky had Accused stab injury to PW2 Reema stands clearly proved by way of deposition of PW1, 2 and 9. The only fact as to whether injury was caused on left or right forearm cannot be said to be so material so as to belie the entire case of the Prosecution. :39:
I have considered the aforesaid argument and I find on going through the deposition of PW1 and 9 that they have consistently deposed that Accused Vicky caused injury with knife on the arm of PW2 Reema. Though deposing before court, she stated that Accused Vicky caused stab injury on her left forearm and her MLC indicate injury on her right forearm. However, despite this, I find that factum of Accused Vicky having been caused knife injury upon person of PW2 Reema stands proved on record beyond reasonable doubt. There are catena of judgments to the effect that ocular evidence must be given preference over medical evidence, if it is found credible and trustworthy and thus even if MLC indicate injury on right forearm of PW2 Reema, the fact that she sustained knife injury at the hands of Accused Vicky thus stands proved beyond any reasonable doubt. The aforesaid discrepancy in my opinion, cannot be considered fatal to the case of the Prosecution and accordingly in the light of the above discussion, I find that there is sufficient material for convicting Accused for offence under Section 324/34 IPC for having inflicted knife injuries upon person of PW2 Reema, daughter of Charan Dass. :40:
The injury caused by Accused upon person of PW9 Meena is also in my opinion proved on record. From the deposition of PW1, 2 and 9 and MLC of PW9 Ex. PW16/D Also corroborates the deposition of the aforesaid witnesses and consequently, all the Accused are hereby convicted for offence punishable under Section 323/34 IPC.
In the light of the aforesaid evidence and the above discussion, I am of the considered opinion that Prosecution has been able to prove its case beyond reasonable doubt for offence punishable under Section 302/307/323/324 and Section 452/34 IPC beyond any reasonable doubt against all Accused persons. Let them be heard on the point of sentence.
However, before parting, I would like to point out an important aspect of this case which cannot be overlooked as it touches upon a vital part of investigation.
It is the case of the Prosecution that the blood samples and other articles lifted from the scene of crime by the Investigating Agency were sent for expert analysis to Forensic Science Laboratory, Rohini. Two reports of FSL, Rohini Ex. PW19/E and PW19/F were exhibited :41: during the course of trial. It was noticed that as per Ex. PW19/E dated 15.9.11 no blood could be detected on various articles (i.e. on Exhibits A, C, E, F, G, S1(a), S1 (b), S2 (a) and S2 (b)). Surprisingly, however, as per report of Biology Division, FSL, Rohini Ex. PW19/F dated 15.9.11, not only blood of human origin but in some case blood of 'B' Group was detected on some of the aforesaid articles.
Thus, the glaring difference in both the above mentioned reports of FSL, certainly raises a doubt with regard to expert opinion which is frequently sought by the Investigating Agency during the course of their investigation and also often relied upon by the courts and even considered as admissible evidence, per se as per the provisions of Section 293 CrPC. It is, therefore, expected that such agencies like FSL, Rohini which are stated to be accredited for testing from National Accreditation Board for Testing and Calibration Laboratories (NABL) would submit Reports after considering the matter with much care and caution and such major discrepancies as highlighted in this case is certainly unbecoming of premier laboratory of Govt. of NCT, Delhi as FSL, Rohini. Such contradictory reports can :42: not only adversely affect criminal trial and lead to traversity of justice, but also tarnish the image of such a premier agency.
In the light of observations made with regard to reports dated 15.9.11 in the present case, it is thus deemed appropriate that a copy of this judgment along with copies of both the reports Ex. PW19/E and PW19/F be sent to Director, FSL, Rohini, Delhi for information.
Announced in the Open Court on 21.5.12 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
:43:In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 26/10
State versus 1) Shiva @ Uwan
S/o Late Sh. Niranjan
2) Vicky
S/o Late Sh. Niranjan
3) Surjeet @ Bacha
S/o Late Sh. Niranjan
All R/o 9717, Gali No. 8,
Multani Dhanda, Pahar
Ganj
Delhi
4) Manish @ Lulu
S/o Sh. Shyam Singh
R/o 9717, Gali No. 8,
Multani Dhanda, Pahar
Ganj
Delhi
Case arising out of:
FIR No. : 189/2010
Police Station : Pahar Ganj
Under Section : 452/423/324/307/302/201/34 IPC
:44:
Judgment pronounced on : 21.5.12
ORDER ON SENTENCE:
1. The above named accused have been convicted for offence punishable under Section 452/324/323/307/302/34 IPC vide judgment dated 21.5.12.
2. I have heard the submissions made by Learned Defence Counsel and Learned APP on the point of sentence.
3. It is submitted by Learned Defence Counsels that convicts are young boys. A prayer for lenient view is made by Learned Defence Counsels.
4. On the other hand, Learned APP submits that all the convicts have previous criminal record. The allegations against them have been proved beyond reasonable doubt and hence prayer for maximum prescribed punishment is made.
5. I have considered the rival submissions made before me in the light of allegations against the convicts.
6. Having regard to the nature and gravity of offences committed by the convicts, I am of the opinion that interest of justice would be met :45: if all the convicts are sentenced as under:
i) For offence punishable under Section 302 IPC, all the convicts are sentenced to Rigorous Imprisonment for life in addition to payment of fine of Rs. 5000/ each in default whereof, they shall undergo for Simple Imprisonment for 06 months.
ii) For offence punishable under Section 323 IPC, all the convicts are sentenced to Rigorous Imprisonment for 01 year.
iii) For offence punishable under Section 324 IPC, all the convicts are sentenced to Rigorous Imprisonment for 03 years.
iv) For offence punishable under Section 452 IPC, all the convicts are sentenced to Rigorous Imprisonment for 03 years in addition to payment of fine of Rs. 2000/ each in default whereof, they shall undergo Simple Imprisonment for 02 months.
v) For offence punishable under Section 307 IPC, all the convicts are sentenced to Rigorous Imprisonment for 07 years in addition to payment of fine of Rs. 3000/ each, in default whereof they shall undergo Simple Imprisonment for 03 months.
It is thus ordered accordingly. All the sentences shall run :46: concurrently. The convicts shall be entitled to benefit of Section 428 CrPC. Copy of judgment and order on sentence be provided to convict free of cost. File be consigned to Record Room.
Announced in the Open Court on 28.5.12 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.