Delhi District Court
State vs Shiv Kumar on 28 March, 2024
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL
SESSIONS JUDGE-05: SOUHT-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CNR No. DLSE01-004245-2020
SC No. 225/2020
FIR No. 65/2020
U/s. 302/307/324/34 IPC
PS: GOVIND PURI
STATE Vs. SHIV KUMAR & ANR.
JUDGMENT
1. Sr. No. of the case : 225/2020.
2. Date of Committal to Sessions : 23.10.2020.
3. Name of the complainant : Sh. Satish.
4. Date of Commission of Offence : 01.03.2020.
5. Name and Parentage of Accused : (i) Shiv Kumar
S/o. Sh. Sudhir Gyin @ Gain
R/o. H. No.44, Gali No.23,
Bengali Colony, Churiya
Mohalla, Tuglakabad Village,
New Delhi.
: (ii) Suman Faliya
S/o. Subal Faliya
R/o. Jhuggi Karambir Dairy,
Bengali Colony, Surya
Mohalla, Tuglakabad Village,
New Delhi.
6. Offence complained of : U/s. 302/307/34 IPC.
7. Offence Charged : U/s. 302/307/324/34 IPC.
8. Plea of Guilt : Not guilty.
9. Final Order : Convicted U/s. 302/308/
324/34 IPC.
10. Date on which Order Reserved : 22.02.2024.
11. Date on which Order Announced : 28.03.2024.
SC No. 225/2020
FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.1/43
BRIEF FACTS AND REASONS FOR DECISION:
1. The prosecution case in brief against accused Shiv Kumar and Suman Faliya is that on 01/03/2020, at around 07:30PM, in the rented room of deceased/victim Rajbir situated at Gali No.23, Bangali Colony, Balmiki Mohalla Road, Tuglakabad, accused Shiv Kumar verbally abused and quarreled with one Manish, whilst Raj Kumar, Rohit, Satish and Rajbir were present there. When accused Shiv Kumar was asked to leave from there, he left the room while threatening to get even with them. At around 09:00PM, on the same day, accused Shiv Kumar, armed with knife came outside the room of Rajbir alongwith accused Suman Faliya who was armed with baseball bat. In furtherance of their common intention, accused Shiv Kumar stabbed Rajbir multiple times on his chest and side of abdomen, stabbed Satish on left upper thigh and stabbed Rohit on his lower abdomen. Accused Suman Faliya inflicted lacerated wound on the head of victim Rohit with baseball bat. Because of the injuries, victim Rajbir expired, whereas, victim Rohit sustained injuries that were dangerous to his life. Victim Satish sustained simple stab injury in the incident. Both the accused were arrested and police filed charge-sheet for offence U/s. 302/307/34 IPC against them.
2. Detailed arguments were heard on charge from Ld. defence counsel and from Ld. Addl. PP for State. The Court framed charge for the offence U/s. 302/307/324/34 IPC against both the accused persons, to which they pleaded not guilty and preferred trial.
SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.2/433. The prosecution led evidence and examined following 09 witnesses to bring home the charged offence against the accused persons:-
4.(a) PW1/complainant Satish, victim/eye witness to incident, deposed that at the time of incident he used to reside in a rented premises situated in Gali No.23, Tuglakabad, New Delhi. He deposed that on 01/03/2020, at about 07:30PM, when he alongwith his friends Manish, Raj Kumar, Rajbir and Rohit was present in his rented room, accused Shiv Kumar, who used to remain under intoxication, was also present there with them and started abusing and scuffling with Manish. He deposed that he and his friends Rajbir and Rohit pacified the matter and, thereafter, Manish went from there. He deposed that even after departure of Manish, accused Shiv Kumar continued to abuse them and when they asked him to leave from there, he threatened them saying "main tumhe abhi batata hun kaisi badmaasi hoti hai", and, thereafter, left from there. He deposed that after some time, on hearing about the riots outside, he alongwith Rajbir, Raj Kumar and Rohit came out of his rented room and reached at Balmiki Mandir Road to see riots. At about 09:00PM, when they were looking at the people involved in riots, accused Shiv Kumar, having a knife, and Suman, having a baseball danda, came there and accused Shiv Kumar gave knife blows to Rajbir. He deposed that when he tried to save Rajbir, accused Suman battered him with baseball danda, whereas, accused Shiv Kumar gave him knife blow due to which he sustained injury in his left thigh. He deposed that accused Shiv Kumar inflicted injuries on SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.3/43 chest and stomach of Rajbir by stabbing with knife, resulting which Rajbir fell down and blood started oozing out from his body. He deposed that blood was also oozing out from his wound. He deposed that several public persons gathered at the spot and the accused persons fled from there. In the meantime, police officials came to the spot and rushed them to Majidia Hospital in an auto-rickshaw, where they were medically treated and he came to know that injured Rajbir was declared dead by the doctor. Police recorded his statement Ex. PW1/A in hospital, on the basis of which the present case was registered. He deposed that police prepared the site plan Ex. PW1/B at his instance.
4.(b) PW1 deposed that he came to know that his friend Rohit had also sustained injuries. He deposed that one Angel Saini, who was nephew of victim Rajbir and had reached the spot of incident on receipt of information from Manish, accompanied them to hospital. He deposed that after returning from native village at Karnal, he alongwith Angel Saini visited the police station and handed over his clothes i.e. one blue colour blood stained jeans of Levis company, one black colour baniyan (vest), alongwith white colour half sleeve T-shirt printed with Okker on its collar, that he wore at the time of incident, to police and police seized them vide memo Ex. PW1/C.
4.(c) PW1 identified the knife Ex. P-1 as the same that was used by accused Shiv Kumar to cause injuries to him and other injured/victims. He identified the baseball bat Ex. P-2 as the same that accused Suman Faliya used to batter him. He also SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.4/43 identified one blue colour jeans, one black colour baniyan (vest) and one half sleeve T-shirt, all Ex. P-3 as the same that he wore at the time of incident and later handed them over to police.
4.(d) In cross-examination, PW1 admitted that it was dark at the spot at the time of incident and his friend Raj Kumar reached there at about 09:00PM. He replied that prior to arrival of Raj Kumar at the spot, accused Shiv Kumar and Suman were already present there. He replied that except the wife of accused Shiv Kumar, no public person was present at the spot. He replied that the incident occurred outside his rented room, however, he did not know the address of rented premises. He admitted that the spot was surrounded by one or two houses, although, there was no shop. He replied that no CCTV camera was installed near the spot, neither was the incident videographed either by him or by his friends, in his presence. He replied that the length of baseball bat might be 18-22 inches. He replied that the knife used by accused Shiv Kumar was not a button operated knife. He stated that he did not know specifications of the knife. He replied that accused Shiv Kumar stabbed Rajbir twice - once on his chest and secondly on his abdomen, however, he did not remember if he told this fact to police. He replied that he showed the place of incident to police on 02/03/2020, however, he did not know the exact time. He replied that police recorded his statement on 02/03/2020 but he did not remember the exact time. He replied that police did not show the danda and knife to him in police station. He replied that he did not know the cause of death of victim Rajbir as his postmortem examination was not conducted SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.5/43 in his present, however, Rajbir might have died due to stab injuries inflicted by accused Shiv Kumar.
4.(e) PW1 replied that he handed over his four blood stained clothes to police on 08/03/2020 (he was confronted with seizure memo Ex. PW1/C, as per which only three clothes were seized). He denied the suggestion that he did not know accused Suman Faliya prior to the incident. He voluntarily stated that he knew him since 10 days prior to the incident, however, he did not know his address or parentage. He replied that he was not sure if any call at 100 number was made by any of his friends. He replied that he told police that Rohit too had sustained injuries [he was confronted with his statement Ex. PW1/A (Ex. PW1/DA), wherein it was not so recorded]. He replied that he saw Rohit sustaining injuries with baseball danda blows by accused Suman [he was confronted with his statement Ex. PW1/A (Ex. PW1/DA), wherein it was not so recorded]. He replied that he saw that after sustaining one danda blow, Rohit fell down. He replied that when he and victim Rajbir were rushed to Majidia Hospital by an auto-rickshaw by police, Rohit did not accompany them. He voluntarily stated that Rohit was not at the spot at that time. He replied that prior to present incident, accused persons never quarreled with him. He replied that Rohit was present at the spot and was assaulted by accused persons, however, he did not know when he left the spot and did not company them to Majidia Hospital, after the incident. He admitted that accused Shiv Kumar was under intoxication on the day of incident and had quarreled with Manish. He replied that prior to present SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.6/43 incident, accused Shiv Kumar and deceased Rajbir had arguments on petty issues, however, Shiv Kumar never quarreled or abused him [he was confronted with statement Ex. PW1/A (Ex. PW1/DA), wherein it was so recorded]. He replied that he did not remember if the knife and baseball danda, that were produced on previous date, were blood stained. He replied that the spot of incident was not a crowded place. He denied the suggestion that it was difficult for assailants to escape from the spot; he stated that there was no crowd at the spot.
4.(f) PW1 replied that they did not go to the place where riots were taking place. He voluntarily stated that they were only watching the persons, who were raising noise, from a distance. He denied the suggestion that they were present at the place where the riots were taking place. He denied the suggestion that he and deceased Rajbir were assaulted by someone, who were part of the mob and were indulging in riots. He denied the suggestion that accused Shiv Kumar did not stab deceased Rajbir, neither did accused Suman Faliya hit him with baseball danda nor did accused Shiv Kumar assault him on his thigh. He replied that crowd gathered at the spot just after accused persons assaulted him and deceased Rajbir, however, nobody came forward to help them. He replied that the accused persons first assaulted Rajbir, after that Rohit and lastly they assaulted him. He replied that he was not aware if police reached the spot without calling at 100 number, neither did he know the exact time when police reached the spot, after the incident. He replied that he sustained injury by danda on lower portion of his left leg, SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.7/43 caused by accused Suman. He replied that he could not tell about the injuries sustained by Rohit and deceased Rajbir, however, as far he remembered, Rohit had sustained head injury by danda. He replied that he did not remember if deceased Rajbir also sustained injury by danda, neither could he tell on which part of his body was Rajbir hit by accused Suman with danda.
4.(g) PW1 denied the suggestion that the accused persons did not commit any wrong to them. He denied the suggestion that affray was going on at the place of incident and some unknown persons inflicted injuries to them. He denied the suggestion that accused Shiv Kumar and Suman did not inflict injuries to them. He denied the suggestion that the accused persons were falsely implicated in present case due to previous enmity. He denied the suggestion that police obtained his signature on blank papers. He admitted that accused Shiv Kumar was in drunken condition and was under influence of liquor at the time of assault. He replied that as far he remembered, he reached the hospital at around 10:00PM. He replied that blood was oozing out from chest and abdomen of Rajbir due to stab injuries inflicted by accused Shiv Kumar.
5.(a) PW2 Rohit, one of the injured/victims of incident, deposed that at the time of incident he used to reside with his sister and brother-in-law in area of old Prahalad Pur, South Ex. Apartment. He deposed that on 01/03/2020, at about 07:15PM, when he alongwith Manish, Satish and Raj Kumar was present at the room of his friend Rajbir, accused Shiv Kumar, a neighbour of Rajbir, started abusing and scuffling with Manish. He deposed that they SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.8/43 intervened in the scuffle and Manish left from there, however, despite departure of Manish, accused Shiv Kumar continued abusing and, thereafter, went away from there threatening them that he would see them. He deposed that at around 08:30Pm - 08:45PM, accused Shiv Kumar alongwith his friend Suman came back to room of Rajbir, after which he alongwith Rajbir and Satish came out of the room. He deposed that when he was pacifying accused Shiv Kumar to not to fight, accused Shiv Kumar stabbed him in his stomach with knife, whereas, accused Suman gave a danda blow on his head. He deposed that after sustaining injuries he fell down and, thereafter, accused Shiv Kumar and Suman started fighting with Rajbir and, after that he became unconscious. He deposed that after he regained his consciousness he found Rajbir lying there and when he called Rajbir by his name, Rajbir gave no response to him. Thereafter, he managed to sit in his car and reached Hanuman Mandir in injured condition. He called his brother-in-law Gaje Singh at Hanuman Mandir, who rushed him to hospital, where he was medically treated and surgery was performed on him. Police recorded his statement. He deposed that the incident occurred on road in Tuglakabad Village, Bengali Colony. He deposed that accused Shiv Kumar and Suman inflicted injuries to him as well as to his friends Rajbir and Satish with knife and danda. He identified accused Shiv Kumar and Suman in Court.
5.(b) In cross-examination, PW2 replied that he used to drive Ola Cab at the time of incident and was known to deceased Rajbir, who had an electrician shop at Pul Prahlad Pur, that had SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.9/43 since been closed by Rajbir. He deposed that initially accused Shiv Kumar abused and threatened them in a room that was taken on rent by one Angel Saini, nephew of deceased Rajbir. He replied that Satish, Manish and Raj Kumar used to go to the room of Rajbir, for the purpose of electrician work. He replied that accused Shiv Kumar used to abuse the people of locality. He replied that being neighbour of Rajbir, he was known to accused Shiv Kumar and used to talk to him occasionally. He replied that accused Shiv Kumar used to visit frequently in room of Rajbir, where accused and Rajbir alongwith others would sometimes be in drunken condition; he also consumed liquor with them once or twice. He replied that accused Shiv Kumar had ill-will (khundak) against Manish. He replied that second time when accused Shiv Kumar came, he alongwith Manish, Satish, Raj Kumar and Rajbir was standing on road, outside the room and, on seeing the accused, Manish ran away from there. He replied that he did not see any weapon in the hands of accused Shiv Kumar. He voluntarily stated that accused Shiv Kumar took out the knife whilst he was pacifying him. He replied that the room was located at a distance of 20-25 steps from the main road. He replied that even after sustaining injuries he saw for 2-3 minutes that accused Shiv Kumar and Suman were killing Rajbir and, thereafter, he became unconscious. He replied that when he regained his consciousness he found himself at the spot and saw that Rajbir was lying at the spot and no one was present there. He replied that he had his mobile phone at the time of incident, from which called his brother-in-law after sitting in his car. He replied that his brother-in-law met him at Hanuman Mandir, where he SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.10/43 left his car and his brother-in-law took him to AIIMS Trauma Center in his own car. He replied that he knew the wife of accused, whose name was Dolly and she used to sell liquor, however, he never purchased liquor from her. He stated that after the incident, he left Delhi.
5.(c) PW2 replied that accused Shiv Kumar came to quarrel with Manish as he did not want to see Manish at Rajbir's room. He admitted that the incident of causing injuries occurred on road through which the public persons were passing. He replied that the riots were going on in the area, however, they did not see them. He admitted that the public persons were passing through the road where the incident occurred. He replied that he was not aware if accused Suman was employee of accused Shiv Kumar. He voluntarily stated that she used to do the scrap work. He replied that he did not know about the material of danda as he was hit with it on his head from the back side. He denied the suggestion that accused Suman did not give any danda blow to him. He denied the suggestion that he deposed falsely in order to falsely implicated accused Suman. He denied the suggestion that he had not seen accused Shiv Kumar and Suman inflicting injuries to Rajbir. He stated that before losing his consciousness, he saw the incident of causing of injuries to Rajbir by accused persons, for 2-3 minutes. He denied the suggestion that police obtained his signature on blank paper.
6. PW3 Gaje Singh, brother-in-law of injured Rohit, deposed that on 01/03/2020, at about 09:15PM, when he was present at his house, his brother-in-law (jija) called at mobile phone of his SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.11/43 wife and informed that he had been stabbed with knife. He asked Rohit about his location and reached opposite petrol pump at Lal Kuan alongwith his younger brother Goverdhan, where they found a car parked near side of the road, in which Rohit was sitting at driver seat, in semi-conscious condition. They immediately rushed Rohit to Batra Hospital, from where he called police at 100 number, and after administration of first aid, they shifted Rohit to AIIMS Trauma Center. He deposed that on inquiry Rohit told them that he was stabbed with knife by accused Shiv Kumar.
In cross-examination, PW3 replied that the call was received at his wife's mobile from mobile phone of Rohit. He replied that he did not know the place where Rohit was stabbed. He replied that he did not know accused Shiv Kumar, whose name was told to him by Rohit while they were shifting Rohit to AIIMS Trauma Center. He replied that police recorded his statement on 04/03/2020 but did not obtain his signature on blank paper. He denied the suggestion that he did not see Rohit in injured condition.
7.(a) PW4 ASI Satbir Singh deposed that on 02/03/2020 he was posted as Head Constable at PS Govind Puri and, on that day, he alongwith ASI Surender apprehended one person from near Bus Stop of Pul Prahlad Pur, M.B. Road, at the pointing out of secret informer, who, on interrogation by ASI Surender, revealed his name as accused Shiv Kumar. They took accused Shiv Kumar to police station Govind Puri, where they handed over his custody to IO Inspector Mukesh, who interrogated accused Shiv Kumar, SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.12/43 arrested him vide arrest memo Ex. PW4/A, seized his wearing clothes i.e. T-shirt, vest and jeans that he stated to have worn at the time of commission of offence, wrapped them in a white cloth, sealed it with seal of 'MK', seized the cloth pullanda vide seizure memo Ex. PW4/B and conducted his personal search vide memo Ex. PW4/C. He deposed that on next day he and IO ASI Surender produced accused Shiv Kumar in Court, where, through application, IO obtained police custody remand of the accused, however, he did not remember the days of remand. He deposed that he alongwith ASI Surender got accused Shiv Kumar medically examined at ESIC Hospital and, thereafter, took him back to police station, where IO again interrogated him about weapon of offence i.e. knife. He deposed that pursuant to his disclosure statement, accused Shiv Kumar led him and the IO to Valmiki Road, Bengali Colony, Tuglakabad Village, where one knife was recovered near the heap of garbage, at the instance of accused. IO put the recovered knife on a blank white paper and on measuring, the total length of knife was 25.7cm and width of its blade was 3.6cm. The handle of knife was made of wood and its blade was of steel, however, he did not remember the length of handle of knife. He deposed that IO prepared sketch Ex. PW4/D of recovered knife, wrapped it in a white cloth, sealed it with the seal of 'MK', kept the cloth pullanda in a transparent plastic box, sealed the box with the same seal and seized the pullanda vide seizure memo Ex. PW4/E. Thereafter, they alongwith accused Shiv Kumar visited the spot, where IO prepared pointing out memo Ex. PW4/F of place of incident at the instance of accused. After returning to police station, they SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.13/43 deposited the case property in Malkhana.
7.(b) PW4 deposed that at about 08:30PM wife namely Dolly of accused Shiv Kumar alongwith came to PS alongwith accused Suman Faliya and told to IO that Suman was also involved in the offence. IO interrogated accused Suman Faliya, arrested him vide arrest memo Ex. PW4/G and recorded his disclosure statement. He deposed that he alongwith the IO and accused Suman Faliya visited Jhuggi Karambir Dairy, Tuglakabad, from where IO recovered one baseball danda from inside the jhuggi, at his instance. He deposed that IO seized the baseball danda vide seizure memo Ex. PW4/H and, thereafter, all of them reached the place of incident, where IO prepared pointing out memo Ex. PW4/I at the instance of accused Suman Faliya. He identified both accused persons in Court. He identified baseball danda Ex. P-2 as the same that was recovered at the instance of accused Suman Faliya. He also identified the knife Ex. P-1 as the same that was recovered at the instance of accused Shiv Kumar.
7.(c) In cross-examination by Ld. Defence Counsels, PW4 replied that accused Suman was arrested on 03/03/2020. He replied that IO did not seize any wearing clothes of accused Suman. He replied that accused Suman Faliya was produced by Dolly, wife of accused Shiv Kumar, at police station. He replied that the baseball danda had no blood stains when it was recovered by IO. He replied that IO did not prepare any sketch of the baseball danda. He denied the suggestion that no baseball bat was recovered at the instance of accused Suman Faliya and its recovery was planted upon him. He replied that he came to know SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.14/43 that the incident occurred on 01/03/2020, at about 09:00PM - 09:30PM, whereas, accused Shiv Kumar was arrested on 02/03/2020 at about 11:30PM. He replied that accused Suman Faliya was arrested on 03/03/2020. He replied that the knife that was recovered on 03/03/2020 at evening time, at the instance of accused Shiv Kumar, had blood stains, however, he did not remember the exact time of recovery. He replied that accused Shiv Kumar wore blue jeans, full sleeve white T-shirt and red and black vest at the time of his arrest, and the same were seized by IO. He replied that IO did not take fingerprints of accused Shiv Kumar in his presence. He replied that he did not remember the date when exhibits including weapon of offence were sent to FSL for examination. He denied the suggestion that accused Shiv Kumar did not make any disclosure statement. He denied the suggestion that no knife was recovered at the instance of accused Shiv Kumar and its recovery was planted upon him.
8. PW5 SI Devender Singh deposed that on 02/03/2020 he was posted at PS Govind Puri and on that day, at the direction of IO Inspector Mukesh Kumar, he shifted the body of deceased from Majidia Hospital to AIIMS mortuary, where IO recorded statement of family members of deceased regarding identification of body of deceased. He deposed that after postmortem examination, dead body of deceased was handed over to its family members vide memo Ex. A-13. He deposed that viscera was preserved and was handed over to him, and he deposited it in Malkhana. He deposed that apart from viscera, he was also handed over two small jars having nail clippings of deceased SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.15/43 alongwith one envelope having blood gauze and sample seal, both sealed with the seal of AIIMS Hospital, that were seized by IO vide seizure memo Ex. PW5/A and, thereafter, he deposited them in Malkhana.
9.(a) PW6 SI Omvir Singh deposed that on 01/03/2020 he was posted as ASI at PS Govind Puri and was on patrolling duty alnogwith Ct. Dayanand. He deposed that on that day, at about 10:00PM, on receipt of a call from Ct. Krishan Kumar regarding stabbing of two persons by two assailants, he alongwith Ct. Dayanand reached the spot i.e. Bengali Colony, where he came to know that the injured persons were already rushed to Majidia Hospital. He deposed that blood was lying spilled at the spot and he intimated the crime team. He deposed that, at about 11:30PM, on receipt of DD No.157A from Majidia Hospital regarding admission of two injured persons in it, he left Ct. Dayanand at the spot and reached the said hospital. In Majidia Hospital, he found that one injured namely Rajbir was declared as brought dead, whereas, other injured Satish was declared as fit to give statement by doctor, however, MLCs of victims were not prepared by that time. He recorded statement Ex. PW1/A of injured Satish, on the basis of which he prepared rukka. He deposed that he returned to the spot and searched for other eye- witnesses, but to no avail. He sent Ct. Dayanand to police station for getting the FIR registered. He deposed that crime team had already reached the spot and lifted the exhibits, that were collected by him. He deposed that after registration of FIR, the investigation was marked to senior police official and he handed SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.16/43 over the exhibits to IO.
9.(b) PW6 deposed that on 04/03/2020 he alongwith IO Inspector Mukesh visited AIIMS Trauma Center, where they found admitted another injured Rohit. IO recorded statement of injured Rohit and seized his clothes that were already kept in a pullanda prepared by doctor, vide seizure memo Ex. PW6/A. He deposed that on 08/03/2020 injured Satish came to police station and handed over his clothes i.e. jeans, T-shirt and one vest that he stated to have worn at the time of incident to IO, who seized them vide memo Ex. PW1/C. The production of clothes of injured Satish in Court was dispensed with as the same were already produced and exhibited as Ex. P-3 in testimony of PW1. He did not identify the clothes i.e. one blue colour pant, one shirt and one vest of injured Rohit and stated that the same were handed over to him in a pullanda by the doctors. He deposed that the crime team lifted the exhibits i.e. blood stains and earth control, from the spot that were seized by IO vide seizure memo Ex. PW6/B by using the seal of OS. He deposed that during investigation Ct. Dayanand handed over the clothes of deceased alongwith two sample seals that he obtained from Majidia Hospital in sealed condition, to him. He seized the said exhibits vide seizure memo Ex. PW6/C and deposited them in Malkhana.
9.(c) In cross-examination by Ld. Defence Counsels, PW6 replied that they met Ct. Kishan at the spot. He replied that he did not find any public witness at the spot. He replied that he did not know if any riots were going on at the place of incident when he received intimation of the offence. He replied that there was no SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.17/43 crowd at the spot when he reached there. He replied that he recorded statement of injured Satish at hospital. He replied that he did not remember if injured Satish had told him that he and Rajbir sustained injuries by knife blows. He denied the suggestion that accused Suman Faliya was falsely implicated by police. He replied that Ct. Kishan Singh, who was beat constable in the area, had called him and told that two persons were injured at the spot. He replied that he had no knowledge about the third injured.
10. PW7 HC Krishan Kumar deposed that on 01/03/2020 he was posted as Constable at PS Govind Puri and was on patrolling duty at Tuglakabad Village. He deposed that on that day, at about 09:00PM when he reached Bengali Colony, Balmiki Road, public persons informed him that two persons had been stabbed at Gali No.23, Bengali Colony. He deposed that he reached Bengali Colony and saw that two injured persons were lying there and heap of garbage had bloodstains. He deposed that one injured had sustained stab injuries on his thigh, whereas, other injured had sustained stab injuries on his chest and abdomen. He deposed that he called one auto-rickshaw, rushed the victims to hospital with their known persons and informed about the incident to ASI Ombir, who alongwith Ct. Dayanand reached the spot. Thereafter, he left the spot. He deposed that later on he came to know that one of the injured had expired. He deposed that on next day, at the instruction of duty officer, he delivered copies of FIR at house of senior officials as well as to area Magistrate.
SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.18/43In cross-examination by Ld. Defence Counsels, PW7 replied that the distance between place of incident and the place where he received information was about 200-300 meters and he reached the spot at about 09:20PM - 09:30PM. He replied that he did not find any weapon at the spot. He replied that both the injured persons were conscious when he reached the spot. He replied that he tried to inquire from 4-5 persons about the incident, however, no one cooperated or told anything.
11. PW8 ASI Surender Singh deposed about that on 02/03/2020, at about 11:30PM, he alongwith HC Satbir apprehended accused Shiv Kumar at Suraj Kund Road, near Pul Prahlad Pur Bus Stop, at the instance of secret informer. They took him to police station Govind Puri and handed over his custody to Inspector Mukesh Kumar, who interrogated accused Shiv Kumar, arrested him, conducted his personal search and recorded his disclosure statement Ex. PW8/A. He identified accused Shiv Kumar in Court.
In cross-examination by Ld. Defence Counsels, PW8 replied that in his disclosure statement, accused Shiv Kumar disclosed that co-accused Suman used to do the work of kabadi (junkdealer) with him. He replied that he did not remember what type of clothes accused Shiv Kumar had worn at the time of his apprehension. He replied that no phone was recovered from accused Shiv Kumar when he was arrested. He replied that fingerprints of accused Shiv Kumar were not obtained, neither was co-accused Suman Faliya produced in police station, in his presence. He denied the suggestion that the raid conducted by SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.19/43 him and HC Satbir was fake, without permission of higher authority.
12.(a) PW9 Inspector Mukesh Kumar deposed that on 02/03/2020 he was posted at PS Govind Puri as ATO and, on that day, after registration of FIR, the present case was assigned to him for investigation. Thereafter, he alongwith Ct. Dayanand reached the spot i.e. Tuglakabad Village, Bengali Colony, Valmiki Mohalla, Gali No.23, where he met ASI Ombir. He deposed that he prepared site plan Ex. PW1/B at the instance of complainant Satish and inquired from him about the incident. Thereafter, they went in search of the accused but to no avail and they came back to police station. He deposed that he recorded statement of officials of crime branch as well as the police officials who participated in investigation on 02/03/2020. He deposed that he asked ASI Ombir to prepare a raiding team for searching the accused persons and, on 03/03/2020 ASI Surender and HC Satbir produced accused Shiv Kumar before him at police station. He interrogated accused Shiv Kumar, arrested him at 12:25AM vide memo Ex. PW4/A, got him medically examined at AIIMS Hospital and obtained his blood sample vide seizure memo Ex. PW9/A. He deposed that on next morning, accused Shiv Kumar handed over his wearing clothes to him that he stated to have worn at the time of incident, and he seized them vide seizure memo Ex. PW4/B. He deposed that on the same day accused Shiv Kumar was produced in Court and his one day PC remand was granted. He deposed that ASI Ombir produced MLC of one injured Rohit, who, later on, was referred to AIIMS SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.20/43 Trauma Center from Batra Hospital. He deposed that on the same day, accused Shiv Kumar led them to a jungle near Karamvir Dairy, Tuglakabad Village, Valmiki Road, from where he took out one knife from heap of garbage (kude ka dher) and stated that it was the same knife that he used during the incident. He deposed that he prepared sketch Ex. PW4/D of recovered knife, seized it vide seizure memo Ex. PW4/E and prepared site plan Ex. PW9/B of the place of recovery of knife. Thereafter, accused Shiv Kumar led them to place of incident, where PW9 prepared pointing out memo Ex. PW4/F, at his instance. He deposed that they tried to search accused Suman Faliya but to no avail, and they came back to police station.
12.(b) PW9 deposed that on the same day i.e. 03/03/2020, Dolly, wife of accused Shiv Kumar, brought accused Suman Faliya to police station. He interrogated accused Suman, recorded his disclosure statement Ex. PW9/C, arrested him vide memo Ex. PW4/G and conducted his personal search vide memo Ex. PW9/D. He deposed that pursuant to his disclosure statement, Suman Faliya got recovered the baseball bat, that he stated to have used on the day of incident to cause injuries to victims, from his jhuggi situated at Tuglakabad Village, Bengali Colony. He seized the recovered baseball bat vide seizure memo Ex. PW4/H, prepared site plan Ex. PW9/E of place of recovery and recorded the statement of witnesses of recovery of baseball bat. He further deposed about getting the postmortem examination of deceased Rajbir conducted at AIIMS Hospital on 02/03/2020, recording of identification statements Ex. A-11 and Ex. A-12 of SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.21/43 dead body through victim's son Bobby and nephew Deepak and handing over of body after postmortem examination to its relatives vide memo Ex. A-13. He deposed that after postmortem examination, the concerned doctors gave certain exhibits of the deceased to Ct. Dayanand, who handed them over to him and he seized the exhibits vide seizure memo Ex. PW5/A.
12.(c) PW9 deposed that on 04/03/2020 when he was interrogating both the accused persons at police station, eye- witnesses Raj Kumar and Manish came there and identified accused Shiv Kumar and Suman as the assailants, and he recorded their statement in that regard. He deposed that on 04/03/2020 ASI Ombir handed over one parcel containing clothes of injured Rohit in sealed condition alongwith sample seal to him and he seized it vide seizure memo Ex. PW6/A. He deposed that on 08/03/2020, complainant Satish came to police station and handed over his blood stained clothes that he wore at the time of incident, to him and he seized them vide memo Ex. PW1/C. He deposed that during investigation, he prepared scaled site plan Ex. A-6 with help of draftsman Mukesh Kumar. He deposed that he obtained postmortem report alongwith other medical documents of deceased Rajbir, sent the exhibits to FSL, recorded statement of injured Rohit and, after completion of investigation, filed the charge-sheet in Court. He identified both accused Shiv Kumar and Suman in Court.
12.(d) PW9 identified the photographs Ex. A-15 (Colly.) as the same that were clicked by crime team at the spot. He admitted his signatures at point 'B' on disclosure statements of accused SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.22/43 persons. He deposed that during investigation he obtained FSL result on viscera and filed it in Court with supplementary charge- sheet. He identified knife Ex. P-1 as the same that was got recovered by accused Shiv Kumar, baseball bat Ex. P-2 as the same that was recovered at the instance of accused Suman Faliya and clothes Ex. P-4 of accused Shiv Kumar as well as clothes Ex. P-3 of complainant Satish (PW1) as the same that he seized during investigation.
12.(e) In cross-examination by Ld. Defence Counsels, PW9 denied the suggestion that he met complainant Satish at the spot and prepared site plan at his instance. He replied that he made inquiry from local people as well as the residents of houses behind place of incident, however, they were not aware of the facts of incident. He replied that he recorded disclosure statement of accused Suman at police station in presence of other police staff, however, he did not know if there was any CCTV camera where he interrogated him. Again said, he interrogated accused Suman in the room of IO, where no CCTV camera was installed. He replied that he informed aunti (chachi) namely Dolly of accused Suman. He denied the suggestion that no baseball bat was recovered at the instance of accused Suman and the same was falsely planted upon him. He replied that no public person was present at the time of recovery of baseball bat. He replied that he did not get conducted the judicial TIP of accused persons. He voluntarily stated that the FIR was registered by name, therefore, no TIP was conducted. He denied the suggestion that no clothes were handed over by injured Rohit to ASI Ombir and SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.23/43 the same were planted one. He denied the suggestion that complainant Satish did not visit the police station, neither handed over blood stained clothes to him. He replied that he recorded statement of injured Rohit at AIIMS Trauma Center. He denied the suggestion that injured Rohit did not narrate his statement and he recorded his false and fabricated statement. He admitted that initially fight started between accused Shiv Kumar and Manish & others. He replied that accused Suman came later at the spot alongwith accused Shiv Kumar and, thereafter, incident took place. He replied that he did not inspect call details record of mobile phones of accused Shiv Kumar and Suman Faliya, of the day of incident. He denied the suggestion that he falsely implicated accused Suman and planted the baseball bat upon him in collusion with other co-accused.
13. Since, accused Shiv Kumar and Suman Faliya, through their separate statement recorded U/s. 294 CrPC r/w Section 313 CrPC, admitted the following documents, the requirement to prove the said documents through prosecution/public witnesses was obviated :-
i) Ex. A-1 - Copy of FIR alongwith Certificate U/s. 65B of Indian Evidence Act (Colly.);
ii) Ex. A-2 - DD No.157A, dated 01/03/2020; iii) Ex. A-3 - DD No.7A dated 02/03/2020; iv) Ex. A-4 - DD No.2A dated 02/03/2020; v) Ex. A-5 - DD No.4A dated 02/03/2020; vi) Ex. A-6 - Scaled site plan; vii) Ex. A-7 - MLC of victim Satish; SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.24/43 viii) Ex. A-8 - MLC of victim Rohit; ix) Ex. A-9 - MLC of victim Rajbir; x) Ex. A-10 - Postmortem Report of deceased Rajbir Saini; xi) Ex. A-11 - Identification of dead body by Deepak Saini;
xii) Ex. A-12 - Identification of dead body by Bobby Saini;
(xiii) Ex. A-13 - Carbon copy of receipt of handing over of dead body;
(xiv) Ex. A-14 - Crime scene report No.138/20 dated 02/03/2020;
(xv) Ex. A-15 - Nine photographs of crime scene (Colly.); (xvi) Ex. A-16 - Copy of RC No.45/21/20 dated 11/05/2020; (xvii) Ex. A-17 - Copy of RC No. 50/21/20 dated 14/05/2020; (xviii)Ex. A-18 - Copy of acknowledgment of case acceptance receipts dated 11/05/2020 and 15/05/2020; (xix) Ex. A-19 - FSL report (viscera) dated 24/06/2020; (xx) Ex. A-20 - FSL report dated 18/01/2022 (04 pages); & (xxi) Ex. A-21 - Subsequent opinion dated 30/03/2022.
14. All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to both the accused persons and their statements were recorded U/s. 313 CrPC. The accused persons denied all incriminating evidence and asserted that they have been falsely implicated in present case. Accused Suman Faliya asserted that he did not commit the offence alleged against him as he visited the spot on being asked by his employer i.e. accused Shiv Kumar. He stated that he did not know if accused Shiv Kumar had a knife with him. He asserted that he was not having any baseball danda, neither did he give any danda blow to anyone and ran away from the spot SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.25/43 immediately on seeing that accused Shiv Kumar was giving knife blows. He stated that no baseball bat was recovered at his instance. Accused Suman Faliya asserted that when he alongwith Dolly, wife of his employer i.e. accused Shiv Kumar visited the police station, police arrested him there and made him an accused in this case. He stated that wife of accused Shiv Kumar falsely implicated him in present case and manipulated the police officials to register the present case against him. Accused Suman Faliya did not lead evidence in his defence, whereas, accused Shiv Kumar examined DW1 Nirmal Sarkar and DW2 Smt. Asha Chaudhary in his defence.
15. DW1 Smt. Nirmal Sarkar deposed that on 01/03/2020, at about 07:00PM, Dolly, wife of accused Shiv Kumar was arguing with one person having a stick in her hand, at Tuglakabad, and everybody was running at that time as " waha pe patharbazi ho rahi thi" (stone pelting was going on there). She deposed that she ran towards her house and, later on, she came to know that "waha pe kuch kand ho gaya" (something wrong had happened there). Thereafter, she called accused Shiv Kumar, who used to work as scrap dealer (kabaiwala), at his mobile and asked him about his whereabouts, to which accused Shiv Kumar replied that he was at his native village at Uttrakhand. She asked Shiv Kumar to reach his home immediately as something had happened with his wife Dolly, who used to sell alcohol and drugs because of which a fight was usually going on in front of her house. She deposed that the incident occurred 20 gaj/yard away from house of Dolly. She deposed that accused Shiv Kumar was running his SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.26/43 shop at open place, whereas, accused Suman Faliya was working separately.
In cross-examination by Ld. Addl. PP, DW1 replied that she used to work as a scrap dealer (kabariwala) and accused Shiv Kumar was known to her for last 20 years. She replied that she did not remember the mobile number of Shiv Kumar on which she made a call on the day of incident, neither did she remember the time when she called him. She replied that she met accused Shiv Kumar prior to 2-3 days of the incident, however, she did not meet him after the incident as police had arrested him. She replied that she did not remember who was pelting the stones but she came to know that they were agitating for Ram Mandir. She denied the suggestion that accused Shiv Kumar alongwith with accused Suman Faliya was present at the spot and both of them caused death of victim Rajbir by stabbing with knife. She denied the suggestion that she was not present at the spot, therefore, she was not able to tell about the incident in detail. She admitted that she and accused Shiv Kumar were dealing in scrap and both of them used to work together. She denied the suggestion that being partner of accused Shiv kumar, she deposed falsely in his favour. She denied the suggestion that accused Suman used to work with accused Shiv Kumar. She denied the suggestion that accused Shiv Kumar was not present at his native place at Uttrakhand, on the day of incident. She replied that she did not know the name of village of accused Shiv Kumar. She replied that she could not say if accused Shiv Kumar was present at his native village at the time of incident, however, when she called him, accused Shiv SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.27/43 Kumar told her that he was present at his native village. She voluntarily stated that accused Shiv Kumar told about this two days prior to the incident. She stated that she gave cash of Rs.2,500/- to accused Shiv Kumar and he told her that he was going to his native village. She denied the suggestion that she did not give any money to accused Shiv Kumar, neither visited his native place.
16. DW2 Smt. Asha Chaudhary, sister of accused Shiv Kumar, deposed that on 27-28/02/2020, she alongwith her brother i.e. Shiv Kumar had gone to her village i.e. Shaktifarm Village, Rudrapur, Uttrakhand, due to ill health of their mother. She deposed that on 02/03/2020 her brother received a call at her mother's mobile number, from one Nirmal. She stated that wife of Shiv Kumar also called him and asked him to return to Delhi, to save her. She deposed that from 28/02/2020 to 04-05/03/2020, accused Shiv Kumar was present at her mother's home. She produced document Ex. DW2/A, issued by one Former President of Panchayat Shaktifarm and was signed by Members of the Panchayat.
In cross-examination by Ld. Addl. PP, DW2 replied that she received the call from her father Sudhir about illness of her mother, however, she did not remember mobile number from which her father had called her, neither was it found saved in her mobile phone. She replied that when she received the call from her father, Shiv Kumar was present with her at that time. She again stated that she called her brother to her home to inform him about illness of their mother. She replied that she and her brother SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.28/43 Shiv Kumar took their mother to Shaktifarm market for treatment, however, she did not remember the name of the doctor as well as clinic, where they took her. She replied that before going to their native place, her brother had given mobile number of their mother to kabariwala (junk/scrap dealer i.e. DW1), since accused Shiv Kumar had no mobile phone at that time. She replied that accused Shiv Kumar returned back to Delhi on 02/03/2020 after receiving call from his wife. She denied the suggestion that accused did not accompany her to their native village on 28/02/2020 and, therefore, she could not explain in detail about their journey to village. She denied the suggestion accused Shiv Kumar was in Delhi on 01/03/2020 and committed murder of deceased Rajbir, on that day. She denied the suggestion that she deposed falsely being sister of accused Shiv Kumar. She denied the suggestion that she received no call from her father and, therefore, she could not tell about his mobile number. She denied the suggestion that neither did she receive any phone call from wife of accused Shiv Kumar, nor from kabariwala.
17. I have heard the detailed final arguments from both sides. The findings are as under:-
Eye-witness account of the incident :
18.(a) PW1 Satish deposed as an eye-witness to the incident. He stated that on 01/03/2020, at around 07:30PM, in his presence and in presence of Raj Kumar, Rohit and deceased victim Rajbir Saini, accused Shiv Kumar had altercation with Manish. Rohit SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.29/43 and Rajbir pacified the matter between them and Manish left from there. However, after departure of Manish, accused Shiv Kumar kept abusing Satish, Rohit, Raj Kumar and Rajbir, who asked him to leave from there. Shiv Kumar left from there while threatening to get even with them by saying "main tumhe abhi batata hun kaisi badmaasi hoti hai".
After sometime, on hearing commotion from outside, PW1, Rajbir, Raj Kumar and Rohit came out of the room of Rajbir and went towards Balmiki Mandir Road. At around 09:00PM, accused Shiv Kumar and accused Suman Faliya accosted PW1 Satish, Raj Kumar, Rohit and deceased Rajbir at Balmiki Mandir Road. Accused Shiv Kumar was holding knife, whereas, accused Suman was holding baseball bat. Accused Shiv Kumar gave knife blows to Rajbir on his chest and abdomen. When PW1 attempted to save Rajbir, accused Suman battered him with baseball bat, whereas, accused Shiv Kumar gave him knife blow on his left thigh. On sustaining knife blows, Rajbir fell down and started bleeding from the wounds inflicted by accused Shiv Kumar. PW1 came to know that his friend Rohit had also sustained injuries in the incident. He stated that police took him and injured Rajbir to Majidia Hospital by auto- rickshaw, where he came to know that injured Rajbir was declared dead.
18.(b) In cross-examination, PW1 replied that he saw accused Suman inflicting baseball bat blows to Rohit. He replied that he saw the accused causing one blow to Rohit upon which Rohit fell SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.30/43 down. He replied that Rajbir was assaulted first in the incident and, thereafter, Rohit was assaulted; PW1 was assaulted last by the accused. PW1 admitted that at the time of assault accused Shiv Kumar was in drunken condition and was under influence of liquor.
19.(a) PW2 Rohit, another injured deposed that on 01/03/2020, at around 07:15PM - 07:30PM, he went to visit his friend Rajbir at his house, where Manish, Satish, Raj Kumar and Shiv Kumar were also present. Accused Shiv Kumar was abusing Manish and was scuffling with him. When the aforementioned persons present in the room intervened, Manish left from there, however, accused Shiv Kumar kept on with his verbal abuses. Thereafter, accused Shiv Kumar left from there while threatening to get even them.
On that day, at around 08:30PM - 08:40PM, accused Shiv Kumar and accused Suman came outside the room of Rajbir. He alongwith Rajbir and Satish came out of the room and tried to pacify accused Shiv Kumar. PW2 deposed that accused Shiv Kumar gave knife blow on his abdomen, whereas, accused Suman Faliya gave him danda blow on his head. On sustaining injuries, PW2 fell down, whereupon accused Shiv Kumar and Suman started fighting with Rajbir. PW2 became unconscious because of injuries and when he regained his consciousness, he discovered that Rajbir was lying unconscious. He stated that he managed to go to his car and reached Hanuman Mandir in injured condition, where he called his brother-in-law Gaje Singh, who SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.31/43 rushed him to hospital. He deposed that accused Shiv Kumar and Suman had inflicted injuries upon him, Rajbir and Satish with knife and baseball bat.
19.(b) In cross-examination, PW2 replied that after sustaining injuries, he saw that accused Shiv Kumar and Suman were killing Rajbir. Thereafter, he became unconscious. He replied that he did know about the material of danda with which he was hit, since he was hit on head from back side by accused Suman. He denied the suggestion that he did not see accused Shiv Kumar and Suman inflicting injuries upon Rajbir. He replied that before losing consciousness, he observed the incident for 2-3 minutes.
20. PW3 Gaje Singh deposed about rushing injured Rohit (PW2) to Batra Hospital and then to AIIMS Hospital.
Medical Evidence :
21. As per postmortem report Ex. A-10, deceased Rajbir sustained following fatal stab wounds :-
i) Stab wound of size 5cm x 1.7cm over left side of anterior chest. The wound was directed downward and entered thoracic cavity through fifth intercostal muscle, entering into paricardial sac, and then perforating the anterior wall of right ventricle and the wound entered upto peritoneum by piercing diaphragm, making a through and through defect on superior and inferior surface of left lob of liver and penetrated the mesentery.SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.32/43
ii) Stab wound of size 3cm x 1cm over left posterior axillary line, directed upward, entering thoracic cavity through 5th intercostal space causing fracture of 6th rib at posterior axillary line, going into lung by through and through penetration, entering into the pericardial sac and then penetrating postero-lateral aspect of left ventricle with a wound of cavity deep near atrioventricular valve;
iii) Stab wound of size 2.6cm x 1.2cm x 6.5cm present over lower aspect of left side of chest, directed downward; &
iv) Stab wound of size 5.5cm x 1cm on outer aspect of left arm. The wound is directed upwards and entered by cutting skin, soft tissue and exited through the inner aspect of left arm;
The postmortem report concluded that victim Rajbir died by hemorrhagic shock as a result of two stab injuries caused to the chest (injury no. 4 & 5 mentioned in the report) that were individually and collectively sufficient to cause death in ordinary course of nature.
22. It is observed that multiple stab injuries were inflicted with knife by accused Shiv Kumar upon victim Rajbir on his chest with such intensity and force that they penetrated deep and cut through his vital organs thereby causing his instant death. The intensity, location and number of stab wounds reflect the intention of accused Shiv Kumar to cause death of victim Rajbir.
SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.33/4323. As per MLC Ex. A-7 of PW1/injured Satish, prepared at HAH Centenary Hospital, on 01/03/2020 at 11:00PM, he sustained stab injury in left upper thigh. He was under the influence of alcohol.
24. As per MLC Ex. A-8 of PW2/injured Rohit, prepared at Batra Hospital, on 01/03/2020, he suffered - (i) stab injury in left lower quadrant with omentum exposed 3cm x 3cm, (ii) injury on left eye with swelling and (iii) CLW 1cm x 8cm on left fronto- temporal region. As per MLC, he suffered stab injury and blunt trauma and his injuries were opined to be dangerous to life.
Arguments of Ld. Defence Counsel :
25.(i) Ld. Defence Counsels argued that there are material contradictions in the statements of PW1 Satish and PW2 Rohit, that lead to inference that they were either not present at the spot or deliberately lied about the incident. It was argued that, on one hand, PW1 Satish stated in examination-in-chief that he came to know that his friend Rohit had also sustained injuries in the incident. However, in cross-examination, PW1 stated that deceased Rajbir was assaulted first in the incident, thereafter, Rohit was assaulted and he (PW1) was assautled last by the accused. On the other hand, PW2 Rohit stated that he was assaulted and injured first by the accused persons and when he fell down because of injuries, accused persons inflicted injuries on Rajbir. PW2 did not depose if accused persons inflicted injuries on PW1 Satish too.
SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.34/4325.(ii) Ld. Addl. PP argued that in the incident PW1 and PW2 were also injured by the accused persons and merely because of slight contradiction between their testimonies, it does not imply that they lied about the incident or were not present at the spot.
25.(iii) It is observed that PW1 and PW2 being themselves injured in the incident and having no previous enmity with the accused persons, they had no reason to falsely implicate the accused persons.
25.(iv) The law regarding testimony of eyewitnesses especially of the victim of offence is well settled. For appreciating the evidence of the victim, the Court has to bear in mind that the presence of such witness at the time and place of the occurrence cannot be doubted. While appreciating his evidence, the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. Being the victim/eyewitness of the crime, he would be most keen to ensure that the real culprit does not go scot free and there is no reason that he would frame any innocent person in such a serious offence which he had alleged completely knowing its implications without any previous enmity with him. Reliance is placed upon judgment of Hon'ble Delhi High Court in Chuni Lal vs. State of Delhi, Crl. A. No. 262/2003, decided on 08.08.2013, wherein it was held as under:-
"11. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, inasmuch as, he sustain injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.35/43 scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other persons. In Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], the Supreme Court held as under:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.36/43
29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
To the similar effect is the judgment reported in Mano Dutt and Anr. Vs. State of UP, (2012) 2 SCC (Cri) 226."
26.(i) Ld. Defence Counsels argued that at the time of incident there was an affray/riot near the room of deceased Rajbir and some unknown persons caused stab injuries to deceased victim Rajbir and injured Satish and Rohit.
26.(ii) In this regard, it is observed that, in cross-examination, PW1 Satish explained that a riot had taken place prior to the incident in question. He replied that he and his companions did not go to the place where the riots were taking place. He SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.37/43 explained that he and his companions were watching the persons, who were raising noise, from a distance. He denied the suggestion that he and deceased Rajbir were assaulted by someone who were part of the mob that was indulging in rioting. He denied the suggestion that accused Shiv Kumar did not stab the deceased as well as him on the thigh. He denied the suggestion that accused Suman Faliya did not hit him with baseball bat. He admitted the suggestion that at the time of assault, accused Shiv Kumar was in drunken condition.
26.(iii) The accused persons did not cross examine PW2 Rohit with suggestion that some unknown persons, who were part of the mob that was indulging in rioting in the area, had inflicted injuries on him as well as to PW1 Satish and deceased Rajbir. The defence of accused persons is not consistent in this regard; it is perfunctory and vacuous.
Defence Evidence :
27.(i) DW1 Nirmal Sarkar deposed that on 01/03/2020, at around 07:00PM, he talked to Shiv Kumar through mobile call and asked him for his whereabouts. Accused Shiv Kumar told him that he was at his native village at Uttrakhand.
In cross-examination conducted by Ld. Addl. PP, DW1 replied that he did not know the name of village of accused Shiv Kumar and he could not say if Shiv Kmar was present at his native village when he called him. He replied that accused Shiv SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.38/43 Kumar himself told that he was at his native place when he called the accused.
27.(ii) It is observed that the deposition of DW1 is too vague and based on hearsay to be considered in defence of accused Shiv Kumar. Anyhow, accused Shiv Kumar did not cross examine any prosecution witness with the suggestion that he was not in Delhi at the time of incident and had gone to his native village at Uttrakhand. The testimony of DW1 is a defence afterthought of accused Shiv Kumar and is rejected.
28.(i) DW2 Asha Chaudhary is sister of accused Shiv Kumar. She stated that on 27-28/02/2020 she alongwith her brother Shiv Kumar went to her native village i.e. Shaktifarm Village, Rudrapur, Uttrakhand, and stayed there till 04-05/03/2020. She stated that she and accused went to their native village as she had received call from her father that her mother was seriously ill.
In cross-examination by Ld. Addl. PP, DW2 replied that she did not remember the mobile number of her father by which he called her. She voluntarily explained that she had saved the mobile number of her father by the name 'Sudhir'. When the witenss was asked to open the contacts in her mobile phone, no mobile number was found to have been saved therein by the name 'Sudhir'. She replied that she did not even remember her mobile number on which she received call of her father.
SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.39/43DW2 replied that on reaching Uttrakhand, she and Shiv Kumar took their mother to Shaktifarm market for her treatment. She replied that she did not remember the name of doctor and clinic where they took their mother for treatment.
28.(ii) It is palpable that DW2 Asha Chaudhary being sister of accused Shiv Kumar deposed at his behest as defence afterthought. Her testimony did not withstand test of basic cross- examination and is unworthy of reliance. No prosecution witness was cross examined with suggestion that accused Shiv Kumar had gone to his native village at Uttrakhand alongwith his sister Asha and was not in Delhi on the date of incident. The testimony of DW2 is unworthy of credit and is rejected.
29. Ld. Defence Counsels argued that PW1 and PW2 being friends of deceased Rajbir, they were interested witnesses. On sifting of their depositions, it does not seem that PW1 and PW2 were interested witnesses, for, an interested witness must have some direct interest in having the accused somehow convicted for some extraneous reason [Ref.: State of Rajasthan Vs. Kalki (1981) 2 SCC 752]. The presence of PW1 Satish and PW2 Rohit at the spot at the time of incident is not doubtful. They were neither relatives nor close friends of deceased Rajbir and had no motive to falsely implicate the accused persons. They are independent and natural witnesses to the incident, rather than planted witnesses.
SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.40/43Common Intention :
30.(i) Ld. Defence Counsel for accused Suman Faliya argued that accused Suman had no prior acquaintance or enmity with deceased Rajbir or with PW1 Satish and PW2 Rohit. In fact, accused Suman was an employee of accused Shiv Kumar and he only went alongwith Shiv Kumar to place of incident not knowing that Shiv Kumar was carrying a knife and wanted to inflict injuries to anyone. He argued that accused Suman was not carrying any baseball danda, neither gave danda blow to anyone. Rather, accused Suman fled from the spot on seeing that accused Shiv Kumar was giving knife blows to the victims. It was argued that accused Suman had no common intention with accused Shiv Kumar to cause injury, neither participated in the offence.
30.(ii) The defence arguments does not hold water; PW1 and PW2 deposed that not only did accused Suman come at the spot armed with a baseball bat alongwith accused Shiv Kumar who was armed with knife, he also actively participated in inflicting injury upon PW1 Satish and PW2 Rohit. PW2 Rohit stated that accused Suman inflicted a danda blow on his head. His MLC Ex. A-8 reflects that he had sustained CLW measuring 1cm x 3cm on left fronto-temporal region, caused by a blunt object. Accused Shiv Kumar being armed with a knife, it could only be accused Suman who inflicted head injury on PW2 Satish with a baseball bat. There is no substance in argument that when accused Suman accompanied accused Shiv Kumar to the spot he did not know that Shiv Kumar was armed with knife, and, when he saw SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.41/43 accused Shiv Kumar inflicting knife blows, he fled from there without participating in the offence.
Conclusion :
31.(i) From the evidence, it is proved that on 01/03/2020, at around 09:00PM, accused Shiv Kumar and accused Suman Faliya, in furtherance of their common intention, murdered victim Rajbir Saini by stabbing him with knife multiple times on his chest and left side of abdomen with such force and intensity that the injuries caused were sufficient to cause his death. The case is not covered by any of the exceptions to Section 300 IPC. The accused persons are convicted of offence U/s. 302/34 IPC for murder of deceased victim Rajbir.
31.(ii) From the testimony of PW1 and PW2, it is proved that during the incident accused Shiv Kumar stabbed PW2 Rohit with knife in his lower abdomen, thereby causing his omentum to come out and get exposed out of the wound. They also caused lacerated wound on his head with a blunt object i.e. baseball bat.
From the evidence, it does not seem that the accused persons intended to kill victim Rohit or to inflict fatal injury to him. However, the circumstances were such that if death of victim Rohit had occurred because of injuries inflicted to him, the accused persons would have been guilty of causing culpable homicide not amounting to murder, on account of which they are convicted for offence U/s. 308/34 IPC in respect of injuries caused to Rohit.
SC No. 225/2020 FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.42/4331.(iii) Similarly, the accused persons inflicted stab injury on upper thigh of PW1/victim Satish. From the evidence, it does not seem that the accused persons intended to kill victim Satish or to inflict fatal injury to him. As per MLC Ex. A-7, victim Satish sustained simple injury and his death because of injury was not a distinct possibility on account of which they are convicted for offence U/s. 324/34 IPC in respect of injuries caused to Satish.
32. The sentence shall be announced after hearing both sides and completion of requisite procedure.
Digitally
signed by
Announced in the open Court VISHAL
VISHAL
SINGH
Dated : 28.03.2024 SINGH Date:
2024.03.28
15:23:57
+0530
(VISHAL SINGH)
ADDL. SESSIONS JUDGE-05,
SOUTH-EAST, SAKET COURT
NEW DELHI
SC No. 225/2020
FIR No. 65/2020 State Vs. Shiv Kumar & Anr. Page No.43/43