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[Cites 17, Cited by 0]

Delhi District Court

The Case Of The Prosecution In Brief Is ... vs . on 18 November, 2010

   IN THE COURT OF SH. RAKESH TEWARI  ASJ­VI(OUTER), 
                 ROHINI COURTS, DELHI

SC NO.186/10
FIR NO. 387/06
PS Nangloi
Unique Case ID No. : 02404R0255012006

              State 

              Vs. 

Ram Dass s/o Ishwar Singh

r/o H.No. E­39, Camp No.2, 

Nangloi, Delhi.

Date when committed to the court of Sessions :04.10.2006
Date when case reserved for judgment        : 11.11.2010
Judgment pronounced on                        : 18.11.2010

JUDGMENT:

1. The case of the prosecution in brief is that on 22.04.2006 on receipt of DD No.72B, SI Rajeev Gunwant along with Ct. Vijay reached the spot in the gali near Narang Hospital at Camp No.2, Nangloi, Delhi, where in front of H.No.E­18, on a cot and below the cot, blood was found lying and at the corner of the gali near Narang Clinic, blood was found in sufficient quantity and one empty cartridge was also lying there and it transpired that the injured persons were removed to SGM Hospital and in the meantime Ct. Vijender and Ct. Raj Kumar arrived there on patrolling duty and Ct. SC No.186/10 Page 1/44 Raj Kumar and Ct. Vijay were left at the spot and the said SI along with Ct. Vijender reached the said hospital where Addl. SHO Ishwar Singh was found present and on the MLCs of one Som Nath and Sunil, both sons of Om Parkash, the doctor declared them as brought dead and the said Om Parkash was present in the hospital who got recorded his statement to the SI to the effect that he was residing at E­18, Camp No.2, Nangloi, Delhi, along with his family and the said two deceased Som Nath and Sunil were his sons, out of which Som Nath was married and Sunil was unmarried and that on 22.04.2006, he along with his wife Smt. Babli and niece namely Poonam was sitting in the gali in front of his house and his younger son, the deceased Sunil, was sleeping on the cot by their side and at about 11 p.m his neighbour namely Ram Dass came from the side of his house and fired a bullet shot at the chest of said sleeping son Sunil and started running towards Rohtak Road, who was chased by him, his wife and the said niece and his elder son namely Som Nath but said Ram Dass pushed him and his niece Poonam and fired bullet shot at Som Nath, who after receiving the gunshot injury fell down on the ground and the said Ram Dass again fired a bullet shot at Som Nath from the country made pistol in his hand and ran away from the spot and that the said Ram Dass was having a doubt of illicit relations of the deceased Somu @ Som Nath with his (the accused) sister earlier and due to this doubt Ram Dass was having enmity with him and that he had tried to remove that doubt from the SC No.186/10 Page 2/44 mind of Ram Dass earlier and that on the said incident they started crying and weeping and somebody gave a call to the police at number 100 and PCR van reached there who took the said two deceased to the SGM Hospital where they were declared dead and that his pant became bloodstained with the blood of his said two sons while taking them to the hospital and that due to the fall on the ground, he received injury on his both knees and on the basis of the said statement, the FIR was got registered and the investigation was entrusted to Inspr. Ishwar Singh.

2. During the investigation the IO summoned the crime team at the spot, photographs of the spot were got taken, prepared the site plan, recorded the statements of PWs and exhibits from the spot were seized and the complainant Om Parkash was got medically examined at the said hospital, the accused Ram Dass was arrested and from his possession one country made pistol and from the barrel of which one empty cartridge was recovered regarding which sketch was prepared and same were seized and thereafter the accused pointed out the place of occurrence, his disclosure statement was recorded and the postmortem examination of both the said deceased was got conducted and one maruti car no.DL3CK­5946, which was used by the accused after the commission of the offence, was seized and the exhibits were sent to FSL and subsequently by way of a supplementary charge sheet, FSL result as well as sanction u/s 39 of the Arms Act was placed on record and the accused was sent for SC No.186/10 Page 3/44 trial.

3. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 11.03.2008, framed charge against the accused u/s 302/323 IPC & Section 25 & 27 of the Arms Act, to which he pleaded not guilty and claimed trial.

4. The prosecution, in order to prove its case, has produced as many as 22 witnesses, relevant of which have been discussed below.

5. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating evidence against him as false and did not prefer to lead any defence evidence.

6. I have heard Ld. APP for the state, Sh. Jitender Kumar, Advocate for the accused and perused the record.

7. PW4, Dr. Binay Kumar of SGM Hospital, has deposed that on 22.04.2006, at about 11.55 p.m, one Sunil s/o Om Parkash was brought to the hospital by HC Om Parkash as well as his father Om Parkash with alleged history of fire arm injury and there was fire arm entry wound just above left nipple and the patient was declared brought dead and he had prepared the MLC Ex.PW4/A. He further deposed that on the same day, he examined Som Nath s/o Om Parkash again with the alleged history of fire arm injury and there was fire arm entry wound over left lower sternal and back of chest left, who was also declared brought dead vide MLC Ex.PW4/B prepared by him and the said doctor was not cross examined on SC No.186/10 Page 4/44 behalf of the accused.

8. PW5 HC Pradeep Kumar was the Duty Officer who recorded the FIR on 23.04.2006 and the copy of which is Ex.PW5/A. He also recorded the DD No.33 and 34 regarding the start of recording the FIR and completion of the FIR and the copy of the FIR as well as original rukka Ex.PW5/B was handed over to Ct. Vijender for further transmission to Inspr. Ishwar Singh and he also counter signed the rukka Ex.PW5/B at point A and he produced the originals of the said DDs. In his cross examination, he has replied that entries regarding the details of days of investigation in the form attached with the FIR were not in his handwriting and he had no knowledge as to when the list of witnesses was attached with the form annexed with the FIR and that he had not mentioned the time of recording of previous and subsequent FIRs no.386/06 & 388/06.

9. PW6 Sh. Anand Kumar was the relative of the deceased Som Nath who identified the said dead bodies of the two deceased vide his statements Ex.PW6/A and Ex.PW6/B and received the dead bodies after the postmortem examination vide receipts Ex.PW1/E and Ex.PW1/F and he was not cross examined. PW7 SI Anil Kumar was the In charge of the Crime Team who was summoned at the spot, who deposed that the injured had already been shifted to the hospital and that a bloodstained cot, bloodstained pillow, one empty used cartridge and blood was lying scattered at the spot and the photographs of the scene of crime were taken by photographer Ct. SC No.186/10 Page 5/44 Jai Veer and he prepared the report Ex.PW7/A and in his cross examination, he has answered that he had not sealed and seized anything from the spot.

10. PW8 HC Jai Veer Singh proved the photographs of the scene of occurrence as Ex.PW8/A­1 to Ex.PW8/A­6 and the negatives thereof as Ex.PW8/B­1 to Ex.PW8/B­6 and in his cross examination, he replied that he had not developed the positives from the negatives and the negatives were not kept in sealed parcel. PW9 SI Mahesh Kumar was the draughtsman who prepared the scaled site plan Ex.PW9/A and in his cross examination, he has replied that no electric pole was shown in the site plan as there was none at the spot in the gali. He admitted that it was a jhuggi camp but houses were pucca built. He denied the suggestion that there was no light in the gali and he volunteered that there was an electric bulb in front of H.No.E­18 which he had shown in front of said house in the site plan. He denied the suggestion that due to details of availability of electric bulb supplied at the instance of IO, it took 15 days by him in preparing the scaled site plan after his visit at the spot. He volunteered, that he was very busy as he had got so many cases from all over Delhi regarding the preparing of site plans. He further answered that IO had not given any rough sketch plan of the spot before his visit to the spot. He denied the suggestion that the site plan was prepared at the instance of the IO and not at the instance of PW Om Parkash.

SC No.186/10 Page 6/44

11. PW10 HC Tarif Singh was the MHC(M) who deposed about the deposit of the case property in the Malkhana and sending the same to the FSL and receiving of the result of FSL vide entries Ex.PW10/A, Ex.PW10/B and Ex.PW10/C in register no.19 and copies of the RCs as Ex.PW10/D, Ex.PW10/E and Ex.PW10/F. In his cross examination, he denied the suggestion that entries were anti­timed and anti­dated. PW11 is the Special Messenger Ct. Pradeep Kumar, who took the copies of FIR to the senior officers of the police and the concerned area Magistrate.

12. PW12 is Ct. Bijender Kumar who reached the spot on 22.04.2006 along with Ct. Raj Kumar on patrolling duty where he met SI Rajeev Gunwant and found the blood scattered there and noticed one empty cartridge lying there and it revealed to him also that injured was shifted to the hospital and he along with SI Gunwant reached SGM Hospital after leaving Ct. Raj Kumar at the spot and at the hospital one Om Parkash met them and the injured was brought dead and that the SI recorded the statement of Om Parkash, prepared a rukka and handed over the same to him and he went to the PS and after getting the FIR registered went back to the spot and handed over the rukka and copy of the FIR to Inspr. Ishwar Singh, where he found the crime team present, inspecting the spot and the photographs of the spot were taken. He further deposed that the blood sample, bloodstained earth and earth control were lifted, sealed and seized and that fired shell was also sealed and seized and SC No.186/10 Page 7/44 that the blood was also lifted from the cot and that one pillow cover and blood from the corner of the gali and earth control was also lifted and sealed in a parcel and seized and that he signed the memos to that effect which are Ex.PW12/A, Ex.PW12/B and Ex.PW12/C and the said seizures were having the seal of IS. He further deposed that a team was organized for arresting the culprits and on a secret information, the police team reached Kirari Phatak from where the accused Ram Dass, present in the court, was apprehended and was arrested vide memo Ex.PW12/D and from his search one country made pistol having empty cartridge was recovered and sketch of the same Ex.PW12/E was prepared and same was sealed with the seal of IS and seized vide seizure memo Ex.PW12/F and accused also made a disclosure statement Ex.PW12/H and identified the place of occurrence vide memo Ex.PW12/J and he further deposed that two fired cartridges were recovered from the spot and one fired shell (lead) was recovered from the stairs of the house and he identified the bloodstained pant of the complainant as Ex.P1, the country made pistol as Ex.P2 and the cartridge as Ex.P3 and torn parcel as Ex.P4, the fired lead as Ex.P5, two fired cartridges as Ex.P6 and Ex.P7, bloodstained pillow cover as Ex.P8. But PW12 was not cross examined on behalf of the accused on 11.09.2009 as the defence counsel submitted that he would cross examine the said witness after the deposition of public witnesses but thereafter, it seems that inadvertently this witness was never summoned for his cross SC No.186/10 Page 8/44 examination. However, all the documents and articles have been duly exhibited and proved in the statement of the PW22, as discussed below.

13. PW13 Dr. Manoj Dhingra has proved the autopsy reports of the deceased Sunil as Ex.PW13/A and that of the deceased Som Nath as Ex.PW13/B and he also identified the bullet recovered from the dead body of the deceased Som Nath as Ex.P9. He also identified the writing of the Dr. Ritesh on the MLC No.5734 of Om Parkash s/o Pethi Ram and proved the MLC as Ex.PW13/C, as the said doctor has left the services of the hospital and the said doctor has worked under him. He was not cross examined on behalf of the accused.

14. PW14 Ct. Shri Pal proved the copy of DD entry no.72B dated 22.04.2006 as Ex.PW14/A. PW15 is the Sr. Scientific Officer who proved the FSL result as Ex.PW15/A and another result of the Biology division as Ex.PW15/B. PW16 is Inspr. Prakash Chand who tendered the ballistic report as Ex.PW16/A and sanction u/s 39 of the Arms Act. PW17 HC Om Parkash was the official of the PCR on 22.04.2006 who received the information with regard to firearm injury caused to somebody at premises No. E­18, Camp No.2, Nangloi and he reached along with other officials of the PCR at the said spot and found that two persons have received firearm injuries and that the father of both the said persons namely Sh. Om Parkash was present there and said two injured along with their said father SC No.186/10 Page 9/44 were removed to SGM hospital, Mangol Puri, Delhi, where the doctor on duty declared the said persons as "brought dead". In his cross examination, PW17 has answered that the said information was received on the wireless of PCR van from the PCR Head Quarter but in the said information the name of the informant was not mentioned.

15. PW18 is Ct. Balbir Singh who accompanied Inspr. Ishwar Singh (the deceased IO) on 27.04.2006 to Village Firoz Pur Bangar, PS Kharkhoda, Distt. Sonepat, to the house of Sultan Singh where a maruti car No.DL3CK­5946 was parked in the gali which was taken into possession vide memo Ex.PW18/A and that the front number plate, bumper, stereo and stepney were missing from the car and he proved the photographs of the car as Ex.PW18/B­1 to Ex.PW18/B­3 and on 29.05.2006, he took the exhibits of the present case to deposit the same with FSL Rohini. PW19 Ct. Sri Kishan deposed that on 23.04.2006, at the instruction of the IO Inspr. Ishwar Singh, he took two dead bodies of the deceased Sunil and Som Nath to SGM Hospital for autopsy and the doctor concerned handed over him two parcels with the seal of AJ which he handed over to the said IO and same were seized vide seizure memo Ex.PW19/A. PW20 Ct. Vijay deposed that on the night intervening between 22/23.04.2006, he along with SI Rajeev Gunwant had reached E­18, Camp No.2, Nangloi, where they saw a cot on which blood was lying and this was the house in the gali by the side of Narang Clinic and thereafter SC No.186/10 Page 10/44 the SI along with Ct. Vijender had gone to SGM Hospital and Ct. Raj Kumar was left at the spot for its safety and the SI returned back at the spot and that the crime team was summoned and photographs of the spot were taken. PW21 is the Sr. Scientific Officer who proved the report of the ballistic division of FSL as Ex.PW16/A.

16. PW22 Inspr. Rajeev Gunwant deposed that on 02.04.2006 (the date should have been 22.04.2006 and it seems to be a typographical slip), he was posted at PS Nangloi as SI and on receipt of DD No.72B, Ex.PW14/A, he visited the spot i.e E­18 Gali, near Narang Hospital, Camp No.2, Nangloi, along with Ct. Vijay and that a cot was lying outside the house No.E­18 on which blood was there on the cot as well as under the cot and that blood pool and 2 used cartridges were also found near Narang Clinic on the ground and that Ct. Bijender and Ct. Raj Kumar also reached there in the meantime and that he came to know on enquiry that the victims have already been removed to SGM hospital and that he left Ct. Vijay and Raj Kumar at the spot and he along with Ct. Bijender went to SGM Hospital where Addl. SHO Inspr. Ishwar Singh was found present and one Sunil and Som Nath, both sons of Om Parkash, were found admitted in the hospital who had been declared as brought dead vide their MLCs and that Om Parkash was also found present in the hospital who made a statement before him and he recorded the same which is Ex.PW1/A which was duly attested by him and he made his endorsement Ex.PW5/B on the same and gave the same to Ct. SC No.186/10 Page 11/44 Bijender for getting the FIR registered and that thereafter he along with Inspector reached the spot where crime team was present and photographs of the spot were taken and that IO prepared the rough site plan which is Ex.PW22/A and lifted the exhibits i.e earth control, two used cartridges of 8 mm Ex.P6 and Ex.P7, the piece of cot having blood Ex.P9, pillow cover having bloodstains Ex.P8 and bloodstained earth and that sketch of the empty cartridges was prepared which is Ex.PW22/B and all the said articles were kept in parcels and were sealed with the seal of IS and were taken into possession vide memos Ex.PW12/A and Ex.PW12/B which bear his signatures and that IO also seized lead of the bullet Ex.P5 from near the staircase of the said house which was kept in a parcel, sealed with the seal of IS and was seized vide memo Ex.PW12/C and that PW Om Parkash produced one pant of cream colour Ex.P1 having bloodstains which he was stated to be wearing at the time of incident and at the time of taking his two sons to the hospital, which was also sealed with the seal IS and was seized vide memo Ex.PW1/B.

17. PW22 further deposed that IO received a secret information that accused of the present case was standing near Kirari Fatak and on this information they reached there and the accused was apprehended at the pointing out of the secret informer as well as Beat Ct. Raj Kumar and Ct. Bijender and from the search of the accused one country made pistol Ex.P2 along with one used cartridge Ex.P3 was recovered and sketch of the same Ex.PW12/E SC No.186/10 Page 12/44 was prepared which bears his signature and said pistol and cartridge were sealed with the seal of IS and were seized vide memo Ex.PW12/F and the accused was arrested vide memo Ex.PW12/D and his personal search was conducted vide memo Ex.PW12/G and accused made two disclosure statements on two different dates out of which one was dated 23.04.2006 which is Ex.PW12/H and the other was dated 25.04.2006 which is Ex.PW22/C and the accused pointed out the place of occurrence vide memo Ex.PW12/J and that the site plan of the place of arrest was prepared which is Ex.PW22/D. He further deposed that the IO made a request for conducting autopsy vide his applications Ex.PW22/E and Ex.PW22/F and he conducted inquest proceedings which are Ex.PW22/G, Ex.PW22/H, Ex.PW6/A, Ex.PW1/C, Ex.PW22/J and the dead bodies were thereafter handed over to their father Om Parkash against receipts Ex.PW1/E and Ex.PW1/F and that exhibits given by the doctor after autopsy in a sealed condition were taken into possession vide memo Ex. PW19/A and the scaled site plan Ex.PW9/A was got prepared and that sanction u/s 39 of the Arms Act is Ex.PW22/K and FSL results were collected and produced on the record and that IO seized one maruti car of green colour vide memo Ex.PW18/A and photographs of the scene of occurrence are Ex.PW4/A­1 to A­6.

18. In his cross examination, PW22 could not give his exact location when he received the DD No.72B nor he could tell the time. SC No.186/10 Page 13/44 He denied the suggestion that there was darkness at the spot at the time of incident or that nobody could see the assailants. He further answered that in the site plan Ex.PW22/A, the source of light had not been shown and he volunteered that since it was a residential area, lights of every house was on. He admitted it as correct that there was a police booth near the railway crossing gate from where the accused was arrested. He denied the suggestion that it was a blind murder case and the same was planted upon the accused and that he had tutored the public witnesses before they deposed in the court, to give their false statement against the accused.

19. PW1, PW2 and PW3 are the eye witnesses of the case whose examination in chief were recorded on 29.05.2008 and they were produced for cross examination on 20.08.2008 but were not cross examined and as such, my Ld. Predecessor closed the cross examination as NIL despite opportunity given and he has mentioned at that time that a new counsel was engaged on 20.08.2008 who was not ready to cross examine the witnesses but the previous counsel was also present who was ready for cross examination but the new counsel sought adjournment and it was the observation of my Ld. Predecessor that from overall circumstances it appeared that accused was deliberately avoiding the recording of cross examination of the witnesses who even did not tell to his previous counsel with regard to engaging a new counsel. Thereafter, my Ld. Predecessor, vide order dated 20.07.2009 allowed the application of the accused u/s SC No.186/10 Page 14/44 311 Cr.PC and the said three witnesses were again summoned for their cross examination and their cross examination was conducted on 16.11.2009 and thereafter they were cross examined on behalf of the Ld. APP for the State on the same day. The said dates of examination in chief and their cross examination on behalf of the accused and on behalf of the State have been mentioned by me as they are material for the decision of this case.

20. PW1 namely Om Parkash, in his examination in chief dated 29.05.2008 deposed that he was residing at E­18, Camp No.2, Nangloi, Delhi, and had three sons namely Som Nath @ Somu, Jai Parkash @ Shankar and Sunil and that his son Jai Parkash had expired about 2 years prior to the present incident and that his son Som Nath @ Somu was married and was having three daughters. He further deposed that on 22.04.2006, he along with Babli, his wife and niece Poonam were sitting outside their house and that his son Sunil was sleeping on a cot outside the house and that at about 11 p.m, accused Ram Dass present in the court came there and fired at his son Sunil who was sleeping on the cot and that he, his wife and Poonam raised alarm and chased the accused, who had run towards Rohtak Road and that he (the accused) first gave push to his niece Poonam as he was ahead all of us and thereafter he (the accused) gave a push to him (the witness) as a result of which he fell down and sustained injuries on both his knees and that on hearing the commotion, his son Som Nath @ Somu, who was upstairs, came SC No.186/10 Page 15/44 down and had chased the accused and that when his son Somu was about to apprehend the accused Ram Dass near the corner of the gali near Narang Hospital, the accused Ram Dass had fired at his son Som Nath, who fell down and then the accused again fired another shot at his said son Som Nath and thereafter the accused boarded a car which was parked on Rohtak Road and escaped and that one or two persons were already there in the car but he could not say as to who were the said persons and that in the meantime somebody informed the police which arrived at the spot and that his both sons namely Sunil and Som Nath were taken to SGM hospital where they were declared as brought dead and that since he had also sustained injuries on his knees, he was also medically examined and his statement Ex.PW1/A which bears his signature at point A, was recorded and that while removing his sons to the hospital, his pant was stained with blood which was also seized by the police vide memo Ex.PW1/B and that on his pointing out the police had prepared the site plan and that he had identified the dead body of his sons vide his statements Ex.PW1/C and Ex.PW1/D and he received the dead bodies after postmortem examination vide receipts Ex.PW1/E and Ex.PW1/F respectively and later on, about more than a month of the incident, the draughtsman had taken the notes at his instance and he identified his pant which was bloodstained as Ex.P1.

21. In his cross examination dated 16.11.2009 on behalf of the accused, he replied that the occurrence had taken place in the gali at SC No.186/10 Page 16/44 about 11 p.m and at that time there was darkness in the gali and he had covered himself with the Chadar (sheet) due to mosquitoes and he had uncovered his face after the noise of the fire and by that time the assailant had already left from the spot and went up to a quite distance and that he could not see the face of the assailant and as such, he could not say as to who he was and that the accused was never shown to him by the police after the incident or during the time of investigation and he had seen the accused for the first time in the court when his statement was recorded on 29.05.2008. He further replied that he had not gone through the contents of the statement Ex.PW1/A made to the police at the time of signing the same and that he had not named any person as the assailant in the said statement and that accused Ram Dass present in court had not murdered his sons. He further replied that on 29.05.2008, when his earlier statement was recorded, one police officer was present outside the court and he had tutored him and asked him to identify the accused Ram Dass as the person having committed murder of his sons and that no weapon etc was recovered from the possession of the accused or at his instance in his presence and that he had not signed the papers of the arrest of the accused as he was never arrested in his presence and that he had given his earlier statement at the instance of the police who had tutored him and asked him to identify accused Ram Dass and that police had never enquired from him about the incident. He admitted it as correct that the accused SC No.186/10 Page 17/44 Ram Dass is innocent and had been falsely implicated in this case by the police.

22. In his cross examination on behalf of the State by the Ld. Addl. PP, he answered that he was residing at E­18, Camp No.2, Nangloi and that accused Ram Dass was residing at premises No. E­ 39, Camp No.2, Nangloi and that accused was residing on one corner of the gali and he was residing on the other corner of the gali. He admitted it as correct that when accused Ram Dass was granted interim bail from the Hon'ble High Court, vide order dated 30.09.2008, he had also moved an application before the Ld. Predecessor of this court in court No.308, Rohini Court Complex, Delhi, for cancellation of interim bail of the accused which is Ex.PW1/PX which is signed by him at point A and contents of the application were read over to the witness who admitted the same as correct and he volunteered that police had told him that the interim bail of the accused could be cancelled in the said manner and accordingly, he moved the application. He further answered in his cross examination on behalf of the State that in his jhuggi there was no light and that he took the electric connection much after the incident. He admitted it as correct that on 29.05.2008, he had not stated before the court that he was pressurized by someone to make the statement. He admitted it as correct that on that day he made a volunteered statement with his proper senses but again said, he made his statement in pressure and guidance from the police. He could SC No.186/10 Page 18/44 not tell as to whether the police official was HC, ASI, SI or IO. He further answered that he had not complained to any Senior Officer till date to the effect that there was a pressure on him by the police official to depose wrongly and he had not complained to any Senior Officer that accused Ram Dass had not killed his both sons.

23. In his further cross examination on behalf of accused, he admitted it as correct that accused Ram Dass never met him during the time of his interim bail and that his statement that accused Ram Dass is innocent is correct.

24. PW2 Smt. Babli deposed the facts on the same lines on which the PW1 has deposed, in her examination in chief dated 29.05.2008 and in her cross examination on behalf of the accused dated 16.11.2009, she has answered ad verbatim as answered by PW1 discussed above and in her further cross examination by the Ld. APP on behalf of the State she admitted it as correct that they have not complained to anybody till date that accused was falsely implicated in this case and that the accused was residing near to her house and she pointed out towards the gate of the court by mentioning as the distance between the said two houses and that they have not moved any application for cancellation of interim bail of the accused. She further answered that there was electricity in her colony for the last 6 or 7 years. She further admitted it as correct that on 29.05.2008 she did not inform the court regarding the pressure upon her for making statement and she also could not tell the rank of the police SC No.186/10 Page 19/44 officials who pressurized her for the said purpose nor she informed to any Senior Officer of the police till date with regard to the said pressure nor with regard to innocence of the accused Ram Dass and she also replied in her further cross examination on behalf of the accused that accused Ram Dass never met her during the time of his interim bail.

25. PW3 Ms. Poonam deposed that on 22.04.2006, she along with her uncle Om Parkash and aunt Smt. Babli was sitting outside the house and that her cousin Sunil was sleeping on a cot outside the house and that at about 11 p.m accused Ram Dass present in the court came there and fired at her cousin Sunil who was sleeping on the cot and that she, her uncle and aunt raised alarm and tried to chase the accused, who rushed towards Rohtak Road. (My Ld. Predecessor has observed that at the said stage the witness started weeping in the court and got emotional and repeatedly pointed out towards the accused saying that this fellow had mercilessly killed her brothers and she was consoled by Ld. CPP as well as by the court and was offered with a glass of water and the remaining statement was ordered to be recorded after sometime.) (My Ld. Predecessor again observed that at that stage the witness stated that she could depose and now she was alright.) She further deposed that she also followed the accused along with her uncle and aunt and that on hearing the commotion, her cousin Som Nath @ Somu, who was upstairs, came down and had chased the accused and when Somu SC No.186/10 Page 20/44 was about to apprehend the accused Ram Dass in the gali opposite Narang Hospital, the accused near the Narang Hospital started grappling with her and when she was trying to apprehend the accused, he pushed her and thereafter he shot at her brother Som Nath who fell down and the accused fired another shot at her cousin Som Nath and that they raised hue and cry and raised alarm and that father of the accused was also standing over there and that she rushed towards the father of the accused, pleaded before him but he caught hold of her hair and thrashed her up. (My Ld. Predecessor has observed that again the witness had started weeping and she was again consoled.) She further deposed that the accused boarded a car which was parked on Rohtak Road behind the tractors and fled away and she had seen one boy who was taking the present accused towards the car but she did not know his identity and that she could certainly say that accused was the person who shot at her brothers because the accused himself had grappled with her at the time of incident and that the other boy was asking the accused as "Chal chal, kaam ho gaya" (let us leave, the work has been done). She further deposed that after sometime police arrived at the spot and both her cousins namely Sunil and Som Nath were taken to SGM hospital by the police and her uncle Om Parkash had accompanied the police to the hospital and that she had not attended the hospital and that her uncle informed her that both her cousins were declared as dead in the hospital and that since she had sustained minor abrasions, she SC No.186/10 Page 21/44 was not medically examined.

26. In her cross examination on behalf of the accused dated 16.11.2009, she answered that at the time of incident there was no electricity at the spot and she volunteered "light to aati jaati rehti hai" (the electricity was off and on). She further answered that the deceased was sleeping at a quite distance of her house and at the time of incident she was sleeping and woke up on hearing the gun shot noise and that she had not seen the person who had fired gun shots on her cousins, as he had already left the spot before her reaching there and that accused Ram Dass present in court was never shown to her by the police at any point of time before her deposition in the court nor the accused Ram Dass was arrested or recovery was effected from him in her presence and that she had seen accused Ram Dass for the first time in the court on 29.05.2008 and that she had not named any person as the assailant in her statement and that accused Ram Dass had not murdered her cousins and that on 29.05.2008 one police officer was present outside the court and had tutored her and asked her to identify the accused Ram Dass as the person having committed murder of her cousins and she had given her earlier statement at the instance of the police, who had tutored her and asked her to identify accused Ram Dass and that police had never enquired from her about the incident and that accused Ram Dass never grappled with her at the spot nor he pushed her aside at the spot and that she had not received injuries due to the SC No.186/10 Page 22/44 assault by the accused and that she had not seen the accused at the spot and that he had not uttered any word to her after the incident and that accused Ram Dass is innocent and had been falsely implicated in this case by the police.

27. In her further cross examination by the Ld. APP on behalf of the State, she answered that she was residing at E­17, Camp No.2, Nangloi, and accused Ram Dass was residing in the same gali but at a quite distance from her house and that there was electric pole in her locality but the MCD officials never installed bulb. She admitted that she did not complain to the court on 29.05.2008 regarding the said pressure for making the statement nor she could tell the rank of the said police officials nor she made any complaint to any Senior Officer till date regarding the said pressure. She further admitted it as correct that on 29.05.2008, when her statement was recorded, she started weeping in the court as she got emotional and she was offered water and in her further cross examination on behalf of the accused, she answered that accused Ram Dass never met her during the time of his interim bail.

28. At the very outset, from the said evidence on record, I am not at all convinced with two facts. First is the factum of arrest of the accused from near Kirari Fatak, as shown in the rough site plan of arrest Ex.PW22/D on 23.04.2006 whereas the incident is dated 22.04.2006, for the reason that there was a police booth very near to the place of arrest at point B shown in the said site plan and it does SC No.186/10 Page 23/44 not appeal to the common sense as to why an accused against whom allegations of double murder were there, would come to such a place for his ready availability to the police. Second is the recovery of the country made pistol, the alleged weapon of offence which was allegedly found in his possession at the time of his said arrest for the reasons that no public witness was joined in the proceedings at the time of said recovery and arrest despite their availability and secondly, the said pistol could not be connected with the empty cartridges recovered from the spot, as had been fired from the said pistol, as mentioned in the ballistic report Ex.PW16/A wherein the data was held as insufficient for comparison and opinion as to whether the said empties were fired through the said country made pistol. As such, I am not taking the said two facts into consideration at all. Does this mean to throw the case of the prosecution on this score only. The answer has been given below.

29. Ld. Counsel for the accused has contended that such witnesses like PW1, PW2, PW3 should not be given any credibility as they have not supported the case of the prosecution in their respective cross examination and he has relied upon a judgment of the Divison Bench of the Hon'ble Supreme Court titled Podyami Sukada Vs. State of MP (now Chhatisgar) reported as 2010 IV AD (Cri) (SC) 53 and on the other hand Ld. Addl. PP has relied upon a judgment of the full bench of the Hon'ble Supreme Court titled Khuji @ Surendra Tiwari Vs. State of MP reported as 1991 Criminal Law SC No.186/10 Page 24/44 Journal 2653 (1) and has contended that if the witnesses turned hostile after a gap of time, then only their examination in chief is to be relied, of course with some corroboration.

30. Dealing with the circumstances of cross examination of said three eye witnesses first, the cross examination can be broadly divided as based on three aspects. First is the aspect of denial simplicitor of the facts mentioned by them in their examination in chief, second is the aspect of their alleged tutoring by the police before the recording of their examination in chief on 29.05.2008 and third is the blatant denial of the identity of the accused on the ground of being darkness at the relevant time of the incident i.e 11 p.m as there was no source of light.

31. The first aspect of bare denial has not been corroborated by any other independent evidence on the record nor the accused led any evidence in his defence to substantiate the said denial of the said three witnesses nor otherwise in his defence. This aspect has been discussed more also by me below while dealing with other issues of the case.

32. With regard to the aspect of tutoring of the witnesses by the police officials before their examination in chief was recorded on 29.05.2008 and their assertion in their cross examination that they had deposed in their examination in chief at the instance of the police, the said three witnesses, while they were being re­examined by the Ld. APP for the State, have categorically denied about the SC No.186/10 Page 25/44 identity of the police official who allegedly tutored them or the rank of the police official who made them to depose forcibly in the examination in chief. They have further admitted it as correct that said tutoring or pressure was not disclosed by them to the trial court nor to any senior police official in the form of a complaint. In this regard case of PW3 namely Ms. Poonam, is more interesting. She admitted in her re­examination that on 29.05.2008, when her examination in chief was being recorded, she started weeping in the court as she got emotional and she was offered water. Further, the court observation of my Ld. Predecessor while recording her examination in chief on 29.05.2008 to the effect that the witness started weeping in the court and has got emotional and repeatedly pointed out towards the accused saying that this fellow has mercilessly killed her brothers and after narrating the incident of her pleading before the father of the accused, my Ld. Predecessor has observed that again the witness had started weeping who was again consoled. The question before me is as to whether the said emotional or sentimental state of mind of the PW3, as admitted by her and recorded by my Ld. Predecessor as gestures of the witness, was also the part of "tutoring and pressure" at the hands of the police, as alleged by her. Similarly, the PW1 namely Om Parkash, the father of both the deceased, has categorically admitted when the questions were put to him by the Ld. APP for the state, the application for cancellation of the interim bail of the accused moved SC No.186/10 Page 26/44 by him which bore his signatures and he admitted the contents of the application also as correct. In his further answers he has blown hot and cold in the same breath when he answered as follows:

"it is correct that on that day (29.05.2008), I made a volunteered statement with my proper senses. Again said, I made my statement in pressure and guidance of police. I do not remember whether that police official was HC, ASI, SI or IO."

33. Moreover, why this aspect of examination in chief being given under tutoring and pressure came only on 16.11.2009 when the said three witnesses were being cross examined and that too after their recall u/s 311 Cr.PC. What stopped them to come to the court to report against their tutoring and pressure by the police at the very first instance either on the day of examination in chief or subsequent thereto till their cross examination after the expiry of more than 1 year and 5 months. Further, what prevented them to file a petition or make a complaint to the superior courts against the recording of their examination in chief under alleged tutoring and pressure. There is no explanation as to why PW1 did not disclose about alleged tutoring by the police at the time when he moved the application for cancellation of interim bail of the accused Ex.PW1/PX or conversely what prompted him to move the said application if the accused was innocent. The said questions and said circumstances besides other facts, as discussed in this judgment, go to establish beyond reasonable doubt that at least there was no SC No.186/10 Page 27/44 tutoring or pressure upon them while they were deposing in their examination in chief on 29.05.2008 but it was something else which drove them to make out a story of alleged tutoring and pressure.

34. Let me now discuss the said two judgments of the Hon'ble Supreme Court cited on behalf of both the parties, before discussing the third aspect of identity of the accused having been denied by the said three witnesses in their respective cross examination.

35. In both the judgments of the Hon'ble Apex Court i.e Podyami Sukada's case and Khuji's case (Supra), the common proposition of law which was laid down was to the effect that the evidence of the hostile witness is not altogether wiped out and remains admissible in evidence and there is no legal bar to base conviction on the basis of the testimony of hostile witness but as a rule of prudence, the court requires corroboration by other reliable evidence.

36. In Podyami Sukada's case (supra) Hon'ble Supreme Court was dealing with a case of murder where there was no eye witness to the occurrence and there were witnesses of extra judicial confession made by the accused who turned hostile and did not depose about the extra judicial confession in their examination in chief and when they were cross examined on behalf of the state by the Ld. APP, they supported the case of the prosecution and deposed about extra judicial confession made by the accused in their presence and again when they were cross examined on behalf of the accused, they turned hostile and deposed that no such extra judicial confession was SC No.186/10 Page 28/44 made by the accused. It was in this background that Hon'ble Supreme Court came to the conclusion that evidence of both the prosecution witnesses was slippery and from their evidence it was difficult to hold with certainty that any extra judicial confession in fact was made by the accused and the evidence of the said hostile witnesses was discarded.

37. In Khuji's case (supra), the situation was different and there was an eye witness who identified accused in his examination in chief and after a considerable gap of time when he appeared for his cross examination he gave contradictory version and it was held by the Hon'ble Supreme Court that statement made in cross examination was an attempt to wriggle out from the examination in chief and the accused was held guilty only on the basis of examination in chief of the said eye witness coupled with other evidence on the record.

38. After carefully comparing the facts of the said two cases before the Hon'ble Supreme Court, I am of the considered opinion that the facts of the instant case are more near and similar to the facts of the Khuji's case (supra) as PW1, PW2 and PW3 have deposed in their examination in chief with particular details as mentioned above and they denied almost all the facts in their respective cross examination which took place after more than 1½ year, as discussed above and below.

39. Let me now turn towards the third aspect of the cross SC No.186/10 Page 29/44 examination regarding blatant denial of the identity of the accused because of the darkness at the relevant time of the incident i.e 11 p.m as there was no source of light.

40. Identity of the accused or a thing under the law is a relative term and not an absolute term. Establishing the identity of a person or a thing may range from eye witness account, sense of perceiving the objects, up to the scientific and technological identities established through comparison of finger prints, DNA test etc. It may also include the scent identification of a sniffer dog. All the said aspects of identity are having their own limitations. It is the evidentiary value of the circumstances wherein the identity of a person or thing has been established on record, which is material consideration for relying upon the identity of the accused or a thing. Some of the examples may be cited of the decisions of the Hon'ble Supreme Court highlighting the said proposition of law.

41. Hon'ble Supreme Court in the case titled Malkhansingh and others Vs. State of Madhya Pradesh reported as 2003 CRI. L.J. 3535 while dealing with the aspect of identity of the accused and evidentiary value of the TIP in a rape case has held as follows:

"The facts, which establish the identity of the accused persons, are relevant u/s 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused persons at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of SC No.186/10 Page 30/44 witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by S. 162 of Cr.PC. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
The substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case the Courts below have concurrently found the evidence of the prosecutrix, a victim of gang rape to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicity reliable. There is no error in the reasoning of the Courts below. The facts of the case shows that the prosecutrix did not even know the appellants accused and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience the faces of the appellants must have got imprinted in her memory, and there SC No.186/10 Page 31/44 was no chance of her making a mistake about their identity. The occurrence took place on March 4, 1992 and she deposed in Court on August 27, 1992 and she deposed in Court on August 27, 1992. The prosecutrix is a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances concurrent finding by Courts that the identification of the appellants by the prosecutrix in Court does not require further corroboration cannot be interfered with."

42. In Khuji's case (supra), PW1 was held to be a natural witness in the circumstances who was present at the market place at the time of occurrence and the incident occurred at a public place with a lamp post nearby the possibility of his having identified the assailants, was not ruled out.

43. In another case titled Shivraj Bapuray Jadhav and others Vs. State of Karnataka reported as 2003 Crl. Law Journal 3542, the Hon'ble Supreme Court rejected the plea that eye witnesses could not have seen the occurrence because incident had taken place at night two days prior to new moon day and held that when parties are used to live in midst of nature and accustomed to live without light, the witnesses could have identified the accused easily not only from the voices but from the fact that they are known persons and close relatives and living in the neighbouring huts and the incident occurred very near to the huts of deceased and the accused and the presence of the eye witnesses at that time was normal and nothing strange.

44. The said examples of the decisions of the Hon'ble Supreme SC No.186/10 Page 32/44 Court go to establish that it is the presence of the witness at the time of occurrence, his relationship and position qua the accused, time taken by the witness in observing the facts at the time of occurrence, which are important for the identity of the accused and of course, light as a medium of perceiving the things is required but it is not always necessary that identity can only be established with the help of light only and example of the Shivraj Bapuray's case (supra) is very close to the facts of the present case.

45. The identity of the accused Ram Dass is not only established by the deposition of PW1, PW2 and PW3 in their respective examination in chief but it has otherwise been established on record by documentary evidence also. For example, PW1 has admitted in his cross examination on behalf of the State, that he has moved the application for cancellation of the interim bail of the accused Ex.PW1/PX moved on 06.10.2008 before the court of Addl. Sessions Judge and he also admitted the contents of the same as correct and his signatures at point A. There is no cross examination on behalf of the accused qua this application Ex.PW1/PX and the application as a piece of evidence has gone unrebutted on the record. It says that about 4 years ago accused Ram Dass had administered poison to his son Jai Parkash @ Shanker and killed him and about 2 years ago said Ram Dass had killed his two sons namely Somnath and Sunil by bullet injuries in front of his own eyes and that said Ram Dass had been granted interim bail from the Hon'ble High SC No.186/10 Page 33/44 Court who had threatened to kill him and his wife also as he had already killed his three sons. It is this application which establishes the identity of the accused beyond reasonable doubt. It also establishes the relationship of the accused with the witness and also the cause as to how the accused was known to the witness.

46. In the documents there is further one MLC of the complainant/injured i.e PW1 Sh. Om Parkash which is Ex.PW13/C and the said MLC was exhibited by PW13 who was the doctor who conducted autopsy and the doctor who prepared the MLC namely Dr. Ritesh had worked with him. The MLC was exhibited after PW13 identified the handwriting and signatures of Dr. Ritesh as he has left the services of the hospital and his whereabouts were not known and the said doctor PW13 was not cross examined at all on behalf of the accused. Although I am conscious of the fact that MLC is not a substantive piece of evidence but it is a record prepared at the time of examination of the patient for refreshing the memory of the doctor while deposing before the court but the said MLC has gained importance in the present case because of the deposition of PW1 in his examination in chief that when he was chasing the accused, he was pushed by the accused due to which he fell down and suffered injuries on his knees and he was medically examined also for the said injury in the same hospital. The said fact of medial examination of PW1 in the said circumstances was not denied at all or resiled from by the PW1 in his cross examination nor SC No.186/10 Page 34/44 any question or suggestion was put to the witness on behalf of the accused against the said medical examination of PW1. The said MLC Ex.PW13/C mentioned the alleged history of push by Ram Dass, the accused. The said document also circumstantially go to establish the identity of the accused as PW1 gave the history of receiving the injuries on his knees by a push given by accused Ram Dass.

47. Coming to the statement of PW1, Ex.PW1/A, on the basis of which FIR was got registered, this statement was denied by PW1 in his cross examination on the ground that he has not gone through the contents of the statement Ex.PW1/A at the time of signing the same nor he has named any person as the assailant in the said statement. However, I have carefully gone through the statement Ex.PW1/A which contains a unique fact of motive of murder of the sons of PW1 which must either be in the specific knowledge of the accused or the victim only and unless and until disclosed to the police, it cannot manipulate or concoct the said fact of its own while writing the FIR. The said fact is that accused Ram Dass, who was the neighbour of PW1 and the deceased, had a suspicion of the deceased Somnath @ Somu having illicit sexual relations with the sister of the accused Ram Dass and on this account the accused was having enmity with the deceased and the PW1 had tried his level best to remove the suspicion from the mind of the accused earlier also. It is this unique knowledge of the PW1 with regard to said suspicion of SC No.186/10 Page 35/44 illicit relations in the mind of the accused which established the identity of the accused beyond reasonable doubt and PW1 cannot be allowed to take somersault by merely saying that he did not read the contents of the said statement Ex.PW1/A while signing the same because of the reason that police could not have thought of devising or manipulating the said motive and police did not have taken the risk of fabricating such a motive which could have been belied if the accused would not have any sister as such with whom the deceased could have illicit relations.

48. The source of light, although immaterial in the said circumstances, for the identification of the accused at 11 p.m on the day of incident have been established by the photographs on the record Ex.PW8/A­1 to Ex.PW8/A­6. These photographs were taken by the members of the Crime Team particularly PW8. The Crime Team also included PW7 who prepared his report of the spot inspection Ex.PW7/A. As per Ex.PW7/A, the spot was inspected on the night intervening between 22nd and 23rd April, 2006 from 12 mid night to 1 a.m and PW8 was the photographer with the Crime Team. No suggestion or questions were put to PW7 with regard to availability of the light at the spot at the time of spot inspection in the night. No cross examination was conducted to PW8 who took the photographs with regard to the source of light at dead end of the night. The photographs go to establish that there was light at the spot although dim but it was sufficient as visible in the photographs SC No.186/10 Page 36/44 to identify the accused, particularly who was the neighbour and known to the PW1, PW2 and PW3 for the said specific reasons also.

49. Now turning to the oral testimony of the witnesses with regard to identity of the accused and source of light at 11 p.m on the spot on the day of incident. PW17 HC Om Parkash, In charge of the PCR van, who reached the spot on 22.04.2006 as the first police official after receiving the information of firearm shot, has deposed that two persons were found at the spot who had received firearm shot injury and the father of both the said injured, namely, Sh. Om Parkash was present there and the said two injured along with their said father were removed to SGM hospital, Mangol Puri, Delhi. No question or suggestion with regard to source of light was put to the witness and his deposition very well established that things could be observed and were visible in a clear manner on the said night when he had reached the spot and removed the injured and their father namely Sh. Om Parkash to the said hospital. I have already discussed the deposition of PW7 and PW8 who were the members of the Crime Team who were present at the spot between 12 mid night to 1 a.m on the night of the incident and their deposition also established the source of light very well available at the spot. PW2 Smt. Babli, in her cross examination on behalf of the State by the Ld. Addl. PP, categorically admitted that there was electricity in her locality for about last 7 years. PW3, Ms. Poonam, in her cross examination on behalf of accused answered that light in the locality SC No.186/10 Page 37/44 was off and on. These facts go to establish that electricity was there at the spot as the source of light.

50. The common feature of the deposition of PW1, PW2 and PW3 in their examination in chief was that it was accused Ram Dass, their neighbour, who fired bullet shots from the firearm at the deceased and in their cross examination it was not the Ram Dass, the accused, who murdered the said two deceased. Be the accused as the assailant or as the person who was innocent, as per two stands of the said three witnesses, but identity of accused Ram Dass as the person known to the three witnesses has not been disturbed or disputed anywhere by the said three witnesses either in their examination in chief or in their cross examination when they turned hostile. I have already discussed the other facts of documentary evidence with regard to PW1 establishing the identity of the accused. Coming to the deposition of PW3 which is slightly different in version, she has deposed in her examination in chief that the father of the accused Ram Dass was also standing over there and that she rushed towards the father of the accused, pleaded before him but he caught hold of her hair and thrashed her up. She further deposed that she could certainly say that the accused was the person who fired shot at her brothers because he himself had grappled with her at the time of incident. In her cross examination, she has tried to deny the presence of the father of the accused by saying that she had not seen anyone at the spot. The mere denial does not come to the help of the SC No.186/10 Page 38/44 said witness or the accused. I have gone through the statement of PW3 recorded u/s 161 Cr.PC wherein the presence of the father of the accused is not mentioned but in their zeal and enthusiasm of getting the version of their deposition in examination in chief changed, neither the witness nor the accused took care of the fact to get the said portion confronted with the previous statement of PW3 given to the police. Now in her deposition before the court the said fact remained intact which go to establish that PW3 even knew the father of the accused also, for the simple reason that the family of the accused was residing in the neighbourhood of the witnesses. It is the presence of the father of the accused at the spot before whom the witness pleaded, which establishes on record the identity of the accused. Thus, in the said circumstances, the third aspect of denial of the identity of the accused on behalf of PW1, PW2 and PW3 was nothing but a futile exercise to come out of their deposition in examination in chief and the identity of the accused has been very well established not only by the oral testimony of the witnesses but by documentary evidence also.

51. Let me now find out the evidence on record corroborating the examination in chief of the said three eye witnesses as has been required by the Hon'ble Supreme Court in Podyami Sukada's case (supra). Presence of PW1 and the two deceased at the spot just after the incident has been very well established by deposition of PW17, the PCR official who was the first police official to reach the spot SC No.186/10 Page 39/44 and removed the PW1 along with two deceased to the hospital. The death of the said two deceased by firearm injury has been well established by unrebutted testimony of the doctor who conducted autopsy of the said two deceased, PW13, vide reports Ex.PW13/A and Ex.PW13/B who has opined that cause of death was asphyxia and hemorrhagic shock as a result of firearm injury for both the accused and he also proved the bullet which was recovered from the dead body of the deceased Somnath. The spot of the two murders has been very well established and corroborated by the seizure memos of the lead Ex.PW12/C, the seizure of sample of blood, earth control and recovery of two empties near the Narang Clinic vide memo Ex.PW12/A and seizure of rope of the cot, the pillow, bloodstained clothes and earth control from the spot of the incident with the deceased Sunil vide memo Ex.PW12/B. The memos exhibited by PW12 have been proved by PW22 who is signatory to the said memos and I am not reading the deposition of PW12 who was not produced for his cross examination. The presence of the eye witnesses namely PW1, PW2 and PW3 in front of the said house No.E­18, Camp No.2, Nangloi, Delhi was natural at 11 p.m on the night of the incident and there was nothing uncommon or out of way in the same. The recovery of the bloodstained pant of PW1 Om Parkash which he was wearing at the time of incident vide memo Ex.PW1/B has not been denied at all by PW1 at the time of his cross examination when he has gone hostile to the prosecution. The said SC No.186/10 Page 40/44 seizures from the spot of the articles which were bloodstained having the human blood has further been established by the FSL result Ex.PW15/A and Ex.PW15/B. I have already discussed the corroboration of the identity of the accused and the source of light when the incident occurred as mentioned above. Thus, denial of the murders committed by the accused in their respective cross examination by the said three eye witnesses does not go to help the accused in any manner and the prosecution has been successful in establishing the charges against the accused beyond reasonable doubt. Hence, the accused is convicted for the offences u/s 302/323 IPC. However, he is acquitted of the charge u/s 25/27 of the Arms Act.

(Announced in the open court on 18.11.2010) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.186/10 Page 41/44 IN THE COURT OF SH. RAKESH TEWARI ASJ­VI(OUTER), ROHINI COURTS, DELHI SC NO.186/10 FIR NO. 387/06 PS Nangloi Unique Case ID No. : 02404R0255012006 State Vs. Ram Dass s/o Ishwar Singh r/o H.No. E­39, Camp No.2, Nangloi, Delhi.

ORDER ON SENTENCE Present: Sh. Sanjay Kumar Ld. Substitute APP for the State.

Sh. Jitender Kumar, Ld. Counsel for the convict who is produced in JC.

Heard on the point of sentence.

It is submitted on behalf of the convict that he has got six married sisters and one old widowed mother and that convict is married and is having three minor children and convict is the only son of his parents. It is further submitted that the case is based upon two versions of the same set of eye witnesses who have supported the case of the prosecution in the examination in chief but in their cross examination they have not supported the case of the prosecution. It is further submitted that SC No.186/10 Page 42/44 except the identity of the accused by the three eye witnesses, there is no evidence on record corroborating the said identity against the accused.

It has been further submitted that the case has not crossed the limit and does not come within the purview of "rarest of rare" cases so as to award the capital punishment.

On the other hand, Ld. APP for the State has submitted that it is a cold blooded murder of two brothers by the accused and one deceased was shot dead while he was asleep and the other deceased was shot dead at the time when he was trying to apprehend the accused at the spot.

Life imprisonment is the rule and death sentence is an exception. Needless to repeat the law that death sentence is to be awarded only in the "rarest of rare" cases. Although three minor children, widowed mother to be looked after by the convict is not a mitigating circumstance but in view of the circumstances established on record whereby the eye witnesses have tried to wriggle out of their deposition in examination in chief in their respective cross examination, for whatever consideration best known to the said witnesses, I am of the considered opinion that the case is not to be treated under the category of "rarest of rare" case and accordingly, convict is sentenced to undergo life imprisonment u/s 302 IPC with a fine of Rs.25,000/­ and in case of default in payment of the fine he is further to undergo SI for a period of one year.

The convict is further sentenced to undergo SI for a period of six months u/s 323 IPC. Both the sentences shall run concurrently and benefit of Section 428 Cr.PC is extended to the convict. Let a copy of the SC No.186/10 Page 43/44 judgment dated 18.11.2010 and order on the point of sentence dated 20.11.2010 be given to the convict.

The file be consigned to Record Room.

(Announced in the open court on 20.11.2010) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.186/10 Page 44/44