Delhi District Court
State vs . (1) Surender @ Sonu Punjabi on 27 August, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 28/2013
Unique Case ID No. 02404R0284122009
State Vs. (1) Surender @ Sonu Punjabi
S/o Sadhu Singh
R/o F4/281, Sultan Puri,
Delhi
(Convicted)
(2) Sunil
S/o Mahender Singh
R/o F1/403, Sultan Puri,
Delhi
(Convicted)
(3) Raj Kumar @ Danny
S/o Vidya Prasad
R/o 6/23, Friends Enclave,
Sultan Puri, Delhi
(Convicted)
(4) Suresh @ Phullu
S/o Tikka Ram
R/o F1/418, Sultan Puri,
Delhi
(Convicted)
(5) Sudhir
S/o Mahender Singh
R/o F1/403, Sultan Puri,
Delhi
(Convicted)
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 1
(6) Sanjay
S/o Jaipal
R/o F1/434, Sultan Puri,
Delhi
(Convicted)
FIR No.: 259/2009
Police Station: Sultanpuri
Under Sections: 302/307/34 Indian Penal Code
Date of committal to session court: 30.10.2009
Date on which orders were reserved: 26.7.2013
Date on which judgment pronounced:31.7.2013
JUDGMENT:
(1) As per allegations, on 20.7.2009 at about 11:30 PM in the street near Shiv Mandir in front of the Transformer, Friends Enclave, Sultan Puri all the accused namely Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay in furtherance of their common intention committed murder of Subhash S/o Parvesh Kumar by inflicting injuries on his person with a baseball bat, iron rod and empty glass bottles. It is also alleged that the accused in furtherance of their common intention inflicted injuries on the person of Naresh, Neeru @ Guddo, 'N' (name of the victim is withheld) and Samir with the above weapons with such intention that under such circumstances if they caused the death either of Naresh, Neeru @ St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 2 Guddo, 'N' and Samir, they would have been guilty of murder. It has also been alleged that on 18.8.2009 the accused Sudhir got recovered a buttondar knife from beneath heap of bricks lying in Maharishi Valmiki Park, Friends Enclave, Sultan Puri which was possessed by him in contravention of the notification of Delhi Administration and which he had used in committing the present incident. BRIEF FACTS / CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 21.7.2009 at about 12:02 AM a PCR call was received regarding a quarrel at house No. 6/4, Friends Enclave, Sultan Puri on which DD No. 3A was recorded at Police Station Sultan Puri. Pursuant to the said DD ASI Rawal Singh along with Ct. Vijender Singh and Ct. Roopesh Kumar reached the spot where he was informed by the people present there that the injured had been taken to SGM hospital. Thereafter Ct. Roopesh Kumar was left at the spot and ASI Rawal Singh along with Ct.
Vijender went to SGM hospital where they met one lady namely Guddo who told that her son Subhash had come in the hospital in an injured condition who was declared dead by the doctor. ASI Rawal Singh obtained the MLCs of the deceased and the two injured persons and the dead body was shifted to mortuary. He also recorded the statement of Smt. Guddo wherein she informed the police that she had three daughters and one son namely Subhash who was aged about 22 St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 3 years. According to her, on 20.7.2009 at about 11.30 PM she alongwith her daughter 'N' was standing outside her house when Sunil and Sudhir who are real brothers were passing through the gali and while going they started eve teasing her daughter 'N' and also made indecent gestures on which she tried to make accused Sunil understand not to do same as her daughter was standing there. In the meanwhile her son Subhash also came out from the house who also asked accused Sunil to refrain himself on which Sunil told him that they had challenged his ruffianship and after uttering abuses both the accused Sunil and Sudhir left the said place. According to Neeru @ Guddo, after about 2025 minutes, Sudhir, Sunil Sonu Punjabi, Phullu and Danny again come there. Sudhir was having a knife in his hand, Sunil was having a baseball bat, Sonu Punjabi was having iron rods, Phullu and Danny were having empty liquor bottles and they all called her son and challenged him. Being frightened her son (Subhash) ran away from there towards Shiv Mandir in gali on which all the accused chased him and started beating her son Subhash with the said weapons, due to which he became unconscious. She further informed the police that she herself, her daughter, one Sameer @ Amir and her nephew Naresh after raising alarm rushed towards the said spot. She alleged that accused Sudhir gave a knife blow to Naresh and she and her daughter and Sameer @ Amir also sustained injuries after which the accused ran away from the spot and her neighbours took her son St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 4 Subhash, Naresh and Sameer @ Amir to Sanjay Gandhi Hospital where her son Subhash was declared brought dead. (3) On the basis of the statement of Smt. Neeru @ Guddo the present FIR was registered and the investigations commenced. The investigations were thereafter marked to Inspector Yaspal who again interrogated Smt. Neeru @ Guddo who informed him that one Sanjay S/o Jaipal was also involved in the incident. The Investigating Officer lifted the various articles and weapons of offence i.e. baseball bats, iron rod and broken glass pieces from the spot and seized them. The postmortem examination on the dead body of the deceased was got conducted. On 21.07.2009 pursuant to a secret information first of all the accused Surender @ Sonu Punjabi was apprehended and arrested by the police. The accused Surender @ Sonu Punjabi produced one blue colour shirt having strips having blood stains on it which was seized by the Investigating Officer. The accused also got recovered a Bullet motorcycle bearing No. DL8S NA 1130 from the SGM Hospital and disclosed that accused Sunil sustained injuries in the incident and he along with accused Suresh @ Phullu who is the owner of the said motorcycle brought the said injured Sunil on the said motorcycle to the said hospital and due to fear of the Police, they left the motorcycle there and ran away.
(4) On 23.07.2009 the accused Sunil who was admitted in Safdarjung Hospital, was arrested who disclosed his involvement in the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 5 present incident. On 26.07.2009 pursuant to a secret information accused Raj Kumar @ Danny was apprehended and arrested from his house at 6/23, Friends Enclave, Sultan Puri. Accused Raj Kumar disclosed his involvement in the present and also disclosed that his motorcycle no. DL 4S BN 4190 Make Pulsar of red colour which was used for reaching the spot was left by him at the corner of the gali on 21.07.2009. On 09.08.2009, the accused Suresh @ Phullu was produced by his brother in the Police Station on which the accused was interrogated and arrested in the present case. Further, on 18.08.2009 pursuant to a secret information the accused Sudhir was apprehended from his house at F1/403, Sultan Puri. Pursuant to his disclosure statement the accused Sudhir got recovered one button actuated knife from the heap of bricks from the NorthWest corner of Balmiki Park which knife was thereafter seized. On 05.11.2009 an information was received from Crime Branch regarding arrest of the accused Sanjay who was wanted in the present case after which on 06.11.09 the accused Sanjay was arrested in the present case. After completion of investigations charge sheet was filed against the accused persons in the Court.
CHARGE:
(5) Charges under Section 302/307/34 Indian Penal Code were settled against all the accused namely Surender @ Sonu Punjabi, St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 6 Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay to which they pleaded not guilty and claimed trial. Further, charges under Section 25 & 27 of Arms Act were settled against the accused Sudhir to which he pleaded not guilty and claimed trial. (6) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses:
Sr. PW No. Name of the witness Details
No.
1. PW 1 Ct. Ravi Malik Crime Team Photographer
2. PW 2 SI Manohar Lal Draftsman
3. PW 3 Neeru @ Guddo Complainant / mother of the deceased
4. PW4 Dr. Binay Kumar Doctor from SGM Hospital who proved
the MLCs of the injured
5. PW 5 SI Sanjay Gade Crime Team Incharge
6. PW 6 Lady Ct. Sangeet CPCR Official
7. PW 7 Dr. Manoj Dhingra Autopsy Surgeon
8. PW 8 Hari Singh Public witness / neighbour of the deceased
9. PW 9 Sanjay Public witness/ tenant of the deceased
10. PW 10 HC Sat Narain Police witness/ Duty Officer
11. PW 11 Dr. J.V. Kiran Autopsy Surgeon
12. PW 12 Mohd. Amir @ Kale Public witness / neighbour of the deceased
13. PW 13 Ct. Rakesh Police witness who had taken the exhibits
to FSL
14. PW 14 HC Krishan Lal Police witness / MHCM
15. PW 15 Ct. Sanjay Police witness / Special Messenger
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 7
16. PW 16 Ct. Ashok Kumar Police witness/ Beat Constable of the area
17. PW17 ASI Krishan Pal Police witness / PCR Van Incharge
Singh
18. PW 18 Ct. Vijender Singh Police witness who visited the spot along
with ASI Rawal Singh
19. PW 19 ASI Rawal Singh Police witness who visited the spot on
receiving the call
20. PW 20 Ct. K. N. Goud Police witness who joined investigation
with Inspector Yashpal Singh
21. PW 21 Ct. Rupesh Police witness who joined investigation
with Inspector Yashpal Singh
22. PW22 Insp. Samarjeet Singh Police witness / subsequent Investigating
Officer
23. PW23 Naresh Public witness/ cousin of the deceased
24. PW 24 Ct. Daya Ram Police witness proved arrest of accused
Sunil
25. PW 25 HC Satish Police witness proved arrest of accused
Suresh
26. PW 26 SI Mukesh Police witness who joined investigations
with Inspector Yashpal Singh
27. PW 27 'N' Public witness / sister of the deceased -
victim of eve teasing incident
28. PW 28 Insp. Yashpal Singh Investigating Officer
List of documents exhibited:
Sr. Exhibit No. Details of document Proved by
No.
1. PW 1/A1 to Photographs Ct. Ravi Malik
A12
2. PW 1/B1 to Negatives
B12
3. PW 2/A Site plan SI Manohar Lal
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 8
4. PW 3/A Statement of Neeru Smt. Neeru @
5. PW 3/B seizure memo of Articles Guddo
6. PW 3/C Seizure memo of Articles
7. PW 3/D Seizure memo of Motor cycle
8. PW 4/A MLC of Mohd. Samir Dr. Binay Kumar
9. PW 4/B MLC of 'N'
10. PW 4/C MLC of Neeru
11. PW 4/D MLC of Naresh
12. PW 4/E MLC of Subhash
13. PW 5/A Crime team report SI Sanjay Gade
14. PW 6/A PCR Form L/Ct. Sangeeta
15. PW 7/A Postmortem Report Dr. Manoj Dhingra
16. PW 7/B1 to 8 Inquest Proceedings
17. PW 7/C Sketch of knife and opinion
18. PW 8/A Dead body receiving memo Hari Singh
19. PW 10/A FIR HC Sat Narain
20. PW 11/A Opinion Dr. J V Kiran
21. PW 12/A Statement of Mohd. Amir u/s. 161 Mohd. Amir
Cr.P.C.
22. PW 14/A Copy of Register No. 19 Sr. No. HC Krishan Lal
111970
23. PW 14/B Sr. No. 11973
24. PW 14/C RC No. 37/21/09
25. PW 16/A Arrest memo of accused Sunil Ct. Ashok Kumar
26. PW 16/B Personal search memo of Sunil
27. PW 16/C Disclosure statement of Sunil
28. PW 16/D Pointing out memo
29. PW 16/E Arrest memo of accused Raj Kumar @
Danny
30. PW 16/F Personal search memo of Raj Kumar
@ Danny
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 9
31. PW 16/G Disclosure statement of Raj Kumar @
Danny
32. PW 16/H Pointing out memo
33. PW 18/A Seizure memo of Pullandas Ct. Vijender
34. PW 19/A Endorsement on Rukka ASI Rawal singh
35. PW 19/B Site plan
36. PW 20/A Arrest memo of accused Surender @ Ct. K. N. Goud
Sonu
37. PW 20/B Personal search memo of Surender @
Sonu
38. PW 20/C Disclosure statement of Surender @
Sonu
39. PW 20/D Seizure memo of shirt of Surender @
Sonu
40. PW 20/E Seizure memo of motorcycle bearing
No. DL8SNA1130
41. PW 20/E Seizure memo of clothes and blood
with sample seal
42. PW 21/A Arrest memo of accused Suresh Ct. Rupesh
43. PW 21/B Personal search memo of Suresh
44. PW 21/C Disclosure statement of Suresh
45. PW 21/D Pointing out memo
46. PW 21/E Seizure memo of Motorcycle
47. PW 21/F Arrest memo of accused Sudhir
48. PW 21/G Personal search memo of Sudhir
49. PW 21/H Disclosure statement of Sudhir
50. PW 21/J Pointing out memo
51. PW 21/K Sketch of knife
52. PW 21/L Seizure memo of knife
53. PW 22/A Application for obtaining subsequent Inspector Samarjeet
opinion Singh
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 10
54. PW 22/B Application seeking permission to
interrogate and arrest the accused
Sanjay
55. PW 22/C Arrest memo of the accused Sanjay
56. PW 26/A Pointing out memo by accused SI Mukesh
Surender @ Sonu
57. Ex.PW28/A Application for obtaining subsequent Inspector Yashpal
opinion Singh
58. Ex.PW28/B Pointing out of the place where
accused Suresh @ Phullu left his
Bullet motorcycle at SGM Hospital
EVIDENCE:
(7) In order to prove its case the prosecution has examined as
many as Twenty Eight witnesses as under:
Public witnesses/ Eye witnesses:
(8) PW3 Smt. Neeru @ Guddo is the mother of the deceased
who has deposed that she has three daughters and had one son namely Subhash who was aged about 22 years. According to her, on 20.7.2009 at about 11.30 PM she alongwith her daughter 'N' was standing outside her house when Sunil and Sudhir who are real brothers were passing through the gali. While passing they stopped for a while in front of her house and started eve teasing her daughter 'N' and also made indecent gestures on which she tried to make accused Sunil understand not to do same as her daughter was standing there.
The witness has deposed that in the meanwhile her son Subhash also St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 11 came there from the house who also asked accused Sunil to refrain from his said act on which accused Sunil uttered that they have challenged his ruffianship ("Badmashi"). She has further deposed that after uttering abuses both the accused Sunil and Sudhir left the said place and they went inside their house. According to her, after about 2025 minutes, accused Sudhir, Sunil, Sanjay, Sonu Punjabi, Phullu and Danny whom she has correctly identified in the Court, again came there and she saw that accused Sudhir was having a knife in his hand, accused Sunil was having a baseball bat, accused Sonu Punjabi was having iron rods, accused Phullu and Danny were having empty liquor bottles and accused Sanjay was having bat of baseball and they all called out her son and challenged him ("Lalkara"). She has testified that on seeing this being frightened her son ran away from there towards Shiv Mandir in gali on which all the accused chased him and started beating her son Subhash with the said weapons, due to which he became unconscious. According to her, she herself, her daughter, one Sameer @ Amir and her nephew Naresh after raising alarm rushed towards the said spot. She has further deposed that accused Sudhir gave a knife blow to Naresh and she and her daughter and Sameer @ Amir also sustained injuries during intervention. The witness has also deposed that her neighbours took her son Subhash, Naresh and Sameer @ Amir to Sanjay Gandhi St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 12 Hospital where her son Subhash was declared brought dead. According to her, she called the police from the mobile used by her nephew but by mistake police recorded the name of her husband from whose mobile she had called the police. She has testified that police reached at the spot and recorded her statement first in the hospital Ex.PW3/A and also at the spot. According to the witness, from the spot, the police lifted two bat of baseball, one iron rod and broken pieces of glass bottles. She has deposed that the bats of the baseball were having black tape on one end and on the other something was written in red colour. She has proved that the said articles were kept in a pullanda separately and were sealed and seized vide memo Ex.PW3/B and Ex.PW3/C respectively but she is not aware the nomenclature of the seal. According to her, the police made enquiries from her at the spot and she narrated the said incident to them after which a site plan was prepared by the police who saw the spot and also took the measurement of the spot at her instance. She has further deposed that in the incident, one of the accused namely Sunil fell down on the broken pieces of glasses and had sustained injuries on his person. The witness has also deposed that the accused on the said day of incident had come on two motorcycles out of which one was not present at the spot whereas the other one of red colour was seized by the police vide memo Ex.PW3/D. She has also testified that in her initial statement Ex.PW3/A the name of accused Sanjay was missing St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 13 due to nervousness and hopelessness in her mind at that time but in her subsequent statement on the following morning recorded by the police she had specifically named accused Sanjay. She has proved that the scene of crime was got photographed by the Investigating Officer which photographs are Ex.PW1/A1 to PW1/A12. (9) She has correctly identified all the accused persons in the Court and also identified the case property i.e. broken baseball bat which is Ex.P1, another baseball bat which is Ex.P2, the iron rod which is Ex.P3, pulsar motorcycle which is Ex.P4, broken glass pieces which were scattered on the spot which are Ex.P5, torn baniyan having cut marks and blood stains and one shirt having blood stains belonging to her deceased son which are Ex.P6 and Ex.P7 respectively. (10) On 20.5.2010 the examination of this witness was deferred and was partly conducted on 7.3.2011 and again on 12.8.2011 i.e. again after ten months of recording her examination in chief wherein initially she neither supported the earlier version given by her to the police nor her earlier testimony. In her crossexamination she states that she saw Kanwariyas at the spot of incident but she does not remember the date of incident. She admits that the accused were not present at the spot and she had not seen anything or any person and accused and also states that she is not aware as to who had caused injuries to herself, her son and her daughter. She has also stated that she is also not aware the name of the person who informed her about St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 14 the incident first and states that she alongwith other ladies were present in the same gali at the place of function but she is not aware the name of those ladies accompanied with her. She has denied the suggestion that by that time she was not aware about the incident and states that she had not seen any accused giving beatings to her son. She is unable to tell now as to who had caused injury to her son with baseball bat or with iron pipe and bottle. She has further deposed that she did not visit the spot and straightaway went to SGM Hospital where her son had already expired. According to her, she is not aware if any statement of her son was recorded by the police before his death or not. The witness has admitted that a lot of people around 100 to 200 had gathered at the spot but she is not aware if the police had recorded her statement on the same day or the next day. She has testified that police had taken into possession the baseball bat etc. in her presence and had also prepared some documents at the time of taking into possession the baseball bat and other articles from the spot but is unable to tell the number of papers signed by her which were prepared by the police and states that some of those papers were blank and some were written. She has admitted that the contents of the papers were not read over to her by the police and she had seen the accused first time in the court. According to her, she had made her statement in the court on 20.5.2010 on the instructions of the police officials and the she said statement was not given by her on her own.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 15 (11) The witness Neeru @ Guddo was crossexamined by the Ld. Addl. PP for the State with the permission of the Court since she had gone hostile to her earlier version given to the court in her examination in chief on 20.5.2010. Ld. Addl. PP has explained the entire examinationinchief to the witness in vernacular and the Ld. Predecessor of this Court specifically explained and informed to the witness that she may be subjected to criminal charge. Thereafter, the witness was again asked as to which of the deposition i.e. whether dated 20.5.2010 or what she had deposed in her crossexamination, was correct to which the witness replied that her deposition dated 20.5.2010 was correct. She has admitted that the accused were the persons who had killed her son in the manner as deposed by her in her examinationinchief dated 20.5.2010. She has also admitted that she is having three daughters and she is residing with her husband along with three daughters and all the accused persons are residing in her locality and are her neighbours. She has testified that she had no pressure on her mind and she wanted that accused be set at liberty and no action should be taken against the accused as she wanted that she should live with her three daughters peacefully in the same locality. She has denied the suggestion that she has deposed in favour of the accused due to fear and pressure of the accused as she is living with her three daughters St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 16 and her son was killed due to the reason that accused Sunil had passed indecent comment upon her daughter 'N'.
(12) She was again crossexamined by the Ld. Defence Counsels wherein she has deposed that she has deposed without any coercion or pressure from anyone and neither she nor her husband and daughters have been threatened to be killed. She has admitted that she is living with her family peacefully in her house. She has denied the suggestion that due to fear of going jail she has admitted her examinationinchief dated 20.5.2010 as correct. According to her, she had suggested not to take any action against the accused as they are innocent and have not committed any offence. She has admitted that she has no fear from the accused persons either at present or in future and there was no fear in the past also. She has also admitted that she has not made any statement to the police either on the day of incident or the following day.
(13) According to the witness Neeru, she had gone to meet the accused in jail. She has testified that she had gone to meet some known person by the name of Shakir at Central Jail, Tihar where accused persons were present who called her but she is not aware the jail number or the particulars of the case in which said Shakir was lodged in jail nor is she aware the parentage or address of said Shakir nor recollect the date. The witness has further deposed that she had St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 17 gone to see that Shakir along with mother of Shakir but she did not recollect her name also and states that she had gone to see him much prior to 12.8.2011 may be about one year back. She has testified that mother of Shakir might have taken permission from the concerned jail authority to meet him but she did not personally took any such permission. According to her, she had gone to see him only once. She has testified that she knew all the accused being her neighbours and some one was accompanying them at that time who called her but she is not aware the name of the said person. The witness has also deposed that she did not talk any of the accused at that time. She has testified that she had not gone to the jail to meet any Suresh S/o Tika Ram nor any Sanjeev S/o Ram Phal was accompanying her at that time. She is unable to tell if it was on 28.4.2010 when she had gone to meet the alleged Suresh. According to her, the address 291KMB, Jwala Puri, Sultan Puri, Delhi belongs to her sister Kamlesh and the name of her husband is Parvesh. All the above facts of meeting the said Suresh on the alleged date 28.4.2010 were confronted with the photocopy of the document Mark DA wherein the visit of the witness on the said date to meet the said person Suresh is so recorded. She has denied the suggestion that she was aware that accused persons were innocent or that she went there to cut a deal and in order to bargain for extracting money for the acquittal of the accused or that accused have been falsely implicated in the present case.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 18 (14) PW8 Sh. Hari Singh is the neighbour of the deceased who has deposed that he knew Subhash S/o Parvesh Kumar. According to the witness, he does not remember the date month and year of the incident but states that he was called at hospital to identify the dead body of Subhash. He has also deposed that police did not meet him at the hospital and his statement was not recorded by the police. According to him, perhaps doctor had obtained his signatures at the time of receiving the dead body vide Ex.PW8/A. He has proved the statement regarding dead body identification which is Ex.PW7/B6.
(15) After taking permission from the court, PW8 Hari Singh was crossexamined by the Ld. Addl. PP for the State as he was resiling from his earlier statement made to the police. In his cross examination on behalf of State the witness has admitted that he was called by the police at Mortuary SGMH to identify the dead body and statement Ex.PW7/B6 and Ex.PW8/A were recorded by the Investigating Officer and he could not tell the same due to lapse of time. He has denied the suggestion that he gave statement to the Investigating Officer on 21.7.2009 U/s 161 Cr.P.C. wherein he had stated that on the intervening night of 2021.7.2009 Subhash S/o Parvesh Kumar was murdered by the boys namely Sunil, Sudhir, Sanjay, Sonu Punjabi, Raj Kumar, Danny and Phullu who used to reside in the same locality. However when confronted with his St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 19 statement MarkA the aforesaid fact was found so recorded. He has denied the suggestion that statement Mark A was recorded by the Investigating Officer on his dictation. He has further deposed that he knew the accused persons as they are residents of same locality. He has denied the suggestion that he is deliberately concealing the above facts due to fear of the accused persons.
(16) This witness was not crossexamined by the Ld. Defence Counsels despite opportunity granted in this regard and hence his testimony has gone uncontroverted.
(17) PW9 Sanjay has deposed that he is residing at 6/4, Friends Enclave, near G Block, Shani Bazar Road, Sultanpuri, Delhi as tenant. He does not remember the date, month and year of the incident but states it was perhaps 20th or 21st July, 2009 when he went to SGM Hospital where he identified the dead body of Subhash S/o Parvesh Kumar in whose house he is residing as tenant. According to him, police recorded his statement which is Ex.PW7/B5. He has deposed that he did not make any other statement to the police. (18) After taking permission from the court, the witness Sanjay was crossexamined by the Ld. Addl. PP for the State as he was resiling from his earlier statement made to the police. He has denied the suggestion that he gave statement to the Investigating Officer on 21.7.2009 under Section 161 Cr.P.C. wherein he had stated that on the intervening night of 2021.7.2009 Subhash S/o Parvesh Kumar was St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 20 murdered by the boys namely Sunil, Sudhir, Sonu Punjabi, Raj Kumar, Danny and Phullu who used to reside in the same locality. However when confronted with his statement Mark B the said fact was not found so recorded. He has denied the suggestion that statement Mark B was recorded by the Investigating Officer on his dictation. According to the witness, he knew the accused persons as they are residents of same locality. He has denied the suggestion that he is deliberately concealing the above facts due to fear of the accused persons. (19) This witness has not been crossexamined by the Ld. Defence Counsels despite opportunity given and his testimony has gone uncontroverted.
(20) PW12 Mohd. Amir @ Kale is stated to be one of the injured and an eye to the incident and has not supported the earlier version given by him to the police. He has deposed that in the month of July 2009, date he does not recollect, when he was present at 80 feet colony, at about 1111.30 PM some 12/13 kanwarias (persons who bring holy water of Ganga from Haridwar) besides some other public persons were present and he heard noise, bachao bachao and suddenly the stampede started. According to the witness, in that incident, he was hit with something on his left side waist on which he started bleeding due to injury. He has testified that he was taken to Safdarjung Hospital by some one and police did not meet him at hospital. He has also deposed that on the next day, he came back to his house as being St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 21 discharged from the hospital. The witness has further deposed that fivesix police officials came to his house with a paper and he was asked to put his signature on that paper but no inquiry was made by those police officials and his statement was not recorded by the police. According to him, besides him one another boy also sustained injuries in the above said incident was admitted in the hospital but he is unable to tell his name. He is also unable to tell about the assailants who caused him injuries and states that he did not see any weapons at the spot in the hands of any persons (21) After taking permission from the court, Mohd. Amir @ Kale was crossexamined by the Ld. Addl. PP since he was resiling from his earlier statement made to the police. He has denied the suggestion that Investigating Officer recorded his statement on 21.7.09 or that he had told the Investigating Officer in his statement that on 20.7.09 his friend Naresh brought Kanwar from Haridwar and he and his friend Naresh were dancing in front of Mandir at about 11.00 PM and other family members of the Kanwaries including ladies and girls were also dancing; that after the dance was over he went to the house of Naresh with him and when he was returning to his house, he saw Mausi of Naresh namely Guddo and cousin of Naresh namely 'N' and heard the noise Bachao Bachao and he saw that the cousin of Naresh namely Subhash was followed by accused Sunil, Sanjay S/o Jaipal having baseball dandas, accused Sudhir with knife, accused Sonu St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 22 Punjabi with iron and accused Phullu and Danny having empty liquor bottles. However, when confronted with his statement mark PW12/A the above fact find so recorded. He has denied the suggestion that aforesaid accused persons were known to him previous to the incident and has voluntarily explained that he is not known to any of them. The witness has further denied the suggestion that he had told the Investigating Officer in his statement that Sunil was saying that "Is sale ne hamari badmashi ko chonuti de hai, is sale to khatam karna hai" and accused persons ran after Gudo, 'N' and Naresh and he also ran after them in order to save them. When confronted with his statement mark PW12/A the above fact find so recorded. He has denied the suggestion that he had told the Investigating Officer in his statement that Sudhir caught Subhash in the Gali in front of Shiv temple and accused Sunil and Sanjay made blows of baseball bat on the head of Subhash while Sonu Punjabi hit with iron pipe and Danny and Phullu caused him injuries with empty liquor bottles and thereafter, Subhash fell down unconscious. However, when confronted with his statement Mark PW12/A the above fact found so recorded. He has denied the suggestion that he had told the Investigating Officer in his statement that when they reached there while raising alarm bachao bachao, thereafter Sudhir made blow with knife on the stomach and hand of Naresh and thereafter, he made blow of knife on his stomach and chin and Sunil, Sanjay, Phullu, Sonu Punjabi and St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 23 Danny also caused injuries to them with the intention to kill; that the empty bottle of Danny and Phullu were broken and their glasses scattered in the gali and in the manhandling Sunil fell upon those pieces of glasses and he sustained injuries and thereafter, they ran away from the spot to avoid their apprehension; that neighbours took him, Naresh and Sanjay to SGM Hospital and Guddu and 'N' also sustained injuries and at the hospital Subhash was declared dead by the doctors and he and Naresh were referred to Safdarjung Hospital and aforesaid accused persons attacked them with the intention to kill them. However, when confronted with his statement Mark PW12/A the above facts found so recorded. He has denied the suggestion that he is deposing falsely in order to save the accused persons or that he has been won over by the accused and for that reason he is suppressing the true facts or that he is refusing to identify the accused persons on the day of his deposition before the court. He is not aware anything about his clothes, however he has identified one black colour T shirt which is Ex.PX having cut marks which was worn by him on the day of incident. This witness not crossexamined on behalf of all the accused persons despite opportunity given.
(22) PW23 Sh. Naresh is the cousin of the deceased who has supported the prosecution case in so far as the incident is concerned but has turned hostile on the identity of the accused. He has deposed that two years back he brought 'Kanwar' from Haridwar and in the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 24 night they were celebrating the occasion after offering the Holy Water of Ganges on Lord Shiva in the Shiv Temple of their area and his real cousin Subhash (deceased) was also dancing with him. According to him, neighbours and other mohalla people were also participating in the said celebration and after about 11:00 PM some boys came and started teasing his cousin 'N' i.e. sister of Subhash who was standing outside her house alongwith other girls of the gali and her mother to which Subhash objected to the acts of those boys on which some manhandling took place and they left the spot. He has testified that he also went to his house leaving Subhash there and after sometimes he received a telephone call from Subhash about a quarrel and he also reached there. According to the witness, he was talking to Subhash when in the meanwhile, seven to eight boys came there and started beating Subhash with dandas and other weapons which they were carrying in their hands. He has further deposed that they hit Subhash with bats and other weapons and he was also given beatings by bat by the said boys on which he sustained injuries on his head. The witness has also deposed that Subhash was taken to the SGM Hospital where he was declared brought dead and he (witness) was also medically examined in the said hospital from where he was referred to Safdarjung Hospital and was discharged from the said hospital on next day. According to him, police came and made inquiries from him on which he narrated the entire incident to the police. He has turned St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 25 hostile on the identity of the accused persons. (23) After taking permission from the court, the witness was crossexamined by the Ld. Addl. PP for the State wherein he has deposed that he knew Sameer @ Amir @ Kale and did not state to the police that Sameer @ Amir @ Kale was also dancing with him at that time and has voluntarily explained that he subsequently came there. According to the witness, he had not stated to the police that after 15 to 20 minutes of his leaving the spot at Shiv Madir, he heard noise of his Mausi Guddo and daughter 'N' as 'Bachao Bachao' and he came and saw in the gali that accused Sunil and Sanjay having baseball bat, Sudhir with knife, Sonu Punjabi with iron pipe and Phullu and Danny with empty liquor bottles were chasing his cousin Subhash; that accused Sunil exhorted that Subhash had challenged their ruffianism and he must be finished to death; that they all were dancing near Shiv Mandir and are resident of their locality whom he knew very well; that he along with his Mausi Guddo, sister 'N' rushed towards them and Sameer @ Amir @ Kale also followed them; that Sudhir had caught Subhash opposite Shiv Mandir and Sunil and Sanjay started beating Subhash on his head with baseball bat, Sonu Punjabi hit Subhash with iron pipe, Danny and Phullu hit on the head of Subhash with empty liquor bottles due to which Subhash became unconscious and fell in the gali; that when they raised alarm of Bachao Bachao Sudhir came with a knife in his hand and struck it in his stomach and on right hand; St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 26 that he has also attacked on Sameer @ Amir @ Kale; that Sunil, Sanjay, Phullu, Sonu Punjabi and Danny also caused injuries to them with the intention to cause their death; that empty liquor bottles were broken and the pieces of glass scattered in the gali; that he was taken to the hospital by the neighbours; that his mausi Guddo and cousin 'N' also sustained minor injuries; that Subhash was murdered by the accused persons for the said reason. However, when confronted with his statement Ex.PW22/A the aforesaid facts were found so recorded. He has admitted that he sustained injuries on his head at two or three places. He has denied the suggestion that due to the injuries, he had nasal bleeding. During his examination the witness was directed to remove his upper clothes and a stitching mark of an injury towards left side lower chest below the ribs was noticed, similar stitched injury was marked on right hand back side of palm. In an answer to a question put by the Court the witness has deposed that chest injury was caused by a knife and on the right hand a broken windowpane of the vehicle caused injury. He has denied the suggestion that he has been won over by the accused persons or that he has been tutored by his mausi to make a false statement before the court so as to shield the accused from legal consequences being his neighbour. He has admitted that his mausi is having three daughters but has denied the suggestion that in order to save the daughters of his mausi and his mausi from the threat of the accused in future, he is deposing falsely. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 27 (24) In his crossexamination by the Ld. Defence Counsels the witness has deposed that at the time of incident he was residing at G Block, Sultan Puri but he does not recollect which address was mentioned by him to the police. According to the witness, he took the deceased Subhash to the hospital. He has testified that he is a motor mechanic and his wife and son are dependent upon him. He is not aware if his mausi had gone to meet the accused persons in Tihar Jail. (25) PW27 'N' (name concealed) is the star witness of the prosecution being the victim and an eye witness to the murder of her brother Subhash. While she was under examination before the Ld. Predecessor of this Court, it was observed by the Court that on day of her deposition when the witness appeared in the witness box and entered inside the court room, she was bitterly weeping and on an enquiry she informed the Court that she was stopped by her family members from coming to the Court. On being consoled by the Ld. Predecessor Judge, she uttered that she wanted to depose against the accused but she was stopped by her cousin namely Naresh and her mother namely Smt. Neeru and she has apprehension that some legal action may not result against her mother from this disclosure, which was the reason for her weeping. She also informed the Court that she was being treated for Neuro ailment at Shri Balaji Action Medical Institute, Paschim Vihar. The SHO St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 28 concerned was then called to the Court by the Ld. Predecessor not only for providing protection to the witness but also to counsel her so that she may come out of her said dilemma and after the dictation of the necessary directions to the SHO, the witness was again called to proceed with her further deposition.
(26) Witness 'N' is a young girl of 19 years (at the time of incident) who is the victim of eveteasing by the accused and has lost her only brother Subhash who came to her rescue to stop the accused from their illegal and obscene behaviour. She has deposed that about two and half years or three years ago, in the month of July she along with her mother was standing outside their house and from the gali of their house, accused Sudhir and Sunil were passing. She has further deposed that they both started making obscene gestures towards her and started commenting upon her to which her mother objected and asked them to go away from there. According to her, on hearing the noise of her mother, her brother Subhash who was inside the house came out and objected on the act of both the accused persons, on which both the accused started arguing with her brother and went away from there by threatening that they will see her brother after sometime. She has testified that after about 20 minutes, they both came along with many other boys namely Sonu Punjabi, Phullu, Sanjay, Sudhir, Sunil and Danny all accused whom she has correctly identified in the Court by their names. She has further deposed that they (accused St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 29 persons) all started asking her brother to come out of the house on which her brother came out of the house and after seeing all the accused persons with different weapons in their hands, ran towards Shiv Mandir in the Gali but the accused apprehended her brother and started giving beatings with baseball bat, iron rod, glass bottles and knives. Witness 'N' is however unable to tell which of the accused was hitting with which weapon but states that on hearing the noise, her neighbour Samir and her cousin Naresh came out who were also given beatings by the accused persons. According to her, Naresh and Sameer @ Amir also sustained injuries in that quarrel and even she was given beatings by accused Sudhir by iron rod. She has testified that there were other persons along with the accused persons whom she does not know. The witness has further deposed that her brother fell on the ground and she along with her mother went towards her brother who was almost dead. She has also deposed that thereafter, they all went to hospital with her brother where he was declared dead by the doctor. According to her, she herself, her mother, Naresh and Sameer @ Amir were also medically examined in the SGM Hospital where police met her and recorded her statement.
(27) Since the witness was not giving complete details, she was permitted to be crossexamined by the Ld. Addl PP for the State wherein she has admitted that in her statement Ex.PW27/A to the police, she had stated that on 20.07.2009 her cousin Naresh had come St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 30 from Haridwar with kanwar and offered the holy water of Ganga at Shiv Mandir of their area and the persons who had brought the kanwars were dancing opposite Shiv Mandir in the gali; that she was watching her cousin dancing and there were many ladies, boys and gents were present and after some time, she came back at her home; that it was 11:30 PM when she was standing outside her house with her mother. She has also admitted that accused Sudhir and Sunil are residing in their basti and that after watching the dance, accused Sudhir and Sunil were passing from her gali when they had commented upon her and made indecent gestures towards her. She has further admitted that she had stated to the police that she knew all the accused persons as they were resident of the same locality and has voluntarily explained that accused Danny was residing just behind her house. The witness has further admitted that accused Sunil and Sanjay were having baseball bat in their hands, accused Sudhir was having knife in his hand, accused Sonu Punjabi was having iron rod in his hand and accused Phullu and Danny were having glass bottles in their hands and it has been specifically noted by the Ld. Predecessor of this Court that the weapons i.e. iron rods and glass bottles in the respective hands of the said three accused were uttered by the witness voluntarily even prior to putting the question in complete sense by the Ld. Addl. PP. She has further admitted that the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 31 accused persons were chasing her brother when he was running towards mandir, accused Sunil was uttering "is saley ne hamari badmashi ko chunoti di hai, is saley ko khatam karna hai" (he had challenged their ruffianism so he should be killed). The witness has also admitted that accused Sudhir had caught hold of her brother Subhash opposite Shiv Mandir in the gali and accused Sunil and Sanjay hit on the head of her brother with baseball, accused Sonu Punjabi hit on his head with iron rod and accused Danny and Phullu gave blows on the head of her brother with empty liquor glass bottles. She has admitted that when she, her mother, her cousin Naresh and neighbour Sameer @ Amir raised alarm of 'bachao bachao' then accused Sudhir inflicted knife blows on Naresh and Sameer @ Amir. The witness has admitted that in the quarrel, the empty liquor glass bottles in the hands of accused Danny and Phullu were broken and pieces of glass had scattered in the gali and in the scuffle, accused Sunil fell on the said glasses and sustained injuries on his body. She has also admitted that due to fear of apprehension, all the accused persons ran away from the spot and Naresh and Sameer @ Amir were referred to Safdarjung hospital from SGM Hospital.
(28) In her crossexamination by the Ld. Defence Counsels the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 32 witness has deposed that she has for the first time came to the court to depose. She does not remember the name of the police official who had recorded her statement. According to the witness, her statement was reduced into writing by the police official and her signatures were also obtained on the same but she is not confirmed about the time when it was recorded. The witness has further deposed that no one was present from her family when her statement was being recorded by the police. It has, however, been observed by the Ld. Predecessor of this Court that there is no statement on record signed by her. Further, the witness has stated that she does not remember which was the room of the Police Station in which her statement was recorded and has denied the suggestion that she has not made any statement to the police. She has admitted that Shiv Mandir and her house are situated in different streets but has denied the suggestion that she was beaten in front of her house and she sustained injuries opposite Shiv Mandir. She does not recollect as to in which hand the said accused were carrying broken glass bottles. She has denied the suggestion that she was not present at the spot or that she is not an eye witness of the incident. She has also clarified that she remained at the hospital for a considerable time but she is unable to tell the exact time or the hours nor is she able to tell the exact time when they reached the hospital but states that it was after 11.30 PM. The witness does not remember the exact time when they left the hospital. She is unable to tell as to when police might St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 33 have reached the hospital after her reaching there nor is she able to tell if the police was already present in the hospital or reached after her reaching there. She has also deposed that her statement was recorded at the Police Station and from the hospital, she directly went to the Police Station with the police. She is unable to tell as to who informed the police. According to her, accused Sunil was probably also taken in the same hospital but she is not aware know as to who took him (Sunil) to the hospital.
(29) The witness has further deposed that she had appeared as a witness earlier also in a case of murder of Shahid one which took place just a distance of few paces from her house but the deceased in the said case was not her neighbour or otherwise concerned to her. According to the witness, her father is not doing anything as such but he attends a work with some other tent house and her mother is a house wife and earlier she used to work as a maidservant in different houses. She is not aware if her mother was ever involved in any criminal case of selling illicit liquor and has voluntarily explained that her uncle used to sell illicit liquor. The witness has also deposes that there were many other persons from the neighbour who had accompanied them to the hospital but she does not recollect their names. According to the witness, in her presence police did not record the statement of any of the neighbours who accompanied to the hospital. The witness has also clarified that she had not stated to the police the exact words of the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 34 comments passed by accused Sudhir and Sunil but she had stated that they were passing comments and making indecent gestures towards her (Fabtiyan). She has explained that her deceased brother had asked the accused to go away but after an altercation, an exchange of hot words they left threatening her brother. According to her, the accused Sudhir and Sunil had remained in talks in the area for their acts of ruffianism. She has further deposed that she had stated to the police in her statement that accused Sudhir had caused injuries to her. However, when confronted with her statement Ex.PW27/A the name of Sudir was not found mentioned. She denied the suggestion that accused Sunil suffered injuries in a separate incident and deceased Subhash suffered injuries in a separate incident and since she is not an eye witness of the incident. She has also denied the suggestion that it was per chance that the accused Sunil was taken to the same hospital and that is why she had named him as an accused who was already heard as a ruffian in the locality by her and other accused being the friends of accused Sunil & Sudhir or that none of the accused was at the spot including Sunil and Sudhir.
(30) The witness 'N' has further deposed that she had stated in her statement to the police about iron road. However, when confronted with statement Ex.PW27/A where there is no mention of iron rod but the the fact of iron pipe is mentioned. According to her, the deceased was doing a private job in ICICI Bank and was not involved in any St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 35 criminal case as per her knowledge. She has further deposed that her treatment at the said hospital for mental ailment is going on for two three months and prior to that she was being treated with ethnic medicines. She is not aware exact ailments suffered by her but her face had turned due to the fits after the death of her brother. She has denied the suggestion that she is mad and she does not understand the rationality and speaks things which she is given to understand by others. She has further deposed that the music system which was being played at the Shiv Mandir was not at the high pitch and was on ordinary volume. According to her, other people were also there in the said religious gathering at the temple and her other two sisters were initially inside but at the time of quarrel they had also come out of the house and they were too young whereas her father was present inside the house. She has denied the suggestion that her father also chased the accused and has voluntarily explained that since her father is liquor addict he used to remain under the influence of liquor inside the house. She has testified that there was no other public person in between her brother and the accused at the time when he was running followed by accused. According to the witness, she suffered injuries at the back of left shoulder with iron pipe. She is unable to tell the colour of the pipe or the colour of the clothes worn by accused Surender. She has denied the suggestion that at the time of incident there was a darkness and has clarified that there was one street light showing the things which street St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 36 light was very near and not at a distance. The witness has also denied the suggestion that there is no such electric light or pole available at the spot because there is a transformer. She has testified that they went to the hospital in a van which was brought by some neighbour but she is not aware as to whom the said van belonged. She has also deposed that it was a white colour van which was driven by a neighbour namely Sunny. According to her, in the scuffle with the accused neither her clothes nor the clothes of her mother were torn. She is not aware if blood had fallen in the van. She has denied the suggestion that their clothes were not torn because no such scuffle took place or that she was not present in the said van and that is why she is unable to tell about the blood fallen in the van or that for this reason police also did not seize the said van. The witness has further denied the suggestion that on the relevant day many devotees had come with the holy water of Ganges in the kanwar to offer the same over the deity and there was a quarrel among the said devotees. She has further deposed that at the time of beginning of the quarrel when comments were passed upon her, no public person was present there. The witness has testified that during the said period of 15 minutes after which the accused had returned to the spot neither she nor her family members nor any other person informed the police. According to her, she had chased the accused and her brother upto the temple outside. The witness has further deposed that they all lifted her brother after he fell down St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 37 receiving injuries and at that time, blood did not ooze out and as such no blood came on their clothes and has voluntarily explained that when he was being removed in the van the blood oozed out from both his ears. She has denied the suggestion that she has no knowledge of the incident as the incident had exclusively taken place at Shiv Mandir. Witnesses of medical record:
(31) PW4 Dr. Binay Kumar has proved the MLC of the patient Mohd. Samir aged about 21 years, male which was prepared by Dr. Sanjay Kaushik (Sr. Resident) who had signed at point A and the same was counter signed by him at point B which MLC is Ex.PW4/A. He has further proved that the MLC of patient 'N' aged about 18 years female which is Ex.PW4/B was prepared by him in his own handwriting according to which MLC injuries suffered by Smt. 'N' were simple in nature. The witness has also proved the MLC of Neeru @ Guddo, aged about 36 years female which MLC is Ex.PW4/C prepared by Dr. Devojit (Jr. Resident Casualty) who has signed at point A and the same was counter signed by him (witness) at point B. He has further proved the MLC of Naresh aged about 23 years male which is Ex.PW4/D prepared by Dr. Sanjay Kaushik (Sr. Resident) which is signed by the said doctor at point A and counter signed by him at point B. The witness has also proved the photocopy St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 38 of MLC of patient Sunil aged about 30 years male which was prepared by him in his own handwriting and is Mark PX according to which the patient was referred to Surgery SR to Dr. Himanshu for further opinion and management. He has also proved the MLC of patient Subhash aged about 23 years male, who was brought in casualty by ASI Rawal Singh in unconscious state with the alleged history of physical assault and was declared brought dead and shifted to mortuary for postmortem examination vide MLC Ex.PW4/E. (32) In his crossexamination the witness has deposed that he was on night duty on the relevant night from 9.00 PM to 9.00 AM. He has also deposed that nature of injury is not mentioned in the MLC Ex.PX of the patient Sunil. He has further deposed that in the MLC of Mohd. Samir no consumption of alcohol by him is mentioned and injuries suffered by the patient are sharp and incised wounds.
According to him, the address of the injured Mohd. Samir was not mentioned. She has denied the suggestion that Mohd. Samir may be someone else, however, witness has voluntarily explained that thumb mark and mark of identification are there on the MLC. He has also deposed that the patient was examined on his self introduction in the case of Mohd. Samir but he was not identified by anyone else. According to him, the MLC was prepared in the presence of said patient Mohd. Samir and was present at that time. According to the witness, he has deposed that there are more than one register of MLCs St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 39 which are used depending upon the rush of the patients and the MLCs Ex.PW4/C and Ex.PW4/B are prepared from different registers of MLCs. He has also deposed that out of the said MLCs of 'N', Neeru and Subhash, first of all MLC of Subhash was prepared, thereafter of 'N' and in last of Neeru. He has testified that no opinion is suggested to the doctor who prepared the MLC at the time of counter signing the same and has explained that any particulars, if missing, with regard to the patient can be supplied or suggested to be supplied at the time of counter signing the same. He has further deposed that the injury on the person of patient 'N' could be caused by the iron pipe or a blunt object. He has denied the suggestion that no injury on any of the MLC could be caused by blunt force impact.
(33) PW7 Dr. Manoj Dhingra has proved that he along with Dr. J.V. Kiran has conducted the postmortem examination on the body of deceased Subhash, 22 years old male, S/o Parvesh Kumar which was was sent by Inspector Yash Pal Singh of Police Station Sultan Puri with alleged history of assault on 20.7.2009 at about 11.30 PM near his house and was taken to SGM Hospital where he was declared brought dead at about 12.45 AM on 21.7.2009. According to the witness, on examination they found the following injuries:
1. Contusion, reddish 6 cm x 2.5 cm present on right side of the face, 2.5 cm in front of ear and 5.5 cm outer to outer St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 40 angle of right eye with abrasion over the area 2 x 1 cm within the lower third of the contused area with a spread area of 1 cm x 0.5 cm within the abrasion and laceration 0.1 cm x 0.1 cm into subcutaneous tissue deep present at upper end of contused area. The contusion is obliquely placed on right side of face.
2. Contusion, reddish 6 cm x 2.5 cm on right side of the neck, 6 cm below right ear low with a semi circular abrasion in the middle of the contused area.
3. Abrasion 1 cm x 1 cm on back of the left elbow.
4. Abrasion 1 x 0.5 cm on middle back of left forearm, 10 cm above wrist joint.
(34) According to the witness, on examination of Head Brain matter meninges brain weight 1500 gms, diffuse subarachnoid hemorrhage all over the brain. He has proved having opined that the cause of death is cerebral damage consequent to blunt force impact to the head; all injuries are antemortem in nature, fresh in duration and caused by blunt object and time since death is approximately 12 hours. He has testified that total inquest papers were eleven and sealed articles were handed over to the Investigating Officer. He has proved his detailed report which is Ex.PW7/A. The witness has also proved the the inquest proceedings which are Ex.PW7/B1, Ex.PW7/B2, Ex.PW7/B3, Ex.PW7/B4, Ex.PW7/B5, St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 41 Ex.PW7/B6, Ex.PW7/B7 & Ex.PW7/B8 and Ex.PW4/E i.e. MLC of deceased Subhash.
(35) He has also seen MLC NO. 9460 of Mohd. Samir dated 20.7.2009 which was made at 12.35 AM by Dr. Sanjay Kaushik on which he has given the opinion after going through the MLC. He has further deposed that MLC No. 9460 and Xray report No.4066, 21.7.2009 of Samir, X Ray abdomen erect shows NDA and XRay chest report not shown and according to MLC and XRay abdomen the injury is Simple in nature. He has proved his endorsement on MLC Ex.PW4/A at point X. (36) The witness has also deposed that on 25.9.2009 the Investigating Officer produced two sealed pulandas with the seal of YP for subsequent opinion and on opening the seal, parcels were found containing broken glass and knife after which he examined the weapon of offence and the MLC. He has proved having opined that the injuries mentioned in the MLC no. 9519/9462/9460 dated 21.7.2009 and 20.7.2009 and injury mentioned in the MLC report could be caused by this weapon or similar such (weapons are knife and broken glasses). Further, he has also opined that the injuries as mentioned in MLC no. 9460 and 9519 are possible with the said broken glasses (packet no.2) and the knife (packet no.1); the injuries as mentioned in MLC No. 9462 also could be possible by the said broken glasses and the knife. He has further proved having prepared the sketch of the knife on his St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 42 subsequent opinion and both are collectively Ex.PW7/C. He has testified that the knife and the broken glasses were resealed with the seal of the hospital and were handed over to the Investigating Officer. He has identified the pieces of glasses which are collectively Ex.P1 and the knife Ex.P2 regarding which he has given subsequent opinion Ex.PW7/C. He has further deposed that he also handed over the clothes of the deceased to the police after sealing the same with the seal of the hospital as mentioned in the Postmortem Report Ex.PW7/A. The witness has also identified the clothes i.e. blue jeans, underwear and one baniyan bloodstained which are collectively Ex.P3 and he handed over the same to the police at the time of autopsy. (37) In his crossexamination by the Ld. Defence Counsels the witness has deposed that the report Ex.PW7/C is in his handwriting. He has admitted that the opinion given in Ex.PW7/C was difficult to be given without examining the patient and he had not examined the patient. According to him, few of the pieces of glass Ex.P1 were having bloodstains and the arrow encircled in red at point X in the report Ex.PW7/C is also in his handwriting. He is unable to tell if injuries No.1,2,3 & 4 as mentioned in the postmortem report Ex.PW7/A are simple or grievous in nature and has stated that these could be grievous also. He has denied the suggestion that the said injuries might have been received by the deceased due to the fall on St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 43 hard surface. According to him, no fracture of bones was noticed on the right side of the face of the deceased. He has also deposed that injury no.3 mentioned in Postmortem Report i.e. abrasion of 1 cm x 1 cm on left elbow could be possible by a fall on a hard surface. According to the witness, cerebral damage may be caused by dashing of head against a hard surface or a wall or against any standing hard object.
(38) PW11 Dr. J.V. Kiran has proved that on 21.7.2009 he along with Dr. Manoj Dhingra in his capacity as Senior Resident had conducted postmortem examination on the dead body of deceased Subhash vide Postmortem Report Ex.PW7/A. According to the witness, on 08.8.2009 he had given opinion on receiving of five sealed parcels duly sealed with the seal of YP from Inspector Yashpal Singh, Police Station Sultan Puri, Investigating Officer of the case. He has testified that on opening first pullanda baseball bat with black tape around with the one end knobbed with a crack was found; on opening second pullanda, a broken black coloured baseball bate written RAPTOR at the distal end, proximal part of the bat being broken was found; on opening third pullanda a white coloured baseball bat with the distal end broken and a crack on the knob of the bat and a crack at the upper part of the bat was found; on opening fourth pullanda, a hollow iron pipe with the dent painted with green and rusted at places with both ends of the pipe irregular and on opening fifth pullanda, a broken St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 44 stick covered with a plastic cover was found. He has testified that on examination, he opined that the injuries mentioned in the Postmortem Report could be caused by the weapons in parcels 1, 2, 3 & 4 after which the weapons were resealed with the seal of Mortuary, SGMH, Mangol Puri, Delhi83 and handed over to the Investigating Officer, which opinion is Ex.PW11/A and the application of Investigating Officer is Mark PW11/A. (39) He has identified the case property i.e. baseball bat with black tape wrapped around it which is Ex.W1; one broken baseball bat black coloured which is Ex.W2; one broken white coloured baseball bat which is Ex.W3; one hollow iron pipe with a dent painted in green colour and rusted which is Ex.W4 and one broken stick covered with plastic cover which is Ex.W5 which were examined by him. (40) In his crossexamination by the Ld. Defence Counsels the witness has admitted that if one article comes in contact with another article, the same shall leave its mark thereon and states that it is difficult to identify any such mark on Ex.W1 to W5. According to him, he had examined the Ex.W1 to W5 with naked eyes and no scientific instrument was used for examining them. The witness has also admitted that there is over writing in Ex.PW11/A at point B in the numbers of parcels received by him which over writing does not bear his signature or initials. He has denied the suggestion that his opinion St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 45 is based at the instance of the Investigating Officer. The witness has admitted that in case if Ex.W5 pierces through the human body, it can prove fatal. He has also admitted that he had not mentioned as to which injury has been caused by which weapon but has denied the suggestion that no weapon of offence was shown to him or that he had given a false opinion without seeing the weapon of offence. Police / official witnesses:
(41) PW1 Ct. Ravi Malik is a formal witness being the Crime Team photographer who has deposed that on 21.7.2009 they received an information from Control Room of the District to reach near Shiv Mandir, West Friend Enclave, Sultan Puri, Delhi on which he along with Incharge of the Crime Team SI Sanjay Gade and other staff reached the said place. The witness has further deposed that he noticed the broken pieces of glass of bottle, the broken baseball bats and at the instructions of the Local Police, he took photographs of the spot which are Ex.PW1/A1 and Ex.PW1/A12 and negatives of the same are Ex.
PW1/B1 to Ex.PW1/B12.
(42) In his crossexamination by the Ld. Defence Counsels the witness has deposed that the house at the spot was having inmates in the same at the time when they reached there. According to him, he did not notice as to who were the persons present in the said house nor he can say as to whether the said persons present in the house were St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 46 relatives of the deceased and as to how they were related to the deceased as his work was to take the photographs. He has further deposed that the photographs might have been taken by him around 2.15 AM and that they remained at the spot up to 3.00 AM. He has denied the suggestion that no public person was present at the spot or that the relatives of the deceased were not present in the house or that he had not taken the photographs.
(43) PW2 SI Manohar Lal is the Draftsman who has deposed that on 01.8.2009 he went to Police Station Sultan Puri from where he alongwith the Investigating Officer reached at the spot i.e. H.No. 6/4 and near Shiv Mandhir, Friends Enclave, Sultan Puri. According to the witness the complainant Smt. Neero @ Guddo was present there and on her pointing out he prepared the rough notes and took measurement on the basis of which he prepared the scaled site plan which is Ex.PW2/A. He has deposed that the rough notes were destroyed after the preparation of scaled site plan. (44) In his crossexamination by the Ld. Defence Counsels the witness has deposed that there was a tree near the place where he prepared the site plan but he does not remember the nomenclature of the tree. He has clarified that apart from himself the Investigating Officer, the complainant and two constables were also present but he does not recollect the names of the Constables. He has further deposed that he visited the spot at about 3:30 PM and did not obtain the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 47 signatures of any person on his rough notes. He has testified that he did not notice any broken bottle etc. at the spot himself but became aware of the same when instructions in this regard were being given by the complainant and Investigating Officer. He has also deposed that he had handed over Ex.PW2/A after one or two days but he does not remember the date and time. He is not aware if the owner of the premises shown in the site plan as the spot, was present there or not. According to him, the Investigating Officer had recorded the statement of the complainant on the said day.
(45) PW5 Sub Inspector Sanjay Gade is the Crime Team Incharge who has deposed that on intervening night of 2021.7.2009 they received PCR call at about 1.48 AM on which he alongwith staff reached at House No. 6/28 West Friends Enclave, Sultan Puri where he inspected the spot and on his direction, photographer Constable Ravi Malik took the photographs from different angles. He has proved his report to that effect which is Ex.PW5/A. (46) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he did not visit any other property except 6/28, West Friends Enclave, Sultanpuri in connection with any investigations in this case.
(47) PW6 Lady Ct. Sangeeta has deposed that on 20.7.2009 at about 11:56 PM a call was received at PCR from mobile phone to the effect that knives blows were being given in a quarrel at Friends St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 48 Enclave, Sultan Puri which she recorded in the PCR Form computerized copy of which is Ex.PW6/A. (48) In her crossexamination the witness has deposed that the address given in the information was 6/4, Friends Enclave, Sultanpuri. (49) PW10 HC Sat Narain has deposed that on 21.7.2009 he was posted at Police Station Sultan Puri and was working as Duty Officer from 12 midnight to 8.00 AM. According to him, at about 2:25 AM he received a rukka through Constable Bijender sent by ASI Rawal Singh on the basis of which he got the formal FIR recorded on the computer kept in the ordinary course of the business in the Police Station by computer operator which was according to the contents of the rukka and the same were not tampered with. He has proved the printout copy of the FIR which is Ex.PW10/A. According to the witness, on the original rukka he made his endorsement at point B and which rukka is Ex.PW3/A which was given in original back to Constable Bijender to be taken at the spot alongwith the computerized copy of FIR and the investigation of case was entrusted to Inspector Yash Pal. This witness has not been crossexamined by the Ld. Defence Counsels despite opportunity granted in this regard and his entire testimony has gone uncontroverted.
(50) PW13 Ct. Rakesh has deposed that on 07.10.2009 he was posted at Police Station Sultan Puri and on that day MHCM Krishan Lal gave him eight sealed pulllandas and sample seal of SGMH St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 49 Mortuary, Delhi and YP along with FSL form, RC No.39/21/09 which he deposited at FSL, Rohini vide Diary No.2162SHO Sultan Puri. According to him, thereafter he came back to Police Station and handed over copy of RC no.39/21/09 to MHCM. He has proved that so long as the exhibits remained in his custody, they remained intact and were not tampered with. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same. (51) PW14 HC Krishan Lal is a formal witness being the MHCM who has deposed that on 21.7.2009 Inspector Yash Pal Singh deposited one pullanda sealed with the seal of SGMH Govt. of NCT of Delhi containing clothes of injured Samir along with sample seal; pullanda containing clothes of injured Sunil duly sealed with the seal of SGMH Govt. of NCT of Delhi and sample seal; one pullanda sealed with the seal of YP containing empty bottle and glass pieces; five pullandas sealed with the seal of YP containing baseball bat; another baseball bat; broken baseball bat; iron pipe; one wooden danda; one motorcycle No. DL4SBN4190; one pullanda containing clothes of deceased; one envelope containing blood gauze of deceased both sealed with the seal of SGMH Mangol Puri and sample seal of same; one pullanda seal with seal YP containing clothes of accused Surender and one motorcycle No. DL8SNA1130 pursuant to which he (witness) made entry at Serial No. 11970 copy of which is Ex.PW14/A. According to him, on 23.7.2009 Inspector Yashpal had deposited St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 50 personal search of Rs.80 of accused Sunil on which he made entry in Register No. 19 at serial no. 11973 which is Ex.PW14/B. He has further deposed that on 07.10.2009 on the instructions of the Investigating Officer, he had sent eight (8) sealed Pullandas and two sample seal as detailed in RC No. 37/21/09 through Ct. Rakesh Kumar No. 1026/OD to FSL Rohini, Delhi and after depositing the said exhibits at FSL Rohini, Ct. Rakesh Kumar came back to Police Station and handed over copy of RC to him, pursuant to which he made entry Register No. 19 and entry No. 11970. The witness has also deposed that on 17.09.2010 Constable Gaurav came in Maalkhana and handed over him eight sealed Pullandas and on envelope containing FSL result and all having seal of FSL Rohini on which he made entry in Register No. 19 against entry no. 11970. He has proved the copy of relevant Entry No. 37/21/09 of RC Register which is Ex.PW14/C. He has further proved that so long as case property remained in his custody it remained intact and was not tampered with.
(52) In his crossexamination by the Ld. Defence Counsels the witness has admitted that except sample seal of hospital, no other sample seal was deposited in Malkhana by the Investigating Officer with the case property and that in the entries Ex.PW14/A and Ex.PW14/B are replicas of seizure memo. He has also admitted that it is not specifically mentioned in either entry Ex.PW14/A or Ex.PW14/B that the said case property was deposited in Malkhana by St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 51 the Investigating Officer. According to the witness, the entries were made in his presence in the hand of Ct. Manoj, Munshi Malkhana on his direction and he had checked the same and at that time Investigating Officer was also present in the Malkhana. He does not recollect if Investigating Officer recorded the statement of Ct. Manoj. He has denied the suggestion that the entries have been manipulated through Constable Manoj on the asking of Investigating Officer and that is why he is not in a position to tell if any statement of his was recorded by the Investigating Officer or not he had not checked the contents of any pullanda after opening the same. (53) PW15 Constable Sanjay has deposed that on 21.7.2009, he was posted at Police Station Sultan Puri and on that day Duty Officer handed over to him special reports for giving the same to the senior officers i.e DCP/OD, Joint CP/NR and concerned MM. He has proved that he delivered the said reports on a government motor cycle bearing No. DL 1SN 2694 and came back at the Police Station after delivering the same. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same and the witness has stood by his version.
(54) PW16 Constable Ashok has deposed that on 21.7.2009, he was posted at Police Station Sultan Puri and on that day, his duty was in the Beat Area of Friends Enclave Sultan Puri. According to him at about 12:00 midnight he reached at the spot after receiving the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 52 information of quarrel where he found a red colour Pulsar motorcycle bearing no. 4190 which was produced before the Investigating Officer by him and same was seized vide memo Ex.PW3/D and besides his signature ASI Rawal Singh and complainant Smt. Neeru @ Guddu signed the same. He has further deposed that on 23.7.2009 he again joined the investigation with the Investigating Officer and was present in the Police Station where Ct. Daya Ram brought the accused Sunil who was discharged from the Safdarjung Hospital after his treatment, at the Police Station in his presence. He has proved that the Investigating Officer interrogated the accused and arrested him vide memo Ex.PW16/A and his personal search was conducted vide memo Ex.PW16/B after which the disclosure statement of accused Sunil Ex.PW16/C was recorded. According to him, the accused pointed out the place of incident vide pointing out memo Ex.PW16/D. He has testified that on 26.7.09 he again joined the investigation when he along with Investigating Officer and Ct. Rupesh went to Friends Enclave, Sultan Puri after receiving a secret information about accused Danny who had come to his house. According to the witness, the Investigating Officer asked public persons to join the investigation but none agreed after which they all went towards the house of accused Danny and they saw that a boy coming out of house no. 6/23, Friends Enclave, Sultan Puri, who was apprehended and whose name was St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 53 revealed as Raj Kumar @ Danny. The witness has proved that the accused was arrested vide memo Ex.PW16/E, his personal search was conducted vide memo Ex.PW16/F and his disclosure statement Ex.PW16/G was recorded after which the accused Raj Kumar @ Danny pointed out the place of incident vide Ex.PW16/H. The witness has testified that his statement was recorded by the Investigating Officer on different dates. He has correctly identified the accused persons and the motorcycle which was produced by brother of accused Raj Kumar @ Danny as the said accused had got released the same on superdari which motorcycle bearing no. DL4SBN4190 is Ex.P4 which was recovered from the spot.
(55) In his cross examination by the Ld. Defence Counsels the witness has deposed that accused Danny was arrested from his house by police party of which he was the member. According to him, they requested the people of the colony to become witness for arrest of accused Danny but they refused to give the consent to them. He has further deposed that he did not obtain signatures of parents of accused Danny on the arrest memo. He has denied the suggestion that accused Danny was not arrested from his house or that accused had not made any confessional statement in his presence. The witness has also deposed that no officer of the Rank of ACP or DCP was present in the Police Station when Danny made the confessional statement before the Investigating Officer. He has denied the suggestion that Danny was in St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 54 the custody of police while he made confessional statement. The witness has explained that confessional statement of the accused was recorded at the house of accused Danny by the Investigating Officer between 5.00 to 7.00 PM on 26.7.2009 and not in the Police Station. (56) PW17 ASI Krishan Pal Singh has deposed that on the intervening night of 2021.7.2009 he was posted in Outer Zone PCR and was the Incharge of PCR Van Libra 43. According to him, on that day he received information at about 12 night from Libra1 that a quarrel was going on with knives at 6/4, Friends Enclave, Sultan Puri, Delhi on which he alongwith his staff reached the spot where they came to know that injured had already been shifted to hospital. The witness has also deposed that at the spot, they found a red colour motorcycle bearing no. DL4SB and came to know that the same belonged to the person who was involved in the quarrel. He has testified that the Beat Constable of the concerned jurisdiction namely Constable Ashok Kumar reached at the spot and the said motorcycle was handed over in his custody which motorcycle is Ex.P4. The witness has also deposed that after handing over the custody of motorcycle to Constable Ashok Kumar, they proceeded on their usual duty.
(57) In reply to the leading question put by the Ld. Addl. PP for the State the witness has admitted that ASI Rawal Singh had came from the concerned Police Station and he told the names of injured to St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 55 him as Subhash, Naresh, Sameer @ Amir and Sunil which he came to know from Police Control Room, PHQ.
(58) In his crossexamination by the Ld. Defence Counsels the witness has deposed that the Driver and Gunman were with him in the said PCR Van when he had reached at the spot but he does not remember their names. According to the witness, the mother of the injured Subhash was present at the spot. He is not aware if ASI Rawal Singh had recorded the statement of the said mother of the injured Subhash or of any other public witness as he had left the spot. He has denied the suggestion that there was no motorcycle lying at the spot or that he was not present at the spot.
(59) PW18 Constable Vijender Singh has deposed that on 20.7.2009 he was posted at Police Station Sultan Puri and was on Emergency Duty with ASI Rawal Singh from 8 PM to 8 AM next day. According to the witness, at about 12.02 AM on receipt of DD no.3A he along with Ct. Rupesh and ASI Rawal Singh reached at Friends Enclave, Sultan Puri, at house no.6/4 where twothree persons met them who told them that the injured boys have been taken to SGM Hospital. He has further deposed that at the spot, broken glass pieces, one iron pipe and baseball bat were lying scattered. He has also deposed that Ct. Rupesh was left at the spot whereas he along with ASI went to SGM Hospital where one lady Neeru met them. According to him, ASI obtained MLCs of injured from the doctor who also gave two St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 56 sealed pullandas to him and on the MLC of Subhash he was declared brought dead. He has further testified that statement of Neeru was recorded by the Investigating Officer who prepared a rukka which he (witness) took to the Police Station, got the case registered and came back at the spot and handed over copy of FIR and original rukka to the Investigating Officer. The witness has also deposed that Neeru and her daughter 'N' were also present at the spot and were taken to the hospital for their MLCs in their own vehicle and he went on his bike. He has further deposed that after their medical examination, he came back at the spot and handed over their MLCs to the Investigating Officer. The witness has further deposed that the sealed pullandas given by the doctor were taken in to possession by the Investigating Officer vide memo Ex.PW18/A. (60) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he does not remember the exact time when he reached the hospital. According to the witness, his statement was recorded by the Investigating Officer at the spot on 21.7.09 but he does not remember the time. He has denied the suggestion that from the hospital he straightaway reached the spot with the Investigating Officer. He has further explained that twothree persons were standing outside the house of complainant in the gali but the ASI did not ask them their names and addresses. He is unable to tell the exact time consumed in getting the case registered from the hospital and coming St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 57 back to the spot from the Police Station. According to him, no statement of any such person/ neighbour was recorded by the Investigating Officer in his presence. He has testified that he had not seen any public person cooperating with the police in conducting the inquiry. He has denied the suggestion that he never joined the investigation of this case nor he went to hospital nor he took the rukka as deposed by him. The witness has also deposed that Ct. Rupesh reached at the spot on his own motorcycle whereas he and ASI Rawal Singh went on his motorcycle. According to him, no separate entry was made in register for going to attend the call as it was mentioned in DD no.3A. He has further deposed that the Duty Officer handed over the said DD to ASI Rawal Singh. He is unable to tell the exact time of preparing rukka but states that it was after 12.00 and before 3:00 or 4:00 AM. The witness has testified that the Rukka was prepared in his presence and it took around 30/45 minutes in preparing the same. The witness has also deposed that the Rukka was prepared while sitting in the Police Duty Room situated in the hospital which is adjacent to the Emergency Ward in the same building. He does not remember the exact time when he left the hospital with rukka. He denied the suggestion that he is unable to tell the time as he never accompanied the Investigating Officer to the hospital. He has admitted that at the time of taking the rukka, he was aware that it was a murder case but inspite that he did not inform personally regarding the same to the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 58 SHO and he just handed over the rukka to Duty Officer for the registration of the FIR. He has denied the suggestion that he never joined the investigation.
(61) PW19 ASI (Retd.) Rawal Singh has deposed that on the night intervening between 20th and 21st July, 2009 he was posted at Police Station Sultan Puri and was on night emergency duty from 8 PM to 8 AM along with Ct. Vijender Singh. According to the witness, on receipt of DD No.3A at about 12:02 AM regarding quarrel at 6/4, Friends Enclave, Sultan Puri he along with Ct. Vijender Singh and one other Constable namely Roopesh Kumar reached the spot where no eye witness met them and he was informed by the people present there that the injured had been taken to SGM hospital. He has further deposed that Ct. Roopesh Kumar was left at the spot and he along with Ct. Vijender went to SGM hospital where one lady namely Guddo met them who told them that her son Subhash had been brought to the hospital in an injured condition who was declared dead by the doctor. According to the witness, he obtained three MLCs i.e of the deceased and the two injured persons and the dead body was shifted to the mortuary. He has proved having recorded the statement of Guddo which is Ex.PW3/A on which he made his endorsement Ex.PW19/A. The witness has also deposed that two sealed pulandas were given by the doctor which were taken into possession by him vide memo Ex.PW18/A which were stated to be containing the clothes of the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 59 deceased. He has further testified that thereafter he sent the rukka through Ct. Vijender to Police Station with a request to hand over the investigation to other Senior Officer. The witness has also deposed that thereafter he came at the spot along with the complainant Guddo @ Neeru and on her pointing out he prepared the site plan which is Ex.PW19/B. He has testified that Inspector Yash Pal with staff also reached at the spot to whom the further investigation was entrusted, who lifted two baseball bats Ex.P1 and Ex.P2, broken pieces of glass Ex.P5, one iron pipe Ex.P3 from the spot which were kept in separate pulandas and were sealed with the seal of YP and seized vide memos Ex.PW3/B and Ex.PW3/C respectively. The witness has further deposed that two liquor bottles and broken pieces of liquor bottle were also seized vide the same seizure memo Ex.PW3/C and the said two bottles were having the words "Murthal" written on it. He has correctly identified the two liquor bottles which having been recovered from the spot which liquor bottles are Ex.P8 and Ex.P9 and both are having a label pasted on the same having the words "Murthal". According to him, the motorcycle no. DL4SBN4190 of the make Pulsar having red colour was also seized from the spot vide memo Ex.PW3/D which pulsar motorcycle is Ex.P4. He has testified that he had recorded the statement of the complainant Neeru @ Guddo as narrated by her and nothing was added or deleted from his side. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 60 (62) In crossexamination by the Ld. Defence Counsels the witness has admitted that he had not recorded statement of any other person except the complainant in this case. He is not aware whether the complainant had told him the date on which this statement was made to him and states that that complainant did not tell him that accused abused her daughter nor she had stated that any other gesture in the form of indecency made to her daughter by the accused. The witness has also admitted that he along with Ct. Vijender came on motorcycle at the spot and he recorded the statement of Neeru at the spot. According to the witness, he was not known to Neeru @ Guddo earlier and on inquiry, she introduced herself to him that she was mother of the deceased Subhash after seeing them in uniform. He is not know whether Neeru came to the Police Station or not on 20th or 21st of July 2009 for giving her statement. He has denied the suggestion that neither Neeru met him in the hospital nor he recorded her statement there or that he recorded her statement of his own. The witness has further testified that his departure was recorded in the DD no.3A itself and as such, he did not make any separate departure entry. However, he does not remember the DD number whereby he made his arrival at the Police Station not does he remember the time when he sent Ct. Vijender with rukka to the Police Station. According to him, he had gone to the spot and hospital after receiving the said call on his own motorcycle. He does not remember the time as to when Ct. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 61 Vijender returned with the copy of FIR at the spot. He has denied the suggestion that bottles Ex.P8 and Ex.P9 were not available and seized from the spot. He does not remember the contents of endorsement Ex.PW19/A and as such, he is unable to tell if he had mentioned about the said liquor bottles in his endorsement or not. He has also deposed that there was a room in the hospital allotted to the Constable of Police where he had written the statement of Neeru and his endorsement. According to him, he had recorded the statement of Neeru in the said room of the Constable while sitting on a chair. He does not recollect the time when he finally left the spot on 21.7.2009. He has testified that he dictated the rukka to a Constable available in the said room but he does not remember his name. The witness has further deposed that at that time, he himself, the complainant, Ct. Vijender and the said Constable were present in the said room. He has also deposed that he did not record the statement of said Constable to the effect that the rukka was in his pen. According to the witness, he reached at the spot around 12.20 AM where twothree people were standing. He has denied the suggestion that the deceased Subhash was removed by him to SGM Hospital. He is not aware as to who had removed the injured Sunil to the hospital. He has denied the suggestion that he recorded the alleged statement of the alleged eye witness subsequently in connivance with the complainant in order to falsely implicate the accused in the present case. The witness has also denied the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 62 suggestion that there were religious pilgrims by the name of kanwariyas present at the spot at the relevant time and there was a quarrel among the said pilgrims due to which deceased was killed or that injured Sunil received the injuries in some other incident and his case was illegally connected with this case. According to the witness, he could not obtain the MLC of the injured Sunil as it was not complete by that time but he knew that MLC of injured Sunil was prepared at the hospital. The witness has testified that he did not record statement of the said injured Sunil. He has denied the suggestion that he did not record the statement of Sunil deliberately or that accused Sudhir was falsely implicated in the case or that he was not involved in the incident nor he was present at the spot. (63) PW20 Constable K.N. Goud has deposed that on 21.7.2009 he was posted at Police Station Sultan Puri and was on duty in the Friends Enclave Beat. According to the witness, on that day he joined the investigation with the Investigating Officer Inspector Yashpal Singh and SI Mukesh Kumar and went to Shani Bazaar Road where an information was received by Investigating Officer that Sonu Punjabi, the accused wanted in this case was standing in Shani Bazaar Road near Balaji Mandir. He has further deposed that on the pointing out of the secret informer, the accused Sonu Punjabi was apprehended and interrogated and thereafter, arrested vide arrest memo Ex.PW20/A; his personal search was conducted vide memo St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 63 Ex.PW20/B; after which the accused made a disclosure statement which is Ex.PW20/C. He has proved that the accused Sonu Punjabi got recorded one shirt of blue colour which was having blood stains on the back side, from the place of his apprehension, which was kept in a pullanda and sealed with the seal of Inspector and was seized vide memo Ex.PW20/D. He has also deposed that pursuant to his disclosure accused got recovered one motorcycle no. DL8SNA1130 of black colour from near a wall of SGM Hospital, which was seized vide memo Ex. PW20/E. According to the witness, he also joined the investigation at SGM Hospital on 21.7.2009 at the time of postmortem conducted on the body of deceased. He has proved that after postmortem, the doctor handed over the sealed pullandas containing the clothes and blood samples of deceased with one sample seal which were taken into possession by the Investigating Officer vide memo Ex.PW20/F and after postmortem, the dead body was handed over to the relatives of the deceased against receipt Ex.PW8/A. (64) He has correctly identified the accused Surender @ Sonu Punjabi in the Court and has also identified one striped shirt Ex.P5 which was got recovered by accused Sonu Punjabi from the spot. He has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard and hence his testimony has gone uncontroverted.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 64 (65) PW21 Constable Rupesh has deposed that on 26.7.2009 he joined the investigation with the Investigating Officer Inspector Yashpal who had received a secret information that accused Raj Kumar @ Danny, who was wanted in this case, would come to visit his house at Friends Enclave, Sultan Puri. According to the witness, he along with Ct. Ashok Kumar and Investigating Officer reached the above said place and some public persons were asked to join the investigation but none agreed. He has further deposed that accused Raj Kumar @ Danny was found standing outside his house no.6/23, Friends Enclave, Sultan Puri, New Delhi where on the pointing out of secret informer, the accused was apprehended. The witness has proved that the Investigating Officer interrogated the accused and arrested him vide arrest memo Ex.PW16/B and his personal search was conducted vide memo Ex.PW16/F after which the accused made his disclosure statement which is Ex.PW16/G and thereafter accused pointed out the place of incident vide pointing out memo Ex.PW16/H. (66) The witness has testified that on 9.8.2009 he again joined the investigation of the present case with the Investigating Officer and HC Satish when accused Suresh @ Phullu S/o Tikaram was arrested who had come at Police Station Sultan Puri along with his brother Vinod. He has proved the arrest memo of accused Suresh @ Phullu which is Ex.PW21/A, his personal search memo which is Ex.PW21/B, St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 65 disclosure statement of the accused which is Ex.PW21/C and the pointing out memo which is Ex.PW21/D. The witness has also testified that the accused Suresh @ Phullu got recovered his Bullet motorcycle bearing no. DL8SNA1130 from SGM Hospital vide memo Ex.PW21/E. (67) According to the witness on 18.8.2009 he again joined the investigation of the present case with Investigating Officer and Ct. Sukhbir since the Investigating Officer had received a secret information regarding accused Sudhir who was wanted in this case. He has further deposed that they reached at F1/403, Sultan Puri and from there accused Sudhir was arrested vide memo Ex.PW21/F, his personal search was conducted vide memo Ex.PW21/G, his disclosure statement was recorded vide Ex.PW21/H after which the accused pointed out the place of incident vide memo Ex.PW21/J. He has proved that pursuant to his disclosure statement the accused Sudhir got recovered a knife from the backside of Maharishi Valmiki Mandir from under the bricks which knife was measured and its sketch Ex.PW21/K was prepared after which the knife was sealed with the seal of YP and seized vide memo Ex.PW21/L. According to the witness, his three statements of above mentioned dates were recorded by the Investigating Officer on the said dates. He has correctly identified the accused persons in the court and case property i.e. one St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 66 knife which recovered at the instance of accused Sudhir which is Ex.P2; motorcycle bearing no. DL8SNA1130 which was recovered at the instance of accused Suresh which is Ex.P10. (68) In his crossexamination by the Ld. Defence Counsels the witness has deposed that they arrested the accused Raj Kumar on 26.7.2009 at about 6.45 PM to 7:00 PM. According to him, they started from the Police Station at about 6.15 PM on Govt. vehicle i.e. Gypsy on the said date but he does not recollect the number of said Gypsy. He has further deposed that no public person had signed the arrest memo. He has denied the suggestion that accused was detained in the Police Station for twothree days for interrogation. According to the witness, accused Raj Kumar did not get recover anything from the spot. He has testified that at the time of his arrest, accused Raj Kumar had confessed his guilt at his residence in the presence of police officials. He has admitted that accused Raj Kumar had not confessed his guilt at the place of incident and has voluntarily explained the accused had pointed out the same as the place where he committed the crime along with his coaccused. He has denied the suggestion that accused was straight away taken to the Police Station from his house and not at the spot or that accused was tortured in the Police Station or that his signatures were obtained on disclosure statement forcibly. The witness has also deposed that neither the ACP nor DCP nor any SDM nor Tehsildar were present at the time of making the disclosure St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 67 statement by accused Raj Kumar. He denied the suggestion that accused Raj Kumar was lifted one day prior to 26.7.09 from his house and was kept in the Police Station illegally.
(69) According to the witness, the accused Suresh came along with his brother at Police Station at about 6:00 PM and prior to that, efforts were made to arrest him by the Investigating Officer but he does not remember the dates of such efforts. He has testified that he had also joined the said efforts once or twice with the Investigating Officer in the area as well at the residence of said accused. The witness has further deposed that public persons were also asked about the whereabouts of the accused. He has testified that accused was interrogated for about 30 to 45 minutes and states that the Investigating Officer might have made the departure entry when they left for the spot along with accused Suresh but the Investigating Officer had not made the same in his presence. According to him, the brother of the accused was not accompanying them at the time of recovery of said motorcycle and no public person was joined in the investigation at the time of recovery of motorcycle. He has also testified that the said motorcycle was lying parked opposite OPD Gate but the Investigating Officer did not obtain the signature of Parking Attendant. He has denied the suggestion that said motorcycle was not recovered from the SGM Hospital or that the same was lifted from the residence of the accused. He has also denied the suggestion that no raid was conducted St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 68 to arrest accused Suresh at his residence and has voluntarily explained that the accused was absconding from his house after the incident. He has further deposed that no senior officer was called at the time of recording of the disclosure statement of accused. He has denied the suggestion that the accused had not made any disclosure statement or that he never pointed out the place of incident. (70) The witness has further testified that he is not known to any Mahender Singh but states that a raid was conducted at his residence. According to the witness, he had signed five or six papers on 18.8.2009 which were relating to the investigation of the present case in the evening between 6:00 to 8:00 PM. He has also deposed that his statement was recorded by the Investigating Officer at Friends Enclave, Sultan Puri at about 8.30 or 9:00 PM. The witness has further deposed that the distance between the place of arrest and place of recovery by the accused Suresh is about half kilometer which recovery was made at about 7.30 PM and the place of recovery is just behind the Valmiki Mandir but he does not recollect if the temple was open or close at that time. According to him, the Investigating Officer had asked some persons to join the recovery proceedings but none agreed. He is unable to tell if those persons were neighbourers or passers by nor he can tell their names and addresses and states that no notice was given to them by the Investigating Officer. He has further deposed that some persons i.e. neighbours were also requested to join the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 69 investigation at the place of arrest. According to him, the disclosure statement of accused Sudhir was recorded at about 8:30 PM at the place of recovery. He has testified that the handle of the knife was longer than the blade of knife which knife was having blood stains on it and was close at the time of its recovery. The witness has further deposed that the Investigating Officer had opened the said knife which knife was not wrapped in anything and was lying under the bricks on kaccha (mitti) floor. He has further testified that after sealing and seizing the knife, it was deposited with the MHCM. He has denied the suggestion that despite availability of public persons at the place of arrest and recovery, they were not joined by the Investigating Officer during investigation or that accused has been falsely implicated in this case and knife has been planted upon him. The witness has further deposed that seal after use was handed over to him. However, when confronted which his statement Ex.PW21/DA the name of HC Sukhbir was found mentioned as the person to whom the seal was handed over. (71) PW22 Inspector Samarjeet Singh has deposed that on 17.9.2009 further investigation of this case was entrusted to him. According to the witness, during investigation on the same day he obtained process U/s 82 Cr. PC against accused Sanjay and moved an application Ex.PW22/A before CMO, SGM Hospital for subsequent opinion on the weapon of offence which subsequent opinion was given by the doctor on the back of his application which is Ex.PW7/C. He St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 70 has also deposed that he sent the exhibits at FSL through Ct. Rakesh obtained the result of FSL which are Ex.PX and Ex.PY. He has proved having recorded the statement of witnesses and filed the challna in the Court. The witness has further deposed that on 05.11.2009 information from Crime Branch was received by him that one of the accused Sanjay who was wanted in the present case had been arrested by them and would be produced in the court on the next day. According to the witness, on 06.11.09 he moved an application before the concerned court for permission to interrogate and to arrest accused Sanjay which application is Ex.PW22/B. He has testified that the accused Sanjy was arrested by him vide arrest memo Ex.PW22/C. He has further proved having obtained the opinion on the MLC of injured Naresh S/o Mohan which MLC is Ex.PW4/D and filed the supplementary charge sheet against accused Sanjay. (72) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he interrogated accused Sanjay in the Court but he did not make any person from the court staff as a witness. According to the witness, he took the permission at about 12:45 noon and arrested accused at about 1.00 PM and produced the accused before the court at 1:15 PM. He has denied the suggestion that a wrong information was received from the Crime Branch or that he had taken the signature of accused Sanjay on blank papers. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 71 (73) PW24 Ct. Daya Ram has deposed that on 23.7.2009 at the instance of SHO, he went to Safdarjung Hospital and from there he brought accused Sunil to the Police Station after his discharge from the hospital as he was getting treatment there. According to him, the accused Sunil was interrogated by the SHO and was arrested vide memo Ex.PW16/A, his personal search was conducted vide memo Ex.PW16/B, disclosure statement of the accused was recorded vide Ex.PW16/C after which the accused there led them to a gali near Shiv Mandir, Friends Enclave, Sultan Puri and pointed out the place of incident vide Ex.PW16/D. (74) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he reached the hospital at about 10:00 AM and came back with the accused at Police Station at about 6:00 PM. He has testified that constable Ashok was accompanying him at that time and no MLC of accused Sunil was obtained by him. According to the witness, the accused pointed out the place of incident at about 8.00 PM and the disclosure statement of accused was recorded at Sultan Puri, Shiv Mandir. He has also deposed that he was informed at the Police Station about treatment and admission of accused Sunil in the said hospital with his name, father's name and address but at the time of his apprehension, none had identified him as Sunil. He has denied the suggestion that he had not joined the investigation or that signatures of accused Sunil were obtained on blank papers and St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 72 thereafter, converted into various memos and disclosure statement. (75) PW25 HC Satish has deposed that on 09.08.2009, he was present in the Police Station when accused Suresh @ Pullu was brought by his brother Vinod in the Police Station and he was joined in the investigation along with Ct. Bhupesh. According to the witness, the Investigating Officer interrogated the accused Suresh and arrested him vide memo Ex.PW21/A, his personal search was conducted vide Ex.PW21/B and his disclosure statement was recorded which is Ex.PW21/C. He has further testified that the accused pursuant to his disclosure statement pointed out the place of incident vide pointing out memo Ex.PW21/D and thereafter took them to SGM Hospital where the accused pointed out the place where they left motor cycle no. DL 8S NA 1130 Bullet of black colour after the incident out of fear of police.
(76) In his crossexamination by the Ld. Defence Counsels the witness has deposed that the accused had come in the Police Station at about 5:00 PM and the Investigating Officer conducted arrest, personal search and recorded disclosure statement of accused at the Police Station which process took about one and a half hour. He has further deposed that thereafter, he alongwith the Investigating Officer of the case and the accused went to SGM Hospital where the accused first pointed out the place where he left the above said motor cycle. According to him, vehicle was not recovered from the place pointed St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 73 out by the accused and no statement of any hospital staff or public person was recorded. He has also deposed that Investigating Officer had asked fourfive public persons to join the investigation but they had left without disclosing their names and addresses, however, no notice was served upon them. The witness has further deposed that prior to pointing out at SGM Hospital, accused pointed out the place of incident at Sultan Puri. He does not recollect the exact time of their visit at the place of incident but it was evening time. The witness has also deposed that the Investigating Officer was making inquiries from the public person present there but none came forwarded. He has admitted that the place of incident is surrounded by residential houses and that all the houses are having their numbers. According to him, there is a Shiv Mandir also near the place of incident. He does not recollect if Investigating Officer had served any notice upon any of the resident nor to the priest of Shiv Mandir near the spot. He has testified that he remained in the investigation in the present case only for that day from 5:00 PM to 2:00 AM and his statement was recorded at the Police Station on 09.08.2009 but he does not recollect the exact time of recording his statement. He denied the suggestion that he had not joined any investigation with the Investigating Officer or that he had signed the papers at the instance of Investigating Officer. (77) PW26 SI Mukesh has deposed that on 21.07.2009 Inspector Yashpal Singh received a secret information regarding the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 74 accused persons wanted in this case pursuant to which he along with Inspector Yashpal and Ct. K.N. Gaur went to Shani Bazaar Road, near Balaji Mandir where secret informer met them. According to the witness, the Investigating Officer asked some public persons to join the investigation but they refused and after some time, the secret informer pointed out towards a boy standing near the temple who was apprehended by them. He has further deposed that on interrogation, he revealed his name as Surender @ Sonu Punjabi S/o Sadhu Singh after which the accused was interrogated in detail and thereafter the accused was arrested vide memo Ex.PW20/A, his personal search was conducted vide memo Ex.PW20/B and he made his disclosure statement which is Ex.PW20/C. According to him, one blue strip shirt which was worn by accused Surender and which was blood stained shirt from back side was also taken into possession by the Investigating Officer after sealing the same with the seal of YP and was seized vide seizure memo Ex.PW20/D. He has proved that thereafter accused took them to the place of incident and pointed out the same near Shiv Mandir vide pointing out memo Ex.PW26/A. According to him, thereafter the accused took them to SGM Hospital where he pointed out the place near wall of the said hospital and got recovered black bullet motor cycle no. DL 8SNA 1130 which was taken into possession vide memo Ex.PW20/E. He has also deposed that thereafter accused St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 75 Surender was got medically examined from the hospital and after completion of investigation on that day, they came back to the Police Station where the Investigating Officer deposited the case property with MHC(M) and recorded his statement along with the statement of Ct. K.N. Gaur. He has identified the case property i.e. a blue colour strip shirt which was taken from the accused which is Ex.P5 and Motorcycle No. DL8S NA1130 which is Ex.P10.
(78) In his crossexamination by the Ld. Defence Counsel the witness has deposed that Inspector Yashpal told him personally about the secret information at about 5.30 PM in the Police Station in his room and they went to the place of arrest in government vehicle i.e. gypsy. According to him, there were no shops near the spot as the temple is situated near a park at Shani Bazaar road. He has testified that the secret informer was standing at some distance from them. He does not recollect if any notice was served upon the said public persons on their refusal to join the investigation. The witness has further deposed that the secret informer left the spot after pointing out towards the accused at about 6:15 PM. He has denied the suggestion that the shirt Ex.P5 has been planted upon the accused. He has also deposed that first the arrest memo was prepared thereafter personal search and disclosure statement of accused were prepared in the handwriting of the Investigating Officer. According to him, all writing work was done at the spot while sitting on the footpath and while sitting in the gypsy. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 76 He has testified that it took about two hours in completing the proceedings at the place of arrest. He does not recollect if the Investigating Officer had asked any public persons to join the investigation at that place and states that no public witness was examined at that time. According to the witness, they reached at SGM Hospital within ten minutes from the place of incident. He has denied the suggestion that no recovery was effected from accused Surender or that he never visited any spot with the Investigating Officer or that the accused was never arrested in the manner stated above by him. He has further deposed that the seal after use was kept by Inspector Yashpal in his possession and the sealing material was kept in the Investigating Officer kit. He does not remember the colour, size and make of the Investigating Officer kit or whether it was of leather, plastic. He has denied the suggestion that the Investigating Officer was not having any kit bag.
(79) He is unable to tell how Ct. K.N. Gaur had taken the motorcycle to Police Station. He has testified that the disclosure statement of accused Surender was recorded at the place of arrest and no person from the hospital staff was asked to join the investigation by the Investigating Officer at the time of recovery of motorcycle Ex.P10. He does not recollect as to in which direction the motorcycle was parked. He does not recollect if any attendant or parking incharge was called by the Investigating Officer at that time or not. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 77 (80) PW28 Inspector Yashpal Singh is the Investigating Officer of the present case who has deposed that on 21.07.2009, he was posted at Police Station Sultan Puri as Inspector Investigation and on that day, an information regarding quarrel at F6/4, Friends Enclave was received by him on which he reached at at the spot where ASI Rawal Singh, Constable Rupesh, Neeru @ Guddo, 'N' and twothree other persons were found present. According to the witness, he was informed by ASI Rawal Singh that Subhash who was injured in the quarrel was already declared dead by the doctors at SGM Hospital and he (ASI Rawal Singh) had sent the rukka through Constable Vijender from the hospital itself and that Naresh, Sameer @ Amir @ Kale and Sunil were also admitted in the hospital vide their respective MLCs as they also sustained injuries in the quarrel. The witness has testified that at the spot, broken pieces of glass, dandas, one iron pipe, baseball bat and two empty bottles of country made liquor were also found lying. According to him, the complainant Guddo informed him that one Sanjay S/o Jaipal was also involved in the incident and he noticed that Guddo and 'N' also sustained minor injuries. He has proved having prepared the site plan Ex.PW19/B at the instance of Guddo and 'N'. He has testified that Crime Team was called and the spot was inspected and photographed by the Crime Team and the photographs are Ex.PW1/A1 to Ex.PW1/A12 and the crime team report is Ex.PW5/A. The witness has also deposed that during inquiry, Neeru St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 78 further disclosed that in day time at Shiv Mandir Kanwarias offered holy water of Ganges at Lord Shiva and in the night, in front of the temple all the devotees including boys and girls, ladies, gents and children were dancing to celebrate the said event and thereafter, accused Sudhir and Sunil commented in obscene language (Fabtiyan) on 'N' when she was standing outside her house with her mother and was opposed by Subhash brother of 'N' and hence accused Sudhir and Sunil in order to teach a lesson to Subhash brought their friends and associates and the quarrel took place and Subhash in order to save himself ran towards the temple where he was apprehended by all the accused persons and was given beatings due to which, he died. The witness has testified that in the meanwhile, Constable Vijender came with the copy of FIR and original tehrir and handed over the same to him after which he lifted baseball bat, danda, iron pipe and a small danda and took them into possession after sealing the same in five pullandas with the seal of 'YP' and were seized vide common seizure memo Ex.PW3/B. He has proved that two empty bottles and broken pieces of glass were also seized by him after sealing the same in pullandas with the seal of 'YP' and were seized vide seizure memo Ex.PW3/C. According to the witness, Neeru told him that the baseball bad having black colour tape was used in the quarrel by accused Sunil and the other baseball bat on which red tape was wrapped and word 'Raptor' was written on it was used by accused Sanjay whereas St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 79 accused Surinder @ Sonu Punjabi had used the iron pipe, accused Suresh @ Phullu and Raj Kumar @ Danny were having empty bottles in their hands. He has testified that beat Constable Ashok Kumar came with a motorcycle no. DL 4S BN 4190 of red colour make Pulsar and handed over it to him stating that this motorcycle was lying abandoned at the corner of the gali which motorcycle was taken into possession by him vide seizure memo Ex.PW3/D. He has proved having recorded the statements of ASI Rawal Singh and Constable Ashok Kumar and having sent Guddo and 'N' to SGM Hospital for their medical examination alongwith Constable Bijender in the company of Parvesh husband of Guddo. The witness has further deposed that he made efforts to search the accused persons in their houses in the same locality and recorded the statement of PCR officials ASI Krishan Pal. He has also deposed that thereafter, he alongwith the case property and staff came back at the Police Station and deposited the case property with MHC(M) after which constable Vijender came in the Police Station alongwith Neeru @ Guddo and 'N' from the hospital.
(81) The Investigating Officer has also deposed that on the same day, he alongwith Constable K. N. Gaur went to SGM Hospital mortuary where he prepared inquest papers. According to him, Hari Singh and Sanjay identified the dead body of Subhash vide their identification statements Ex.PW7/B5 and Ex.PW7/B6. He has proved St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 80 the other inquest papers which are Ex.PW7/B1 to B4 and Ex.PW7/B7 and thereafter he got the postmortem on the dead body of Subhash conducted vide postmortem Report Ex.PW7/A after which the dead body was handed over to his relatives vide receipt Ex.PW8/A. He has also deposed that after postmortem the Autopsy Surgeon handed over two sealed pullandas stated to be containing the clothes and blood gauze piece of the deceased and one sample duly sealed with the seal of hospital to him which were seized vide seizure memo Ex.PW20/F. He has testified that thereafter, he alongwith Constable K. N. Gaur came back at the Police Station and deposited the exhibits with the MHC(M). He has further deposed that he came to know that injured Naresh and Sameer @ Amir @ Kale had been discharged from the hospital on which he went to their houses and recorded their statements on 21.07.2009. According to him, at about 5:30 PM on the same day, an information was received that accused Surender @ Sonu Punjabi was standing near Balaji Temple, Shani Bazar Road, Sultan Puri on which he alongwith Constable K. N. Gaur and SI Mukesh Rana went to the said place where the secret informer met him and pointed out towards the accused Surinder @ Sonu Punjabi who was wearing blue colour shirt. The witness has proved that he had asked twothree public persons to join the investigation but they did not agree and left the place and thereafter, the accused Surender @ Sonu Punjabi was apprehended. According to the witness, he interrogated the accused St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 81 who was arrested vide arrest memo Ex.PW20/A, his personal search was conducted vide memo Ex.PW20/B and his disclosure statement Ex.PW20/C was recorded pursuant to which the accused produced one blue colour shirt having strips and blood stains on it. He has proved that the shirt was kept in a pullanda and sealed with the seal of 'YP' and seized vide seizure memo Ex.PW20/D after which the accused pointed out the place of incident vide pointing out memo Ex.PW26/A. According to the witness, they went in search of other coaccused alongwith the accused Surinder @ Sonu Punjabi but no one found despite efforts on that day and the accused Surender @ Sonu Punjabi lead them to SGM Hospital and pointed out towards a Bullet motorcycle No. DL8S NA 1130 of black colour Ex.MX which was found parked besides a wall of the said hospital. The witness has further deposed that about the said motorcycle, the accused had disclosed that accused Sunil sustained injuries in the incident and he along with accused Suresh @ Phullu owner of the said motorcycle brought the said injured Sunil on the said motorcycle to the said hospital and due to fear of the Police, they left the motorcycle there and ran away. He has proved that thereafter the motorcycle was taken into possession vide memo Ex.PW20/E after which they came back to the Police Station alongwith the accused and case property was deposited with the MHC(M) and the accused was sent to lock up. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 82 (82) The witness has further deposed that on 22.07.2009, efforts were made to search the other accused persons but in vain and on 23.07.2009, he came to know that accused Sunil was admitted in Safdarjung Hospital on which he sent Constable Daya Ram who brought accused Sunil from the said hospital after his discharge. He has proved that the accused Sunil was arrested vide memo Ex.PW16/A after interrogation, his personal search was conducted vide memo Ex.PW16/B and his disclosure statement was recorded vide Ex.PW16/C after which the accused also pointed out the place of incident vide pointing out memo Ex.PW16/D. (83) He has also deposed that on 26.07.2009 a secret information was received that accused Raj Kumar @ Danny has come to his residence at 6/23, Friends Enclave, Sultan Puri on which he alongwith Constable Rupesh and Constable Ashok Kumar went to the said place where he asked threefour public persons in the gali about the house of accused Raj Kumar @ Danny and asked them to join the investigation but they refused. According to him, on seeing the Police party the accused Raj Kumar was trying to escape but was apprehended and after interrogation, was arrested vide memo Ex.PW16/E, his personal search was conducted vide memo Ex.PW16/F and he made his disclosure statement Ex.PW16/G after which he pointed out the place of incident vide pointing out memo St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 83 Ex.PW16/H. The witness has testified that in his disclosure statement, the accused Raj Kumar disclosed that his motorcycle no. DL 4S BN 4190 Make Pulsar of red colour which was used for reaching the spot was left by him at the corner of the gali on 21.07.2009. According to him, thereafter, he alongwith the said Constables and accused Raj Kumar @ Danny made efforts for search of the remaining accused Suresh @ Phullu, Sudhir and Sanjay but no one could be traced. The witness has proved having got prepared scaled site plan Ex.PW2/A through draftsman SI Manohar Lal. He has also deposed that on 8.8.209 he obtained the subsequent opinion on the weapon of offence baseball bat, iron pipe, danda and the broken glass pieces vide his application Ex.PW28/A on which, the opinion of the doctor was given which is Ex.PW11/A. He has testified that on 09.08.2009, the accused Suresh @ Phullu was produced by his brother in the Police Station on which the accused was interrogated and arrested vide memo Ex.PW21/A, his personal search was conducted vide memo Ex.PW21/B and he made his disclosure statement vide Ex.PW21/C after which the accused pointed out the place of incident vide pointing out memo Ex.PW21/D and the accused also pointed out the place where he left his Bullet motorcycle at SGM Hospital vide pointing out memo Ex.PW28/B. He has testified that the accused Suresh @ Phullu disclosed that he along with the accused Surender @ Sonu Punjabi St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 84 took accused Sunil in injured condition on his Buller motorcycle to SGM Hospital and out of fear, he left the said motorcycle near the wall of the said hospital.
(84) According to the witness on 18.08.2009, a secret information was received that accused Sudhir had come to his house at F1/403, Sultan Puri on which he alongwith Constable Rupesh and Constable Sukhbir went to the said place and on seeing the Police party the accused Sudhir became stunned and tried to run away from there but was apprehended and was arrested after interrogation vide his memo Ex.PW21/F, his personal search was conducted vide memo Ex.PW21/G, his disclosure statement was recorded vide Ex.PW21/H and thereafter the accused pointed out the place of incident vide pointing out memo Ex.PW21/J. He has proved that pursuant to his disclosure statement, accused Sudhir got recovered one button actuated knife from the heap of bricks from the NorthWest corner of Balmiki Park which knife was opened and its sketch Ex.PW21/K was prepared and thereafter, it was kept in a pullanda and sealed with the seal of 'YP' and seized vide seizure memo Ex.PW21/L. According to the witness, he also made efforts to search remaining accused Sanjay but he could not be apprehended and hence he obtained NBWs of the said accused. He has proved having the result on the MLCs of Sameer @ Amir @ Kala and Naresh after which he was transferred and the file was handed over to the MHC(R).
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 85 (85) He has correctly identified all the accused persons in the Court and also identified the case property i.e. two baseball bats which are Ex.P1 & Ex.P2; one iron pipe which was recovered from the spot which is Ex.P3; the motorcycle Ex.MX is Ex.P4; broken glass pieces which were recovered from the spot which are collectively Ex.P5; one knife which was got recovered by the accused Sudhir which is Ex.P2A; shirt having strips which was got recovered at the instance of accused Surinder @ Sonu Punjabi which is Ex.P5A; two empty bottles which were got recovered from the spot which are Ex.P8 & Ex.P9 and the Bullet motorcycle No. DL8S NA 1130 which is Ex.P10. (86) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he reached at the spot at about 2:30 AM on 21.07.2009. According to the witness, ASI Rawal Singh had obtained the MLC of accused Sunil from the said hospital and it was handed over to him later on, same day which MLC of the accused Sunil is Ex.PW28/D1. The witness has also deposed that accused Sunil did not meet him on the said day, as such no inquiry could be made from him. He has also stated that he had visited the said hospital at about 11:00 AM and has denied the suggestion that accused Sunil was available but he did not interrogate him.
(87) He has testified that he inquired from Duty Constable and the doctors on duty about accused Sunil but he could not know as to St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 86 where accused Sunil had gone. He has denied the suggestion that he was knowing that the accused Sunil was shifted to another hospital or that he deliberately did not interrogate the accused despite availability. According to the witness, he met the husband of complainant Neeru namely Parvesh at the spot but did not record his statement. He has also deposed that he met Hari Singh and Sanjay neighbours of the complainant at the spot and recorded the statements of both persons regarding identification of dead body and not otherwise. He has denied the suggestion that he did not deliberately record the statements of abovesaid persons regarding the incident. He has denied the suggestion that ASI Rawal Singh was the person who took accused Sunil to the said SGM Hospital or that no one was the eye witness to the present incident. He has also denied the suggestion that the pilgrims / Kanwariyas were present at the spot at the relevant time and there was a quarrel among the said pilgrims due to which deceased was killed or that accused Sunil received the injuries in other incident and his case was illegally connected with this case. He has admitted that two broken pieces of one of the baseball bats are not the part of the same baseball bat. He has denied the suggestion that the said baseball bats including the broken pieces were planted in the case and nothing was recovered from the spot. According to him, no finger prints were lifted from the said baseball bats or from other articles recovered from the spot.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 87 (88) He has testified that keeping in view the modesty of the female, she did not utter the obscene comments used by the accused nor he asked about the same. He has denied the suggestion that no obscene comments were passed by the accused on the said 'N'. The witness has further deposed that they reached Balmiki Park at about 7:30 PM on the said day and there was no temple inside the said park. He has also depoed that the area around the said park was densely populated and the Shiv Mandir where the incident took place was situated within the locality. The witness has further testified that since the said public persons showed their helplessness, he did not record their names and addresses nor serve any notices. According to him, the knife was having stains of mud as there was rain prior to its recovery and as such, he could not notice any blood stains on the same. He has denied the suggestion that accused Sudhir was not involved in this incident nor he was arrested in the manner as deposed by him nor any knife was recovered at his instance or that signatures of accused Sudhir and Sunil were obtained on blank papers which were subsequently converted into memos including the alleged disclosure statement. The Investigating Officer has further testified that on the night intervening between 2021.7.2009 he did not record statement of any witness but the same was recorded in the day time on 21.07.2009. According to him, it has come in the statement of Neeru that deceased was taken to the hospital by his family members in a private vehicle. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 88 He has also deposed that he prepared three papers i.e. the seizure memos of baseball bats and broken glass pieces, empty bottles and the motorcycle at the spot on the said night. He has further deposed that the baseball bats were shown to the autopsy surgeon for his subsequent opinion and after giving his opinion, the surgeon sealed the said baseball bats with his own seal of the hospital. He has explained that on 21.07.2009 after sealing the said exhibits from the spot, he handed over the seal of 'YP' to ASI Rawal Singh. According to him, the secret informer met him at TPoint, Shani Bazaar Road after giving the said secret information at about 5:30 PM. He has testified that the secret informer after pointing out the said accused Surinder @ Sonu Punjabi hardly remained with him for two minutes and left the spot. He has denied that accused Surinder @ Sonu Punjabi and Sanjay have been falsely implicated at the instance of complainant or that no recovery was effected from them or that they were arrested from their respective houses at the instance of the complainant. He has also denied the suggestion that Neeru @ Guddo and 'N' were not present at the spot or that the accused persons did not visit the spot. According to him, he did not record the statement of the brother of the accused Suresh @ Phullu when he had brought the accused to the Police Station. He has also deposed that no chance prints were lifted from the empty bottles recovered from the spot and there was no blood spots at the spot. The witness has testified that he had examined Neeru and 'N' who were St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 89 among the persons who took the deceased to the Hospital and said two ladies were not having blood stains on their respective clothes. According to the witness, he did not see the vehicle by which the deceased was taken to Hospital. He has further deposed that he did not record the statement of any public person at the hospital at the time of seizure of the motorcycle Ex.MX (Ex.P4). He has also deposed that there is one Police post of the SGM Hospital in the Police Station - Mangol Puri which is about 150 meters away from the Hospital. He has testified that injured Sameer @ Amir and Naresh met him at about 3:30 PM 4:00 PM in the house of injured Naresh which is near to the house of deceased on 21.07.2009 itself who were fit to make a statement at that time and he recorded their statements. He has denied the suggestion that both the said injured were discharged from Safdarjung Hospital on 23.07.2009 or that he recorded their statements on 24.07.2009. The witness has denied the suggestion that in the statement supplied to the accused Ex.PW28/D2, below his signatures, the date is mentioned as 24.07.2009 and has voluntarily explained that it is 21.07.2009 as is clearly visible in another copy of the statement on the judicial record which is Ex.PW28/PX. He has further deposed that he had recorded the case diaries in this case and the statements of said two injured were shown to have recorded in the case diary dated 21.07.2009. He has denied the suggestion that at the spot, there was a quarrel among the pilgrims known by the name of 'Kanwariyas' or that St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 90 the said recovered weapons from the spot and the empty bottles were belonging to those Kanwariyas. He has also denied the suggestion that he did not conduct investigation fairly.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(89) After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Cr.P.C.
wherein all the incriminating evidence was put to them which they have denied.
(90) The accused Sanjay has stated that he is innocent and has been falsely implicated in the present case. According to him, the complainant was selling illicit liquor in front of the school where his daughters were studying and she has also opened a mutton shop in front of the school and helping in betting and gambling around the school to which all the parents including he (accused Sanjay) objected due to which she started nurturing enmity with him. According to the accused since it was a blind case and the complainant got a chance to take revenge from him, she got him falsely implicated in the present with the help of police and made a statement against him. (91) The accused Surender @ Sonu Punjabi has stated that he is innocent and has been falsely implicated in the present case. According to him, on 10.9.2006 one FIR No. 1459/06 of Police Station Sultan Puri was registered against the relative of Neeru @ Guddo who St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 91 carrying the business of the illicit liquor and address of the said relative as an accused was that of Neeru @ Guddo and as such she was having suspicion that he is the informant of the said case to be registered by the police against her relative and it is for this reason that she was having enmity towards him. He has further stated that by way of this false case she took revenge from him by getting him falsely implicated in the present case. He has placed on record the copy of the said FIR which is Ex.D1. According to the accused, there were criminal cases pending between him and Sunil at the relevant time and they were not on good terms and hence there was no question arose of Sunil calling him as alleged by the complainant. (92) Accused Suresh @ Phullu has stated that he is innocent and has been falsely implicated in the present case which is proved by the fact that complainant Neeru @ Guddo even came to meet all the accused of this case which is evident by the document Mark DA reflecting his name as the person with whom the said complainant had come to meet in the jail. He has further stated that she was demanding money in order to compromise this case and for their acquittal. According to him, though he is a resident of the same locality and is knowing the fact that complainant is involved in selling illicit liquor from her residence where some disturbing elements used to be present there to which he objected many time. He has also stated that this was the cause of grudge in the mind of Neeru @ Guddo against him and as St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 92 soon as she got the change, she took revenge from him by implicating him in this false case. He has further stated that though the police officials were visiting his house time to time, he along with his brother Vinod approached to Police Station Sultan Puri on 9.8.2009 to know about a fact when he was arrested by the police in the Police Station and they obtained his signatures on blank papers forcibly. (93) Accused Sudhir has stated that he is innocent and has been falsely implicated in the present case which is proved by the fact that complainant Neeru @ Guddo even came to meet all the accused of this case which is evident by the document Mark DA reflecting his name as the person with whom the said complainant had come to meet in the jail. He has further stated that she was demanding money in order to compromise this case and for their acquittal. According to him, since there were criminal cases against him in the Police Station hence the complainant and the police joined hands together to falsely implicate him in the present case in order to solve a bind murder case. (94) The accused Sunil has similarly stated that he is innocent and has been falsely implicated in the present case. He has stated that he had gone to the temple in question on the fateful night to meet Kanwariyas where some unknown persons attacked him and gave him knife blows due to which he suffered injuries on different parts of his body for which he was medically examined in SGM Hospital where he was taken ASI Rawal Singh. According to the accused, it was a sheer St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 93 chance that he was also medically examined in the same hospital where the said deceased was also brought at that time. He has further deposed that he also made his statement to ASI Rawal Singh regarding the injuries suffered by him but instead of recording his statement, he falsely implicated him in this case in order to solve a blind murder case since he was an easy prey. According to the accused complainant Neeru @ Guddo even came to meet all the accused of this case which is evident by the document Mark DA reflecting his name as the person with whom the said complainant had come to meet in the jail. (95) The accused Raj Kumar @ Danny has stated that he is innocent and has been falsely implicated in the present case by the complainant in collusion with the police officials. According to him, Neeru @ Guddo was having suspicion on him that he might have made a complaint against her and her family members as they were involved in illegal activities.
(96) The accused have examined three witnesses in their defence. DW1 Sh. Sadhu Singh is the father of the accused Surender and has deposed that on 20.7.09 his son Surender and his niece Manisha were having their birthday and they were having a party on the same day till 12.30 AM or 1.00 AM. According to him, at about 2:45 AM some police officials came to his house and inquired about his son Surender and called him and took his son Surender with them in a Qualis car. He has further deposed that on the next day they St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 94 visited Police Station and police officials told that Subhash son of Smt. Guddo was murdered and in the afternoon, police officials demanded a sum of Rs.1.5 lac from him to leave his son and when he tried to give the explanation that his son was at home on the day of incident then they paid no heed to his request and when he refused to pay the money as he was not able to arrange the same, they implicated his son falsely in this case. He has placed on record the photocopy of the date of birth certificate of Manisha issued by Sub Registrar of Birth and Death, MCD which is Ex.DW1/A. (97) In his crossexamination by the Ld. Addl. PP for the State the witness has admitted that neither he nor his family members had any enmity with Neeru @ Guddo. According to him, Shiv Mandir i.e. the spot in question is situated at a distance of about 400500 meter from his house. He has further deposed that the birthday celebration was going on in his home and it was not being celebrated in any hotel/ restaurant or outside the locality. He has denied the suggestion that no such birthday had been celebrated as deposed by him. He has admitted that a function was going on at Shiv Mandir due to the Kanwariyas as they offered holy water of "Ganges" on that day. The witness has also deposed that the remaining accused namely Sudhir, Sunil, Raj Kumar @ Danny, Suresh @ Phullu and Sanjay were having friendly relations with his son Surender @ Sonu and has voluntarily added that theyw ere not as friendly. He has testified that he did not lodge any St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 95 complaint against the SHO or any police official of the Police Station Sultan Puri regarding the false lifting of his son from home and regarding the demand of Rs.1.5 lacs from him for his release, to any senior officers or any other authority or false implication of his son. He has denied the suggestion that since his son is involved in the present case that is why he had not lodged any complaint against the said police official till date. He is not aware if accused Sunil and Sudhir made indecent gestures and comments on 'N' D/o Smt. Neeru @ Guddo on the night of 20.7.2009 at about 11.30 PM and when the son of complainant namely Subhash came and intervened, the said two accused left the place and after about 20 minutes they came back with their other associates with weapons whose names are mentioned in her complaint, his son was not with them. He has denied the suggestion that he is deposing falsely being the father of the accused Surender and just to save him from legal punishment. He has admitted that in her complaint the complainant had stated to the police that accused Sonu Punjabi was having an iron rod in his hand. He also admitted that during the pendency of this case he did not ask his advocate to lodge a complaint against the said conduct of the police of Police Station Sultanpuri. He denied the suggestion that because of the involvement of his son in the present case he was not advised by his advocate for the same or that no demand of Rs.1.5 lacs was ever made by the police as his son was already named in the complaint by Smt. Guddo. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 96 (98) DW2 Ranjeet has deposed that on 20.7.2009 Surender and his niece Manisha were having their birthday and he was called by Sh. Lucky, elder brother of Surender to attend the Birthday Party. According to the witness, he left the party at 12.30 AM and went to his home and at about 3.30 AM some persons knocked the door of his house and his mother opened the door. He has further deposed that twothree persons who were in civil dress asked about him from his mother who called him and took him to Police Station in Qualis and he saw that twothree other boys including Surender were sitting in the said qualis and they were taken to Police Station. The witness has also deposed that on the next day, when his mother came to the Police Station to enquire about him then she was informed that son of Smt. Guddo was murdered and he was treating them as one of the suspect in the case. He has further testified that for two days, he remained in the Police Station and during the said period the said police officials demanded Rs. 1.5 lacs when he told that he was not having such a high amount and they threatened him to implicate him in the said murder case. According to him, on 22.7.2009, he was taken to his house and he paid Rs.30,000/ to them and thereafter he was released. (99) In his crossexamination by Ld. Addl. PP for the State the witness has deposed that he is working as a Travel Agent in a Travel Company by the name of Bhawna Travels at Sector15, Rohini, Delhi which is a partnership office with his friend having 24 hours service. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 97 He has admitted that he has no fix time of his work because of the said reasons. According to the witness, he had attended the birthday parties of accused Surender twice or trice prior to 20.7.2009. The witness has also deposed that the birthday of niece of accused Surender was being celebrated and he was called by his elder brother to attend the same. According to him, the house of accused is situated after 4 gali's of his house and there were about 15/20 person who attended the said birthday party which was being celebrated at the home. He has denied the suggestion that no such birthday party was being celebrated and he was not called in the same. The witness has further deposed that he knew Smt. Neeru @ Guddo who is complainant of the present case and is residing in Sutan Puri itself and has no enmity with him but he is not aware if she has some enmity with accused Surender @ Sonu or not. According to him, he has friendly terms with the elder brother of accused Surender but he is not much aware about Sonu Punjabi as he generally remains busy in his business. He has no knowledge if accused Surender @ Sonu Punjabi was having friendly terms with other accused Sudhir, Sunil Raj Kumar @ Danny, Suresh @ Phullu, Sanjay nor has he any knowledge if on the night of 20.7.2009 accused Sudhir and Sunil misbehaved with 'N' daughter of Smt. Neeru @ Guddo due to which her son Subhash came and intervened. According to the witness, he has no knowledge if after 20 minutes of the said incidents all the accused came with different weapons in their hands St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 98 and committed murder of Subhash. He has testified that after 20.7.09 till date he did not lodge any complaint against the police saying that accused Surender has been falsely implicated in present case nor he seek any information from the police through RTI as to on what ground the accused was implicated in the present case. He has denied the suggestion that he did not do so as he was knowing that the accused Surender was involved in the murder of the said Subhash. The witness has further testified that he has the knowledge that the complainant Neeru @ Guddo had mentioned the name of Surender in her complaint as one of the accused for the murder of the deceased. He has denied the suggestion that he did not give any sum of Rs. 30,000/ to the police as deposed by him. He has explained that he managed the said amount from his family members and gave it to the police. He has admitted that a celebration was going on in Shiv Mandir by 'Kanwariyas' after offering the holy water of 'Ganges' on the day of the incident. He has denied the suggestion that he is deposing falsely just to save the accused Surender from legal consequences and at the instance of his brother.
(100) DW3 Sh. Om Prakash S/o Sh. Chatar Singh has deposed that on 21.7.09 his nephew Sanjay was sleeping in his house and at about 4.00 AM some police officials came to his house in the civil dress and took out him in their vehicle to Police Station. According to him, on the next day he went to Police Station and St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 99 inquired from some police officials who asked him to give a sum of Rs.2 lacs. He has also deposed that he agreed to pay Rs.1 lac and when he got the copy of FIR he came to know his nephew was not named in the said FIR and hence he refused to pay the money and on 23.07.2009 his nephew Sanjay was released and thereafter he was falsely implicated in the present case and was arrested later on. (101) In the crossexamination by the Ld. Addl. PP the witness has deposed that he is not a summoned witness and he did not lodge any complaint regarding the lifting of his nephew Sanjay at 4 AM on 21.07.2009, demand of Rs.2 lacs as a condition for his release and thereafter his false implication in the present case, to any higher Police official or any other authority. According to the witness, the parents of accused Sanjay are not alive and he (witness) is running a Kerosene Oil Depot at Sultan Puri. He is unable to tell the name of the Police official who gave him the copy of FIR. He has denied the suggestion that the Police official did not ask for a sum of Rs.2 lacs from him for the release of his nephew Sanjay. He is not aware when Sanjay was arrested by the Police. He has denied the suggestion that accused Sanjay absconded after the incident. He is not aware if accused Sanjay was declared as Proclaimed Offender by the concerned Court. The witness has testified that he was arrested from outside Delhi but he did not know the place if accused Sanjay was arrested from Delhi itself and that is why he is not aware know about the place from where he St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 100 was arrested. He denied the suggestion that he was deposing falsely in order to save his nephew from the legal consequences. FINDINGS:
(102) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the written memorandum of arguments filed on behalf of the accused and the authorities relied upon by them as under:
1. Sucha singh Vs. State of Punjab reported in 2009 (III) CCR 301 (SC).
2. Tippara Prabhakar Vs. State of Andhra Pradesh reported in 2009 (III) CCR 151 (SC).
3. State Vs. Chander Pal reported in 1995 JCC 518 (DHC).
4. S.D. Soni Vs. State of Gujarat reported in AIR 1991 SC 917 (SC).
5. Malempati Pattabi Vs. Ghattamaneni Maruthi reported in 2000 (2) JCC (SC) 702.
6. State of Rajasthan Vs. Taran singh & Ors. reported in 2003 (3) JCC 1835 (SC).
7. Mohd. Jamil Vs. State reported in 152 (2008) DLT 750 (DB).
8. Riaz Ali Vs. State reported in 2012 (2) JCC 1092 (DB).
9. Mangal Singh Vs. State of HP reported in 1996 (2) CCC 127 (DB) - Himachal Pradesh High Court.
10. Shakti Singh Vs. State reported in 1995 JCC 358 (DB) DHC.
11. Smt. Omwati Etc. Vs. Mahender Singh & Ors. reported in 1998 Cr.L.J. 401 : AIR 1998 SC 249.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 101 (103) I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
Public Witnesses/ Eye Witnesses
1. Ms. Victim She is the star witness of the prosecution being the victim
'N' (PW27) and an eye witness to the murder of her brother Subhash.
While she was under examination before the Ld. Predecessor of this Court, it was observed by the Court that on day of her deposition when the witness appeared in the witness box and entered inside the court room, she was bitterly weeping and on an enquiry she informed the Court that she was stopped by her family members from coming to the court. On being consoled by the Ld. Predecessor Judge, she uttered that she wanted to depose against the accused but she was stopped by her cousin namely Naresh and her mother namely Smt. Neeru and she has apprehension that some legal action may not result against her mother from this disclosure, which was the reason for her weeping. She also informed the Court that she was being treated for Neuro ailment at Shri Balaji Action Medical Institute, Paschim Vihar. The SHO concerned was then called to the Court by the Ld. Predecessor not only for providing protection to the witness but also to counsel her so that she may come out of her said dilemma and after the dictation of the necessary directions to the SHO, the witness was again called to proceed with her further deposition. The witness 'N' has deposed on the following aspects:
1. That about two and half years or three years ago, in the month of July she along with her mother was standing outside their house and from the gali of their house, accused Sudhir and Sunil were passing.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 102
2. That they both started making obscene gestures towards her and started commenting upon her to which her mother objected and asked them to go away from there.
3. That on hearing the noise of her mother, her brother Subhash who was inside the house came out and objected on the act of both the accused persons, on which both the accused started arguing with her brother and went away from there by threatening that they will see her brother after sometime.
4. That after about 20 minutes, they both came along with many other boys namely Sonu Punjabi, Phullu, Sanjay, Sudhir, Sunil and Danny all accused whom she has correctly identified in the Court by their names.
5. That they (accused persons) all started asking her brother to come out of the house on which her brother came out of the house and after seeing all the accused persons with different weapons in their hands, ran towards Shiv Mandir in the Gali.
6. That accused Sunil and Sanjay were having baseball bat in their hands, accused Sudhir was having knife in his hand, accused Sonu Punjabi was having iron rod in his hand and accused Phullu and Danny were having glass bottles in their hands.
7. That the accused persons were chasing her brother when he was running towards mandir, accused Sunil was uttering "is saley ne hamari badmashi ko chunoti di hai, is saley ko khatam karna hai" (he had challenged their ruffianism so he should be killed).
8. That accused Sudhir had caught hold of her brother Subhash opposite Shiv Mandir in the gali and accused Sunil and Sanjay hit on the head of her brother with baseball, accused Sonu Punjabi hit on his head with iron rod and St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 103 accused Danny and Phullu gave blows on the head of her brother with empty liquor glass bottles.
9. That when she, her mother, her cousin Naresh and neighbour Sameer @ Amir raised alarm of 'bachao bachao' then accused Sudhir inflicted knife blows on Naresh and Sameer @ Amir.
10. That in the quarrel, the empty liquor glass bottles in the hands of accused Danny and Phullu were broken and pieces of glass had scattered in the gali and in the scuffle, accused Sunil fell on the said glasses and sustained injuries on his body.
11. That due to fear of apprehension, all the accused persons ran away from the spot and Naresh and Sameer @ Amir were referred to Safdarjung hospital from SGM Hospital where he was declared dead by the doctor.
12. That accused Sudhir and Sunil were residing in their basti and she knew all the accused persons as they were resident of the same locality and in fact the accused Danny was residing just behind her house.
13. That she herself, her mother, Naresh and Sameer @ Amir were also medically examined in the SGM Hospital where police met her and recorded her statement which is Ex.PW27/A.
2. Smt. Neeru @ She is the mother of the deceased who has deposed on the Guddo (PW3) following aspects:
1. That she has three daughters and had one son namely Subhash who was aged about 22 years.
2. That on 20.7.2009 at about 11.30 PM she alongwith her daughter 'N' was standing outside her house when Sunil and Sudhir who are real brothers were passing through the gali.
3. That while passing they stopped for a while in front of her house and started eve teasing her daughter 'N' and also made indecent gestures on which she tried to make accused Sunil understand St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 104 not to do same as her daughter was standing there.
4. That in the meanwhile her son Subhash also came there from the house who also asked accused Sunil to refrain from his said act on which accused Sunil uttered that they have challenged his ruffianship ("Badmashi").
5. That after uttering abuses both the accused Sunil and Sudhir left the said place and they went inside their house.
6. That after about 2025 minutes, accused Sudhir, Sunil, Sanjay, Sonu Punjabi, Phullu and Danny whom she has correctly identified in the Court, again came there and she saw that accused Sudhir was having a knife in his hand, accused Sunil was having a baseball bat, accused Sonu Punjabi was having iron rods, accused Phullu and Danny were having empty liquor bottles and accused Sanjay was having bat of baseball.
7. That they all (accused) called out her son and challenged him ("Lalkara").
8. That on seeing this being frightened her son ran away from there towards Shiv Mandir in gali on which all the accused chased him and started beating her son Subhash with the said weapons, due to which he became unconscious.
9. That she herself, her daughter, one Sameer @ Amir and her nephew Naresh after raising alarm rushed towards the said spot.
10. That accused Sudhir gave a knife blow to Naresh and she and her daughter and Sameer @ Amir also sustained injuries during intervention.
11. That her neighbours took her son Subhash, Naresh and Sameer @ Amir to Sanjay Gandhi Hospital where her son Subhash was declared brought dead.
12. That she called the police from the mobile used by her nephew but by mistake police recorded the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 105 name of her husband from whose mobile she had called the police.
13. That police reached at the spot and recorded her statement first in the hospital Ex.PW3/A and also at the spot.
14. That from the spot, the police lifted two bat of baseball, one iron rod and broken pieces of glass bottles.
15. That the bats of the baseball were having black tape on one end and on the other something was written in red colour.
16. That the said articles were kept in a pullanda separately and were sealed and seized vide memo Ex.PW3/B and Ex.PW3/C respectively.
17. That the police made enquiries from her at the spot and she narrated the said incident to them after which a site plan was prepared by the police who saw the spot and also took the measurement of the spot at her instance.
18. That in the incident, one of the accused namely Sunil fell down on the broken pieces of glasses and had sustained injuries on his person.
19. That the accused on the said day of incident had come on two motorcycles out of which one was not present at the spot whereas the other one of red colour was seized by the police vide memo Ex.PW3/D.
20. That in her initial statement Ex.PW3/A the name of accused Sanjay was missing due to nervousness and hopelessness in her mind at that time but in her subsequent statement on the following morning recorded by the police she had specifically named accused Sanjay.
21. That the scene of crime was got photographed by the Investigating Officer which photographs are Ex.PW1/A1 to PW1/A12.St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 106
She has correctly identified all the accused persons in the Court. On 20.5.2010 the crossexamination of this witness was deferred and was partly conducted on 7.3.2011 and again on 12.8.2011 i.e. again after ten months of recording her examination in chief wherein initially she neither supported the earlier version given by her to the police nor her earlier testimony but later on being advised about the legal consequences she supported whatever she had deposed in her examination in chief on 20.5.2010 but requested the court to leave the accused who were all residing in the same area since she wanted to reside with her daughters in peace.
3. Hari Singh He is the neighbour of the deceased who has proved (PW8) having identified the dead body of the deceased Subhash vide Ex.PW7/B6 and having received the dead body vide Ex.PW8/A. He has however turned hostile on the incident and identity of the accused persons.
4. Sanjay (PW9) He is also a neighbour of the deceased who has proved having identified the dead body of the deceased at SGM Hospital vide Ex.PW7/B5. He has however turned hostile on the incident and the identity of the accused persons.
5. Mohd. Amir @ He is stated to be one of the injured and an eye to the Kale (PW12) incident and has not supported the earlier version given by him to the police. He has deposed on the following aspects:
1. That in the month of July 2009, date he does not recollect, when he was present at 80 feet colony, at about 1111.30 PM some 12/13 kanwarias (persons who bring holy water of Ganga from Haridwar) besides some other public persons were present and he heard noise, bachao bachao and suddenly the stampede started.
2. That in that incident, he was hit with something on his left side waist on which he started bleeding due to injury.
3. That he was taken to Safdarjung Hospital by some one and police did not meet him at hospital. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 107
4. That on the next day, he came back to his house as being discharged from the hospital.
5. That besides him one another boy also sustained injuries in the above said incident was admitted in the hospital but he is unable to tell his name.
He has however turned hostile on the identity of the accused persons.
6. Naresh (PW23) He is the cousin of the deceased who has supported the prosecution case in so far as the incident is concerned but has turned hostile on the identity of the accused. He has deposed on the following lines:
1. That two years ago he brought 'Kanwar' from Haridwar and in the night they were celebrating the occasion after offering the Holy Water of Ganges on Lord Shiva in the Shiv Temple of their area and his real cousin Subhash (deceased) was also dancing with him.
2. That neighbours and other mohalla people were also participating in the said celebration and after about 11:00 PM some boys came and started teasing his cousin 'N' i.e. sister of Subhash who was standing outside her house alongwith other girls of the gali.
3. That mother of 'N' and Subhash objected to the acts of those boys on which some manhandling took place and they left the spot.
4. That he also went to his house leaving Subhash there and after sometimes he received a telephone call from Subhash about a quarrel and he also reached there.
5. That he was talking to Subhash when in the meanwhile, seven to eight boys came there and started beating Subhash with dandas and other weapons which they were carrying in their hands.
6. That they hit Subhash with bats and other weapons and he was also given beatings by bat by the said boys on which he sustained injuries on his head.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 108
7. That Subhash was taken to the SGM Hospital where he was declared brought dead and he (witness) was also medically examined in the said hospital from where he was referred to Safdarjung Hospital and was discharged from the said hospital on next day.
8. That police came and made inquiries from him on which he narrated the entire incident to the police.
He has however turned hostile on the identity of the accused persons (explanation in this regard is coming from the testimony of victim 'N').
Medical Witnesses:
7. Dr. Binay He has proved the MLCs of the various injured details of Kumar (PW4) which are as under:
Ex.PW4/A MLC of injured Mohd. Sameer @ Amir
Ex.PW4/B MLC of injured 'N'
Ex.PW4/C MLC of injured Neeru @ Guddo
Ex.PW4/D MLC of injured Naresh
Ex.PW4/E MLC of Subhash (deceased)
Mark PX MLC of accused Sunil
8. Dr. Manoj This witness along with Dr. J.V. Kiran had conducted the
Dhingra (PW7) postmortem examination on the body of deceased Subhash vide Postmortem Report Ex.PW7/A according to which there were following injuries on the body of the deceased:
1. Contusion, reddish 6 cm x 2.5 cm present on right side of the face, 2.5 cm in front of ear and 5.5 cm outer to outer angle of right eye with abrasion over the area 2 x 1 cm within the lower third of the contused area with a spread area of 1 cm x 0.5 cm within the abrasion and laceration 0.1 cm x 0.1 cm into subcutaneous tissue deep present at upper end of contused area. The contusion is obliquely placed on right side of face.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 109
2. Contusion, reddish 6 cm x 2.5 cm on right side of the neck, 6 cm below right ear low with a semi circular abrasion in the middle of the contused area.
3. Abrasion 1 cm x 1 cm on back of the left elbow.
4. Abrasion 1 x 0.5 cm on middle back of left forearm, 10 cm above wrist joint.
He has proved having opined that the cause of death is cerebral damage consequent to blunt force impact to the head; all injuries are antemortem in nature, fresh in duration and caused by blunt object and time since death is approximately 12 hours. The witness has also proved the the inquest proceedings which are Ex.PW7/B1, Ex.PW7/B2, Ex.PW7/B3, Ex.PW7/B4, Ex.PW7/B5, Ex.PW7/B6, Ex.PW7/B7 & Ex.PW7/B8 and Ex.PW4/E i.e. MLC of deceased Subhash.
He has further proved his opinion in respect of the injuries received by the injured Mohd. Sameer @ Amir vide endorsement at point X on MLC Ex.PW4/A according to which the injury is Simple in nature.
The witness has also proved his subsequent opinion according to which the injuries as mentioned in MLC no. 9460 (Mohd. Sameer @ Amir) and 9519 (Sunil) are possible with the broken glasses and the knife; the injuries as mentioned in MLC No. 9462 (Naresh) also could be possible by the broken glasses and the knife. He has further proved having prepared the sketch of the knife on his subsequent opinion and both are collectively Ex.PW7/C.
9. Dr. J.V. Kiran This witness has also proved the Postmortem Report of (PW11) the deceased which is Ex.PW7/A. He has further proved that 08.8.2009 he had given his subsequent opinion on the weapons of offence is Ex.PW11/A according to which the injuries mention in the Postmortem Report could be caused by the weapons i.e. baseball bats, iron pipe and broken stick covered with a plastic cover.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 110 Police / official witnesses:
10. Ct. Ravi Malik He is a formal witness being the Crime Team (PW1) photographer who has proved having taken the photographs of the spot of incident which are Ex.PW1/A1 and Ex.PW1/A12 and negatives of the same are Ex. PW1/B1 to Ex.PW1/B12.
11. SI Manohar He is a formal witness being the Draftsman who has Lal (PW2) proved having prepared the scaled site plan which is Ex.PW2/A.
12. SI Sanjay Gade He is a formal witness being the Crime Team Incharge (PW5) who has proved having visited the spot of incident and prepared his report which is Ex.PW5/A.
13. Lady Ct. She is formal witness being the PCR official who has Sangeeta proved that on 20.7.2009 at about 11:56 PM a call was (PW6) received at PCR from mobile phone to the effect that knives blows were being given in a quarrel at Friends Enclave, Sultan Puri which she recorded in the PCR Form computerized copy of which is Ex.PW6/A.
14. HC Sat Narain He is a formal witness being the Duty Officer who has (PW10) proved the copy of FIR which is Ex.PW10/ and his endorsement at point B on the rukka which is Ex.PW3/A.
15. Ct. Rakesh He is a formal witness who has proved that on 07.10.2009 (PW13) he deposited the pullandas at FSL, Rohini vide RC No. 39/21/09 to MHCM.
16. HC Krishan He is the MHCM who has proved the entry at Serial No. Lal (PW14) 11970 copy of which is Ex.PW14/A; entry at serial no.
11973 which is Ex.PW14/B and Entry No. 37/21/09 of RC Register which is Ex.PW14/C.
17. Ct. Sanjay He is a formal witness being the Special Messenger who (PW15) has proved that on 21.7.2009 he delivered the special reports to the senior officers i.e DCP/OD, Joint CP/NR and concerned MM.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 111
18. Ct. Ashok He is the Beat Constable of the area who has reached the (PW16) spot of incident pursuant to the information and has also joined investigations and has also proved the following documents:
Ex.PW16/A Arrest memo of accused Sunil
Ex.PW16/B Personal search memo of accused Sunil
Ex.PW16/C Disclosure statement of accused Sunil
Ex.PW16/D Pointing out memo by accused Sunil
Ex.PW16/E Arrest memo of accused Raj Kumar @
Danny
Ex.PW16/F Personal search memo of accused Raj
Kumar @ Danny
Ex.PW16/G Disclosure statement of accused Raj
Kumar @ Danny
Ex.PW16/H Pointing out memo by accused Raj
Kumar @ Danny
19. ASI Krishan He is a formal witness being the PCR Van Incharge who
Pal Singh has proved that on 2021.7.2009 he received information
(PW17) at about 12 night from Libra1 that a quarrel was going
on with knives at 6/4, Friends Enclave, Sultan Puri, Delhi on which he alongwith his staff reached the spot where they came to know that injured Subhash, Naresh, Sameer @ Amir and Sunil had already been shifted to hospital.
20. Ct. Vijender This witness had reached the spot along with ASI Rawal Singh (PW18) Singh pursuant to DD No.3A and has proved the seizure memo of the pullandas given by the doctors which is Ex.PW18/A.
21. ASI Rawal This witness had reached the spot along with Ct. Vijender Singh (PW19) Singh and has proved having made endorsement on the statement of Smt. Neeru @ Guddo which is Ex.PW19/A and having prepared the rough site plan which is Ex.PW19/A. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 112
22. Ct. N.K. Gaur He has joined investigations along with Inspector Yashpal (PW20) Singh and has proved the following documents:
Ex.PW20/A Arrest memo of accused Surender @ Sonu Ex.PW20/B Personal search memo of accused Surender @ Sonu Ex.PW20/C Disclosure statement of accused Surender @ Sonu Ex.PW20/D Seizure memo of shirt of accused Surender @ Sonu Ex.PW20/E Seizure memo of motorcycle bearing No. DL8SNA1130 Ex.PW20/F Seizure memo of pullandas containing the clothes and blood samples of deceased with one sample seal
23. Ct. Rupesh This witness has joined investigations along with (PW21) Inspector Yashpal on 26.7.2009 and has proved the proceedings of arrest of accused Raj Kumar @ Danny which have already been proved by PW16 Ct. Ashok. He has also joined investigations along with the Investigating Officer on 9.8.2009 and 18.8.2009. He has proved the following documents:
Ex.PW21/A Arrest memo of accused Suresh
Ex.PW21/B Personal search memo of accused Suresh
Ex.PW21/C Disclosure statement of accused Suresh
Ex.PW21/D Pointing out memo by accused Suresh
Ex.PW21/E Seizure memo of Bullet motorcycle
bearing no. DL8SNA1130
Ex.PW21/F Arrest memo of accused Sudhir
Ex.PW21/G Personal search memo of accused Sudhir
Ex.PW21/H Disclosure statement of accused Sudhir
Ex.PW21/J Pointing out memo by accused Sudhir
Ex.PW21/K Sketch of the knife
Ex.PW21/L Seizure memo of the knife
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 113
24. Insp. Samarjeet He is the subsequent Investigating Officer who has proved Singh (PW22) the following documents:
Ex.PW22/A Application for obtaining subsequent opinion Ex.PW22/B Application seeking permission to interrogate and arrest the accused Sanjay Ex.PW22/C Arrest memo of the accused Sanjay
25. Ct. Daya Ram He is a formal witness who has deposed that on 23.7.2009 (PW24) he went to Safdarjung Hospital and from there he brought accused Sunil to the Police Station after his discharge from the hospital after which the accused Sunil was interrogated by the SHO and was arrested vide memo Ex.PW16/A, his personal search was conducted vide memo Ex.PW16/B, disclosure statement of the accused was recorded vide Ex.PW16/C after which the accused there led them to a gali near Shiv Mandir, Friends Enclave, Sultan Puri and pointed out the place of incident vide Ex.PW16/D.
26. HC Satish This witness has joined the investigations on 9.8.2009 and (PW25) has proved the proceedings regarding the arrest of accused Suresh @ Phullu. He has proved the arrest memo of accused Suresh which is Ex.PW21/A, his personal search was conducted vide Ex.PW21/B, his disclosure statement was recorded which is Ex.PW21/C and pursuant to his disclosure statement pointed out the place of incident vide pointing out memo Ex.PW21/D.
27. SI Mukesh This witness has joined investigations on 21.07.2009 (PW26) along with Inspector Yashpal and Ct. K.N. Gaur and has proved the arrest memo of accused Surender vide memo Ex.PW20/A; personal search of accused vide memo Ex.PW20/B; disclosure statement of Surender which is Ex.PW20/C; seizure memo of shirt of accused Surender which is Ex.PW20/D; pointing out memo which is Ex.PW26/A and seizure memo of black bullet motor cycle no. DL 8SNA 1130 which is Ex.PW20/E. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 114
28. Insp. Yashpal He is the Investigating Officer of the present case and has Singh (PW28) proved the various proceedings conducted by him. Apart from the documents proved by the other witnesses he has proved the following documents:
Ex.PW28/A Application for obtaining subsequent opinion Ex.PW28/B Pointing out of the place where accused Suresh @ Phullu left his Bullet motorcycle at SGM Hospital (104) Coming now to the microscopic evaluation of the evidence against the accused persons.
Promptness in registration of FIR:
(105) It is a settled law that the promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story. Prompt lodging of FIR is supposed to be true version without any addition, embellishment and concoction. The chances of missing links, outside influence, after thought and additions are removed where memory is fresh and information is given without any loss of time. Where soon after occurrence FIR is lodged, it is difficult to believe that false story was cooked up (Ref.: Bhag Singh Vs. State of Punjab reported in 1971 Cri. LJ 903). In the present case the alleged incident of eve teasing which led to the murder of deceased Subhash the brother of 'N' (the victim who have been eveteased) took place on 20.7.2009 at round 11:30 PM when 'N' was standing outside her house along with her mother Smt. Neeru @ Guddo while the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 115 accused Sudhir and Sunil were passing through the gali and stopped in front of her house and started eve teasing with 'N' and also made indecent gestures which was objected to by her mother Smt. Neeru @ Guddo and her son Subhash (deceased) who asked Sunil to refrain from his acts. This agitated Sunil who felt that Subhash had challenged their ruffianship / Badmashi in the area and after uttering abuses both Sunil and Sudhir who are real brothers left the place while 'N', Neeru @ Guddo and Subhash went inside their house. After about 2025 minutes accused Sunil and Sudhir again came along with accused Sanjay, Surender @ Sonu Punjabi, Suresh @ Phullu and Raj Kumar @ Danny. Accused Sudhir was having a knife in his hand, accused Sunil was having a baseball bat, accused Surender @ Sonu Punjabi was having iron rods, accused Suresh @ Phullu and Danny were having empty liquor bottles whereas Sanjay was having baseball bat with which they challenged Subhash (Lalkara). Feeling the threat and getting frightened Subhash ran away from there towards Shiv Mandir in gali and all the accused chased and started beating Subhash with these weapons on account of which he became unconscious and Smt. Neeru @ Guddo, 'N', Sameer @ Amir and Naresh tried to save Subhash on which Neeru @ Guddo, 'N' and Sameer @ Amir received injuries. The accused thereafter fled from the spot while the injured was rushed to SGM Hospital by the neighbours where Subhash was declared brought dead. Smt. Neeru @ Guddo immediately made a call St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 116 at 100 number but by mistake the police recorded the name of her husband as name of the caller. The PCR Form Ex.PW6/A duly proved by Ct. Sangeeta (PW6) shows that on 20.7.2009 at 23:56:24 hours (11:56 PM) a call was received from mobile phone bearing No. 9211646083 that a quarrel was going on in 6/4 Friends Enclave, Sultan Puri. I may observe that Smt. Neeru (PW3) has explained that it was she who had made the PCR call but the name of her husband Parvesh Kumar had been mentioned by the police because the phone belonging to him though the name of Smt. Neeru is mentioned in the contact name. The PCR Form reflects that after the information was received at CPCR at 11:56 PM on 20.7.2009, the PCR Van reached the spot at around 00:36:16 hours (12:36 midnight) where they came to know that three persons had been stabbed in the quarrel who had been shifted to the hospital and the quarrel was on account of eveteasing (Jhagra mein 3 aadmi ko chaku lagay batlaya jo u/k hospital ja chukay.
Jankaro ka larki cherne par jhagra tha). Further, at 00:38:26 hours (12:38 hours) it was reported that motorcycle no. DL 4SBN 4120 was left and ran away and quarrel was on account of eveteasing (motorcycle No. DL 4SBN 4120 ko chodkar bhag gaya, larki chedne par jhagra hua tha). This information was transmitted by HC Roop Narayan and thereafter information was sent to Police Station Sultan Puri vide DD No.3A pursuant to which ASI Rawal Singh (PW19) reached the spot where he came to know that the injured had been St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 117 shifted to SGM Hospital and thereafter he immediately reached SGM Hospital where he met Smt. Neeru @ Guddo and recorded her statement vide Ex.PW3/A on which he made an endorsement vide Ex.PW19/A on which the case was got registered. (106) The copy of the FIR which is Ex.PW10/A which has been recorded on the basis of the statement of Smt. Neeru @ Guddo shows that all the accused persons i.e. Sunil, Sudhir, Surender @ Sonu Punjabi, Phullu and Raj Kumar @ Danny have been specifically named at the first instance by Guddo which FIR was registered at 2:30 AM and the allegations against the accused are very specific i.e. of eveteasing of 'N' by Sunil and Sudhir to which Subhash objected after which all the accused came again duly armed with baseball bats, knife, liquor bottle etc. after which they gave lalkara to her son Subhash who in order to escape ran in the gali but those boys chased Subhash stating that they should finish Subhash as he had challenged their ruffianship in the area by saying Is sale ko khatam karna hai isne humari badmashi ko chonuti di hai. Smt. Neeru @ Guddo has very categorically stated that the accused Sunil was carrying a baseball bat in his hand; accused Sudhir was carrying a knife; Sonu Punjabi was carrying an iron rod and Phullu and Danny were carrying liquor bottles in their hands with which they gave beatings to her son Subhash since while running away Subhash fell St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 118 down in front of Shiv Mandir and as a result of the beatings given by the accused persons her son Subhash became unconscious. (107) The complainant Smt. Neeru @ Guddo and her daughter 'N' who had reached the spot while chasing behind Subhash and on hearing the alarm, Naresh (nephew of Smt. Neeru @ Guddo) and a neighbour Sameer @ Amir @ Kale came to intervene on which those boys also caught hold of them and the accused Sudhir inflicted knife blows upon Naresh whereas Sunil, Sonu Punjabi, Danny and Phullu inflicted injured upon them with empty bottles, iron rods and baseball bats. It is also alleged that during the scuffle the accused Sunil had fallen down on the broken glasses for which he also received injuries after which the assailants left the baseball bats, bottles etc. at the spot and ran away.
(108) The FIR which is detailed and specific was registered within a matter of two to two and a half hours and the accused Sunil, Sudhir, Surender @ Sonu Punjabi, Phullu and Raj Kumar @ Danny have been duly named in the FIR. Therefore, I hereby hold that keeping in view the prompt registration of FIR wherein the accused Sunil, Sudhir, Surender @ Sonu Punjabi, Phullu and Raj Kumar @ Danny have been specifically named being identified lends credence to the story put forward by the prosecution and rules out the possibility of the same being cooked up later as an after thought. However, in her first statement to the police Smt. Neeru @ Guddo did St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 119 not name the accused Sanjay. In this regard, a valid and plausible explanation is forthcoming in the testimony of Smt. Neeru @ Guddo (PW3) when she explained that due to nervousness she could not name the accused Sanjay and in her subsequent statement to the police on the following morning named the accused Sanjay and hence, non mentioning of the name of the accused Sanjay will not be fatal to the case of the prosecution.
Motive of the crime/ common intention of the accused:
(109) The case of the prosecution is that the murder of the deceased Subhash has been committed in a preplanned manner and the motive of the crime by the accused persons, who are local ruffians and hoodlums, was to seek a revenge from the deceased Subhash who had challenged their ruffianship in the area and to silence him. The accused Sunil and Sudhir are real brothers and on 20.7.2009 at about 11:30 PM while passing in front of the house of the complainant, they teased 'N' the sister of deceased Subhash which was objected to by Subhash after which both the accused Sunil and Sudhir went away from the spot after threatening Subhash but returned after 2025 minutes along with other accused duly armed with baseball bats, iron rods, knife and liquor bottles and inflicted injuries upon Subhash and anybody who came to save him. It is argued by the Ld. Addl. PP for the State that the sole motive of the accused persons was to teach a St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 120 lesson to the deceased and his family who had challenged their authority and ruffianship in the area.
(110) Before come to the testimonies of the various witnesses, I may observe that motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive. (111) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 121 hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
(112) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].
(113) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with.
However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(114) Further, in so far as the common intention of the accused is concerned, Section 34 IPC has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 122 liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 123 of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some overt act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P. reported in 2004(3) SCC 793 and reference in this regard is also being made to the case of decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna.
(115) Applying the settled principles of law to the facts of the present case it is writ large that the incident of murder of the deceased St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 124 cannot be taken into isolation. The main cause for the same was the fact that the sister of Subhash namely 'N' was teased by Sudhir and Sunil while passing through the street who also made indecent gestures which was objected to by her mother Smt. Neeru @ Guddo and brother Subhash on which both the accused went away but soon after within 2025 minutes returned back with their associates duly armed. It is this act of the accused persons in returning after 2025 minutes with their other associates duly armed with baseball bats, iron rods, knife and empty liquor bottles and thereafter challenging the deceased to come out of the house which is not only indicative but also confirms the premeditation and preplanning on the part of the accused persons. Thereafter, they chased the deceased till Shiv Mandir Gali where he was brutally assaulted and clubbed to death with these weapons i.e. baseball bats, iron rods, empty liquor bottles and knife till he fell down. Not only this, the intention of the accused to finish the deceased is also confirmed from the fact that anybody who intervened to help the deceased or stop the accused including the mother, sister and neighbour of the deceased were also not spared. (116) The fact that all the accused namely Sunil, Sudhir, Surender @ Sonu Punjabi, Phullu, Raj Kumar @ Danny and Sanjay came back to the spot duly armed with the baseball bats, iron rods, knife and empty liquor bottles and gave a lalkara to Subhash after which they chased Subhash and exhorted Is sale ko khatam karna hai St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 125 isne humari badmashi ko chonuti di hai establishes and confirms their prior meeting of mind and preplanning. Further, the fact that all the accused Sunil, Sudhir, Surender @ Sonu Punjabi, Phullu, Raj Kumar @ Danny and Sanjay acted in consortium in inflicting injuries on the deceased Subhash and also to other persons including Naresh, Sameer @ Amir @ Kale, Smt. Neeru @ Guddo and 'N', establishes their common intention. This being the background, I hereby hold that the prosecution has been able to prove the common intention of the accused persons and motive of the crime i.e. to teach a lesson to Subhash to had challenged their authority and ruffianship in the area. Ocular Evidence:
(117) Ocular evidence/ eye witness count is the best evidence in any case. In the present case the prosecution is placing its main reliance upon the testimonies of the complainant Smt. Neeru @ Guddo (PW3) and her daughter 'N' (PW27) the alleged victim of eveteasing.
Here, I may note that all the accused namely Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu and Sudhir have been specifically named in the First Information Report and the accused Sanjay was soon thereafter named by the victims. The FIR was registered on the statement of Smt. Neeru @ Guddo who initially did not name the accused Sanjay in her statement to the police upon which the FIR was registered but soon thereafter she made a St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 126 supplementary statement and named him. In her testimony in the Court she has specifically named and identified all the accused i.e. Surender @ Sonu, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay.
(118) Here, I may mention that in so far as Smt. Neeru @ Guddo is concerned initially her examination in chief was conducted on 20.5.2010 and her further examination and crossexamination was deferred for 7.3.2011 and after almost ten months when she again come to the Court she did not support her earlier version in her cross examination but when crossexamined by the Ld. Addl. PP for the State she admitted that her version given by her in the court on 20.5.2010 was correct and explained that she is having three daughters and all the accused were also residing in the same locality. At the same time while supporting the version given by her in her examination in chief dated 20.5.2010 she further prayed to the Court that the accused be set at large as she was having three daughters and wanted to live peacefully in the area with her daughters. (119) Coming now to the testimony of 'N' (PW27), I may observe that 'N' is a young girl of 21 years who at the time of incident was hardly 19 years of age and became the target of the accused Sunil and Sudhir when she was teased by them which was objected to by her and her mother Neeru @ Guddo. However, when her young brother Subhash came to her rescue and objected to their obscene acts, he had St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 127 to pay with his life for opposing this outrageous behaviour and acts of these accused with his sister. She has in her first statement to the police named all the accused Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay and given their details and even in the Court she has specifically identified all of them as the assailants who had clubbed her brother Subhash to death. (120) When 'N' appeared in the Court Room the Ld. Predecessor of this Court specifically observed that she was weeping bitterly and uncontrollably and when asked to explain she informed the Court that she had been stopped from coming to the court by her mother Neeru @ Guddo and cousin Naresh. It was only after she was consoled by the Predecessor Court that she informed the Court that she had apprehensions that some legal action may not result against her mother in case of disclosure of the reason for her weeping. This demeanor of 'N' as specifically noted by the Predecessor Court speaks volumes and explains why her mother Smt. Neeru @ Guddo who initially in her examination in chief supported her earlier version turned hostile and again after advise by the Ld. Predecessor Court to speak the truth, she supported the said version but in the same voice requested the Court to leave the accused who were residents of the same area, so that she could live in peace with her three daughters. (121) The victim 'N' has also explained that she was being treated for neuro ailments at Shri Balaji Action Medical Institute, St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 128 Paschim Vihar after the above incident in which she had lost her only brother. The Ld. Predecessor of this Court also specifically observed that the witness 'N' was under dilemma as to whether to depose as per truthful account of the incident or to succumb to the pressure on her mind. It was only after some time when she was consoled and advised and after the Court found her in a position to depose that she gave the exact account of the incident and supported the earlier version given by her to the Police. The relevant portion of her testimony including the observation made by the Ld. Predecessor of this Court, is reproduced as under:
".......(Court observation:When the case was called and the witness was called to appear in the witness box, she entered the court premises bitterly weeping and when the Presiding officer inquired as to why she was weeping under the hiccups, she could utter only that "use gharwalon ne aane se roka". (She was stopped from coming to the court by her family members.) On being consoled, she uttered that she wanted to depose against the accused inceptionally but she was stopped by her cousin namely Naresh and her mother namely Smt. Neeru and she has apprehension that any legal action may not result against her mother from this disclosure of reason of her weeping. She submitted that she was being treated for neuro ailment at Shri Balaji Action Medical institute, Paschim Vihar.) From the said observation and on confirmation from the witness also, she is under dilemma as to whether depose as St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 129 per truthful account of the incident or succumb to the pressure on her mind. From these circumstances, let the present SHO of the concerned PS Sultan Puri be summoned in order not only to provide protection to the witness but also to counsel her so that she may come out of her said dilemma and SHO has assured to appear after getting finished the urgent work in the area. Let the SHO be awaited.
At this stage, Inspector Puran Pant, SHO of PS Sultan Puri has appeared and vide separate order he has been guided accordingly. For this purpose, the proceedings have been withheld for some time and after the dictation of the necessary directions to the SHO, the witness has been called again to proceed with her further deposition.
About two and half years or three years back, in the month of July, I along with my mother was standing outside our house. From the gali of our house, accused Sudhir and Sunil present in the court today were going. They both started making obscene gestures towards me and started commenting upon me. My mother objected to it and she asked them to go away from there. On hearing the noise of my mother, my brother Subhash who was inside the house came out and objected on the act of both the accused persons, on which both the accused started arguing with my brother and went away from there by saying that they will see my brother after sometime. After about 20 minutes, they both came along with many other boys namely Sonu Punjabi, Phullu, Sanjay, Sudhir, Sunil and Danny. The witness is asked to see if all the accused persons are St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 130 present in the court or not to which she had identified each and every accused present in the court by their names. They all started asking my brother to come out of the house. My brother came out of the house and after seeing all the accused persons with different weapons in their hands, ran towards Shiv Mandir in the gali. They all apprehended my brother and started giving beatings with baseball bat, iron rod, glass bottles and knives. I can not tell which of the accused was hitting with which weapon. On hearing the noise, my neighbour Samir and my cousin Naresh came out who were also given beatings by the accused persons. Naresh and Sameer @ Amir also sustained injuries in that quarrel, even I was given beatings by accused Sudhir by iron rod. There were other persons along with the accused persons whom I did not know. My brother fell on the ground, I along with my mother went towards my brother who was almost dead. Thereafter, we all went to hospital with my brother where he was declared dead by the doctor. I, my mother, Naresh and Sameer @ Amir were also medically examined in the SGM Hospital. Police met me and recorded my statement. I do not know more about the incident.
Ld. APP wants to put some leading questions as the witness has substantially deposed the incident but she is forgetting the details. The said request is opposed by the Ld. Defence counsels. Hence, the same is rejected. However, the Ld.APP may otherwise put the questions by way of cross examination in order to establish the facts forgotten by the witness.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 131 XXXXX by Ld.APP It is correct that in my statement Ex.PW27/A to the police, I had stated that on 20.07.09, my cousin Naresh had come from Haridwar with kanwar and offered the holy water of ganga at Shiv Mandir of our area and the persons who had brought the said kanwars were dancing opposite Shiv Mandir in the gali. It is correct that I was watching my said cousin dancing and there were many ladies, boys and gents were present and after some time, I came back at my home. It is correct that it was 11.30 p.m. when I was standing outside my house with my mother. It is correct that accused Sudhir and Sunil are residing in our basti. It is correct that after watching the dance, accused Sudhir and Sunil were going from my gali when they had commented upon me and made indecent gestures towards me. It is correct that I had stated to the police that I know all the accused persons as they are resident of the same locality. Vol. Accused Danny is residing just behind my house. It is correct that accused Sunil and Sanjay were having base ball bat in their hands and accused Sudhir was having knife in his hand and accused Sonu Punjabi was having iron rod in his hand and accused Phullu and Danny were having glass bottles in their hands. (court observation:The weapons i.e. iron rods and glass bottles in the respective hands of the said three accused were uttered by the witness voluntarily even prior to putting the question in complete sense by the Ld.APP). It is correct that when the accused persons were chasing my brother when he was running towards mandir, accused Sunil was uttering that " is saley ne hamari badmashi ko St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 132 chunoti di hai, is saley ko khatam karna hai" (the said deceased had challanged their ruffianism so he should be killed). It is correct that accused Sudhir had caught hold of my brother Subhash opposite Shiv Mandir in the gali and accused Sunil and Sanjay hit on the head of my brother with baseball, accused Sonu Punjabi hit on his head with iron rod and accused Danny and Phullu gave blows on the head of my brother with empty liquor glass bottles. It is correct that when I, my mother, my cousin Naresh and neighbour Sameer @ Amir raised alaram of 'bachao bachao' then accused Sudhir inflicted knife blows on Naresh and Sameer @ Amir. It is correct that in the quarrel, the empty liquor glass bottles in the hands of accused Danny and Phullu were broken and pieces of glass had scattered in the gali and in the scuffle, accused Sunil fell on the said glasses and sustained injuries on his body. It is correct that due to fear of apprehension, all the accused persons ran away from the spot. It is correct that Naresh and Sameer @ Amir were referred to Safdarjung hospital from SGM Hospital. It is correct that due to lapse of time, I could not recollect the facts which are put to me in my cross examination...."
(122) This witness has been exhaustively crossexamined by the Ld. Defence Counsels wherein she has stood by her version. She has identified each and every accused by their names as they are known to her being residents of the same area. She has explained that on the date of the incident, the accused Sunil and Sudhir had St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 133 commented upon her and made obscene gestures to her which was objected to by her mother and brother Subhash on which there was an argument between her brother and both the accused. Thereafter both the accused Sunil and Sudhir went away after issuing threats to Subhash that they would see him after some time. She has explained that after about twenty minutes both the accused came to their house along with many other boys namely Sonu Punjabi, Phullu, Sanjay, Sudhir, Sunil and Danny and asked her brother Subhash to come out of the house. Subhash came out of the house but on seeing the weapons in the hands of the accused, ran towards Shiv Mandir in the gali but the accused chased him and managed to catch him in the gali after which they brutally clubbed him to death with baseball bats, iron rod, glass bottles and knife which they were carrying. She has also explained how every person who came between them to save Subhash or stop them, was also not spared and given blows resulting into injuries to herself (i.e. 'N'), her mother (Neeru), her cousin (Naresh) and her neighbour (Sameer @ Amir). 'N' was unable to tell which of the accused was hitting with which weapon but has specifically explained that on hearing the noise, her neighbour Sameer @ Amir and her cousin Naresh came out who were also given beatings by the accused person. This aspect of Sameer @ Amir and Naresh having received injuries stands established and confirmed from their respective MLCs. Here, I may observe that though Naresh and St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 134 Sameer @ Amir have turned hostile on the identity of the accused persons yet they have supported the case of the prosecution in so far as the incident is concerned (Naresh has supported the prosecution case on the aspect of eveteasing incident as well as on the subsequent incident relating to death of Subhash).
(123) Further, 'N' has also proved that while chasing the deceased, the accused Sunil uttered that "is saley ne hamari badmashi ko chunoti di hai, is saley ko khatam karna hai". She has confirmed that the broken pieces of bottles etc. were lifted from the spot opposite Shiv Mandir which facts finds independent corroboration from the testimonies of the police witnesses.
(124) Victim 'N' in her crossexamination has admitted that she is a witness in another murder case and has explained that the deceased in the said case was one Shahid whose murder took place just at a few paces away from her house due to which reason she was a witness in the said case. She has also explained that the said Shahid was neither her neighbour nor otherwise concerned with her. Here, I may observe that this explanation given by the witness 'N' justifies the reason why she was cited as a witness in another case. She is the resident of the area where the incident of murder had taken place. This background in no way affects the credibility of her deposition in the present case where she herself is a victim. During her crossexamination 'N' has also clarified that she did not tell the police the exact words of the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 135 comments passed by the accused Sunil and Sudhir and has explained that they were passing comments and making indecent gestures towards her and this she has done by using the words "Fabtiyan" (i.e. obscene / dirty comments) to explain the nature of comments being passed on her by the accused. She has further explained that the accused were living at a distance from her house which aspect has not been controverted. This being so, where was the occasion for the accused to have come to the street in front of her house. The explanation for the same is also forthcoming in the testimony of Smt. Neeru @ Guddo and Naresh. There were religious festivities and large number of young boys dancing and many young girls including 'N' were standing in front of her house and watching them when both Sunil and Sudhir who were known for their ruffianship in the area, passed through the street and made obscene comments and gestures on her. She has denied the suggestion that the accused Sunil suffered injuries in a separate incident whereas deceased Subhash suffered injuries in a separate incident and hence taking advantage of the same he has been falsely implicated.
(125) The main plank of the argument advanced by the accused is that the only evidence against them is the testimony of 'N' (PW27) which does not find any corroboration since her mother Neeru @ Guddo has not supported the earlier version given by her. Before coming to this argument I may observe that it is a settled law that in St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 136 criminal trial, the finding of conviction can be based even on the strength of deposition of single prosecution witness, in case it is found trustworthy and reliable as it is quality and not quantity of the evidence that count and my view is strengthened by the judgment of the Supreme Court of India, in the case of Sheelam Ramesh and another Vs. State of A.P. reported in JT 1999 (8) SC 537, wherein it is observed that Courts are concerned with the quality and not quantity of evidence and in a criminal trial, conviction can be based on a sole evidence of a witness, if it inspire confidence. (126) Where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 137 their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(127) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 138 to remain indifferent (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(128) In the present case too, this appears to have happened with Neeru @ Guddo the mother of the deceased, Naresh the cousin of the deceased and Sameer @ Amir the neighbour of the deceased who were injured in the incident and there is evidence of their presence at the spot at the time of the incident. Neeru @ Guddo initially supported her first version and proved both the incident and so also the identity of the accused but later in her crossexamination after many months (i.e. about eight to ten months) she turned hostile. However, again when advised by the Court to depose truthfully, she reaffirmed and stood by her first version but in the same voice requested the court to leave the accused who were her neighbours and residents of the same area as she wants to live in peace with her three daughters. This Court can understand the insecurities and dilemma of this mother of three young daughters whose husband is a compulsive alcoholic, whose only son has been killed because he stood up to protect the honour of his sister, must have faced while deposing in the Court against persons living in the same area known for their ruffianship and involved in number of cases. So is the position with Naresh the cousin of the deceased and Sameer @ Amir. They are the ruffians of the area against whom nobody dares to stand. The record of their involvements which is present before this Court speaks volumes. In so far as the accused Raj St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 139 Kumar @ Danny and Sanjay are concerned, they are not involved in any other case but that is immaterial. They have shamelessly and openly sided with those who are indulging into criminal acts of eve teasing and hooliganism. The demeanor of the victim 'N' coupled with her testimony and also the testimony of her mother Neeru @ Guddo indicates the reasons for the flipflop committed by Smt. Neeru @ Guddo in the Court. The accused persons have become law into themselves so much so that people of the area are terrified to open their mouths against them.
(129) Ld. Defence Counsels have vehemently argued that the testimony of Smt. Neeru @ Guddo is not reliable in view of the fact that in her crossexamination to some extent she had diverted from her earlier version given to the police. As already discussed herein above Smt. Neeru @ Guddo (PW3) is residing in the same area where all the accused are residing and are their neighbours. Smt. Neeru @ Guddo has three daughters of marriageable age and Subhash who has been brutally clubbed to death was her only son. The fact that she has deliberately turned hostile in her crossexamination conducted after ten months of her examination in chief on account of fear for the security of her daughter is reflected and stands confirmed from her own testimony, when after being advised by the Ld. Predecessor Court to speak the truth, she admitted and reaffirmed her version given in the examination in chief recorded on 20.5.2010 but in the same voice St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 140 prayed to the court to leave the accused as she wants to live peacefully in the area with her daughters. Though she has turned hostile in her crossexamination yet her examination in chief is liable to be read into evidence to the extent it finds corroboration from the other evidence on record [Ref.: Surender Tiwari @ Khuji Vs. State of M.P. reported in 1991 AIR 1853: 1991 SCR (3) 1]. The explanation given by Smt. Neeru @ Guddo confirms the fact that she is terrified of the accused and has serious safety and security concerns in respect of her daughters and this fact finds corroboration from the testimony of 'N' who initially did not appear in the Court since after the incident on account of the fact that she was prevented from coming to the Court by her family on account of the fear of the accused and also because soon after the incident she came under extreme stress and trauma and was undergoing treatment for the same from Balaji Action Hospital. When 'N' was produced in the Court in the year 2012 the Court found her to be extremely hesitant and in a state of dilemma as to whether to depose about the true facts regarding the incident or to go by the dictates of her mother and her cousin Naresh who had asked her not to make any deposition. She was also having apprehensions that some legal action may not be initiated against her mother (who had earlier turned hostile in the crossexamination but then again supported her version which she had given in examination in chief).
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 141 (130) 'N' a young girl of 19 years who was the subject matter of the obscene remarks of accused Sunil and Sudhir and had lost her only brother Subhash who stood up to safeguard her honour and had objected to this behaviour of the accused. The trauma which she has faced is unimaginable and what she under went thereafter was even worse. She was totally shattered and lost her mental balance on account of the incident for which she was being treated at Balaji Action Hospital. With virtually no family support coming to her, as her mother and cousin had already succumbed to the pressures tactics of the accused, it is this 'N' who singlehandedly taken on the accused persons. Even in the court, most unfortunately, she faced a most hostile crossexamination wherein she was torn apart bit by bit. It was shamelessly suggested to her that she was a mad woman with no mind of her own and whatever she has deposed in the Court was being told to her. (Reference is being made to the crossexamination of witness 'N', the relevant portion of which is being reproduced "......It is wrong to suggest that I am mad and I do not understand the rationality and I used to speak the things which are given to understand to me by others.....") This I may note was despite the fact that her mother Smt. Neeru @ Guddo and cousin Naresh had already succumbed to the pressures of the accused and 'N' herself was being prevented by them from coming to the Court to depose against the accused. How much this young girl 'N' must have suffered on seeing her near and dear one's St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 142 collapse one by one in the Court and what she must have felt, seeing that the killers of her only brother who bravely laid down his life to save her honour, were virtually playing with the emotions and insecurities which surrounded her family. It is this what explains her dilemma when she came to the Court to depose and broke down weeping inconsolably which demeanor was specifically noted down by the Ld. Predecessor Court and is a relevant fact which explains the reason why her mother 'N' and cousin Naresh chose not to take on the accused persons. The spirit of this young girl, who bravely stood up against all her odds, is required to be saluted. There is no reason why she should be disbelieved. She herself is a victim of the criminal acts of the accused Sunil and Sudhir and destiny has been most unfair to her. I find every word of what she has said is truthful, credible and finds independent corroboration from the other evidence on record as already discussed herein above.
(131) In so far as the accused Sanjay is concerned, it is argued by the Ld. Defence Counsel that he has not been named in the FIR. No doubt Sanjay has not been named in the FIR but I may observe that he has been specifically identified both by Smt. Neeru @ Guddo (PW3) and by 'N' (PW27) in the Court as one of the assailants and there is no reason to doubt their testimonies specifically of 'N'. In fact, Neeru @ Guddo (PW3) has explained that she was so over taken by the events that she had missed out the name of Sanjay at the first instance but on St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 143 the very next day in the morning she told the Investigating Officer regarding presence of Sanjay at the spot and his being involved in the incident. 'N' herself in her first statement to the police named him. How then can we assume that he was subsequently implicated? However, in this regard the Hon'ble Supreme Court in the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and also in the case of Leela Ram Vs. State of Haryana reported in AIR 19997 SC 3717, wherein the Hon'ble Court elaborated the reasons as to why the discrepancies, contradictions and improvements could occur in the testimonies of the witnesses which I reproduce as under:
(a) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(b) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 144 will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(c) When eye witness is examined at length it is quite possible for him to make some discrepancies.
But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(d) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(e) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(f) 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.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 145
(g) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(h) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(i) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(j) In regard to exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the timesense of individuals which varies from person to person.
(k) 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 when interrogated later on.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 146
(l) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(m) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contraction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
(132) The discrepancies as pointed out in the testimony of Neeru @ Guddo and 'N' do not touch upon the core of the case and are not incompatible with the credibility of the version of these witnesses. Victim 'N' (PW27) has identified each and every accused in the Court by name and by pointing out towards them and there is no reason to doubt her testimony. Even in her crossexamination by the Ld. Defence Counsels she stood her grounds and there is no material contradiction in the same. Neeru @ Guddo too has in her examination St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 147 in chief named and identified all the accused and has reaffirmed and stood by this version (despite her plea to the Court to leave the accused so that she can live in peace with her three daughters). The argument raised by the Ld. Defence Counsels that none of the eye witnesses have been able to succinctly explained the role attributed to each accused, is devoid of merit. Admittedly earlier in her examination in chief 'N' was unable to tell which accused was carrying which weapon but it is writ large that when made to refresh her memory and on leading question being put to her by the Addl. PP for the State she admitted having told the police that accused Sunil and Sanjay were having baseball bat in their hands, accused Sudhir was having knife in his hand, accused Sonu Punjabi was having iron rod in his hand and accused Phullu and Danny were having glass bottles in their hands. In this regard I may observe that the Hon'ble Apex Court in the case of Chandrappa vs. State of Karnataka reported in 2008 (III) AD (Crl.) SC 297 observed that any discrepancy in the testimony of the eye witness with regard to the actual manner of assault, nature of injuries caused or with regard to the weapons carried by different accused in case where number of accused are involved, would not be material so as to be fatal to the prosecution case. It was observed by the Hon'ble Court that in such matters it would be unreasonable to expect a witness to give a picture perfect report of the injuries caused by each accused to the deceased or the nature of injuries more particularly when the injuries had been St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 148 caused by several accused armed with different kind of weapons. The Hon'ble Court further observed that with the passage of time the memory of an eye witness tends to dim and it is perhaps difficult for a witness to recall the events with precision.
(133) In the present case the incident in question had taken place in the year 2009 pursuant to which incident the victim / eye witness 'N' had suffered a severe shock and trauma on account of the death of her brother Subhash and was being treated for the same. She was produced in the Court in the year 2012 with a great difficulty as she was being prevented from deposing in the Court regarding the incident by her family members who perhaps did not want her to be exposed to the accused which explains the reason why at the first instance she in her examinationinchief was not able to provide the details as to which accused was holding what weapon which is despite the fact that she otherwise supported the prosecution case in all material particulars. The testimonies of various eye witnesses including Smt. Neeru @ Guddo, 'N', Naresh (who has turned hostile on the identity of the accused) and Mohd. Amir @ Sameer (who has turned hostile on the identity of the accused) finds due corroboration from the circumstantial evidence in the form of Crime Team Report, exhibits lifted from the spot (duly proved in the testimonies of the various police witnesses), the forensic report and postmortem examination report of the deceased. Hence, in this background, I St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 149 specifically hold the testimony of 'N' (PW27) to be reliable, credible and truthful as it also finds independent reliable corroboration from the testimonies of the various police officials i.e. Ct. Ravi Malik (PW1), SI Sanjay Gade (PW5), ASI Kishan Pal Singh (PW17), Ct. Vijender Singh (PW18) and ASI Rawal Singh (PW19) and this conclusively confirms the prosecution version.
Medical Evidence:
(134) Dr. Binay Kumar (PW4) has proved the MLC of injured Mohd. Samir which is Ex.PW4/A; MLC of victim 'N' which is Ex.PW4/B; MLC of Neeru @ Guddo which is Ex.PW4/C; MLC of Naresh which is Ex.PW4/D showing that they had received injuries which were Simple in nature. Dr. Binay Kumar has also proved the MLC of the accused Sunil which is Mark PX. He has also proved the MLC of deceased Subhash which is Ex.PW4/E showing that after examination Subhash was declared 'Brought Dead'. (135) Here, I may observe that as per the MLC Ex.PW4/A the injured Mohd. Sameer @ Amir received two sharp incised wounds at chest i.e. vital organ; as per MLC Ex.PW4/B injured 'N' received abrasion over left side of frontal region of scalp; as per MLC Ex.PW4/C the injured Smt. Neeru @ Guddo only received a mild tenderness in upper neck, thereby lending credence to the oral testimony of 'N' (PW27) explaining the manner in which she and other St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 150 persons had sustained these injuries.
(136) Dr. Manoj Dhingra (PW7) and Dr. J.V. Kiran (PW11) have proved having conducted the postmortem examination on the body of deceased Subhash vide postmortem report Ex.PW7/A according to which there were following injuries on the body of the deceased:
1. Contusion, reddish 6 cm x 2.5 cm present on right side of the face, 2.5 cm in front of ear and 5.5 cm outer to outer angle of right eye with abrasion over the area 2 x 1 cm within the lower third of the contused area with a spread area of 1 cm x 0.5 cm within the abrasion and laceration 0.1 cm x 0.1 cm into subcutaneous tissue deep present at upper end of contused area. The contusion is obliquely placed on right side of face.
2. Contusion, reddish 6 cm x 2.5 cm on right side of the neck, 6 cm below right ear low with a semi circular abrasion in the middle of the contused area.
3. Abrasion 1 cm x 1 cm on back of the left elbow.
4. Abrasion 1 x 0.5 cm on middle back of left forearm, 10 cm above wrist joint.
(137) On internal examination of head, diffuse subarachnoid hemorrhage all over the brain was present. They have proved that the cause of death is cerebral damage consequent to blunt force impact St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 151 to the head; all injuries are antemortem in nature, fresh in duration and caused by blunt object and Time Since Death has been opined to be approximately 12 hours which is compatible to the prosecution case.
(138) Here, I may observe that the subarachnoid hemorrhage all over the brain has been caused on account of blunt force impact over head and according to ocular evidence on record has been caused by baseball bats and iron rods. The witness Dr. Manoj Dhingra (PW7) has also proved having given his subsequent opinion on the knife and glass pieces which opinion is Ex. PW7/C according to which the injuries as mentioned in MLC No. 9460 (pertaining to injured Sameer @ Amir), MLC No. 9519 (pertaining to accused Sunil) and MLC no. 9462 (pertaining to injured Naresh) are possible with the broken glasses and the knife. This again lends credence to the testimony of Smt. Neeru @ Guddo who has explained that during the scuffle the accused Sunil fell down on the broken pieces of glass and received the said injuries.
(139) Further, Dr. J.V. Kiran (PW11) has also also proved having given his subsequent opinion with regard to the Weapon of Offence i.e. three baseball bats, a hollow iron pipe and a broken stick according to which the injuries mentioned in the Postmortem Report could be caused by these weapons which opinion is St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 152 Ex.PW11/A an aspect which has gone uncontroverted. (140) In view of the above, I hereby hold that the medical evidence on record is not only compatible to the prosecution case and lends authenticity and credence to the oral testimonies of the witnesses and the ocular evidence on record.
Forensic Evidence:
(141) The Biological and Serological Reports which are Ex.PX and Ex.PY, which are otherwise admissible perse under Section 293 Cr.P.C., show that the blood group of the deceased Subhash was of 'A' Group and that of injured Sameer @ Amir is of 'B' Group. Though the weapon of offence i.e. knife showed positive reaction for human blood, though the Grouping could not be detected on the same. This being the background, I hereby hold that the forensic evidence is compatible to the prosecution case and corroborates the oral testimony of the victim 'N'.
Arrest of the accused and recovery of weapon of offence:
(142) The case of the prosecution is that after the incident all the accused had thrown the weapons of offence i.s. Baseball bats, iron rod and bottles at the spot which were collected by the Investigating Officer but in so far as the knife is concerned it was taken away by the accused Sudhir. Inspector Yaspal Singh (PW28) has proved that on
21.07.2009 at about 5:30 PM pursuant to a secret information the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 153 accused Surender @ Sonu Punjabi was apprehended from near Balaji Temple, Shani Bazar Road, Sultan Puri. Pursuant to his disclosure statement the accused produced one blue colour shirt having strips and blood stains on it which was seized vide memo Ex.PW20/D. The accused Surender @ Punjabi led the police party to SGM Hospital and from there got recovered a Bullet motorcycle No. DL8S NA 1130 of black colour. He had disclosed that accused Sunil sustained injuries in the incident on which he along with accused Suresh @ Phullu who is the owner of the said motorcycle brought the injured Sunil on the said motorcycle to the said hospital and due to fear of the Police, they left the motorcycle there and ran away. The said motorcycle was thereafter taken into possession vide memo Ex.PW20/E. It is also the case fo the prosecution that on 23.07.2009 the accused Sunil who was admitted in Safdarjung Hospital, was arrested after his discharge from the hospital. On 26.07.2009 pursuant to a secret information the accused Raj Kumar @ Danny was arrested from his residence at 6/23, Friends Enclave, Sultan Puri and he disclosed his involvement in the present office and also disclosed that he had used his motorcycle no. DL 4S BN 4190 Make Pulsar of Red colour in reaching the spot which motorcycle was left by him at the corner of the gali on 21.07.2009. Here, I may observe that it is the same motorcycle whose details have been mentioned in the PCR Form Ex.PW6/A. Again, on St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 154 09.08.2009 the accused Suresh @ Phullu was produced by his brother in the Police Station pursuant to which the accused was arrested and on 18.08.2009 pursuant to a secret information the accused Sudhir was apprehended and arrested from his house at F1/403, Sultan Puri after which his disclosure statement was recorded vide Ex.PW21/H and pursuant to the same the accused Sudhir got recovered one button actuated knife from the heap of bricks from the NorthWest corner of Balmiki Park which knife was seized vide memo Ex.PW21/L. The accused Sanjay was however absconding and hence NBWs were obtained against him and it was only pursuant to an information received from Crime Branch that the accused Sanjay was arrested in this case on 6.11.2009.
(143) The Ld. Defence Counsels have vehemently argued that the disclosure statements of the accused persons are inadmissible in evidence being hit by the provisions of Section 25 of Evidence Act and cannot be relied upon. On the other hand the Ld. Addl. PP for the State has argued that the disclosure statements of the accused are admissible in evidence being disclosure of relevant facts and particularly of accused Sudhir who got recovered the knife pursuant to his disclosure statement.
(144) I have considered the rival contentions. Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 155 proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(145) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(146) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 156 fact.
5. That a man has a certain reputation, is a fact.
(147) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
(148) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)"
and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 157 Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not"
which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.
27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 158 the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(149) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 159 statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 160 they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
(150) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 161 some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(151) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 162 statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(152) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (153) Applying the settled principles of law to the facts of the present case, I may observe that the disclosure statements of the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 163 accused made to the police are inadmissible in evidence. However, any part of the disclosure statement which distinctly relates to the discovery of fact which is admissible. The Investigating Agency was already aware regarding the weapons of offence i.e. baseball bats, liquor bottles, knife and iron rod since the eye witnesses had already disclosed to them about the same and these weapons had been left as the spot by the accused while running away. The baseball bats, empty liquor bottles / glasses and iron rod had been lifted by the Investigating Officer from the spot. No doubt the nature of weapon of offence used including the knife was within the knowledge of the Investigating Agency but it was not within its knowledge as to what kind of knife was used in the offence and where it was kept. It was only on the basis of his disclosure statement that the same could be known when the accused Sudhir got recovered a buttondar knife from beneath heap of bricks lying in Maharishi Valmiki Park, Friends Enclave, Sultan Puri which according to him he had used in the offence. The medical evidence on record establishes that the injuries on the body of the injured Sameer @ Amir could have been caused by the knife so recovered by the accused Sudhir, more so since as per the forensic evidence human blood was found on the said knife Ex.P2. What turns on the fact that accused Sudhir got recovered the knife form a place which was not in the knowledge of the police previously. The said knife has been duly identified by the Autopsy Surgeon Dr. Manoj St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 164 Dhingra and the various police witnesses.
(154) Further, it was already within the knowledge of the Investigating Agency that the accused had come in two motorcycles out of which one was left at the spot (i.e. motorcycle bearing No. DL4SBN4190 make Pulsar of red colour) when they hurriedly ran away from the spot. What was the make and number of the other motorcycle and where it had been hidden, was not within the knowledge of the Investigating Agency. Again, it was only pursuant to the disclosure made by the accused Surender @ Sonu that he got recovered this motorcycle make Bullet of black colour bearing No. DL8SNA1130 from the parking of SGM Hospital. It also came to be known to the Investigating Agency for the first time that this motorcycle was left by the accused at SGM Hospital when they had rushed their coaccused Sunil to the hospital on the same after Sunil received injuries in the said incident. It was for the first time that the Investigating Agency came to know that the motorcycle was left there by the accused out of fear of law to avoid detection. It is this which is disclosure of fact as contemplated under Section 27 of the Evidence Act and is admissible in evidence. This recovery of knife at the instance of the accused Sudhir and motorcycle bearing No. DL8S NA1130 by accused Surneder @ Sonu are all aspects which strongly point towards the guilt of the accused.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 165 Defence of the accused:
(155) The defence of the accused was that they have been falsely implicated by the complainant Smt. Neeru @ Guddo who was demanding money from them for their acquittal and had even visited them in the jail. In this regard they have placed their reliance on document Mark DA which is a photocopy. Ld. Counsels have vehemently argued that the complainant Smt. Neeru @ Guddo had visited the accused Suresh @ Phullu in the jail in order to cut a deal for turning hostile. I have considered the submissions made before me and I may observe that when this document was put to Smt. Neeru @ Guddo she denied the same. She admits that she had gone to Central Jail Tihar on one occasion when she had gone with the mother of one Shakir but she has denied that she had ever met the accused Suresh @ Phullu in Jail. She has also explained that the address mentioned in Mark DA pertains to her sister Kamlesh but she is not aware of any Sanjeev whose name finds a mention as the main visitor. I may observe that this document Mark DA, which was placed on record by the accused has not been proved by the accused. This document is only a photocopy and the perusal of the same shows that there is an interpolation on the same with regard to the date. Despite opportunity the accused have failed to prove the same. It was open to them to have called for the official records from the jail to prove the said document which they did not do. Assuming that the complainant Smt. Neeru @ St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 166 Guddo had gone to the Jail no.3 to meet the accused persons as alleged by them, I am sure there would have been a CCTV Backup Record in respect of the said visit along with a specific Mulakat Entry at various points. Why these officials records have not been placed before this Court? The possibility of this document Mark DA being fabricated for creating doubt in the mind of the Court or else there is no reason why the accused would not have taken steps to get the entire record in respect of the meeting of Neeru @ Guddo in Jail produced in the Court.
(156) Further, assuming what the accused Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay have stated is correct, that Smt. Neeru @ Guddo had gone to the Jail to hobnob with them and had demanded money for turning hostile in the case, then why is it that she actually turned hostile in her crossexamination and instead of standing by her first version to ensure a punishment to the killers of her son, rather chose to turn hostile and support the accused persons in her crossexamination until the Court intervened to advise her with regard to her acts. On the one hand they claimed that Smt. Neeru @ Guddo had gone to Jail to hobnob with them for not supporting the case of the prosecution whereas on the other hand they are unable to explain how the same witness has actually turned hostile in her crossexamination. Was it because of the consideration offered to her by the accused persons or was there some St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 167 other reason for the same? How can the accused be permitted to take advantage of their own wrongs? In fact, this very defence of the accused is selfdefeating and unbelievable because as soon as Smt. Neeru @ Guddo was advised by the Court she immediately reaffirmed and supported the first version given by her in her examination in chief 20.5.2010 but in the same voice prayed the Court to leave the accused so that she could live in peace with her daughters in the area. It is this which establishes the element of fear in this witness Neeru @ Guddo and explains the reason for her flipflop in the Court.
(157) Coming now to the defence offered by the accused Sunil who claims that he has been falsely implicated in this case on account of his previous disputes with the complainant and her family only because he was admitted in the hospital having received injuries in some other incident. This on the face of it does not appear believable Firstly because he himself had received injuries and was hospitalized and has failed to bring on record the details of the other incident in which he claims he had received injuries and Secondly because the family of the deceased and the accused persons are all residents of the same area and there are no history of any kind of animosity or dispute between them as claimed by the accused Sunil and hence there is no reason why they would have falsely named him in their first version to the police immediately within two hours of the incident. The names of the all the accused (except Sanjay) finds a mention in the first report on St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 168 the basis of which the FIR was registered.
(158) It is also argued that Neeru @ Guddo herself is into sale of illicit liquor in the area and has a criminal record. The accused, however, have failed to place before this court any such record showing the involvement of Neeru @ Guddo in any case of Excise Act. Assuming that she is involved in some cases, I ask myself a question. Does that dilute the charge against the accused and what they have done? The answer of course is NO. Nobody has any right whatsoever to take liberties with her daughter or to kill her son who stood by the honour of his sister only because the victim family may be on the wrong side of the law. The entire defence so raised by the accused is a mere sham.
(159) I hereby hold that the accused have failed to lead any authentic evidence in support of their claims regarding existence of previous history of animosity with the complainant. This being so, there is no reason why the complainant Neeru @ Guddo and her daughter 'N' (herself a victim of eveteasing) would falsely implicate them. The promptness in registration of FIR naming all the accused persons (except Sanjay) lends authenticity to the incident and rules out any possibility of false implication. It is further evident that all the accused are residents of the same area and are reported to be having criminal cases against them (particularly the accused Sunil, Sudhir and Surender @ Sonu Punjabi) which explains the reason why the other St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 169 eye witnesses who had also received injuries in the incident have turned hostile on the identity of the assailants. The accused having failed to controvert the evidence which has come on record against them, there is hence no reason to disbelieve the prosecution version. Charges proved against the various accused:
(160) In so far as the charges settled against the accused persons are concerned, the Ld. Predecessor of this Court had settled the charges under Sections 302/307/34 IPC which is reproduced as under:
"....... That on 20.7.09 at about 11:30 PM in the street, Shiv Mandir, in front of transformer, Friends Enclave within the jurisdiction of PS Sultan Puri, Delhi, you all in furtherance of your common intention committed murder of Subhash S/o Pravesh Kumar by knowingly and intentionally causing his death by inflicting injuries on his person with a baseball bat, iron rod and empty glass bottles and thereby you all have committed an offence punishable u/s. 302/34 IPC with the cognizance of this court.
Secondly on the abovesaid date, time and place you all in the furtherance of your common intention, inflicted injuries on the person of Naresh, complainant Neeru @ Guddo, 'N' and Sameer @ Amir with the abovesaid weapons, with such intention and under such circumstances that by that act if you all had cause their death, you all would have been guilty of murder and thereby you all have committed an offence punishable u/s. 307/34 IPC within the cognizance of the court.....".St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 170
(161) Further, a separate charge under Section 25 & 27 of Arms Act has been settled against the accused Sudhir, which is reproduced as under:
"...... That on 18.8.09 you got recovered one buttondar knife from beneath heap of bricks lying in Mahirishi Valmiki Park, Friends Enclave, Sultan Puri which was possessed by you in contravention of the notification of Delhi Administration and which was used by you in the present incident of 20.7.09 in committing murder of Subhash and causing injuries on the persons of Naresh, complainant Neeru @ Guddo, 'N' and Sameer @ Amir, thus you have committed an offence punishable under Section 25 & 27 of Arms Act and within the cognizance of this Court...."
(162) In so far as the charge under Section 302 IPC is concerned, I hereby hold the prosecution has been able to successfully establish the intent and knowledge (as contemplated under Section 300 Indian Penal Code) of all the accused namely Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay to commit the murder of Subhash, which was in furtherance of their common intention. The prosecution has been able to successfully establish that in furtherance of this common intention all the accused i.e. Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay came to the house of Subhash duly armed with baseball bats, iron rod, empty liquor bottles and knife and St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 171 thereafter called out to him. The prosecution has also successfully established that after Subhash came out of his house, all the accused i.e. Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay chased him from his house to the Shiv Mandir Gali and caught him in front of the Shiv Mandir where they brutally assaulted him and clubbed him to death. The prosecution has further successfully established that the death of the deceased Subhash was caused on account of cerebral damage consequent to blunt force impact to head which is sufficient to cause death in ordinary course of nature. Hence, the accused namely Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay are held guilty of the offence under Section 302 /34 Indian Penal Code.
(163) It is further the case of the prosecution that in the said incident Neeru @ Guddo, 'N', Naresh and Sameer @ Amir received injuries and were treated for the same and in this regard charge under Section 307 IPC was framed against the accused for the same. The testimonies of Smt. Neeru @ Guddo and 'N' coupled with the MLCs of Naresh, Sameer @ Amir, Neeru @ Guddo and 'N' conclusively establishes the intent of the accused that under the given circumstances if by their act the death of these persons would have been caused, the accused Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 172 Suresh @ Phullu, Sudhir and Sanjay would have been guilty of murder. The medical evidence on record successfully establishes the injuries received by 'N' (i.e. abrasion of 0.1 cm x 0.1 cm, scratch mark over left side of frontal region of scalp); Neeru @ Guddo (i.e. mild tenderness in upper neck); Naresh (i.e. tenderness over right parietal region, sharp incised wound 4 cm x 1 cm at right hand and sharp incised wound 4 cm x 1 cm over left side lower chest) and Mohd. Amir @ Sameer (i.e. Sharp incised wound at chin 3 cm x 1 cm and Sharp incised wound at 4 cm x 1 cm left lumber region). It also stand established that these injuries have been caused upon these victims with dangerous weapons i.e. knife, glass bottles, baseball bats and dandas. Hence, I hereby hold that the prosecution has been able to successfully establish the charge against the accused Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay under Section 307/34 IPC for which they are held guilty.
(164) In so far as the accused Sudhir is concerned, the testimonies of Smt. Neeru @ Guddo and 'N' are succinctly clear. He has been identified as the person who had used a knife while inflicting injuries upon Naresh and Sameer @ Amir (as also established from the medical record of these victims) which knife Sudhir got recovered after his arrest for which he is hereby held guilty of offence under St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 173 Section 25 & 27 of Arms Act.
(165) Also, after having gone through the evidence which has come on record it is writ large that in so far as the accused Sunil and Sudhir are concerned, it is on account of their indecent and obscene behaviour of making comments and indecent gestures directed towards Ms. 'N' which was objected to by her mother and brother (deceased Subhash) that resulted in his killing. The evidence on record establishes that while 'N' was standing outside her house and watching the religious celebrations going on outside the Shiv Mandir the accused Sunil and Sudhir passed through the street in front of her house and passed indecent comments and made obscene gestures on her to which she and her mother Neeru @ Guddo objected and when her deceased brother Subhash came out of the house on hearing their voices and objected to the obscene behaviour of the accused that it offended the accused Sunil and Sudhir who felt that their authority in the area had been challenged. It is this incident of eveteasing by Sunil and Sudhir was, in fact, the root cause of the dispute ultimately culminating into murder of the deceased Subhash. Unfortunately, perhaps may be on account of oversight by the Ld. Predecessor Court, no specific charge under Section 509 IPC has been framed and hence though the accused have specifically crossexamined the witnesses on the aspect of eve teasing, yet there being no specific charge in this regard, legally and technically I find myself handicapped in convicting the accused Sunil St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 174 and Sudhir for the said offence and hold that this can certainly be taken as an aggravating circumstance against the accused Sunil and Sudhir while considering the aspect of sentence at appropriate stage. FINAL CONCLUSIONS:
(166) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 175
(167) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. Further, on the basis of the testimonies of the prosecution witnesses and other evidence on record the following facts stand established:
➢ That Ms. 'N' was residing at House No.6/4, Friends Enclave, Sultan Puri, Delhi along with her family comprising of her mother, father, two sisters and brother Subhash (deceased). ➢ That 20.7.2009 the cousin of 'N' namely Naresh had come from Haridwar with kanwar and offered the holy water of Ganga at Shiv Mandir of their area and the persons who had brought the kanwars were dancing opposite Shiv Mandir in the gali.
➢ That 'N' was watching her cousin dancing and there were many ladies, boys and gents were present and after some time, she came back at her home.
➢ That at about 11.30 PM while 'N' along with her mother Smt. Neeru @ Guddo was standing outside her house, the Sunil and Sudhir who are real brothers residing in the same area were passing through the gali.
➢ That while going both Sunil and Sudhir stopped and started St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 176 eve teasing 'N' by making comments on her (Fabtiyan) and also made indecent gestures towards her.
➢ That Smt. Neeru @ Guddo objected to the same and asked them (Sunil & Sudhir) to go away from there. ➢ That on hearing the noise, Subhash (son of Smt. Neeru @ Guddo and brother of 'N') who was inside the house came out and objected to the acts of the accused Sunil and Sudhir. ➢ That both the accused Sunil and Sudhir started arguing with Subhash brother of 'N' and went away by threatening that they would see him (Subhash) after sometime. ➢ That after about 20 minutes, Sunil and Sudhir came along with many other boys namely Surender @ Sonu Punjabi, Suresh @ Phullu, Sanjay and Raj Kumar @ Danny out of whom accused Sunil and Sanjay were having baseball bats in their hands, accused Sudhir was having knife, accused Sonu Punjabi was having an iron rod whereas accused Phullu and Danny were carrying glass bottles in their hands. ➢ That all the above accused challenged Subhash to come out of the house and after Subhash came out they hallowed him till the Shiv Mandir in the Gali and while chasing Subhash the accused Sunil uttered "is saley ne hamari badmashi ko chunoti di hai, is saley ko khatam karna hai" (he had challenged their ruffianism so he should be killed). St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 177 ➢ That the accused Sudhir caught hold of Subhash opposite Shiv Mandir in the gali after which the accused Sunil and Sanjay hit on the head of Subhash with baseball bats, accused Sonu Punjabi hit on his head with iron rod and accused Danny and Phullu gave blows on the head of Subhash with empty liquor glass bottles.
➢ That anybody who intervened to save Subhash was not spared.
➢ That 'N' (victim of eveteasing), her mother Smt. Neeru @ Guddo (complainant), Naresh (cousin of Subhash) and Sameer @ Amir (neighbour) also received injuries when they intervened on hearing cries of Subhash and tried to save him. ➢ That it was the accused Sudhir who was carrying a knife who inflicted injuries upon Naresh and Sameer @ Amir. ➢ That in the incident, the empty liquor glass bottles which the accused Danny and Phullu were carrying had been broken and pieces of glass scattered in the street / gali and thereafter all the accused persons ran away from the spot. ➢ That the injured were shifted to SGM Hospital where Subhash was declared brought dead.
➢ That in the said incident the accused Sunil also received injuries which he received when he fell on the glasses lying on the ground (as established from his MLC of accused St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 178 Sunil which MLC is not disputed by Sunil) and he was taken to SGM Hospital for treatment with accused Suresh @ Phullu and Surender @ Sonu and following on motorcycle No. DL8S NA 1130 which motorcycle (belonging to Suresh @ Phullu) was left in the parking of the hospital. ➢ That Smt. Neeru @ Guddo had made a PCR Call from the mobile phone of Naresh pursuant to which the police reached SGM hospital.
➢ That on the basis of the statement of Smt. Neeru @ Guddo the present FIR was registered wherein she at the first instance has specifically named the accused as the assailants (except Sanjay for which a valid explanation is forthcoming). ➢ That the police then also went to the spot from where they lifted two bats of baseball, one iron rod and broken pieces of glass bottles and also seized a motorcycle bearing No. DL 4S BN 4190 Make Pulsar of red colour left by the assailants at the corner of the gali.
➢ That on 21.07.2009 pursuant to a secret information the accused Surender @ Sonu Punjabi was apprehended and arrested by the police.
➢ That accused Surender @ Sonu Punjabi produced one blue colour shirt having strips having blood stains on it which was seized by the Investigating Officer which shirt on FSL St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 179 examination was found to be having human blood. ➢ That pursuant to his disclosure to the police the accused Surender @ Sonu Punjabi also got recovered a Bullet motorcycle bearing No. DL8S NA 1130 from the SGM Hospital and disclosed that accused Sunil sustained injuries in the incident and he along with accused Suresh @ Phullu who is the owner of the said motorcycle brought the said injured Sunil on the said motorcycle to the said hospital and due to fear of the Police, they left the motorcycle there and ran away.
➢ That on 23.07.2009 the accused Sunil who was admitted in Safdarjung Hospital, was arrested who disclosed his involvement in the present incident.
➢ That on 26.07.2009 pursuant to a secret information accused Raj Kumar @ Danny was apprehended and arrested from his house at 6/23, Friends Enclave, Sultan Puri. ➢ That accused Raj Kumar disclosed his involvement in the present case and also disclosed that his motorcycle no. DL 4S BN 4190 Make Pulsar of red colour which was used for reaching the spot was left by him at the corner of the gali on 21.07.2009.
➢ That on 09.08.2009, the accused Suresh @ Phullu was produced by his brother in the Police Station on which the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 180 accused was interrogated and arrested in the present case. ➢ That on 18.08.2009 pursuant to a secret information the accused Sudhir was apprehended from his house at F1/403, Sultan Puri and pursuant to his disclosure statement the accused Sudhir got recovered one button actuated knife from the heap of bricks from the NorthWest corner of Balmiki Park which knife was thereafter seized by the police. ➢ That on 05.11.2009 an information was received from Crime Branch regarding arrest of the accused Sanjay who was wanted in the present case after which on 06.11.09 the accused Sanjay was arrested in the present case. (168) All the accused namely Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay have been duly identified in the Court by the eye witnesses Neeru @ Guddo and 'N'. The medical evidence on record confirms that the death of the deceased Subhash was caused on account of cerebral damage consequent to blunt force impact to the head which are sufficient to cause death in ordinary course of nature and has been caused on account of blunt force impact over head by baseball bats and iron rods. Further, it stands established from the medical evidence on record that the injuries caused upon Smt. Neeru @ Guddo, 'N', Naresh and Mohd. Amir @ Sameer were with dangerous weapons i.e. knife, St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 181 glass bottles, baseball bats and dandas on vital organs (particularly of Naresh and Mohd. Amir @ Sameer) which injuries on the body of the injured Naresh and Sameer @ Amir were caused by the knife got recovered by the accused Sudhir (knife confirmed to be having human blood).
(169) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (170) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 182 evidence and the witness of the prosecution have been able to built up a continuous link.
(171) In view of the above, I hereby hold that the prosecution has been able to successfully establish the intent and knowledge (as contemplated under Section 300 Indian Penal Code) of all the accused namely Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay to commit the murder of Subhash, which was in furtherance of their common intention. The prosecution has been able to successfully establish that in furtherance of this common intention all the accused i.e. Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay came to the house of Subhash duly armed with baseball bats, iron rod, empty liquor bottles and knife and thereafter called out to him. The prosecution has also successfully established that after Subhash came out of his house, all the accused i.e. Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay chased him from his house to the Shiv Mandir Gali and caught him in front of the Shiv Mandir where they brutally assaulted him and clubbed him to death. The prosecution has further successfully established that the death of the deceased Subhash was caused on account of cerebral damage consequent to blunt force impact to head which is sufficient to cause death in ordinary course of nature. Hence, the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 183 accused namely Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay are held guilty of the offence under Section 302 /34 Indian Penal Code. (172) The medical evidence on record successfully establishes the injuries received by 'N'; Neeru @ Guddo; Naresh and Mohd. Amir @ Sameer which injuries have been caused upon these victims with dangerous weapons i.e. knife, glass bottles, baseball bats and dandas and conclusively establishes the intent of the accused that under the given circumstances if by their act the death of these persons would have been caused, the accused Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay would have been guilty of murder. Therefore, I hereby hold that the prosecution has been able to successfully establish the charge against the accused Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay under Section 307/34 IPC for which they are held guilty.
(173) Further, the accused Sudhir has been identified as the person who had used a knife while inflicting injuries upon Naresh and Sameer @ Amir (as also established from the medical record of these victims) which knife Sudhir got recovered after his arrest for which he is hereby held guilty of offence under Section 25 & 27 of Arms Act. St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 184 (174) All the accused are accordingly convicted. Case be listed for arguments on sentence on 07.08.2013.
Announced in the open court (Dr. KAMINI LAU)
Dated: 31.7.2013 ASJII(NW)/ ROHINI
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 185
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII(NORTHWEST): ROHINI COURTS: DELHI Session Case No. 28/2013 Unique Case ID No. 02404R0284122009 State Vs. (1) Surender @ Sonu Punjabi S/o Sadhu Singh R/o F4/281, Sultan Puri, Delhi (Convicted) (2) Sunil S/o Mahender Singh R/o F1/403, Sultan Puri, Delhi (Convicted) (3) Raj Kumar @ Danny S/o Vidya Prasad R/o 6/23, Friends Enclave, Sultan Puri, Delhi (Convicted) (4) Suresh @ Phullu S/o Tikka Ram R/o F1/418, Sultan Puri, Delhi (Convicted) (5) Sudhir S/o Mahender Singh R/o F1/403, Sultan Puri, Delhi (Convicted) St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 186 (6) Sanjay S/o Jaipal R/o F1/434, Sultan Puri, Delhi (Convicted) FIR No.: 259/2009 Police Station: Sultanpuri Under Sections: 302/307/34 Indian Penal Code Date of judgment: 31.7.2013 Arguments concluded on: 19.8.2013 Date of Sentence: 27.8.2013 ORDER ON SENTENCE:
The present case relates to the killing of a young boy Subhash only because he stood up against the eve teasing of this sister and protected her honour and this was the sole reason why his voice was silenced and crushed forever. The incident relates to 20.7.2009 when in the name of religious fervor young boys i.e. Kanwariyas were dancing while the residents of the area living nearby were watching them. The victim 'N' (name of the victim is withheld) who was a young girl of 19 years was also watching the said celebrations along with her mother when at about 11:30 PM the accused Sunil and Sudhir who are local ruffians with a large number of criminal cases pending against them, passed through the street in front of her house and St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 187 made obscene gestures to her which were objected to her by her mother Smt. Neeru @ Guddo. The brother of 'N' namely Subhash on hearing the voice of his mother and sister came out and objected to the obscene behaviour of accused Sunil and Sudhir. Feeling annoyed at being challenged Sunil and Sudhir went away at that time but soon returned thereafter within 1520 minutes along with the others i.e. Surender @ Sonu Punjabi, Raj Kumar @ Danny, Suresh @ Phullu and Sanjay all armed with baseball bats, iron rod, empty liquor bottles and knife and hallowed Subhash and chased him around the area till Shiv Mandir in front of the Transformer, Friends Enclave, Sultan Puri where all the accused i.e. Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay clubbed him to death announcing that he (Subhash) had challenged their ruffianship in the area. Not only that, they did not spare anybody who intervened to save Subhash which included his mother Smt. Neeru @ Guddo (complainant), sister 'N' (victim of eveteasing), cousin Naresh residing in the same area, Amir @ Sameer a neighbour etc. all these persons too were given blows and mercilessly beaten with the baseball bats, iron rods, empty liquor bottles and knife resulting into injuries to them.
Vide a detail judgment dated 31.7.2013 the accused Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay have been held guilty of the offence under Section 302/307/34 Indian Penal Code. The accused St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 188 Sudhir has also been held guilty of offence under Section 25 & 27 of Arms Act. Vide the above judgment this Court has observed that on the basis of the testimonies of the various prosecution witnesses particularly the mother of the deceased namely Smt. Neeru @ Guddo, sister of the deceased namely 'N' (victim of eveteasing) and also on the basis of medical and forensic evidence on record, the prosecution has been able to establish that Ms. 'N' was residing at House No.6/4, Friends Enclave, Sultan Puri, Delhi along with her family comprising of her mother, father, two sisters and brother Subhash (deceased); that 20.7.2009 the cousin of 'N' namely Naresh had come from Haridwar with kanwar and offered the holy water of Ganga at Shiv Mandir of their area and the persons who had brought the kanwars were dancing opposite Shiv Mandir in the gali; that 'N' was watching her cousin dancing and there were many ladies, boys and gents were present and after some time, she came back at her home; that at about 11.30 PM while 'N' along with Smt. Neeru @ Guddo was standing outside her house when Sunil and Sudhir who are real brothers residing in the same area were passing through the gali; that while going both Sunil and Sudhir stopped and started eve teasing 'N' by making comments on her (Fabtiyan) and also made indecent gestures towards her; that Smt. Neeru @ Guddo objected to the same and asked them (Sunil & Sudhir) to go away from there; that on hearing the voices, Subhash (son of Smt. Neeru @ Guddo and brother St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 189 of 'N') who was inside the house came out and objected to the acts of the accused Sunil and Sudhir; that both the accused Sunil and Sudhir started arguing with Subhash brother of 'N' and went away by threatening that they would see him (Subhash) after sometime; that after about 20 minutes, Sunil and Sudhir came along with many other boys namely Surender @ Sonu Punjabi, Suresh @ Phullu, Sanjay and Raj Kumar @ Danny out of whom Sunil and Sanjay were having baseball bats in their hands, accused Sudhir was having knife, accused Sonu Punjabi was having an iron rod in his hand whereas accused Phullu and Danny were carrying glass bottles in their hands; that all the above accused challenged Subhash to come out of the house and after Subhash came out they hallowed him till the Shiv Mandir in the Gali and while chasing Subhash the accused Sunil uttered "is saley ne hamari badmashi ko chunoti di hai, is saley ko khatam karna hai" (he had challenged their ruffianism so he should be killed); that the accused Sudhir caught hold of Subhash opposite Shiv Mandir in the gali after which the accused Sunil and Sanjay hit on the head of Subhash with baseball bats, accused Sonu Punjabi hit on his head with iron rod and accused Danny and Phullu gave blows on the head of Subhash with empty liquor glass bottles; that anybody who intervened to save Subhash was not spared; that 'N' (victim of eveteasing), her mother Smt. Neeru @ Guddo (complainant), Naresh (cousin of Subhash) and Sameer @ Amir (neighbour) received injuries when they St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 190 intervened on hearing cries of Subhash and tired to save them; that it was the accused Sudhir who was carrying a knife who inflicted injuries upon Naresh and Sameer @ Amir.
The prosecution has also been able to establish that in the incident the empty liquor glass bottles which the accused Danny and Phullu were carrying had been broken and pieces of glass scattered in the street / gali and thereafter all the accused persons ran away from the spot.
This Court also observed that the prosecution was able to successfully establish that thereafter all the injured were shifted to SGM Hospital where Subhash was declared brought dead; that in said incident accused Sunil also received injuries which he received when he fell on the glasses lying on the ground (as established from the MLC of accused Sunil which is not disputed by him) and he was taken to SGM Hospital for treatment with accused Suresh @ Phullu and Surender @ Sonu following him on motorcycle No. DL8SNA1130 (belonging to Suresh @ Phullu) which motorcycle was left in the parking of the hospital; that Smt. Neeru @ Guddo had made a PCR Call from the mobile phone of Naresh pursuant to which the police reached SGM hospital; that on the basis of the statement of Smt. Neeru @ Guddo the present FIR was registered wherein she at the first instance has specifically named the accused as the assailants (except Sanjay for which a valid explanation is forthcoming); that the police St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 191 then also went to the spot from where they lifted two bats of baseball, one iron rod and broken pieces of glass bottles and also seized a motorcycle bearing No. DL 4S BN 4190 Make Pulsar of red colour left by the assailants at the corner of the gali. The prosecution has also been able to establish that on 21.07.2009 pursuant to a secret information the accused Surender @ Sonu Punjabi was apprehended and arrested by the police; that accused Surender @ Sonu Punjabi produced one blue colour shirt having strips having blood stains on it which was seized by the Investigating Officer which shirt on FSL examination was found to be having human blood; that pursuant to his disclosure to the police the accused Surender @ Sonu Punjabi also got recovered a Bullet motorcycle bearing No. DL8S NA 1130 from the SGM Hospital and disclosed that accused Sunil sustained injuries in the incident and he along with accused Suresh @ Phullu who is the owner of the said motorcycle brought the said injured Sunil on the said motorcycle to the said hospital and due to fear of the Police, they left the motorcycle there and ran away; that on 23.07.2009 the accused Sunil who was admitted in Safdarjung Hospital, was arrested who disclosed his involvement in the present incident; that on 26.07.2009 pursuant to a secret information accused Raj Kumar @ Danny was apprehended and arrested from his house at 6/23, Friends Enclave, Sultan Puri; that accused Raj Kumar disclosed his involvement in the present case and also disclosed that his motorcycle no. DL 4S BN 4190 St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 192 Make Pulsar of red colour which was used for reaching the spot was left by him at the corner of the gali on 21.07.2009; that on 09.08.2009, the accused Suresh @ Phullu was produced by his brother in the Police Station on which the accused was interrogated and arrested in the present case; that on 18.08.2009 pursuant to a secret information the accused Sudhir was apprehended from his house at F1/403, Sultan Puri and pursuant to his disclosure statement the accused Sudhir got recovered one button actuated knife from the heap of bricks from the NorthWest corner of Balmiki Park which knife was thereafter seized by the police; that on 05.11.2009 an information was received from Crime Branch regarding arrest of the accused Sanjay who was wanted in the present case after which on 06.11.09 the accused Sanjay was arrested in the present case.
Vide the judgment this Court also observed that all the accused namely Surender @ Sonu Punjabi, Sunil, Raj Kumar @ Danny, Suresh @ Phullu, Sudhir and Sanjay have been duly identified in the Court by the eye witness Neeru @ Guddo and 'N'. The medical evidence on record confirms that the death of the deceased Subhash was caused on account of cerebral damage consequent to blunt force impact to the head which are sufficient to cause death in ordinary course of nature and has been caused on account of blunt force impact over head by baseball bats and iron rods. Prosecution has St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 193 also proved that the injuries caused upon Smt. Neeru @ Guddo, 'N', Naresh and Mohd. Amir @ Sameer were with dangerous weapons i.e. knife, glass bottles, baseball bats and dandas on vital organs (particularly on Naresh and Mohd. Amir @ Sameer which injuries on the body of the injured Naresh and Sameer @ Amir were caused by the knife got recovered by the accused Sudhir (knife confirmed to be having human blood). Prosecution has also successfully established that the motive of the murder of Subhash was to teach him lesson and crush him as he had dared to challenge the supremacy of the accused Sunil and Sudhir (already involved in number of criminal cases) in the area when he stoodup to object to the indecent and obscene behaviour of the accused Sunil and Sudhir.
In order to bring on record the aggravating and mitigating circumstances both the prosecution and defence were permitted to lead evidence. The Ld. Addl. PP for the State has examined the sister of the deceased Subhash namely 'N' as SW1 wherein she has informed that the deceased was her only brother and soon after the incident she and her family including her nephew (child of deceased Subhash who was born after his death) had been subjected to extreme pressures and threats by the convicts and their families who are all residents of the same area as a result of which even she had been prevented from coming to the Court by her mother as there were threats to the life of her nephew (i.e. son of her deceased brother Subhash). She submits St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 194 that in this regard information was being regularly sent to the police. She has also stated that on account of the incident and the extreme trauma faced by her she was under treatment at Shri Balaji Action Hospital for almost a year. The Prosecution has also examined the Investigating Officer of the present case i.e. Inspector Ram Kishore as SW2 who has placed on record the details of other involvements of convicts Sunil, Raj Kumar, Sanjay, Suresh @ Fullu, Sudhir and Surinder @ Sonu Punjabi which are Ex.SW2/A (three pages); the details of the involvement of the other family members of the convicts Sunil, Sudhir which includes the involvement of their brother Sandeep, convict Surender and Sanjay which details are Ex.SW2/B running into six pages. According to him, in so far as the accused Raj Kumar is concerned his family members have sold their house to one Darshan and have shifted to some unknown place and the local inquiry conducted in this regard is Ex.SW2/C running into three pages. He has also placed his reliance on FIR No.279/10 dated 16.07.2010 got registered by Ankit Dhingra, the nephew of Neeru @ Guddo which copy of the FIR is Ex.SW2/D1 and has informed that charge sheet has already been filed in the said case particulars of which are Ex.SW2/D2.
The convicts despite being given an opportunity have not led any evidence in support of their respected claims with regard to the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 195 mitigating circumstances and have made oral submissions as well as filed written synopsis of arguments in support of their case.
Heard arguments on the point of sentence. The convict Surender @ Sonu is stated to be aged about 35 years, having a family comprising of an aged father, two elder brothers and one married sister. He is a Matriculate and a driver by profession. The convict Sunil is stated to be aged about 30 years, having a family comprising of aged parents, one married sister, two younger brothers, wife, one son and one daughter. He is 8th class pass and a sweeper by profession. The convict Raj Kumar @ Danny is stated to be aged about 30 years, having a family comprising of parents, one elder brother, one elder sister, wife and one son. He is 6th class pass and is working in a Courier Company. The convict Suresh @ Phullu is stated to be aged about 40 years, having a family comprising of aged father and wife. He is 9th class pass and was working in Water Supply Department. The convict Sudhir is stated to be aged about 27 years, having a family comprising of aged parents, two elder brothers and one married sister. He is 8th class pass and was working as salesman in a garment shop. The convict Sanjay is stated to be aged about 38 years, having a family comprising of wife and five daughters. He is 9th class pass and is a Driver by profession.
Ld. Counsels for the convicts have argued that the St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 196 convicts Sanjay and Raj Kumar @ Danny are first time offenders and have no other criminal involvements. It is argued that though the convicts Surender @ Sonu Punjabi, Sunil, Sudhir and Suresh @ Phullu are involved in other cases but they have not been held guilty in any other case so far. Counsels have prayed for mercy for the convicts.
Ld. Additional Public Prosecutor for the State has prayed for imposition of death penalty upon the convicts. It is argued that the deceased Subhash was a young boy of 22 years having a family comprising of his parents, three young sisters and a newly married wife who was pregnant at the time of the incident (whose child was born later after his death), had been killed by the convicts in a brutal manner only because he had dared to standup for the honour of his sister and objected to the obscene acts of convicts Sunil and Sudhir which were directed upon his sister. He has also pointed out that the convicts Sunil, Sudhir, Surender @ Sonu Punjabi and Suresh @ Phullu have a track record of violence and have been even previously involved in many serious violations which details he has placed on record. In so far as the convict Sunil is concerned, he is involved in eight other cases details of which are as under:
Sr. FIR No. Under Sections Police Station No. 1. 1115/1996 12955 of Gambling Act Sultan Puri 2. 655/1997 342/377/34 IPC Sultan Puri St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 197 3. 562/1998 394/34 IPC Mangol Puri 4. 1082/04 307/34 IPC Mangol Puri 5. 75/06 325/34 IPC Mangol Puri 6. 361/06 25 Arms Act Sarai Rohilla 7. 699/07 25 Arms Act Sarai Rohilla 8. 330/08 25 Arms Act Sultan Puri
Further, the convict Sudhir is involved in two other cases details of which are as under:
Sr. FIR No. Under Sections Police Station No. 1. 32/08 323/341/34 IPC Sultan Puri 2. 914/04 323/341 IPC Sultan Puri
The convict Surender @ Sonu Punjabi is involved in three other cases details of which are as under:
Sr. FIR No. Under Sections Police Station No. 1. 22/08 323/341/34 IPC Sultan Puri 2. 176/07 307/34 IPC Sultan Puri 3. 1252/09 323/341/34 IPC Sultan Puri St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 198
Further, in so far as the convict Suresh @ Phullu is concerned, he is reported to be involved in another case bearing No. 1176/03, Under Section 365/304 IPC of Police Station Sultan Puri.
The Ld. Public Prosecutor submits that keeping in view the antecedents the convicts who have become law into themselves in the area; they are not entitled to any leniency. In this regard he has placed his reliance on the authorities of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580; Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and Mohd. Mannan @ Abdul Mannan Vs. State of Bihar reported in 2011 Crl.L.J. 3380 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts. The Ld. Addl. Public Prosecutor has also placed his reliance on the judgment of Shivaji Vs. State of Maharastra reported in 2008 (4) AD (CR.) SC 665 and has argued that death penalty could be awarded in cases even where the conviction is based on circumstantial evidence.
I have considered the rival contentions and also the evidence of the aggravating and mitigating circumstances placed before me. It is argued by the Ld. Counsels for the convicts that in so far as 'N' is concerned, there is no authentic record regarding her treatment at Shri Balaji Action Hospital as alleged by her. It is also submitted that Neeru @ Guddo the mother of 'N' is herself involved in St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 199 illegal activities of sale of liquor and cases have been registered against her in this regard and hence the complaint made by her against them cannot be relied upon. I may observe that 'N' is a young girl who has lost her only brother merely because he had dared to standup for her honour. No medical record is required to prove this trauma which any sister under the given circumstances would face. In so far as the allegations that Neeru @ Guddo herself is into sale of illicit liquor in the area and has a criminal record, assuming that she is involved in such cases, does it in any manner dilute the charges against the convicts and condone what they have done? Does it mean that anybody or everybody would have a right to take liberties with her daughter or to kill her son who stood by the honour of his sister. Well the answer, of course, is NO.
Now I proceed to take a stock of rulings relied upon by the parties in order to determine the quantum of sentence. In the case of Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], it was held by the Hon'ble Supreme Court that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. The Hon'ble Court further cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 200 regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) where the murder has been committed after previous planning and involves extreme brutality; or
(b) where the murder involves exceptional depravity. The mitigating circumstances which were mentioned were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], where Hon'ble Supreme Court insisted upon the mitigating circumstances being St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 201 balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
The matter was further considered in Devender Pal Singh Vs. State of NCT of Delhi [AIR 2002 SC 1661], wherein, after examining both the aforementioned cases, it was held that when a murder is committed in an extremely brutal manner, or for a motive which suggests total depravity and meanness or where the murder is by hired assassin for money or reward, or a cold blooded murder for gains, the death sentence is justified. Similar such observation was made even in the decision in Atbir Vs. Govt. of NCT of Delhi [JT 2010 (8) SC 372]. Relying on all these cases, Hon'ble Supreme Court, in Criminal Appeal Nos. 127130 of 2008 (C. Muniappan & Ors. Vs. State of Tamil Nadu) decided on 30.8.2010, confirmed the death sentence. The unprovoked attack on the bus and the burning of the bus by sprinkling petrol on the bus, and the death of three students as a result of such burning was viewed by Hon'ble Supreme Court as a barbaric and inhuman act of the highest degree. The offence was St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 202 viewed as brutal, diabolical, grotesque and cruel, shocking the collective conscience of society. It was on that account that the death sentence was confirmed.
In the case of Atbir Vs. Govt. of NCT of Delhi (supra), which was a case dependent upon a dying declaration, the allegation was that the accused had stabbed all the three persons of a family so that he and his brother could enjoy the entire property and money. The repeated stabbing of the deceased was viewed as the act for which the accused could be legitimately awarded death sentence. The incident therein had occurred on 22.1.1996 while the Sessions Judge had awarded the death sentence on 27.9.2004. The High Court had confirmed the death sentence on 13.1.2006 while Hon'ble Apex Court affirmed this sentence vide its judgment dated 9.8.2010, after taking the stock of the aggravating circumstances and mitigating circumstances, as pointed out in Bachan Singh Vs. State of Punjab (cited supra) and Machhi Singh & Ors. Vs. State of Punjab (cited supra), came to the conclusion that though Atbir was a young person of 25 years of age and had already spent 10 years in jail, that was not a mitigating circumstance in his favour. The three murders were held to be extremely brutal and diabolical, committed with deliberate design in order to inherit the entire property of Jaswant Singh without waiting for his death.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 203
In another decision in Gurdev Singh & Anr. Vs. State of Punjab with Piara Singh & Anr. Vs. State of Punjab [AIR 2003 SC 4187], the Hon'ble Supreme Court specifically held in Para 19 that there could be no fixed or rigid formula or standard for invoking extreme penalty of death sentence.
Coming now to the facts of the present case, before arriving at a decision whether the case falls in the category of rarest of the rare cases, this Court is required to list aggravating or mitigating circumstances and prepare balance sheet of the same before arriving at a decision. The division bench of our own High Court in case of State Vs. Raj Kumar Khandelwal reported in 164 (2009) DLT 713 (DB) observed that for the said purpose circumstances can be listed under six heads:
1. Circumstances personal to the offender.
2. Preoffence conduct of the offender and in particular the motive.
3. Contemporaneous conduct of the offender while committing the offence
4. Post offence conduct of the offender
5. Role of the victim in commission of the crime.
6. Nature of evidence.
In the said case the Hon'ble High Court has also listed illustrations by way of judicial decision as to what amount to mitigating factors and aggravating factors.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 204
Coming now to the facts of the present case and dealing with the various mitigating and aggravating factors visavis each convict individually which is being listed in a tabulated form as under:
SUDHIR Sr. Mitigating Factors Aggravating factors No Circumstances personal to the offender
1. Family comprising of aged Deceased Subhash was a young parents, two elder brother boy of 25 years, only son of his and one married sister. parents and only brother to three sisters who was newly married and left behind a pregnant wife who delivered a child after his death.
2. Nil The convict is also previously involved in two other criminal cases. The coconvict Sunil is his real brother and also involved in eight other criminal cases.
3. Nil Anti social/ Socially Abhorrent nature of crime being crime directed against the brother of a young girl who was being teased and who dared to stand up for her honour and anyone who intervened was also not spared.
The offence has been committed in the circumstance which arouses social wrath. Offence is of such a diabolic nature so as to St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 205 shake the conscience and confidence of people.
Preoffence Conduct of the offender and in particular the motive
4. He and his brother Sunil were There is significant degree of the actual persons involved in planning/ premeditation on the the initial incident of eve part of the convict while teasing of 'N' who was committing the murder of standing outside her house Subhash as reflected from the with her mother watching the fact that he came to the spot religious celebrations and along with the coconvicts duly when stopped by Subhash, left armed with a knife with which he after threatening and inflicted injuries on the vital returned back after 20 parts of Naresh and Sameer @ minutes with reinforcement Amir.
(other four convicts) duly armed with which the victim was clubbed to death.
Contemporaneous Conduct of the offender while committing the offence
5. Nil The manner of killing of Subhash in full public view after chasing him in the area and clubbing him to death with iron rods, baseball bats and liquor bottles after calling him out of his house, only because he dared to standup for the honour of his sister and of unsparingly inflicting injuries on anybody who came to the rescue of Subhash, is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 206 arose intense and extreme indignation of the community.
6. Nil Mental/ physical suffering inflicted on the deceased Subhash before his death and his mother Neeru @ Guddo, sister 'N', cousin Naresh, neighbour Sameer @ Amir when they tried to intervene and save Subhash, is immense.
Post Offence Conduct of the offender.
7. Nil Escaped from the spot after clubbing Subhash to death and leaving the others injured at the spot.
8 Nil Concealment of weapon of offence i.e. knife which he got recovered later.
9. Nil. Lack of remorse.
Role of the victim in commission of the crime
10. Nil. There was no act of instigation by the victim who rather stood up and objected to the obscene acts and eve teasing of his sister 'N' by the convict Sudhir and his real brother Sunil.
Nature of the evidence
11. Nil Convincing and credible ocular evidence in the form of oral St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 207 testimonies of the mother of the deceased namely Smt. Neeru @ Guddo, sister of the deceased namely 'N', cousin Naresh and neighbour Sameer @ Amir.
12. Nil Recovery of motorcycle bearing No. DL 4S BN 4190 Make Pulsar of red colour (belonging to the convict Raj Kumar) from the corner of street after the incident.
13. Nil Recovery of weapon of offence i.e. knife at the instance of convict Sudhir.
14. Nil. Forensic Evidence in the form of FSL Report establishing that human blood was found on the knife got recovered by him.
SUNIL Sr. Mitigating Factors Aggravating factors No Circumstances personal to the offender
1. Family comprising of aged Deceased Subhash was a young parents, two brothers, one boy of 25 years, only son of his married sister, wife, one son parents and only brother to three and one daughter. sisters who was newly married and left behind a pregnant wife who delivered a child after his death.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 208
2. Nil The convict is also previously involved in eight other criminal cases. The coconvict Sudhir is his real brother and also involved in two other criminal cases.
3. Nil Anti social/ Socially Abhorrent nature of crime being crime directed against the brother of a young girl who was being teased and who dared to stand up for her honour and anyone who intervened was also not spared.
The offence has been committed in the circumstance which arouses social wrath. Offence is of such a diabolic nature so as to shake the conscience and confidence of people.
4. He too received injuries and The injuries were received by was treated in the hospital Sunil on account of his own (which aspect he denied doings (i.e. he fell down on the during the trial). glass pieces lying on the ground). He himself caused injuries to all who came his way.
Preoffence Conduct of the offender and in particular the motive.
5. He and his brother Sudhir There is significant degree of were the actual persons planning/ premeditation on the involved in the initial incident part of the convict while of eve teasing of 'N' who was committing the murder of standing outside her house Subhash as reflected from the with her mother watching the fact that he came to the spot St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 209 religious celebrations and along with the coconvicts duly when stopped by Subhash, left armed with a baseball bat. after threatening and returned back after 20 minutes with reinforcement (other four convicts) duly armed with which the victim was clubbed to death.
Contemporaneous Conduct of the offender while committing the offence
6. Nil The manner of killing of Subhash in full public view after chasing him in the area and clubbing him to death with iron rods, baseball bats and liquor bottles after calling him out of his house, only because he dared to standup for the honour of his sister and of unsparingly inflicting injuries on anybody who came to the rescue of Subhash, is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
7. Nil Mental/ physical suffering inflicted on the deceased Subhash before his death and his mother Neeru @ Guddo, sister 'N', cousin Naresh, neighbour Sameer @ Amir when they tried to intervene and save Subhash, is immense.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 210 Post Offence Conduct of the offender.
8. Nil Escaped from the spot after clubbing Subhash to death and leaving the others injured at the spot.
9. Nil. Lack of remorse.
Role of the victim in commission of the crime
10. Nil. There was no act of instigation by the victim who rather stood up and objected to the obscene acts and eve teasing of his sister 'N' by the convict Sunil and his real brother Sudhir.
Nature of the evidence
11. Nil Convincing and credible ocular evidence in the form of oral testimonies of the mother of the deceased namely Smt. Neeru @ Guddo, sister of the deceased namely 'N', cousin Naresh and neighbour Sameer @ Amir.
12. Nil Recovery of motorcycle bearing No. DL 4S BN 4190 Make Pulsar of red colour (belonging to the convict Raj Kumar) from the corner of street after the incident.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 211 SURENDER @ SONU PUNJABI Sr. Mitigating Factors Aggravating factors No Circumstances personal to the offender
1. Family comprising of an aged Deceased Subhash was a young father, two elder brothers and boy of 25 years, only son of his one married sister parents and only brother to three sisters who was newly married and left behind a pregnant wife who delivered a child after his death.
2. Nil The convict is also previously involved in three other criminal cases.
3. Nil Anti social/ Socially Abhorrent nature of crime being crime directed against the brother of a young girl who was being teased and who dared to stand up for her honour and anyone who intervened was also not spared.
The offence has been committed in the circumstance which arouses social wrath. Offence is of such a diabolic nature so as to shake the conscience and confidence of people.
Preoffence Conduct of the offender and in particular the motive.
4. He was not present at the spot There is significant degree of when the initial incident planning/ premeditation on the regarding eve teasing of 'N' part of the convict while St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 212 took place. committing the murder of Subhash as reflected from the fact that he came to the spot along with the coconvicts duly armed with an iron rod.
Contemporaneous Conduct of the offender while committing the offence
5. Nil The manner of killing of Subhash in full public view after chasing him in the area and clubbing him to death with iron rods, baseball bats and liquor bottles after calling him out of his house, only because he dared to standup for the honour of his sister and of unsparingly inflicting injuries on anybody who came to the rescue of Subhash, is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
6. Nil Mental/ physical suffering inflicted on the deceased Subhash before his death and his mother Neeru @ Guddo, sister 'N', cousin Naresh, neighbour Sameer @ Amir when they tried to intervene and save Subhash, is immense.
Post Offence Conduct of the offender.
7. Nil Escaped from the spot after St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 213 clubbing Subhash to death and leaving the others injured at the spot.
8. Nil. Lack of remorse.
Role of the victim in commission of the crime
9. Nil. There was no act of instigation by the victim who rather stood up and objected to the obscene acts and eve teasing of his sister 'N' by the coconvict Sunil and Sudhir.
Nature of the evidence
10. Nil Convincing and credible ocular evidence in the form of oral testimonies of the mother of the deceased namely Smt. Neeru @ Guddo, sister of the deceased namely 'N', cousin Naresh and neighbour Sameer @ Amir.
11. Nil Recovery of motorcycle bearing No. DL 4S BN 4190 Make Pulsar of red colour (belonging to the convict Raj Kumar) from the corner of street after the incident.
12. Nil Recovery of the Bullet motorcycle bearing No. DL8S NA 1130 from the SGM Hospital on which he and coconvict Suresh @ Phullu (owner of the said motorcycle) had gone to St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 214 SGM Hospital while accompanying coconvict Sunil who had also received injuries in the incident.
13. Nil Recovery of the blood stained shirt which he was wearing at the time of the incident.
14. Nil Forensic Evidence in the form of FSL Report establishing that human blood was found on the shirt got recovered by him.
RAJ KUMAR @ DANNY Sr. Mitigating Factors Aggravating factors No Circumstances personal to the offender
1. Family comprising of aged Deceased Subhash was a young parents, one elder brother, boy of 25 years, only son of his one elder sister and, wife and parents and only brother to three one son. sisters who was newly married and left behind a pregnant wife who delivered a child after his death.
2. Nil Anti social/ Socially Abhorrent nature of crime being crime directed against the brother of a young girl who was being teased and who dared to stand up for her honour and anyone who intervened was also not spared.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 215 The offence has been committed in the circumstance which arouses social wrath. Offence is of such a diabolic nature so as to shake the conscience and confidence of people.
Preoffence Conduct of the offender and in particular the motive.
3. He was not present at the spot There is significant degree of when the initial incident planning/ premeditation on the regarding eve teasing of 'N' part of the convict while took place. committing the murder of Subhash as reflected from the fact that he came to the spot along with the coconvicts duly armed with empty liquor bottles.
Contemporaneous Conduct of the offender while committing the offence
4. Nil The manner of killing of Subhash in full public view after chasing him in the area and clubbing him to death with iron rods, baseball bats and liquor bottles after calling him out of his house, only because he dared to standup for the honour of his sister and of unsparingly inflicting injuries on anybody who came to the rescue of Subhash, is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 216
5. Nil Mental/ physical suffering inflicted on the deceased Subhash before his death and his mother Neeru @ Guddo, sister 'N', cousin Naresh, neighbour Sameer @ Amir when they tried to intervene and save Subhash, is immense.
Post Offence Conduct of the offender.
6. Nil Escaped from the spot after clubbing Subhash to death and leaving the others injured at the spot.
7. Nil. Lack of remorse.
Role of the victim in commission of the crime
8. Nil. There was no act of instigation by the victim who rather stood up and objected to the obscene acts and eve teasing of his sister 'N' by the coconvicts Sudhir and Sudhir.
Nature of the evidence
9. Nil Convincing and credible ocular evidence in the form of oral testimonies of the mother of the deceased namely Smt. Neeru @ Guddo, sister of the deceased namely 'N', cousin Naresh and neighbour Sameer @ Amir.
10. Nil Recovery of motorcycle bearing No. DL 4S BN 4190 Make Pulsar St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 217 of red colour (belonging to the convict Raj Kumar) from the corner of street after the incident.
SURESH @ PHULLU Sr. Mitigating Factors Aggravating factors No Circumstances personal to the offender
1. Family comprising of aged Deceased Subhash was a young father and wife. boy of 25 years, only son of his parents and only brother to three sisters who was newly married and left behind a pregnant wife who delivered a child after his death.
2. Nil The convict is also previously involved in another criminal case.
3. Nil Anti social/ Socially Abhorrent nature of crime being crime directed against the brother of a young girl who was being teased and who dared to stand up for her honour and anyone who intervened was also not spared.
The offence has been committed in the circumstance which arouses social wrath. Offence is of such a diabolic nature so as to St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 218 shake the conscience and confidence of people.
Preoffence Conduct of the offender and in particular the motive.
4. He was not present at the spot There is significant degree of when the initial incident planning/ premeditation on the regarding eve teasing of 'N' part of the convict while took place. committing the murder of Subhash as reflected from the fact that he came to the spot along with the coconvicts duly armed with empty liquor bottles.
Contemporaneous Conduct of the offender while committing the offence
5. Nil The manner of killing of Subhash in full public view after chasing him in the area and clubbing him to death with iron rods, baseball bats and liquor bottles after calling him out of his house, only because he dared to standup for the honour of his sister and of unsparingly inflicting injuries on anybody who came to the rescue of Subhash, is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
6. Nil Mental/ physical suffering inflicted on the deceased Subhash before his death and his mother Neeru @ Guddo, sister St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 219 'N', cousin Naresh, neighbour Sameer @ Amir when they tried to intervene and save Subhash, is immense.
Post Offence Conduct of the offender.
7. Nil Escaped from the spot after clubbing Subhash to death and leaving the others injured at the spot.
8. Nil. Lack of remorse.
Role of the victim in commission of the crime
9. Nil. There was no act of instigation by the victim who rather stood up and objected to the obscene acts and eve teasing of his sister 'N' by the coconvicts Sudhir and Sudhir.
Nature of the evidence
10. Nil Convincing and credible ocular evidence in the form of oral testimonies of the mother of the deceased namely Smt. Neeru @ Guddo, sister of the deceased namely 'N', cousin Naresh and neighbour Sameer @ Amir.
11. Nil Recovery of motorcycle bearing No. DL 4S BN 4190 Make Pulsar of red colour (belonging to the convict Raj Kumar) from the corner of street after the incident.
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 220 SANJAY Sr. Mitigating Factors Aggravating factors No Circumstances personal to the offender
1. Family comprising of wife Deceased Subhash was a young and five daughters. boy of 25 years, only son of his parents and only brother to three sisters who was newly married and left behind a pregnant wife who delivered a child after his death.
2. Nil Anti social/ Socially Abhorrent nature of crime being crime directed against the brother of a young girl who was being teased and who dared to stand up for her honour and anyone who intervened was also not spared.
The offence has been committed in the circumstance which arouses social wrath. Offence is of such a diabolic nature so as to shake the conscience and confidence of people.
Preoffence Conduct of the offender and in particular the motive.
3. He was not present at the spot There is significant degree of when the initial incident planning/ premeditation on the regarding eve teasing of 'N' part of the convict while took place. committing the murder of St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 221 Subhash as reflected from the fact that he came to the spot along with the coconvicts duly armed with baseball bat.
Contemporaneous Conduct of the offender while committing the offence
4. Nil The manner of killing of Subhash in full public view after chasing him in the area and clubbing him to death with iron rods, baseball bats and liquor bottles after calling him out of his house, only because he dared to standup for the honour of his sister and of unsparingly inflicting injuries on anybody who came to the rescue of Subhash, is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
5. Nil Mental/ physical suffering inflicted on the deceased Subhash before his death and his mother Neeru @ Guddo, sister 'N', cousin Naresh, neighbour Sameer @ Amir when they tried to intervene and save Subhash, is immense.
Post Offence Conduct of the offender.
6. Nil Escaped from the spot after clubbing Subhash to death and St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 222 leaving the others injured at the spot.
7. Nil. Lack of remorse.
Role of the victim in commission of the crime
8. Nil. There was no act of instigation by the victim who rather stood up and objected to the obscene acts and eve teasing of his sister 'N' by the coconvicts Sudhir and Sudhir.
Nature of the evidence
9. Nil Convincing and credible ocular evidence in the form of oral testimonies of the mother of the deceased namely Smt. Neeru @ Guddo, sister of the deceased namely 'N', cousin Naresh and neighbour Sameer @ Amir.
10. Nil Recovery of motorcycle bearing No. DL 4S BN 4190 Make Pulsar of red colour (belonging to the convict Raj Kumar) from the corner of street after the incident.
I may observe that offences against women are raising by the day and is a cause for great concern for the courts. Courts cannot permit the main United Nation Theme "A promise is a Promise" "End violence against Women" to be a hollow. It takes more than laws to St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 223 change peoples attitude about women. There is a need to change the parochial, patriarchal mind set which plagues the Country. Women are vulnerable and unsafe everywhere and there is a sense of despair and disgust in the society. Worst thing one can do is to tolerate or turn a blind eye to sexual crime against women be it verbal sexual harassment (eveteasing), weapon / acid attack, horrific rapes etc. 'Eve Teasing' I may observe is a euphemism used in India (sometimes in Bangladesh and Nepal) for public sexual harassment or molestation of a woman by men. Many writers refers to this behaviour as a kind of "Little Rape". It is a kind of sexual aggression that ranges in severity from sexually suggestive remarks, to brushing in public places, catcalls to grouping. Sometimes it is referred to with an easy suggestion of innocent fun, making it appear inconsonance with no results and liability on the part of the perpetrator. Sexual harassment by strangers had been notoriously difficult crime to prove, as the perpetrator often devise ingenious ways to harass women, even though eveteasing usually occurs in public places, streets and public transport. There is a need to expose and tackle the chauvinist under belly of urban India.
It is an every day story Killed for objecting to eve teasing or standing up for honour of a lady. Fathers, Brothers Sons, Husbands, Neighbours, Friends, Policeman or it could be any good Samaritan who could be the next target. The society is in a Chaos and people are scared to stand up for a woman for the sheer fear of these St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 224 ruffians and hooligans who have become law into themselves and are having a free run in the society. Any one who stands up against them is not spared and brutally crushed as has happened in the present case of a Cold Blooded murder in full public view of a brother who stood up for the honour of his sister. Eye witnesses including the victims are slow to open their mouths in the Court. The fear of these criminals out weighs everything else / all other aspects. What we need is not mere lip service but action which also sends a message across. People have to rise and take a stand.
The duty of the Court is also onerous as its orders are reflective of how we as a Country treat our daughters. Eveteasing is not a woman's issue but an issue concerning the Nation and to be dealt with all seriousness and the things cannot be left the way they are. As Hon'ble Mr. Justice Arijit Pasayat aptly put that proportion between crime and punishment is a goal respected in principle, and inspite of errant notions, it remains a strong influence in the determination of sentences. In the case of Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78 it was observed by the Hon'ble Supreme Court that law must find answers to the new challenges and the Courts of law are required to mould the sentencing system to meet these challenges. It was observed by the Hon'ble Court and I quote "..... The practice of punishing all serious crime with equal severity is now unknown in civilized societies, but such a radical departure from St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 225 the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is though then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable is when it is out of proportion to the crime, uniformly disproportionate punishment had some very undesirable practice consequences...."
The Hon'ble Supreme Court in the case of Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463 expressed great concerns over the Subordinate Courts imposing inadequate sentencing having regards to the serious nature of the offence when it further observed and I quote "......Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc....."
I may observe that crime against women has to be tackled with all earnestness. This battle of one half of the Indian population (women) is something that we cannot loose sight of and the Courts of Law cannot let the things pass in the name of compassion / mercy. As St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 226 observed by the Hon'ble Apex Court compassion which does more harm to the society is misplaced. Sentencing process has to be stern where it warrants and tempered with mercy where it so required to be. Women safety has to be our first priority and need of the hour is to instill that fear of law in the society. We can no longer remain a resilient society and a befitting institutionalized response by exhibiting a Zero Tolerance to these crimes against women is the crying need of the hour.
Applying the guiding principles as laid down by the Hon'ble Apex Court and keeping in view the facts of the case, nature of crime and the manner in which it was planned and committed, in so far as the the conduct of the convicts Sunil and Sudhir (who were the actual persons involved in the incident of eveteasing of victim 'N' to which her deceased brother Subhash had objected) is concerned, leads me to conclude that they do not deserve any mercy. Both the convicts Sunil and Sudhir who are real brothers are habitual offenders with a list of violent crimes against them. Their brother Sandeep (not an accused in the present case) also has a history of violence and criminal cases against him. The matter does not end here. There are allegations that during the trial of the present case, threats were executed to the family of the deceased. That these threats were real is indicated from the fact that Neeru @ Guddo (mother of the deceased and herself an injured) who initially in her examination in chief confirmed the first St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 227 version given by her to the police and identified all the convicts before this Court but later after eight to ten months rather surprisingly chose to support the convicts and it was later when advised by the Court that she reaffirmed her first version and informed the Court that she wanted to live peacefully in the area along with her daughters. Her helplessness find reflected in her conducted and the Court is not oblivious of her circumstances. Similarly when the victim 'N' who was produced in the Court at a much later stage and that too pursuant to coercive process (warrants) as she was initially not responding to repeated summons, disclosed to the Court her dilemma in speaking the truth on account of the threats they were receiving from the families of the convicts. It is writ large that in so far as the convicts Sunil and Sudhir are concerned, the aggravating circumstances far outweigh the mitigating circumstances. From the facts as recapitulated above, it would be seen that in so far as these convicts are concerned the present case falls in the category of Rarest of Rare cases, it meets three circumstances as set out in Machi Singh's case for determining rarest of rare cases. The First circumstance being that the offence is such which may be taken as shocking the collective conscience of the community justifying infliction of death penalty in as much as initially the honour of a young girl was sought to be robbed and when the brother of the victim objected and came to her rescue, his voice was silenced forever in full public view causing not only the death of this St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 228 brother but also causing injuries to one and all who came to his rescue and hence it is this which leads me to conclude that the murder had been committed in an extremely brutal, diabolical, revolting and dastardly manner. The Second circumstance being the motive for crime which was to crush any person who standsup for the honour of women and this the convicts did in full public view without any fear of law in order to enforce their supremacy in the area. We are a nation governed by Rule of Law and such acts if not dealt with appropriately only demolishes the faith of people in the Institution of Justice. The Third circumstances being the probability that the convict would again commit a similar act of violence and constitute a continuing threat to the society in view of their previous criminal background of violence.
Certain category of perpetrators of crime who if not removed from the circulation of the society would destroy it and this act of the convicts Sunil and Sudhir in brutally and publicly silencing the voice of a brother who had dared to standup against them to protect the honour of his sister, has invited extreme indignation of the community and shocked the collective conscience of the society whose expectation from the authority conferred with the power to adjudicate, is to inflict the death sentence which is only natural and logical. This Court cannot ignore the loud cry for justice by the society in this case involving heinous crime of murder of a young man who earned the wrath of these two convicts only because he objected to their obscene St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 229 behaviour directed towards his sister and his grotesque killing in full public view. It will respond by imposition of proper sentence least people loose faith in the Judicial System and take law into their hands. Voices of Sanity cannot be permitted to be crushed. This being the background, in so far as the convicts Sunil and Sudhir are concerned, I conclude that their case falls in the category of Rarest of Rare and I, therefore, award the following sentences to the convict Sunil:
1. For the offence under Section 302 Indian Penal Code, the convict is Sentenced to Death and fine to the tune of Rs.
1,00,000/ (Rs. One lakh) . Accordingly he be hanged by the neck till he is dead (subject to confirmation of High Court of Delhi). The entire fine amount of Rs.1,00,000/ shall be given to the family of the deceased as compensation under Section 357 Cr.P.C. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Months.
2. For the offence under Section 307 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment (RI) for a period of Ten 10 years and fine of Rs.10,000/. In default of payment of fine, the convict is further sentence to undergo simple imprisonment (SI) for a period of one month.
In so far as the convict Sudhir is concerned, I award the following sentences to him:
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 230
1. For the offence under Section 302 Indian Penal Code, the convict is Sentenced to Death and fine to the tune of Rs.
1,00,000/ (Rs. One lakh). Accordingly he be hanged by the neck till he is dead (subject to confirmation of High Court of Delhi). The entire fine amount of Rs.1,00,000/ shall be given to the family of the deceased as compensation under Section 357 Cr.P.C. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Months.
2. For the offence under Section 307 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment (RI) for a period of Ten (10) years and fine of Rs.10,000/. In default of payment of fine, the convict is further sentence to undergo simple imprisonment (SI) for a period of one month.
3. For the offence under Section 25 of Arms Act, the convict is sentenced to Rigorous Imprisonment (RI) for a period of Two (2) years and fine of Rs.5,000/. In default of payment of fine, the convict is further sentence to undergo simple imprisonment (SI) for a period of fifteen days.
4. For the offence under Section 27 of Arms Act, the convict is sentenced to Rigorous Imprisonment (RI) for a period of Four (4) years and fine of Rs.5,000/. In default of payment of fine, St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 231 the convict is further sentence to undergo simple imprisonment (SI) for a period of fifteen days.
The sentences for the offence under Section 307 IPC and Section 25 & 27 of Arms Act shall run concurrently.
However, in so far as the convicts Surender @ Sonu Punjabi, Raj Kumar @ Danny, Suresh @ Phullu and Sanjay are concerned, they are not the ones who had participated in the initial incident of eve teasing which distinguishes their case from that of Sunil and Sudhir. Further, in so far as the convict Raj Kumar @ Danny and Sanjay are concerned, they have no history of crime except the present case, though Suresh @ Phullu and Surender @ Sonu Punjabi have a background of involvement in a few criminal cases as highlighted above. This again distinguishes their case from that of Sunil and Sudhir who have a history of violence and criminal cases against them. I, hence award the following sentences to the convicts Surender @ Sonu @ Punjabi, Raj Kumar @ Danny, Suresh @ Phullu and Sanjay:
1. For the offence under Section 302 Indian Penal Code, the convicts Surender @ Sonu @ Punjabi, Raj Kumar @ Danny, Suresh @ Phullu and Sanjay are Sentenced to Rigorous Imprisonment For Life and fine to the tune of Rs.1,00,000/ (Rs. One Lakh) each. The entire fine amount of Rs.4,00,000/ St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 232 (Rs. Four Lakhs) i.e. Rs.1,00,000/ from each of the above convicts be given to the family of the deceased as compensation under Section 357 Cr.P.C. In default of payment of fine the convicts shall undergo Simple Imprisonment for a period of Two Months (each).
2. For the offence under Section 307 Indian Penal Code, the convicts Surender @ Sonu Punjabi, Raj Kumar @ Danny, Suresh @ Phullu and Sanjay are sentenced to Rigorous Imprisonment (RI) for a period of Ten (10) years and fine of Rs.10,000/ (each). In default of payment of fine, the convicts are further sentenced to undergo simple imprisonment (SI) for a period of one month (each).
Both the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them as per rules.
The convicts are also informed that they can file an appeal before Hon'ble High Court of Delhi against the judgment within a period of 30 days as per Article 115 of The Limitation Act, 1963.
Certified copy of the judgment and order on sentence be given to all the convicts free of cost. In so far as the convicts Sunil and Sudhir are concerned they are also directed to be supplied with the duly attested copy of charge, evidence, statement of accused, exhibited St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 233 documents free of cost.
The exhibits be preserved till the confirmation of death penalty in respect of the convicts Sunil and Sudhir by the Hon'ble High Court. The file be prepared as per Rule 34 of Chapter 24 Part B Vol. III of Delhi High Court Rules and be sent to Hon'ble High Court as per rules.
In the end, this Court would be failing in its duty if it does not pen down the appreciation for the victim 'N' who despite all odds, threats and opposition including that from her family, singularly stood up alone in this battle to secure justice for her deceased brother Subhash. It was a lone battle for her. Not only she had to undergo the extreme psycho trauma of seeing her only brother dying before her eyes only because he stoodup for her and by her but also when she appeared in the Court pursuant to coercive process (warrants) and was exposed to the proceedings of the Court when she faced most hostile defence. The spirit of this young girl, who bravely stood up against all her odds, is required to be saluted.
The death penalty reference in respect of the convicts Sunil and Sudhir is being sent to Hon'ble High Court of Delhi for confirmation of the same.
Announced in the open court (Dr. KAMINI LAU)
Dated: 27.8.2013 ASJII(NW)/ ROHINI
St. Vs. Surender Etc., FIR No. 259/09, Police Station Sultan Puri Page No. 234