Delhi District Court
State vs . (1) Bablu @ Birju on 9 August, 2016
FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI SC No. 57654/16 State Vs. (1) Bablu @ Birju S/o Sh. Vijay Pal R/o B38, Tarzon Camp, Tikri Khurd, Delhi. (2) Mahesh @ Khanna S/o Sh. Shakti Singh R/o B39, Tarzon Camp, Tikri Khurd, Delhi. (3) Bobby S/o Sh. Ramesh Chand R/o Tarzon Camp, Tikri Khurd, Delhi. (4) Sonnu @ Chatto S/o Sh. Ashok R/o B38, Tarzon Camp, Tikri Khurd, Delhi. (5) Jeetu @ Tejpal S/o Sh. Subhash R/o B30, Tarzon Camp, Tikri Khurd, Delhi. (6) Sonu @ Dropad S/o Sh. Mithhu Lal R/o B115, Tarzon Camp, Tikri Khurd, Delhi. State V/s Bablu @ Birju etc. ("convicted") Page 1 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 FIR No. : 373/11 Police Station : Alipur Under Sections : 307/308/302/34 IPC Date of committal to Sessions Court: 11.05.2012 Date on which judgment was reserved: 09.08.2016 Date on which Judgment pronounced: 09.08.2016 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The abovenamed six accused persons were sent to face trial for the offences punishable U/s 143/144/147/148 read with section 149 IPC and for offences punishable U/s 302/ 307/34 IPC on the allegations that all six accused persons formed unlawful assembly having common object to cause death of Vinod and Manoj and they were armed with deadly weapons i.e. iron rod and dandas, with which they assaulted Vinod and Manoj, as a result of which Vinod ultimately succumbed to the injuries and Manoj sustained injuries of grievous nature.
2. The case set up by the prosecution in the chargesheet is that DD No. 15A (Ex.PW7/A) was recorded in PS Alipur on 03.11.2011, which was entrusted to SI Mukesh (PW7) for necessary action. Accordingly, SI Mukesh went to the place of information, where it was revealed on enquiry that injured had been removed by PCR to SRHC Hospital. Accordingly, he rushed to the said hospital, where he met HC Jagat Singh (PW8), Ct. Suresh (PW5) and HC Virender. He collected MLCs of injured persons i.e. Vinod State V/s Bablu @ Birju etc. ("convicted") Page 2 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 and Manoj and also MLCs of accused persons namely Bablu @ Birju and Jeetu. SI Mukesh recorded statement (Ex.PW7/B) of injured Vinod after he was declared fit for statement by concerned doctor. In the said statement, he claimed to have been assaulted by the accused persons being armed with iron rod and dandas and also claimed that after assaulting him, the accused persons had left by saying that "chal ab Manoj ko thik kar lete hai'.
Thereafter, all the said accused also gave beatings to Manoj. His sister Pooja (PW2) had also tried to save him from the clutches of accused persons and had made PCR call at 100 number. After sometime, PCR Van came and got them admitted in the hospital.
3. On the basis of said statement, FIR in question was got registered for the offence punishable U/s 308/34 IPC and investigation was entrusted to SI Mukesh. During investigation, he arrested accused Sonu @ Drupad, Jeetu and Sonu @ Chatoo. Said three accused got recovered weapons of offence i.e. dandas in pursuance of their disclosure statements.
4. It is further the case of prosecution that on 12.11.2011, injured Vinod expired during treatment. The offence punishable U/s 302 IPC was added and investigation was transferred to Inspector Sunil Kumar (PW22). After conducting inquest proceedings and getting postmortem examination conducted, the dead body of deceased Vinod was handed over to his relatives. Cause of death was opined as due to shock as a result of septicemia, consequent upon multiple infected injuries. On 14.11.2011, accused Bobby, Mahesh @ Khanna and Bablu @ Birju were formally State V/s Bablu @ Birju etc. ("convicted") Page 3 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 arrested in the Court premises after they surrendered themselves. During their police remand, accused Bablu @ Birju got recovered iron rod and accused Mahesh and Bobby got recovered blood stained dandas. During investigation, IO also recorded statements U/s 161 Cr.P.C. of relevant witnesses; got deposited the relevant exhibits in FSL, Rohini for opinion, got scaled site plan prepared through Draftsman and collected result on MLC of injured Manoj. After completion of investigation, chargesheet had been filed before the Court.
5. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGE FRAMED AGAINST THE ACCUSED
6. After hearing arguments on the point of charge, Ld. Predecessor of this Court framed the charge for the offences punishable U/s 143 read with section 149 IPC, 144 read with section 149 IPC, 147 read with section 149 IPC, 148 read with section 149 IPC, 304 read with section 149 IPC read with section 34 IPC, 307 read with section 149 IPC and section 34 IPC against all the six accused persons, vide order dated 12.09.2012 to which they pleaded not guilty and claimed trial.
7. In support of its case, the prosecution examined twenty four witnesses namely PW1 Manoj, PW2 Smt. Pooja, PW3 Smt. Munni Devi, PW4 Smt. Omwati, PW5 Ct. Suresh, PW6 SI Neeraj, PW7 SI Mukesh State V/s Bablu @ Birju etc. ("convicted") Page 4 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 Kumar, PW8 HC Jagtar, PW9 Dr. Avdhesh, PW10 Inspector Mahesh Kumar, PW11 Dr. Bhim Singh, PW12 Ct. Ashish, PW13 HC Saroj, PW14 SI (Retd.) Ajeet Singh, PW15 Sh. Indresh Kumar Mishra, PW16 SI Devender, PW17 Ct. Vikram, PW18 Sh. Bhagwan, PW19 HC Satish Patil, PW20 Inspector Satyavir Janaula, PW21 HC Rameshwar, PW22 Inspector Sunil Kumar, PW23 Ct. Sanjeev and PW24 HC Desh Pal.
8. Thereafter, statements U/s 313 Cr.P.C. of all the six accused persons were recorded during which all the incriminating evidence were put to them. However, they denied the same and claimed that they are innocent and have been falsely implicated in this case. Their defence is of general denial. All six accused persons opted to lead evidence towards their defence and examined one witness i.e. DW1 Dr. Ashutosh Gupta in their defence, whereafter their defence evidence was closed vide order dated 15.09.2015.
9. I have already heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld. Counsel Sh. Ravinder Tyagi, Adv. on behalf of all accused. I have also gone through the material available on record.
10. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record in order to see as to how the prosecution story has been unfolded by them during trial. Their testimonies are detailed as under: State V/s Bablu @ Birju etc. ("convicted") Page 5 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 PUBLIC WITNESSES:
11. PW1 Sh. Manoj: He himself is the victim in this case. He deposed that deceased Vinod and accused Bablu @ Birju were related to each other and were his neighbourers. On previous occasion, accused persons namely Bablu @ Birju, Sonu @ Chatoo, Khanna @ Mahesh, Sonu, Bobby and Jeetu had an altercation with Vinod for the reason that they had misbehaved with sister of Vinod. During said occasion, he had helped Vinod. He testified that on 3 rd day of October or November at about 10.30 am, while he was standing in the gali outside his house, accused persons namely Bablu @ Birju, Sonu @ Chatoo, Khanna @ Mahesh and Bobby came there. Accused Bablu @ Birju was having iron rod, whereas remaining three accused persons were having dandas in their hands. Accused Bablu @ Birju abused him and threatened to teach him lesson for helping Vinod, whereafter he gave saria blow on his head and remaining accused gave danda blows on his body. He raised alarm on which mother and sister of Vinod came for his rescue. His sisterinlaw (Bhabhi) also came for his rescue. In the meantime, accused Sonu @ Drupad and Jeetu also reached there and started beating him with danda, legs and fists blows. When he alongwith public persons raised alarm, accused persons fled away from there. Somebody called the police at 100 number, on which PCR Van came and removed him to SRHC Hospital, where Vinod was also admitted. He had sustained injuries on his head, hands and legs due to the assault caused by the accused persons.
State V/s Bablu @ Birju etc. ("convicted") Page 6 of 50FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 He also deposed that on 19.10.2012, when he had come to attend the court case, wife of accused Bablu @ Birju and two other persons had threatened him not to give statement against accused persons, failing which his life would be spoiled.
In his cross examination, he was confronted with relevant portions of his chief examination visavis his police statement U/s 161 Cr.P.C. (Ex.PW1/DA). He deposed that he was discharged from the hospital on 14.11.2011. The house of accused Vinod was not visible from his house. He alongwith Vinod were shifted to General Ward from Emergency Ward during the same night. The altercation between the accused persons and Vinod had taken place on 27.10.2011. He denied the suggestion that his Bhabhi was not present at the spot at the time of occurrence or that accused persons never caused any injuries to him. Deceased Vinod and his family members had gone to hospital in separate PCR Van. He admitted that he is one of the accused alongwith accused Bablu @ Birju in criminal case for offences punishable U/s 323/324/325 IPC. He admitted that Tarzan Camp, Tikri Khurd is a thickly populated area.
12. PW2 Smt. Pooja: She is sister of deceased Vinod. She deposed that on 03.11.2011 at about 9 am, while she was returning home after attending call of the nature from government toilet, accused Bablu @ Birju who was resident of the same locality, had met him at the chowk and told her that she should make her brother understand, failing which he State V/s Bablu @ Birju etc. ("convicted") Page 7 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 would teach him a lesson. She disclosed the said fact to her brother Vinod, on which he went to said accused in order to enquire as to why he told those facts to his sister and thereafter, returned back to the house. On the same day at about 10 am, accused persons namely Bablu, Sonu, Bobby, Khanna, Sonu @ Chatto and Jeetu came in front of their house and called her brother Vinod by abusing him. When her brother Vinod went outside, accused Bablu had attacked him with iron rod and coaccused attacked him with dandas. When she tried to rescue Vinod, she was also pushed by the accused persons. Her sisterinlaw (Bhabhi) was also beaten up by accused Bablu. Her mother (Omwati) was not present at the time of incident as she had gone to her duty. Police did not record statement of his Bhabhi. Her brother Vinod had sustained multiple injuries on his body. After causing injuries to Vinod, accused persons had gone to the house of Manoj. She had made call at 100 number, on which PCR Van came and removed her brother to SRHC Hospital. She came to know that accused persons had also given beatings to Manoj, who was also treated in SRHC Hospital. She had accompanied Vinod to the hospital.
In her cross examination, she testified that police had recorded her statement on 03.11.2011 at her parental house. She admitted that there was no previous enmity between her family and family of accused Bablu prior to the incident. She was not having any mobile phone during the relevant period. The condition of her brother Vinod was not good and he was not able to speak and he was unable to consume food in the hospital.
State V/s Bablu @ Birju etc. ("convicted") Page 8 of 50FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 The statement of her brother Vinod was recorded in the hospital in her presence. In response to Court Question, she clarified that her brother had given statement to the police in the hospital and initially, her brother was unable to speak after sustaining injuries, but when she provided him water to drink, he was able to speak little bit. Her brother Vinod could sign, but she could not disclose as to whether he had signed or put thumb impression on his police statement. She admitted that condition of Vinod was deteriorating day by day. She was also confronted with relevant portion of her chief examination visavis her police statement Ex.PW2/DA. She expressed ignorance as to whether her mother and Bhabhi Bharti had gone to the house of Manoj on the day of incident or not. She, however, claimed that house of Vinod was not visible from their house.
13. PW3 Smt. Munni Devi: She is the mother of injured Manoj (PW1). She deposed that on the date of incident at about 9.00 am, she was present in her house. On hearing the noise, she went outside and saw that accused Bablu @ Birju having saria (iron rod) in his hand and accused Mahesh @ Khanna and Sonu @ Chatto having dandas in their hands, were beating Vinod (since expired) with said weapons. Thereafter, said accused uttered the words "Chalo Manoj Ko Dekhte hai" and they alongwith accused Sonu @ Dropad, Jeetu @ Tejpal and one more associate gave beatings to her son Manoj with those weapons and fled away from the spot. Her daughter Pooja made call at 100 number, on which PCR Van came and removed Vinod and Manoj to SRHC hospital. She alongwith Pooja and State V/s Bablu @ Birju etc. ("convicted") Page 9 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 Lali (wife of Vinod) also accompanied injured persons to the hospital in PCR Van. She identified all the six accused persons during trial to be the assailants.
She also deposed that weapons of offence i.e. iron rod was recovered at the instance of accused Babloo @ Birju and two separate dandas were recovered at the instance of accused Mahesh @ Khanna and Bobby in her presence. The said weapons were seized vide memos Ex.PW3/A to Ex. PW3/C respectively. She identified iron rod as Ex.P1 during trial, to be recovered at the instance of accused Bablu @ Birju and dandas as Ex.P2 and Ex.P3 to be recovered at the instance of accused Mahesh @ Khanna & Bobby respectively.
In her cross examination, she admitted that there were many residential houses in the locality. At the time of incident, her husband and her three other sons had gone to their work place. Her two daughtersinlaw were present in the house. Manoj was not associate of accused Bablu @ Birju. She denied the suggestion that criminal cases were pending against Manoj in Rohini Court. She was confronted with relevant portions of her chief examination visavis her police statements Ex.PW3/X1 and Ex.PW3/X2 during cross examination. She also deposed that Vinod had expired after about 10 days of the incident. Police did not meet her during the said period. The house of Vinod was not visible from her residence. After hearing noise, she had gone to the house of Vinod. At the time of quarrel with Manoj, Vinod, his mother and sister did not come there. Wife State V/s Bablu @ Birju etc. ("convicted") Page 10 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 and sister of Vinod were present at the time of recording of statement of Vinod by the police. She admitted that there was no distinctive mark appearing on iron rod Ex. P1 as well as on dandas Ex. P2 and Ex. P3 shown to her during trial.
14. PW4 Smt. Omwati: She is mother of deceased Vinod. She deposed that on the date of incident, she had gone to her office at about 8 am. At about 10 am, she received call from her daughter Pooja who informed her that accused persons namely Bablu, Khanna, Bobby, Sonu, @ Chatto, Jeetu and Sonu @ Drupad had given beatings to Vinod by dandas and sarias. She was also informed by Pooja that Pooja and Bharti were present at the time of incident and they were taking Vinod to the hospital in PCR Van. She also rushed to SRHC Hospital and by the time she reached there, police had already recorded statement of Vinod.
She further deposed that accused Bablu got recovered iron rod in her presence and same was seized vide memo Ex.PW3/A. Accused Mahesh @ Khanna got recovered danda in her presence and same was seized vide memo Ex.PW3/B. Accused Bobby got recovered danda in her presence and same was seized vide memo Ex.PW3/C. She identified said iron rod as Ex.P1 and both the said dandas Ex.P2 and Ex.P3 during trial. She also identified accused persons during trial.
In her cross examination, she deposed that her statement was recorded by the police in PS on the day when Vinod had expired. She admitted that she was not present at the spot at the time of incident and she State V/s Bablu @ Birju etc. ("convicted") Page 11 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 was telephonically informed about the incident by her daughter. Vinod remained admitted in the hospital for about 8 days. She denied the suggestion that Vinod was diagnosed with ailment of jaundice or that he had died due to said ailment. Her statement was recorded only once by the police. Vinod had sustained injuries on both the legs, both the arms and his ribs were also broken. She denied the suggestion that iron rod and dandas were not recovered at the instance of aforesaid accused in her presence.
POLICE WITNESSES:
15. PW5 Ct. Suresh & PW8 HC Jagat Singh: On 03.11.2011 at about 10.30 am on receipt of DD no. 15A, both these witnesses had gone to the place of information. They deposed that injured Vinod and Manoj were revealed to have been removed to SRHC hospital after having sustained injuries at the hands of accused Bablu, etc. They went to said hospital. SI Mukesh alongwith other police staff also reached there. SI Mukesh tried to record statements of Vinod and Manoj but both of them requested to give statements subsequently. On the same day at about 11.00 pm, SI Mukesh recorded statement Ex.PW7/B of injured Vinod and prepared rukka Ex.PW7/C on the said basis and got the FIR registered through PW5. Investigation was handed over to SI Mukesh who also recorded statements of injured Manoj and Smt. Omwati at about 1.00 am.
PW8 further deposed that Smt. Omwati, Pooja (sister of Vinod) and Munni Devi (mother of Manoj) joined investigation with them State V/s Bablu @ Birju etc. ("convicted") Page 12 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 and had accompanied them to the place of occurrence, where SI Mukesh prepared site plan Ex.PW7/D at the instance of Pooja and Munni Devi and also recorded their statements in that regard. He further deposed that on the next day i.e. 04.11.2011 at about 4.00 pm, accused Jeetu @ Tejpal and Sonu @ Dropad were arrested on the basis of secret information, vide arrest memos Ex.PW7/E and Ex.PW7/F and both the said accused made disclosure statements Ex.PW7/J and Ex.PW7/K respectively. Accused Sonu @ Dropad got recovered one danda from room situated on ground floor of his house and after preparing sealed pullanda of the said danda, same was seized vide memo Ex.PW7/L. Likewise, accused Jeetu @ Tejpal also got recovered another danda from roof of his house. After preparing sealed pullanda of the said danda, same was seized vide memo Ex.PW7/M. Both the said accused also led to the arrest of accused Sonu @ Chatto from his jhuggi and said accused was arrested vide memo Ex.PW7/N, who also made disclosure statement Ex.PW7/P. Said accused also got recovered one danda/lathi. After preparing sealed pullanda of said danda/lathi, same was seized vide memo Ex. PW7/Q. He identified the danda got recovered by accused Sonu @ Dropad as Ex.P4, danda got recovered by accused Jeetu @ Tejpal as Ex.P5 and danda/lathi got recovered by accused Sonu @ Chatto as Ex. P6 during trial.
Both these witnesses have been cross examined at length on behalf of accused persons.
16. PW6 SI Neeraj: He had joined investigation with IO State V/s Bablu @ Birju etc. ("convicted") Page 13 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 Inspector Sunil Kumar on 15.11.2011, when accused Mahesh @ Khanna, Bablu @ Birju and Bobby had made disclosure statements Ex.PW6/A to Ex. PW6/C respectively in his presence. He deposed that said three accused had pointed out the place of occurrence vide pointing out memo Ex.PW6/D. He further deposed that Omwati, Pooja and Munni Devi had also joined investigation with them and said three accused led them to House no. B38, Tarjan Camp, Tikri Khurd, Delhi of accused Bablu @ Birju. Said three accused got recovered two dandas and one iron rod from their respective houses. After preparing sealed pullanda of iron rod and dandas, same were seized vide memos Ex.PW3/A to Ex.PW3/C respectively. He identified iron rod as Ex.P1 produced by accused Bablu @ Birju, danda Ex.P2 produced by accused Mahesh @ Khanna and another danda Ex.P3 produced by accused Bobby.
In his cross examination, he deposed that IO did not ask residents of jhuggi no. B59 or nearby residents to join the investigation. One lady who may be mother of accused Babloo, was found present inside jhuggi No. B38 as all the said three accused got recovered the said weapons separately one by one. He admitted that there was no specific identification mark on said iron rod and dandas but volunteered that those dandas were having blood stains on them.
17. PW7 SI Mukesh Kumar: He carried out investigation of this case from 03.11.2011 till 12.11.2011. When the offence punishable U/s 302 IPC was added due to death of injured Vinod, investigation was transferred State V/s Bablu @ Birju etc. ("convicted") Page 14 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 to Inspector Sunil Kumar. He has deposed about the relevant investigation carried out by him during said period. He testified that after injured Vinod was declared fit for statement, he had recorded his statement Ex.PW7/B, made endorsement Ex.PW7/C and got the FIR registered through Ct. Suresh. He had also recorded statements of injured Manoj and of Smt. Omwati at about 1.00 am, whereafter he had prepared rough site plan Ex.PW7/D at the instance of Pooja and Munni Devi and had also recorded their statements U/s 161 Cr.P.C. He also deposed on identical lines as deposed by PW5, PW6 and PW8 whose testimonies have already been discussed in the preceding paras, with regard to arrest of accused Jeetu @ Tejpal, Sonu @ Dropad and Sonu @ Chatto and the relevant proceedings with regard to recovery of weapons of offence and writing work carried out by him. He also identified the said accused as well as the weapons of offences during trial.
In his cross examination, he deposed that he had recorded statement of injured Vinod in the Ward of the hospital at about 11.00/11.30 pm. The house of injured Manoj was not visible from the house of injured Vinod as both the said houses were situated at a distance of about 4050 meters. He could not disclose as to which of the accused Sonu @ Dropad and Jeetu @ Tejpal firstly got recovered the dandas. He claimed to have requested 56 persons to join the investigation but all refused. He could not say if there was any specific mark of identification on the dandas claimed to have been recovered at the instance of accused persons. He had requested State V/s Bablu @ Birju etc. ("convicted") Page 15 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 family members of accused Sonu @ Dropad and Jeetu @ Tejpal to become witnesses of the recovery but they did not do so. He admitted that when he visited the hospital and talked to injured Vinod, his condition seemed to be stable. He denied the suggestion that he did not record statements of Munni Devi, Omwati and Pooja on 04.11.2011.
18. PW10 Inspector Mahesh Kumar: This witness being draftsman, visited the place of occurrence alongwith Inspector Sunil Kumar and SI Mukesh Kumar on 31.01.2012, whereafter at the pointing out of SI Mukesh Kumar and after taking measurements and preparing rough notes, he had prepared scaled site plan Ex.PW10/A. He deposed that he destroyed the rough notes and measurements after preparing the scaled site plan. He has not been cross examined by accused persons despite grant of opportunity.
19. PW12 Ct. Ashish Atri: This witness was on duty at Channel No. 104 on 03.11.2011. He deposed that on that day at about 10:24:13, one Babloo Kumar informed her from mobile no. 9350046965 that "ek ladke ko teen chaar ladko ne chaku maar diya hai. Use Harish Chand Hospital Narela lekar gaye hai. He filled formI PCR and dispatched the call to console operator. This witness has not been cross examined by accused persons despite grant of opportunity.
20. PW13 HC Saroj: This witness deposed that on 03.11.2011 at about 10.35 am, wireless operator came to him and informed that one boy was stabbed by 34 boys at D38, Tarzan Camp, Tikri Khurd, near CNG State V/s Bablu @ Birju etc. ("convicted") Page 16 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 Pump and injured was taken to Raja Harish Chander Hospital. He proved copy of DD No. 15A as Ex.PW13/A. This witness has not been cross examined by accused persons despite grant of opportunity.
21. PW14 SI (Retd.) SI Ajeet Singh: This witness was working as Duty Officer in PS Alipur on 04.11.2011. He has proved factum regarding recording of FIR No. 373/11 in PS Alipur. He proved computerized copy of said FIR as Ex.PW14/A and his endorsement as Ex.PW14/B made on the rukka. He also exhibited certificate U/s 65B Evidence Act as Ex.PW14/C. He has not been cross examined by the accused persons despite grant of opportunity.
22. PW16 SI Devender: This witness deposed that on 13.11.2011 on the instructions of SHO, he had reached Mortuary of BJRM Hospital and had recorded statements Ex.PW16/A and Ex.PW16/B of Ashwani and Satish regarding identification of dead body of Vinod. He proved form 25.35(b) as Ex.PW16/C and also prepared inquest papers Ex.PW16/D. Thereafter, he got conducted the postmortem and dead body was handed over to the legal heirs of deceased. He further deposed that after postmortem, concerned doctor handed over one sealed parcel with the seal of FMT BJRM Hospital alongwith sample seal of BJRM Hospital to him.
On 14.11.2011, he had joined investigation with Inspector Satyavir Janaula. They came to Rohini Court, where accused Bobby, Mahesh and Babloo had surrendered in the Court. He further deposed that after taking permission from the Court, said accused persons were arrested State V/s Bablu @ Birju etc. ("convicted") Page 17 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 vide memos Ex.PW16/E, Ex.PW16/F and Ex.PW16/G and their personal search was also conducted vide memos Ex.PW16/H, Ex.PW16/I and Ex.PW16/J. Said accused persons had also made disclosure statements Ex.PW16/K, Ex.PW16/L and Ex.PW16/M. In his cross examination, he deposed that Inspector Satyavir had obtained signatures of accused Bobby, Mahesh and Babloo on the disclosure statements Ex.PW16/K, Ex.PW16/L and Ex.PW16/M. He denied the suggestion that Ex.PW16/K, Ex.PW16/L and Ex.PW16/M do not bear signatures of said accused persons.
23. PW17 Ct. Vikram:This witness had joined investigation of this case on 04.11.2011, when accused Sonnu @ Chatto is claimed to have been apprehended at the instance of accused Jeetu @ Tejpal and Sony @ Dropad, from his jhuggi. He deposed that accused Sonnu @ Chatto was arrested vide memo Ex.PW7/N and said accused made disclosure statement Ex.PW7/P. In pursuance of said disclosure statement, he had got recovered one danda from behind public toilet situated in Park, Tarjan Camp, Tikri Khurd, Delhi. After preparing sealed pullanda of said danda, same was seized vide memo Ex.PW7/Q. On 12.11.2011, he had removed dead body of Vinod to mortuary of BJRM hospital and got the same preserved over there. After getting postmortem conducted on the body of deceased, dead body was handed over to legal heirs and his statement was recorded. He identified the danda got recovered by accused Sonu @ Chatto as Ex.P6 during trial.
State V/s Bablu @ Birju etc. ("convicted") Page 18 of 50FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 In his cross examination, he claimed to have joined the investigation at around 8.00 - 8.30 pm on 04.11.2011. He admitted that dandas similar to danda Ex.P6 are easily available in the market. He pointed out that the recovered danda was having seven knots and except that, there was no other distinctive mark on the said danda. He claimed to have identified the said danda on the basis of its knots. He deposed that relevant documents including disclosure statement of accused were prepared after recovery of danda.
24. PW19 HC Satish Patil: He deposed that on 03.11.2011, he was working as Incharge in PCR Van Libra 86. At about 10 am, he received information on wireless regarding stab injury at Tarzan Camp, Tikri Khurd. On receipt of said information, he alongwith staff went to the place of information in PCR Van, where a boy was found in injured condition. He removed said injured to SRHC Hospital in PCR Van and got him admitted there.
In his cross examination, he deposed that he took injured Vinod to the hospital and two ladies who were relatives of said injured, also accompanied them. He could not tell their names and relationship. He also deposed that no police official of PS Alipur met him in the hospital.
25. PW20 Inspector Satyavir Janaula: He deposed that on 14.11.2011, he was posted as Inspector (Investigation) at PS Alipur. On that day, he alongwith HC Pushpender and Ct. Rakesh came to Rohini Court, where SI Mukesh Rana and SI Devender met him. Accused Bablu, State V/s Bablu @ Birju etc. ("convicted") Page 19 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 Boby and Mahesh @ Khanna had surrendered in the Court. He had moved an application Ex.PW20/A for interrogation of said accused persons. After interrogation, said accused persons were arrested vide memos Ex.PW16/G, Ex.PW16/E and Ex.PW16/F respectively. Said accused persons also made disclosure statements Ex.PW16/M, Ex.PW16/K and Ex.PW16/L respectively. He moved an application Ex.PW20/B for obtaining two day's police custody remand of said accused persons. Thereafter, further investigation was handed over to the then SHO Inspector Sunil Kumar.
In his cross examination, he deposed that all the accused persons had refused to sign disclosure statements.
26. PW21 HC Rameshwar: He deposed that on 03.11.2011, he was working as Incharge on PCR Van Libra 60. At about 10 am, he received an information regarding quarrel and injury caused with knife at Tarzan Camp, Tikri Khurd, Delhi. On receipt of said information, he alongwith staff went to the place of information, where Libra 86 PCR Van was already present whose Incharge was HC Satish. He took injured Vinod to SRHC Hospital in his PCR Van and got him admitted there.
In his cross examination, he deposed that when he took injured Vinod to the hospital, 12 male persons also accompanied them in the said PCR Van. He did not remember if Libra 86 Van removed any person to the hospital or not.
27. PW22 Inspector Sunil Kumar: He remained IO of the case from 12.11.2011 till the filing of charge sheet in the case. He has deposed State V/s Bablu @ Birju etc. ("convicted") Page 20 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 about the relevant investigation carried out by him during the said period. He deposed that after addition of Section 302 IPC due to death of injured Vinod, investigation was taken over by him. He got the postmortem examination on the dead body of deceased conducted in BJRM hospital through SI Devender Balhara on 13.11.2011. SI Devender Balhara had seized blood sample of deceased and sample seal of BJRM hospital, vide memo Ex.PW22/A. On 14.11.2011, Inspector Satyavir Janaula formally arrested accused Bablu @ Birju, Mahesh @ Khanna and Bobby in the Court of Ld. MM and had also sought two day's police custody remand of said accused. On 15.11.2011, he had interrogated said three accused who made their disclosure statements Ex.PW6/A to Ex.PW6/C and also pointed out the place of occurrence vide pointing out memo Ex.PW6/D. He also deposed that accused Bablu @ Birju got recovered iron rod from below sofa set available in the room situated on ground floor of his house No. B38, Tarjan Camp, Tikri Khurd, Delhi. After preparing sealed pullanda thereof, same was seized vide memo Ex.PW3/A. Accused Mahesh @ Khanna got recovered one danda from below sofa set lying in his House No. B38, Tarjan Camp, Tikri Khurd, Delhi. After preparing sealed pullanda thereof, same was seized vide memo Ex.PW3/B. Likewise, accused Bobby got recovered one danda from below sofa set lying in his House No. B38, Tarjan Camp, Tikri Khurd, Delhi. After preparing sealed pullanda thereof, same was seized vide memo Ex.PW3/C. He also deposed that on 31.01.2012, he had accompanied State V/s Bablu @ Birju etc. ("convicted") Page 21 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 draftsman SI Mahesh to the place of occurrence, where he took measurements and prepared rough notes, thereafter prepared scaled site plan Ex.PW10/A and handed over the same to him. On 16.01.2012, he got the sealed pullandas deposited in FSL, Rohini through Ct. Sanjeev. He identified the relevant exhibits during trial.
In his cross examination, he admitted that iron rod and dandas were easily available in the open market and there was no specific identification mark thereupon. Pooja, Munni Devi and Omwati who were relatives of deceased Vinod and injured Manoj were present at the time of recovery of said weapons. Said three public witnesses had joined the investigation on his request.
28. PW23 Ct. Sanjeev: He deposed that on 16.01.2012, he had collected seven sealed pullandas containing dandas, rod and blood sample of deceased from MHC(M) vide R.C. No. 42/112 and deposited the same at FSL, Rohini. After depositing the same, he had handed over the acknowledgment to the MHC(M).
In his cross examination, he admitted that during investigation, IO had not recorded his statement U/s 161 Cr.P.C. He had not put his signature anywhere in register no. 19 when he had collected the pullandas from MHC(M). He denied the suggestion that he never deposited the said pullandas in FSL.
29. PW24 HC Desh Pal: He was posted as MHC(M) at PS Alipur on 04.11.2011. He has proved factum regarding deposition of case property State V/s Bablu @ Birju etc. ("convicted") Page 22 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 of this case in Malkhana on various dates. He deposed that on 04.11.2011, SI Mukesh had deposited three pullandas sealed with the seal of MR, in Malkhana vide entry at serial no. 511 of register no.19. He proved copy thereof as Ex.PW24/A. He further deposed that on 13.11.2011, SI Devender had deposited one sealed pullanda with the seal of MS BJRM Hospital, Jahangirpuri and one sample seal of same specimen, in Malkhana vide entry at serial no. 537 of register no. 19. He proved copy thereof as Ex.PW24/B. He also deposed that on 15.11.2011, Inspector Sunil Kumar had deposited three pullandas sealed with the seal of SKS, in Malkhana vide entry at serial no. 537 of register no.19. He proved copy thereof as Ex.PW24/C. He further deposed that on 16.01.2012, aforesaid sealed pullandas alongwith sample seal were sent to FSL Rohini through Ct. Sanjeev vide RC No. 4/21/12. He made endorsement in this regard in register no. 19 against entry Ex.PW24/A. He proved copy of R.C. No. 4/21/12 as Ex.PW24/E. He further deposed that on 07.05.2012, aforesaid pullandas alongwith FSL result duly sealed with the seal of FSL, were collected from FSL, Rohini by Ct. Virender and same were deposited by him in Malkhana. He had made endorsement in this regard against entry Ex.PW24/A. He further deposed that so long as the exhibits remained in his possession, same were not tampered or allowed to be tampered in any manner. This witness State V/s Bablu @ Birju etc. ("convicted") Page 23 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 has not been cross examined by accused persons despite grant of opportunity.
MEDICAL WITNESSES:
30. PW9 Dr. Avdhesh: He deposed that on 03.11.2011 injured Vinod S/o Sh. Om Prakash and Manoj S/o Sh. Subhash Chand were brought in the Casualty of SRHC Hospital by the PCR officials for their medical examination. He had medically examined injured persons namely Vinod and Manoj, vide MLCs Ex.PW9/A and Ex.PW9/B. He further deposed that as per local examination, patient Vinod was having following injuries:
1. CLW 3 x .5 cm over forehead.
2. Swelling and tenderness over left forearm and left hand.
3. Abrasion over left hand.
4. Tenderness over right shoulder.
5. Swelling tenderness over right mid leg.
6. Abrasion over right hand.
Thereafter, injured Vinod was referred for further treatment and management to Ortho and Surgery Department. He also deposed that as per local examination, patient Manoj was having following injuries:
1. Swelling and tenderness over right upper forearm and left upper forearm.
2. Swelling and tenderness over bilateral hand.
3. CLW 2 x .5 cm over right first inter digital space.State V/s Bablu @ Birju etc. ("convicted") Page 24 of 50
FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016
4. Swelling tenderness over right leg and left leg.
5. CLW 3 x .5 cm over left leg anteriorly.
Thereafter, injured Manoj was referred for further treatment and management to Ortho and Surgery Department. He has not been cross examined by accused persons despite grant of opportunity.
31. PW11 Dr. Bhim Singh: This witness had conducted postmortem examination on the dead body of deceased Vinod on 13.11.2011. He deposed that on examination, he had found the following external injuries:
1. Stitched wound 2.5 cm present over left side of forehead.
2. Swelling with cellulitis and fracture dislocation of left forearm.
3. Swelling with cellulits on left ankle joint.
4. Fracture dislocation of right forearm.
5. Infected wound in the swelling having pus and separation of nail of right hand middle finger.
6. Infected wound with oozing of blood and pus from right leg with open communicated fracture of both bones of legs present.
He proved his report as Ex.PW11/A. He had opined that the death was due to shock as a result of septicemia, consequent upon multiple infected injuries and all the injuries were antemortem and could be caused by hard blunt object. He deposed that as per the hospital record, time since death was around 14 hours.
State V/s Bablu @ Birju etc. ("convicted") Page 25 of 50FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 FORMAL WITNESS:
32. PW15 Dr. Indresh Kumar Mishra: This witness deposed that on 16.01.2012, six sealed parcels were received in their office. The same were assigned to him for biological and serological analysis. He prepared biological and serological report. He proved biological report as Ex.PW15/A and serological report as Ex.PW15/B. He also deposed that on 09.03.2012, one parcel sealed with the seal of FMT BJRM Hospital, Delhi was received in their office and was assigned to him. He prepared biological and serological report. He proved biological report as Ex.PW15/C and serological report as Ex.PW15/D. In his cross examination, he admitted that his report Ex.PW15/A does not indicate that the blood which was found at serial no. 5 & 6, not tally or does not tally with the blood found on serial no. 1 as per report Ex.PW15/B.
33. PW18 Sh. Bhagwan: This witness was deputed by M.S. to appear and depose on behalf of Dr. Harnam. He identified the signatures of Dr. Harnam at pointA on Death Certificate Ex.PW18/A. He deposed that Dr. Harnam had also prepared case summary (death summary) as Ex.PW18/B. He has not been cross examined by accused persons despite grant of opportunity.
ARGUMENTS ADVANCED & CASE LAW CITED
34. While opening the arguments, Ld. Additional PP referred to the State V/s Bablu @ Birju etc. ("convicted") Page 26 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 testimonies of prosecution witnesses examined during trial and the documents brought on record. He heavily relied upon the testimonies of public witnesses i.e. PW1 Manoj, PW2 Pooja and PW3 Munni Devi as also to the medical evidence in the form of testimony of PW8 Dr. Avdesh and PW11 Dr. Bhim Singh and Autopsy Report Ex.PW11/A proved during trial. He contended that out of said three public witnesses, PW1 Manoj is the injured himself, whereas PW2 Smt. Pooja and PW3 Smt. Omwati are the eye witnesses of the incident in question and all three of them have fully supported the case of prosecution on all material points and have also identified all the six accused herein to be the offenders who had committed the offences against Manoj and Vinod (since deceased). He further argued that defence could not impeach the testimonies of said three public witnesses. He also argued that there is also recovery of weapons of offence i.e. iron rod (Ex.P1) and dandas (Ex.P5 to Ex.P6) at the instance of accused persons. He further argued that death of Vinod is opined to be homicidal in nature as per Autopsy Report (Ex.PW11/A). He further contended that all the accused persons actively participated in the commission of offence and in furtherance of their said intention, they all had severally beaten up Vinod with deadly weapons i.e. iron rod and dandas, due to which he ultimately succumbed to the injuries after 10 days of the incident. He also pointed out that all these accused persons had also beaten up Manoj (PW1) in brutal manner with iron rod and dandas blows on his vital parts and caused severe injuries on his vital parts. Thus, they should be convicted for the offences State V/s Bablu @ Birju etc. ("convicted") Page 27 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 punishable U/s 304/307/34 IPC. He further argued that all the six accused persons had formed unlawful assembly with intention to commit the offence(s) against Vinod and Manoj and they were also armed with deadly weapons i.e. iron rod and dandas and had used force and/or violence against said two persons and also committed the offence of rioting by using those deadly weapons. He therefore, urged that all the six accused persons should be convicted for the offences charged against them.
35. Per contra, Ld. Defence counsel vehemently argued that the prosecution has failed to establish the charges levelled against the accused persons beyond pales of reasonable doubt. He argued that prosecution had cited Smt. Omwati (PW4) as alleged eye witness of the occurrence but she was not even present at the scene of crime at the time of alleged incident as per deposition made by her during trial. He further argued that the prosecution failed to establish on record that the accused persons were having any intention or knowledge to commit culpable homicide not amounting to murder with regard to deceased Vinod or that they had any knowledge that by causing such bodily injuries to him, they were likely to cause his death. He also submitted that there are various material contradictions appearing in the testimonies of prosecution witnesses which are fatal to the case of prosecution and create reasonable doubt in the prosecution story benefit of which must be given to the accused persons. The contradictions as pointed out by Ld counsel may be summarized as under: State V/s Bablu @ Birju etc. ("convicted") Page 28 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016
(i) In his police statement (Ex.PW7/B), Vinod (since expired) nowhere disclosed as to on which part of his body, injuries were inflicted by accused Sonu @ Dropad;
(ii) In MLC ( Ex. PW9/A) of Vinod, the alleged history given before concerned doctor recites that it was a physical assault by Bablu S/o Sh. Vijay Pal R/o Tikri Khurd, Tarzan Camp, Delhi but the names of other accused persons are missing therein;
(iii) DD no. 15A (Ex.PW7/A) was recorded at 10.35 am on 03.11.2011 and as per MLC (Ex.PW9/A), injured Vinod was got admitted in SRHC Hospital on 03.11.11 at 11.15 am but still his statement (Ex.PW7/B) is shown to have been recorded at 11.35 pm on 03.11.2011. Thus, there is a considerable delay in recording the said statement and in sending rukka to PS for registration of FIR;
(iv) In police statement ( Ex. PW7/B), injured Vinod claimed that all the six accused had gone to the house of Manoj (PW1) for assaulting him but PW1 Manoj has disclosed the names of only four accused as assailants who had caused injuries to him;
(v) PW1 Manoj deposed that mother and sister ( i.e. PW4 Smt. Omwati) and PW2 Ms. Pooja of Vinod had come to his rescue but PW2 Ms. Pooja testified during trial that they stayed back with injured Vinod after the incident was committed with him;
State V/s Bablu @ Birju etc. ("convicted") Page 29 of 50FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016
(vi) PW1 Manoj admitted in his cross examination that he was one of the accused alongwith accused Bablu in other criminal cases registered against them. Same shows that PW1 Manoj is having criminal background and his testimony is not worth reliance;
(vii) PW1 Manoj has made material improvements during trial visavis his police statement (Ex PW2/A) made during investigation;
(viii) PW2 Ms. Pooja testified that all the six accused persons had come together and her brother Vinod had gone outside the house but Vinod stated in police statement ( Ex. PW7/B) that he was already present outside his house when accused came there;
(ix) That PW2 Ms. Pooja testified that her bhabi Bharti was also beaten up by the accused persons but police statement (Ex.PW7/B) of Vinod is silent regarding the presence of said Bharti at the time of incident in question;
(x) PW2 Ms. Pooja admitted during trial that her mother was not present at the time of incident but PW1 Manoj claimed that she was present;
(xi) PW2 Ms. Pooja deposed during cross examination that she was not having any moblie phone and she had no knowledge to operate the mobile phone but DD no. 15A (Ex.PW7/A) would show that PCR vall was made by PCR caller i.e. Ms. Pooja from mobile phone no. 9350046965;
(xii) The recovered weapons of offence from accused Mahesh, Babloo and State V/s Bablu @ Birju etc. ("convicted") Page 30 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 Bobby were not shown to PW2 Pooja during trial despite the fact that said weapons were claimed to have been recovered in her presence;
(xiii) PW3 Smt. Munni Devi admitted during her cross examination dt. 28.02.2014 that accused persons were not present at the time of recovery of weapons of offence and no document was prepared at the spot;
(xiv) The testimony of PW4 Smt. Omwati is based on hearsay as she herself deposed that she was not present at the time of incident;
(xv) PW6 SI Neeraj admitted in his cross examination that no effort was made by IO to join nearby residents at the time of recovery of weapons of offence at the instance of accused persons;
(xvi) Although, PW6 SI Neeraj deposed that Smt. Omwati (PW4) had joined the investigation with them on 15.11.2011 but the testimony of PW4 Smt. Omwati is silent on the said aspect;
(xvii) PW7 SI Mukesh and PW8 HC Jagat made contradictory statements as record the place of recovery of dandas at the instance of accused Sonu @ Dropad and Jeetu;
(xviii) PW7 SI Mukesh deposed that he had prepared rough site plan ( Ex. PW7/D) at the instance of Pooja (PW2) and Munni Devi (PW3) but none of the said two public witnesses say so in their testimonies; and (xix) It has been deposed by PW7 SI Mukesh that accused Sonu @ Chatto State V/s Bablu @ Birju etc. ("convicted") Page 31 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 got recovered danda from behind public toilet situated in park i.e. from public place which was easily accessible to the public at large. Hence, said alleged recovery is not admissible under the law.
36. Based upon the aforesaid submissions as noted above, Ld. defence counsel contended that accused persons are entitled to be acquitted in this case by giving them benefit of doubt.
37. Before dealing with the rival submissions made on behalf of both the sides, it would be appropriate to discuss the legal position as regards the offences charged against accused persons. As already mentioned above, the accused persons have been charged with offences punishable U/s 143/144/147/148 read with Section 149 IPC and also for the offences punishable U/s 304/307/34 IPC.
38. Firstly, I shall deal with the offences punishable U/s 143/144/147/148 read with Section 149 IPC charged against them. Since the relevant provisions talk about unlawful assembly, it would be appropriate to discuss the meaning of 'unlawful assembly' as provided in Section 141 IPC. The bare perusal of said provision would clearly show that assembly of 5 or more persons is designated as unlawful assembly if the common object of the members of that assembly is to do any one or more of the acts as mentioned in five clauses thereof. Clause 3 is relevant for the purpose of the present case which clearly provides that in case the common object of the members of the assembly so formed, is to commit mischief or criminal trespass or any other offence then it becomes unlawful State V/s Bablu @ Birju etc. ("convicted") Page 32 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 assembly. It is well settled law that in order to attract the vicarious responsibility of any member of unlawful assembly, the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or that the act which was done, is such as the members of said assembly knew to be likely to be committed in prosecution of their common object. The reason is quite obvious that said provision creates specific offence and makes every member of unlawful assembly liable for the offence or offences committed in the course of occurrence.
39. Now, the question arises as to how to determine as to whether the members of assembly entertained common object as provided in Section 141 IPC. For the purpose of deciding the said issue, it is relevant to consider whether the members of said assembly were actively participating in the commission of offence or were merely standing as passive witnesses or were merely standing as a mute spectators or had joined the group out of curiosity without any intention to entertain the common object of the assembly and so on and so forth.
40. Whereas being member of an unlawful assembly itself constitutes an offence which is punishable U/s 143 IPC, Section 144 IPC talks about punishment whenever any member of unlawful assembly is also armed with any deadly weapon or with such object which if used as a weapon of offence, is likely to cause death. Section 146 IPC provides that whenever any force or violence is used by unlawful assembly or by any State V/s Bablu @ Birju etc. ("convicted") Page 33 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 member thereof in prosecution of the common object of such assembly, every member of such assembly shall be deemed to be guilty of the offence of rioting which is punishable U/s 147 IPC and in case any of the members of the unlawful assembly is also armed with deadly weapon or something which when used as deadly weapon, is likely to cause death then he or she is also liable to be punished U/s 148 IPC. Section 149 IPC further provides that in case any offence is committed by any member of such unlawful assembly in prosecution of their common object then every person who was member of that assembly at the time of commission of such offence, shall be guilty of committing the said offence. In other words, Section 149 IPC is an enabling provision which talks about vicarious liability of all the persons who were part of the unlawful assembly at the time of commission of any offence in prosecution of their common object.
41. Now, adverting back to the facts of the present case. In order to establish the aforesaid charges against accused persons, the prosecution has examined PW1 Manoj, PW2 Pooja and PW3 Munni Devi during trial. Apart from that, prosecution is also relying upon police statement (Ex.PW7/B) of deceased Viond by treating it as his dying declaration. Ld. Defence counsel has argued that said statement cannot be termed as Dying Declaration as Vinod had expired after about 10 days from the date of making said statement before the police and no effort was made to get his statement recorded before Executive Magistrate. However, I do not find any substance in either of the said two submissions. There is no State V/s Bablu @ Birju etc. ("convicted") Page 34 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 requirement under the law to get the statement of a person who is about to die, recorded before Executive Magistrate in order to allow the prosecution to treat the same as his dying declaration. Similarly, there is no hard and fast rule laying down the time gap within which a person must have died after making his statement in order to treat such statement as his dying declaration. No doubt, injured Vinod is shown to have expired after about 10 days of giving statement (Ex. PW7/) before PW7 SI Mukesh Kumar but said time gap would not be sufficient, in itself, for not treating the said statement as his dying declaration under the law.
42. Be that as it may, PW2 Smt. Pooja has categorically testified during trial that about one hour prior to the incident in question which took place on 03.11.2011,while she was returning to home after attending call of the nature in government toilet at about 9.00 am, accused Bablu @ Birju had told her on the way to make her brother understand failing which he would teach him a lesson. When she told the said facts to her brother Vinod (since expired), her brother went to meet accused Bablu @ Birju and asked him as to why he uttered those words to his sister and returned back to the house. It was only thereafter at about 10.00 am, all the accused persons who were residents of the same locality, came armed with weapons i.e. iron rod in the hand of accused Bablu @ Birju and dandas in the hands of remaining accused persons and attacked upon Vinod who was brutally assaulted by them in the presence of PW2 Pooja and PW3 Munni Devi. The testimonies of PW2 and PW3 are also corroborated by the police statement State V/s Bablu @ Birju etc. ("convicted") Page 35 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 (Ex.PW7/B) of Vinod made by him during his life time. Both the said witnesses have successfully withstood the test of cross examination on the relevant aspects in this regard.
43. Further, PW2 and PW3 have also deposed that after assaulting Vinod with those weapons, they exhorted in their presence that "Chalo Manoj Ko Dekhte hai" whereafter they went to Manoj and gave beatings to him and fled away from the spot. PW1 Manoj has also explained in his testimony that on previous occasion, all the six accused persons had an altercation with Vinod on the issue that accused Bablu @ Birju and his associates had misbehaved with the sister of Vinod. At that time, he (PW1) had extended help to Vinod on the said issue.
44. After considering the aforesaid facts showing that accused Bablu @ Birju was already having grudge against Vinod and Manoj coupled with the fact that all the accused persons came together and were armed with weapons i.e. iron rod (Ex. P1) and dandas (Ex. P2 to Ex. P6) with which they, at the first instance, attacked upon Vinod and gave severe beatings to him on various parts including vital part i.e. head of his body and went ahead to cause beatings to Manoj as well, leaves no scope of doubt that all the six accused persons were members of an unlawful assembly having common object, to cause death of Vinod and Manoj and in pursuance of their said common object, all of them also used weapons of offence and gave severe beatings to Vinod and Manoj and used force against both the said injured persons. Hence, Court is of the view that the State V/s Bablu @ Birju etc. ("convicted") Page 36 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 prosecution has been successful in establishing beyond reasonable doubt the charge for the offences punishable U/s 143/147 read with Section 149 IPC against all the six accused persons namely Bablu @ Birju, Mahesh @ Khanna, Bobby, Sonnu @ Chatto and Jeetu @ Tejpal. So far as the offences punishable U/s 144/148 read with Section 149 IPC are concerned, the prosecution has been able to prove the said offences against accused Bablu @ Birju as he was armed with iron rod which can be termed as deadly weapon and said accused is found to have used said iron rod while committing the offences against Manoj and Vinod. However, the remaining five accused persons were armed with dandas which cannot be termed as deadly weapons. Although, Ld. Additional PP argued that those dandas when used as weapons of offence, were likely to cause death of Vinod & Manoj but said submission does not carry any force for the simple reason that there is no cogent or reliable evidence available on record showing the size, width and thickness of dandas with which remaining five accused persons were armed and which were used as weapons of offence in this case. The testimonies of all the three relevant public witnesses i.e. PW1 Manoj, PW2 Pooja and PW3 Munni Devi are totally silent on the relevant aspects as mentioned above. That being so, Court is of the view that offences punishable U/s 144/148 read with Section 149 IPC have been proved against accused Bablu @ Birju but charge in respect of said offences could not be proved as against remaining five accused persons namely Mahesh @ Khanna , Bobby, Sonu @ Chatto ,Jeetu @ Tejpal and Sonu @ State V/s Bablu @ Birju etc. ("convicted") Page 37 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 Dropad.
45. This brings me down to the offences punishable U/s 304/307/34 IPC.
46. The accused persons have been charged with the offence punishable U/s 304 IPC. Section 304 reads as under: Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
47. In Sukhdev Singh Vs. Delhi State [2003 7 SCC 441] which has been followed by our own High Court in the matter titled as Suresh Kumar Vs. State of Delhi, 2015 IV AD (DELHI) 509, the Hon'ble Apex Court has held that : xxxxxxx "15. On the contrary, this appears to be a case as noted above, covered by, Exception 4 to Section 300. Four requirements are to be satisfied to bring in application of Exception 4. They are as follows:
(1) it was a sudden fight;
(2) there was no premeditation;
(3) the act was in a heat of passion; and (4) the assailant had not taken any undue advantage or acted in a cruel manner.
16. The cause of quarrel is not relevant nor is it relevant who offered the provocation or started the fight.
17. The factual scenario as presented by the prosecution and the conclusions of State V/s Bablu @ Birju etc. ("convicted") Page 38 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 the High Court, noted supra, go to show that in course of sudden quarrel, the offender fired the shots.
18. Therefore, though the High Court was justified in holding that Section 302 was not applicable, it was not correct in holding that Exception 1 applied. In fact, Exception 4 to Section 300 applied. We, therefore, alter the conviction to Section 304 Part II instead of Section 304 Part I, as was held by the High Court. Custodial sentence of 8 years would suffice. So far as Section 308 IPC is concerned, we do not find any infirmity in the conclusions of the High Court to warrant interference."
48. It would also be useful to refer Ramphal Singh Vs. State of UP reported at 2012 VII AD (S.C.) 234, wherein it has been held that:
'xxxxxxxx
30. Another very important aspect is that it is not a case of previous animosity. There is nothing on record to show that the relation between the families of the deceased and the Appellant was not cordial. On the contrary, there is evidence that the relations between them were cordial, as deposed by PW1. The dispute between the parties arose with a specific reference to the ladauri. It is clear that the Appellant had not committed the crime with any premediation. There was no intention on his part to kill. The entire incident happened within a very short span of time. The deceased and the Appellant had an altercation and the appellant was thrown on the ground by the deceased, his own relation. It was in that state of anger that the Appellant went to his house, took out the rifle and from a distance, i.e. from the roof of Muneshwar, he shot at the deceased. But before shooting, he expressed his intention to shoot by warning his brother to keep away. He actually fired in response to the challenge that was thrown at him by the deceased. It is true that there was knowledge on the part of the Appellant that if he used the rifle and shot at the deceased, the possibility of the deceased being killed could not be ruled out. He was a person from the armed forces and was fully aware of consequences of use of fire arms.
But this is not necessarily conclusive of the fact that there was intention on the part of the Appellant to kill his brother, the deceased. The intention probably was to merely cause bodily injury. However, the Court cannot overlook the fact that the Appellant had the knowledge that such injury could result in death of the deceased. He only fired one shot at the deceased and ran away. That shot was aimed at the lower part of the body, i.e. State V/s Bablu @ Birju etc. ("convicted") Page 39 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 the stomach of the deceased. As per the statement of PW2, Dr. A.K. Rastogi, there was a stitched wound obliquely placed on the right iliac tossa which shows the part of the body the Appellant aimd at.
31. This evidence, examined in its entirety, shows that without any premeditation, the Appellant committed the offence. The same, however, was done with the intent to cause a bodily injury which could result in death of the deceased.
32. In the case of Vineet Kumar Chauhan V. State of Uttar Pradesh (supra), the Court noticed that "17.......... concededly there was no enmity between the parties and there was no allegation of the prosecution that before the occurrence, the Appellant had premeditated the crime of murder. Faced with the hostile attitude from the family of the deceased over the cable connection, a sudden quarrel took place between the Appellant and the son of the deceased. On account of heat of passion, the Appellant went home, took out his father's revolver and started firing indiscriminately and unfortunately one of the bullets hit the deceased on the chin."
33. Appreciating these circumstances, the Court concluded:
"17........... Thus, in our opinion, the offence committed by the Appellant was only culpable homicide not amounting to murder. Under these circumstances, we are inclined to bring down the offence from first degree murder to culpable homicide not amounting to murder, punishable under the second part of Section 304 Indian Penal Code. xxxxxxxx"
49. It would also be useful to refer to the case of Augustine Saladanha Vs. State of Karnataka 2003 VII AD (S.C.) 139, wherein it has been held:
"In the scheme of the IPC, culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not viceversa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section.State V/s Bablu @ Birju etc. ("convicted") Page 40 of 50
FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016
304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."
50. In the matter titled as Basdev Vs. State of PEPSU, AIR 1956 SC 488, it has been held that: "Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act."
51. In the case of Alistair Anthony Parriera Vs State of Maharashtra AIR 2012 SC 3802, Hon'ble Supreme Court has held as under: "xxxxxxxxx The above section is in two parts. Although Section does not specify Part I and Part II, but for the sake of convenience, the investigators, the prosecutors, the lawyers, the judges and the authors refer to the first paragraph of the Section as Part I while the second paragraph is referred to as Part II. The constituent elements of Part I and Part II are different and, consequently, the difference in punishment. For punishment under Section 304 Part I, the prosecution must prove : the death of the person in question ; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death. In order to find out that an offence is 'culpable homicide not amounting to murder' since Section 304 does not define this expressionSection 299 and 300 IPC have to be seen. Section 299 IPC as under :
299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
To constitute the offence of culpable homicide as defined in State V/s Bablu @ Birju etc. ("convicted") Page 41 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 Section 299 the death must be caused by doing an act : (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the doer is likely by such act to cause death .
xxxxxxx"
52. Hence, from the aforesaid judgment, it become amply clear that, to prove the offence u/s. 304 IPC, the prosecution must prove that death of deceased was culpable homicide and it was not natural death or death by accident."
53. In order to prove the offence U/s 307 IPC, it was essential for the prosecution to prove the following ingredients:
i). That the accused attempted to cause death of any person;
ii). That the death was attempted to be caused by, or in consequence of, the act of the accused;
iii). That such act was done by the accused with intention of causing death; or that it was done with intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
54. In other words, it is sufficient if the prosecution is able to establish that the act done by accused was capable of causing death and there was an intention to cause death or knowledge that such act was likely State V/s Bablu @ Birju etc. ("convicted") Page 42 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 to cause death.
55. Now coming back to the facts of the present case. Out of two injured persons namely Manoj and Vinod who were assaulted by accused persons, injured Vinod subsequently succumbed to the injuries after about 10 days of the incident. Ld. Defence counsel vehemently argued that the manner and the circumstances in which injuries were caused and the weapons of offence allegedly used by accused would not be sufficient to bring the case within the purview of Section 304 IPC. He also argued that the cause of death of Vinod is due to septicemia consequent upon multiple inflicted injuries as mentioned in Autopsy Report Ex.PW11/A. He also relied upon the testimony of DW1 Dr. Ashutosh Gupta, Specialist (Ortho) of SRHC hospital, in order to bring home his point that the cause of death mentioned in column no. 13 of Death Certificate (Ex.PW18/A) of deceased Vinod, is "unknown Pulmonary Embolism with polytrauma with jaundice". Thus, it cannot be said that the alleged acts of accused in causing injuries to Vinod were direct and proximate cause of his death. He also relied upon the relevant portion of Medical Jurisprudence by Modi, in support of his contention that the injuries sustained by Vinod were not sufficient or likely to cause his death had he not been suffering with septicemia and unknown Pulmonary Embolism with polytrauma with jaundice. In order to buttress the said contentions, he also relied upon the judgments reported at AIR 1999 SC 1461 and AIR 2011 SC 1655.
56. Ld. Defence counsel further argued that the injuries allegedly State V/s Bablu @ Birju etc. ("convicted") Page 43 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 caused to injured Manoj (PW1) were neither caused with any intent or knowledge or under the circumstances that they were going to cause his death in any manner. For the said purpose, he reiterated the fact that weapons of offence allegedly used by accused, as per the case of prosecution, are iron rod and wooden dandas. He also assailed the case of prosecution on the ground that recovery of dandas at the instance of accused Mahesh @ Khanna and Sonu @ Dropad is totally doubtful. He also argued that neither Vinod is shown to have sustained any injury on vital parts of his body as per his MLC Ex.PW9/A nor injured Vinod is shown to have sustained any such injury on his vital part as per his MLC Ex.PW9/B. Ld. Defence counsel also relied upon the testimony of PW11 Dr. Bhim Singh, wherein he has deposed that deceased Vinod was found having stitched wound of 2.5 cm on his forehead. Based on the said deposition of PW11, Ld. defence counsel argued that the very fact that Vinod had sustained one single wound on his forehead shows that he was recovering and there was no likelihood of his death. He, therefore, urged that even if the entire case of prosecution is presumed to be correct in the light of testimonies of prosecution witnesses brought on record, at the most it is a case of offence of causing simple hurt punishable U/s 323/34 IPC.
57. On the other hand, Ld. Additional PP vehemently argued that the accused persons were sharing common intention to commit murder of Vinod and Manoj and said intention is apparent from the fact that they had come prepared being armed with deadly weapons i.e. iron rod and dandas State V/s Bablu @ Birju etc. ("convicted") Page 44 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 and all of them attacked upon Vinod and gave several blows of iron rod and dandas to him, whereafter, they also assaulted Manoj (PW1). He also referred to the relevant portions of the testimonies of PW2 Pooja and PW3 Munni Devi, whereby both of them have testified that after assaulting Vinod, the accused had exhorted "Chalo Manoj Ko Dekhte hai". In support of his contentions, Ld. Additional PP also relied upon the injuries mentioned in Autopsy Report (Ex.PW11/A) and the injuries mentioned in MLCs (Ex.PW9/A & Ex.PW9/B) of Vinod and Manoj respectively.
58. Firstly, I shall deal with the contradictions as pointed out by Ld. Defence counsel on the basis of which he claimed that reasonable doubt is created in the case of prosecution. There is no substance in the contention raised on behalf of accused that merely because Vinod did not disclose the specific role played by accused Sonu @ Dropad in causing injuries to him, any doubt is created in the case of prosecution or that the presence of said accused at the scene of crime becomes doubtful. The reason is quite obvious that not only Vinod has disclosed the involvement of said accused in his police statement (Ex.PW7/B) but all the three public witnesses i.e. PW1 Manoj, PW2 Pooja and PW3 Munni Devi have also corroborated each other on the said aspect by deposing that all the six accused persons including accused Sonu @ Dropad were involved in the commission of offence. Non mentioning of the names of all the accused persons in MLCs (Ex.PW9/A & Ex.PW9/B) is hardly relevant. This is more so when it is not mentioned as to who had given alleged history of physical assault caused to State V/s Bablu @ Birju etc. ("convicted") Page 45 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 the injured persons before attending doctor of the hospital. The delay in registration of FIR has been duly explained as Vinod is shown to have been declared fit for statement in the evening hours. Thus, the police official could have recorded his statement only after he was so declared fit for statement. PW7 SI Mukesh Kumar who had recorded statement Ex.PW7/B of Vinod, has deposed during chief examination that he could record statement of Vinod only after he was declared fit for statement by the concerned doctor on his MLC. The accused persons did not ask the specific time when Vinod was declared fit for statement in MLC either from concerned doctor or from PW7 for the reasons best known to them. PW1 Manoj has categorically testified during chief examination itself that initially four accused had come but soon they were joined by remaining two accused persons and all six accused persons had assaulted him with iron rod and dandas. The entire case of prosecution does not become doubtful merely because PW1 Manoj deposed that mother and sister of Vinod had come to his rescue, whereas it was his own mother namely Smt. Munni Devi (PW3) who had come to his rescue. The testimony of PW1 Manoj does not get discredited merely because he was facing trial in some other criminal case alongwith accused Bablu @ Birju. The improvements as pointed out by Ld defence counsel appearing in the testimonies of PW1 Manoj and PW3 Munni Devi are not of the extent or nature that they may be termed as emblishments and material improvements so as to disbelieve the testimonies of said two witnesses. The very fact that PW2 Pooja and PW4 State V/s Bablu @ Birju etc. ("convicted") Page 46 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 Omwati have deposed during trial that PW4 was not present at the scene of crime at the time of incident in question, goes to show that testimonies of said witnesses are natural having ring of truth. No doubt, the recovered weapons of offence from accused Mahesh @ Khanna, Bablu and Bobby were not put to PW2 Pooja during trial but same does not create any serious dent on the prosecution case. This is more so when the prosecution has been able to establish beyond shadow of doubt that those weapons of offence (Ex.P1 to Ex.P6) were recovered at the instance of relevant accused persons during investigation. Except the recovery of danda at the instance of accused Sonu @ Chatto from park, the remaining weapons of offence are found to have been recovered by respective accused from their respective houses in pursuance of their respective disclosure statements made before relevant police witnesses. There is no merit in the contention raised on behalf of accused that since no independent public witness has been joined at the time of recovery of said objects, their recovery becomes doubtful or should not be believed by the Court. As has been duly explained by recovery witnesses, the weapons of offences were recovered during late night hours when the nearby residents would have been sleeping in their respective houses. Moreover, some of the weapons of offence i.e. iron rod (Ex.P1) & dandas (Ex.P2 and Ex.P3) were recovered in the presence of PW2 Pooja and PW3 Munni Devi. Thus, there is no doubt with regard to recovery of those weapons of offence at the instance of said accused persons.
State V/s Bablu @ Birju etc. ("convicted") Page 47 of 50FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016
59. Apart from the ocular evidence as discussed above, the prosecution has also relied upon medical evidence in the form of testimony of PW9 Dr. Avdesh, CMO of SRHC Hospital who had examined both the injured namely Vinod and Manoj vide MLCs Ex.PW9/A & Ex.PW9/B respectively. It is not the case where only single injury had been caused to said two injured as is being tried to be projected by Ld. defence counsel. Rather, MLC Ex.PW9/A of injured Vinod would show that he had sustained multiple injuries on various parts of his body including on his forehead. The perusal of Autopsy Report (Ex.PW11/A) would show that deceased Vinod had sustained fracture on both bones of legs, fracture dislocation of left forearm and fracture dislocation of right forearm. Not only this, during internal examination of dead body, it was found that his brain showed edema and puss at places. Both the lungs were congested on edema, puss and cut section showed oozing of frothy fluid with puss and lung tissues. It was only on account of the injuries caused to Vinod on various parts of his body which resulted into infection in the wounds appearing on various parts and led to occurrence of septicemia and unknown Pulmonary Embolism with polytrauma with jaundice. Even if we consider the testimony of DW1 Dr. Ashutosh Gupta, he has explained that all the relevant injuries sustained by Vinod as mentioned in his medical record, may result into formation of septicemia and unknown Pulmonary Embolism with polytrauma with jaundice resulting into death. In his cross examination, DW1 has admitted that cause of death as mentioned in Autopsy Report (Ex.PW11/A) of State V/s Bablu @ Birju etc. ("convicted") Page 48 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 deceased Vinod, is in conformity with his death summary as well as death report prepared by the concerned doctor.
60. The evidence available on record speaks sufficiently about the circumstances and the manner in which offence is shown to have been committed by the accused persons. It is duly established from the testimonies of relevant eye witnesses that all the accused persons had participated during commission of offence. Thus, there is no iota of doubt that all six of them were sharing common intention to commit the offence within the meaning of Section 34 IPC.
61. In view of the ocular evidence coupled with the medical evidence brought on record and as discussed above, Court is of the view that prosecution has been able to bring home the guilt of all the six accused persons in respect of offence punishable U/s 304II IPC as causing the nature and type of injuries to Vinod with the weapons i.e. iron rod and dandas used commutatively by all six of them, were sufficient to impute knowledge to all of them that their said acts of causing brutal injuries to Vinod were likely to cause his death.
62. For the reasons already mentioned above, the prosecution has also been able to bring home the guilt of all the six accused persons for the offence punishable U/s 325/34 IPC with regard to injuries caused by them to PW1 Manoj. The evidence, ocular as well as medical, available on record is not sufficient to bring the facts of the case within the purview of offence punishable U/s 307/34 IPC for the simple reason that none of the State V/s Bablu @ Birju etc. ("convicted") Page 49 of 50 FIR No. 373/11; U/s 302/307/308/34 IPC; P.S. Alipur DOD: 09.08.2016 injuries sustained by injured Manoj is shown to be on any of his vital parts. As per testimony of PW9 Dr. Avdesh coupled with MLC Ex. PW9/B, injured Manoj had sustained swelling, tenderness over right upper forearm and left upper forearm, swelling and tenderness on bilateral hand and clean lacerated wound of 2 cm x .5 cm over right first inter digital space, swelling tenderness over right leg and left leg and CLW 3 x .5 cm over left leg anteriorly. The nature of injuries has been opined to be grievous on his MLC. Neither said injuries nor the nature of injuries opined as grievous have been disputed from the side of accused persons either during cross examination of PW9 or otherwise. That being so, facts of the case clearly establish the charge for the offence of causing grievous injuries to Manoj, which is punishable U/s 325/34 IPC. It is held accordingly.
63. In the light of aforesaid discussion, Court is of the view that prosecution has been able to establish the guilt of all the six accused persons namely Bablu @ Birju, Mahesh @ Khanna, Bobby, Sonnu @ Chatto, Jeetu @ Tejpal and Sonu @ Dropad for the offences punishable U/s 143/147 read with Section 149 IPC & Section 325/304II/34 IPC beyond reasonable doubt. The prosecution has also been able to establish its case for the offences punishable U/s 144/148 read with Section 149 IPC against accused Bablu @ Birju beyond reasonable doubt. Accordingly, said accused persons stand convicted for the said offences.
Announced in open Court today (Vidya Prakash)
On 09.08.2016 Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Bablu @ Birju etc. ("convicted") Page 50 of 50