Delhi District Court
State vs Vikas & Ors. Sc No.52/06/Fir No.239/04. ... on 3 July, 2013
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IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(NORTH): ROHINI COURTS: DELHI
SC No.52/06.
FIR NO.239/04.
PS BAWANA.
U/S.307/427/34 IPC.
STATE VS
1. VIKAS S/O. OM PRAKASH
R/O. VILLAGEHAREWALI, DELHI.
2. VISHAL @ MONU S/O. OM PRAKASH
R/O. VILLAGEHAREWALI, DELHI.
3. RAHUL S/O. VIRENDER SINGH
R/O. VILLAGEHAREWALI, DELHI.
4. NAVEEN S/O. DHARAMBIR
R/O. VILLAGEHAREWALI, DELHI.
Date of Institution in this Court:14.07.2005
Date of Arguments:30.05.2013
Date of Judgment:03.07.2013
State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 1 of page 21
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JUDGMENT:
1. Brief facts of the prosecution are that, on 30.06.2004, DD No.39B was recorded in PS Bawana on the information from PCR that at Harewali village, Chaupal wali gali, somebody had hit with sword during quarrel. On receiving the aforesaid DD, ASI Gianveer Singh reached at Harewali village and where he found that injured had already been taken to MB Hospital on a CATS Ambulance. Therefore, he reached there and collected the MLC of injured Sunit Kumar and Mukesh Kumar. Further in the hospital complainant Jagdish Chander met him and he stated that he worked as Head Master in MCD Girls Primary School in Laadpur in his village. Vikas s/o. Om Prakash was apprehended as in his place th some other person was giving the examination of 12 class and in this regard, criminal case was registered in PS Narela. The said Vikas suspected that he has got caught him and, therefore, keep enmity with him. On today i.e. 30.06.04, he and his son Mukesh were coming to his house in their Fiat Car bearing number DL4CC6162 from Bawana after purchasing vegetables and at about 6.45pm, when they reached near Pulia of their village, Vishal Naveen and Pankaj blocked the way by their scooter, therefore, their State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 2 of page 21 3 car stopped, but they took their car from the side and came back to their house and at about 7pm, they heard the noise of breaking of glass of their car and when he and his son Mukesh came, they saw Vikas, Vishal, Pankaj and Naveen were breaking the glass of their car from the sword, jelly and lathi and on seeing them Vikas shouted that, "finish them", and thereafter all those persons attacked on them. Vikas who was having sword in his hand hit on the shoulder and head of Sunit. Vishal who was having jelly had given jelly blow on Mukesh Kumar and Sunit Kumar and Naveen gave blow on the hand of Mukesh Kumar from Mogra and Rahul and Pankaj also gave blow from jelly and lathi. In the meanwhile, someone made call to police and, therefore, they ran away from there.
2. ASI Gianveer Singh made endorsement on the said statement of the complainant and prepared rukka and on the basis of said rukka, FIR of the present case u/s. 307/34 IPC was registered.
3. Further investigation was assigned to SI Vijay Pal who got the photographs of the spot and arrested accused Vikas and Rahul. He recorded confessional statement of accused Vikas and at his instance recovered one sword; collected the opinion of the on the MLC of the injured persons. He also arrested accused Naveen, who State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 3 of page 21 4 was already present in the hospital. Since He also arrested Juvenile Pankaj, but since he was minor, therefore, IO filed separate chargesheet qua him in Juvenile Court; sent the exhibits to the FSL and after completion of the investigation, chargesheet u/s. 307/427/34 IPC and all the accused persons put to trial.
4. Vide order dated 16.01.2006, charges under Section 307/34 IPC & 427/34 IPC were framed against both accused persons, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined 13 witnesses: PW1 Jagdish Chander is the complainant and is a material witness. His testimony will be discussed later on alongwith testimony of injured witness.
PW2 ASI Ram Kumar is a formal witness and only recorded the FIR of this case.
PW3 is also a formal witness and only recorded the DD No.39B.
PW4 Sunit Kumar is one of the injured and material witness, his testimony will be discussed later on.
PW5 Dr. Jitender Kumar medically examined and State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 4 of page 21 5 prepared the MLC of the injured Sunit Kumar.
PW6 Mukesh Kumar is one of the injured and his testimony will be discussed later on.
PW7 Dr. N. Masand, medically examined and prepared the MLC of the accused Naveen. He proved the MLC of injured Naveen Ex.PW7/A with the opinion that, "injuries are self inflicted".
PW8 HC Manoj Kumar is a formal witness and only deposited exhibits to the FSL.
PW9 Pramod Kumar is a formal witness and took the photographs of the spot.
PW10 Ct. Vijay Kumar is a formal witness and participated in the investigation alongwith the IO of the case.
PW11 HC Rajender Singh is a formal witness and was MHC(M) and he deposited the case property in the malkhana.
PW12 SI Gyanvir Singh is the first IO and is a material witness.
PW13 Inspector Vijay Pal is the second IO.
6. Besides this prosecution has proved the documents i.e. Rukka/Tehrir as Ex.PW1/A, endorsement on the rukka as Ex.PW2/B at point A, copy of FIR as Ex.PW2/A, rough site plan of the spot as State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 5 of page 21 6 Ex.PW13/A, DD No.39B as Ex.PW3/A, photographs of damaged car as Mark A1 to A4, disclosure statement of accuse Naveen as Ex.PW12/C, disclosure statement of accused Vikas as Ex.PW1/B, sketch of sword as Ex.PW1/C, seizure memo of blood stained pant of injured Sunit Kumar as Ex.PW4/A, seizure memo of sword as Ex.PW1/D, seizure memo of Bajaj Chetak scooter bearing registration no.DL4SAA 9191 as Ex.PW1/E, personal search memo of accused Vishal @ Monu as Ex.PW10/B, personal search of accused Rahul as Ex.PW13/B, personal search memo of accused Naveen as Ex.PW13/E, personal search memo of Vikas as Ex.PW13/C, Arrest memos of accused persons Vishal @ Monu, Naveen, Vikas and Rahul as Ex.PW10/A, Ex.PW13/D, Ex.PW12/A and Ex.PW12/B respectively, MLC of injured Sunit Kumar as Ex.PW5/B, MLC of accused Naveen as Ex.PW7/A, MLC of Mukesh as Ex.PW5/A, FSL Report as Ex.PX and Ex.PY.
7. Statement of all accused persons were recorded u/s.313 Cr.P.C. and all the incriminating evidence put to them and they denied the same. It is contended by the accused persons that in fact Sunit and Mukesh had hit iron rod on the head of the accused Naveen and they also gave a razor blow on the abdomen of Naveen State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 6 of page 21 7 and thereafter they had run away in the car and met with an accident, in which Sunit and Mukesh have received injuries, but in collusion with the local police complainant party lodged the false FIR against them.
8. Arguments were heard from Shri Anil Kumar Gupta, ld.
Addl. PP for the State and from Shri R.S. Malik, ld. Counsel for all the accused persons.
9. It is argued by the ld. Addl. PP for the State that from the testimony of the complainant Jagdish Chander, Prem Bhagwan and injured PW4 Sunit Kumar and PW6 Mukesh Kumar, it is proved that all the accused persons have given beatings to Mukesh Kumar and Sunit Kumar with the intention to kill them. They have also damaged the car of the complainant. It is further argued by ld. Addl. PP that the testimony of the injured is duly corroborated by the medical evidence, as well as, the evidence of other witnesses, hence, all the accused persons are liable to be convicted for offence punishable under Section 307/34 IPC and 427/34 IPC.
10. On the other hand, ld. Counsel for the accused persons has argued that, in fact complainant/injured persons Mukesh Kumar and Sunit Kumar who gave beatings to accused Naveen and caused State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 7 of page 21 8 injuries to him, but, complainant side in collusion with the police officials had obtained false opinion on the MLC of the accused Naveen that injuries were self inflicted and further the injured Sunit had met with an accident in which car was got damaged, but said incident is used by the complainant side to implicate the accused persons in this false case by making false complaint that accused persons after breaking the glasses of the car. It is further argued by ld. Counsel for the accused persons that, all the recoveries effected from the accused persons are fabricated and planted and, therefore, accused persons are liable to be acquitted.
11. As stated above there are three main witnesses PW1 Jagdish Chander, PW4 Sunit Kumar and PW6 Mukesh Kumar.
12. PW1 had testified that, in the month of March, 2003, th accused Vikas was appearing in class 12 examination and he had sent some other boy for appearing in this examination and Vikas was apprehended and a case was registered at PS - Narela and he got apprehended accused Vikas and arrested in the said case and it was said reason Vikas become enemical to him. Thus, according to him the reason of quarrel was old anmity. PW1 further stated that he alongwith his son after purchasing vegetables from Bawana in the State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 8 of page 21 9 car bearing number DL4CC6162 and at about 6.45pm, when they reached at Pulia of his village, Vishal s/o. Om Prakash and Naveen came on scooter bearing number DL4SAA9291 and stopped their scooter in front of their car. But they took their car from the side and came their house at about 7pm. He heard the noise of breaking the glass of his car which was parked in the gali near his house. He alongwith his son Mukesh Kumar and Sunit Kumar came outside the house and saw that Vikas, Vishal, Naveen, Rahul and Pankaj were having sword, jelly, mogra and lathis in their hands and they were breaking the glass of his car and after seeing them accused Vikas told to the other persons that, "inko khatam khardo", and all the said persons attacked on his both sons. Vikas attacked with sword on the head of his son Sunit Kumar with the intention to kill him. Naveen attacked with mogra on the hand of his son Mukesh and Vishal attacked with jelly on his son Mukesh and Sunit. Rahul attacked with jelly and Pankaj attacked with lathi on his sons Sunit and Mukesh. He telephoned the police, again said, he raised noise "police ko phone karopolice ko phone karo". He further stated that when the said persons attacked on his sons, father of accused Vikas and Vishal were present at the PS Bawana. His statement was recorded State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 9 of page 21 10 by the police, same is Ex.PW1/A. He identified the accused persons except accused Pankaj (who was not present).
Dharam Singh and Rajender Singh alongwith two/three persons came to his house and threatened him that, he should withdraw the FIR, otherwise they make a hole on his forehead with the knife. Accused persons Vikas, Rahul; and Naveen were apprehended by police on his pointing out, accused Vikas was interrogated by the police and recorded his confessional statement Ex.PW1/B and he led the police party in a room where the fodder grain was stored and one sword was recovered from there. He further stated that, he had seen the sketch of the sword Ex.PW1/C which bears his signatures at point A (Ld. Counsel for the accused persons stated that the copy of disclosure statement of accused Vikas and copy of sketch of sword which was supplied to the accused do not bear signatures of witness Jagdish Chander, but ld. Addl. PP submitted that both the said documents bears the signatures of witness Jagdish Chander as per judicial file).
He further stated that the said sword was seized after making pullanda. He has identified the sword as Ex.P1. He was cross examined by ld. Defence counsel.
State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 10 of page 21 11 In his cross examination he had stated that he does not know on which examination centre accused Vikas had appeared for examination and he came to know through the newspaper that the accused Vikas was apprehended. He further stated that he left his house to purchase vegetables at about 4pm. He stated that his car was parked at a distance of 20 feet from his house and the car was not visible from his house. He stated that his car was parked in the gali and there are other residents in the gali on the both sides. He further stated that he did not receive any injuries. His shirt was not torn. But his son Mukesh and Sunit were bleeding profusely. He admitted that he had given a call to the PCR and he knew the name, parentage and address of all the accused persons before calling the police and he did not disclose the name of the assailants to the police at the spot as his statement was recorded in the PS. He again stated that he disclosed the name of the assailants at the spot to the police. He further stated that SI Gianveer noted down all the facts narrated by him at the spot. He further stated that his statement Ex.PW1/A was recorded at the PS at about 9.30pm after meeting with the SHO. He denied the suggestion that he got registered the false case against the accused persons in connivance with the SHO. State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 11 of page 21 12
13. PW4 Sunit Kumar had deposed the same facts as deposed by PW1 Jagdish Chander besides this PW4 had stated that he handed over blood stained pant to the IO in the hospital and IO had seized the same vide seizure memo Ex.PW4/A. He identified his pant as Ex.P2. In his cross examination he had stated that, about two years ago from the date of incident, accused Vikas was alleged to have been arrested in pursuance of taking examination in place of other person. His father was not on duty on that centre and he does not know who was the complainant of the said case. He admitted that there is a shop of Satte Baniya in the street, where car was parked and there is a house of Brahm Prakash Prakash. He also admitted that house of Kishan, who is SHO in Delhi Police is also in the said street. He stated that his sister in law is owner of the car, but he does not know whether the statement of his sister in law was recorded or not. He denied the suggestion that it is not the car number DL4CC6162, but some other car number plate of car number DL4CC6162 has been affixed at the time of taking photographs. He admitted that he was conscious on the day of incident. He had not told to doctor, who had caused injuries and at which place caused injuries to them. He denied the suggestion that State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 12 of page 21 13 on 30.06.2004 at about 6.15pm at Harewali More his brother Mukesh had hit iron rod on the head of accused Naveen. He further denied the suggestion that he and his brother Mukesh had caused injuries on the person Mukesh and he hit razor on the stomach of Naveen and thereafter ran away from there in their car.
14. PW6 Mukesh Kumar had stated same facts as deposed by PW1 in his examination in chief. In his cross examination, he had stated that the car was not visible either from inside or outside from their house. The police had came after a week, after the occurrence and had not inquired from the people residing at the place of occurrence. He stated that the car in question is registered in his wife's name and his wife had gone to the PS to lodge a report in respect of damage of the car. The police had not seized the said car.
15. On the combined reading of testimony of PW1Jagdish Chander, PW4 Sunit Kumar and PW6 Mukesh Kumar, it is evident that the reason of the quarrel between the accused persons and complainant side is that accused persons suspected on the information of PW1 that, accused Vikas was arrested in the case of impersonation as somebody was taking exam in his place. The onus to prove the said motive was on the prosecution, but prosecution has State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 13 of page 21 14 not placed on record any document in this regard. Moreover, the alleged incident of impersonation was happened in March, 2003, whereas the alleged incident had happened in the year 2004 on 30.06.2004. Thus there is a gap of almost one year and it is quite improbable that accused persons after such a long gap would quarrel with complainant. The PW1, PW4 & PW6 had not deposed that, prior to the day of incident, there was any quarrel ever between them and accused persons or accused persons have threatened the complainant side. Therefore, in these circumstances, in my view the reason given by the PW1, PW4 and PW6 for alleged beating by the accused persons does not appear to be much inspiring. Undoubtedly, from the suggestion given by the ld. Counsel for the accused persons to the witness that PW1 Jagdish Chander, PW4 Sunit Kumar and PW6 Mukesh given beating to accused Naveen. It appears that there must be same enmity between complainant side and accused persons. But definitely, that enmity is not due to reason assigned by the accused persons.
16. The PW1 Jagdish Chander, PW4 Sunit Kumar and PW6 Mukesh have testified that they came out from their house after hearing the noise of breaking of the window plans of their car State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 14 of page 21 15 bearing number DL4CC6162 and accused persons have broken the window panes of the car, hence, car was the case property, but prosecution has failed to explain why same has not been seized. Though, the scooter number DL4SAA9291 has been seized, which has no connection with commission of crime. This creates doubt whether actually the window panes of the car were broken at the spot, as deposed by PW1 Jagdish Chander, PW4 Sunit Kumar and PW6 Mukesh Kumar. Moreover, no document has been placed on record by the prosecution to prove that said car was owned by the wife of accused Mukesh nor she has been cited as witness. PW9 Pramod Kumar who had taken the photographs of the spot has not given any date, time or month, when he took the photographs of car or prepared. On perusal of the site plan Ex.PW13/A it is evident that , in the site plan position of the car has not been shown. Nor in the site plan it has been shown where the broken pieces of window panes of car were lying. No broken pieces of window panes has been seized by the IO. Hence, in these circumstances, in my view prosecution has failed to prove that accused persons have damaged the car of the complainant side.
17. PW1 Jagdish Chander, PW4 Sunit Kumar and PW6 State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 15 of page 21 16 Mukesh Kumar have alleged that after hearing the noise of breaking up of window panes they came out and they saw that accused persons were breaking the window panes and on seeing them accused Vikas told that, let finish them. The PW1 could have been in the main target of the attack, if the accused persons want to take revenge from him. But, it is quite unnatural that no beating was given to PW1 Jagdish Chandra, despite the fact that it is PW1 Jagdish Chandra is the person to whom accused Vikas suspected that he had made complaint against him. PW1 Jagdish Chandra had not stated in his testimony that when accused persons were beating his sons, he had interfered in the quarrel and tried to save them. Hence, his evidence looks quite unnatural. Hence in these circumstances, possibility cannot be ruled out that, PW1 Jagdish Chandra was not present at the time of quarrel. Hence, I do not find testimony of PW1 Jagdish Chandra much inspiring.
18. Further, as far as recovery of sword in the presence of PW1 from accused Vikas is concerned, he has deposed that sword was recovered from the instance of accused Vikas and he signed on the seizure memo, but, in his testimony the court has given observation that, accused's counsel had produced one copy of the State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 16 of page 21 17 seizure memo Ex.PW1/D, in which signatures of PW1 Jagdish Chandra is not there. The contention of the ld. Counsel was that said copy was supplied to him during the proceedings of Section 207 Cr.P.C., the signatures of PW1 on the seizure memo, but later on it has come in the court record, which is not appeared to be much inspiring because no witness was examined by the accused persons to call the record from the VRK to prove that in the certified copy of the said seizure memo does not bear the signatures of the PW1. Hence, I reject the said arguments led by defence that any perjury had been committed in the record of court. However, since the presence of PW1 Jagdish Chandra at the spot at the time of incident is doubtful, therefore, the alleged recovery of sword from accused Vikas in his presence became meaningless.
19. Now coming to the testimony of PW4 Sunit Kumar and PW6 Mukesh Kumar, both have stated that, they have been given injuries by accused persons by sword, jelly, mogra and Lathi. On the perusal of the MLC Ex.PW5/B of PW4 Sunit Kumar, I found that he had three injuries on his body, one as CLW scalp on frontal area 2.5cm approx., which is not possible by sword as claimed by PW4 that accused Vikas hit on his head with sword. Second State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 17 of page 21 18 injury is penetrating wound 2.5cm in length and 2cm in depth over right shoulder and third injury is superficial abrasion 1cmX1cm over left hand and swelling and tenderness over left hand. In my view the nature of injuries as mentioned in the MLC of the PW4 does not match with the nature of weapon allegedly used in the commission of crime, because injuries were caused by sword or jelly, then the injury would have been much deeper and much larger than as mentioned in the MLC Ex.PW5/B. Similarly, the PW6 Mukesh Kumar had only one injury i.e. swelling and tenderness over left forearm. In my view the said injuries not at all matches with the description of the weapons as mentioned in the testimony of PW1 Jagdish Chandra, PW4 Sunit Kumar and PW6 Mukesh Kumar, because sword and Jelly in no manner would have caused swelling and tenderness. Hence, the testimony of PW4 Sunit Kumar and PW6 Mukesh Kumar were that they were given beating by sword, Jelly. Mogra and lathi does not appeared to be much reliable.
20. Now coming to the contention of ld. Defence counsel that, injured persons Sunit and Mukesh gave beatings to accused Naveen. MLC of accused Naveen is also on record. As per MLC of accused Naveen Ex.PW7/A three injuries have been mentioned as State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 18 of page 21 19 follows:
i) 6cmX1cmX1cm incised wound on left lateral abdomen 'Y' shaped. No hesitation marks. Possibility of self inflicted wound cannot be ruled out.
ii) 2.5cm lacerated wound on left occipital region.
iii) 3cmX2cm swelling on dorsum on right foot.
In the MLC it is mentioned about first injury, the possibility of self inflicted wound cannot be ruled out. PW7 Dr. N. Masand, who had given the said opinion had not stated anything about injury no.2 and 3. He has not given any reason in his testimony on what basis he has given injury no.1 as self inflicted injury. Hence, in these circumstances, in my view it cannot be ruled out that the injuries to accused Naveen was not self inflicted injury and same may have caused to him during quarrel with PW4 Sunit Kumar and PW6 Mukesh Kumar.
21. The place of incident is a public street situated in a residential area having residential houses in both sides. It is very unlikely that when the PW1 Jagdish Chandra, PW4 Sunit Kumar and PW6 Mukesh Kumar heard the noise of breaking of window panes from their house which was at 20 feet distance from their car was State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 19 of page 21 20 parked. But, their car was parked by PW1. Admittedly there were other houses in the street. Therefore, residents definitely would have come out and seen the incident if quarrel had actually taken place there. But the IO had made no efforts to join the any of the said neighbourer witness. Hence, in the absence of the any independent testimony, I do not find safe to convict the accused persons on the testimony of PW1 Jagdish Chandra, PW4 Sunit Kumar and PW6 Mukesh Kumar who are interested witnesses and particularly when they themselves admit that there were previous enmity between them and accused persons. Hence, possibility of the false implication cannot be ruled out. Therefore, in view of the facts and circumstances, I held that prosecution has failed to proved the case beyond reasonable doubts that accused persons have given beatings to the PW4 Sunit Kumar and PW6 Mukesh Kumar with intention to commit their murder or they have given any beatings and further they have caused damage to the car number DL4CC6162.
22. Hence, in view of the said fact, I held that prosecution has failed to prove the case beyond reasonable doubt that accused persons have attempted to commit murder of PW4 Sunit Kumar and PW6 Mukesh or they caused damage to the car. Hence, all the State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 20 of page 21 21 accused persons stand acquitted from all the charges u/s. 307/427/34 IPC. Accused persons are on bail, therefore, their bail bonds and surety bonds cancelled and sureties are discharged. However, they are directed to furnish their personal bond in the sum of Rs.10,000/ each with one surety of like amount each within one week, in compliance of provisions of Section 437A Cr.P.C. File be consigned to record room.
Announced in the open court (Sanjeev Kumar)
On 03.07.2013 Addl. Sessions Judge
Rohini Courts: Delhi.
State vs Vikas & Ors. SC NO.52/06/FIR NO.239/04. PS BAWANA/U/S.307/427/34 IPC page 21 of page 21