Delhi District Court
State vs Ashish Kumar Bahuguna @ Ashu on 2 March, 2024
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 27436/2016)
FIR No. 106/2012
Police Station Kamla Market
Charge-sheet filed under Sections 302/307/186/353/333/109/
34 IPC & 25/27 Arms Act.
Charges framed against accused 302/34 IPC, 307/34 IPC,
persons namely Ashish Kumar 186/34 IPC, 353/34 IPC,
Bahuguna @ Ashu, Manoj Kumar 333/34 IPC & 307/34 IPC.
and Aakash.
Charges framed against accused 302/34 IPC, 307/34 IPC,
Suraj Kumar. 186/34 IPC, 353/34 IPC,
333/34 IPC & 307/34 IPC.
& 25 Arms Act.
State Versus 1. Ashish Kumar Bahuguna @ Ashu
S/o Sh. Gajender Prasad,
R/o H. No. 852, Sec.-3, Pushp Vihar
Delhi.
Permanent Address:-
Village Jaspur, PS Karan Prayag,
District Chamoli, Uttrakhand.
2. Suraj Kumar,
S/o Sh. Vijay Kumar,
R/o C-1, 917, Madangir, Delhi-62.
Permanent Address:-
Gali No. 23, Tel Mandi,
Kankar Khera, Meerut, UP.
FIR No. 106/2012, PS: Kamla Market, Page No. 1 of 84
State Vs. Ashish Kumar Bahuguna & Ors.
3. Manoj Kumar,
S/o Sh. Bhagwan Singh,
R/o H. No. 97, Gali No. 5,
Karawal Nagar, Delhi.
Permanent address:-
Village Atrauli, PS: Kotwali,
District Aligarh, UP.
4. Aakash,
S/o Sh. Om Prakash,
R/o CPO-19, Madangir, Delhi.
...Accused Persons.
Date of Institution of case 17.12.2012
Date of Arguments 27.02.2024
Judgment reserved on 27.02.2024
Judgment pronounced on 02.03.2024
Decision Convicted
JUDGMENT
1. Accused persons namely Ashish Kumar Bahuguna @ Ashu, Suraj Kumar, Manoj Kumar and Aakash are facing trial for the offences punishable under Sec. 302/34 IPC, 307/34 IPC, 307/34 IPC, 186/34 IPC, 353/34 IPC, 333/34 IPC. Additionally accused Suraj Kumar is also facing trial for the offence punishable under Sec. 25 Arms Act. The story of the prosecution is that on the intervening night of 10.09.2012 and 11.09.2012 at about 12/12:15 am in front of Kotha No. 57, GB Road within the jurisdiction of PS Kamla Market, all the four aforesaid accused persons in furtherance of their common intention attempted to FIR No. 106/2012, PS: Kamla Market, Page No. 2 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
commit the murder of Irshad, S/o Sh. Isthikar Ahmed by giving him knife blows. Further, on 11.09.2012 at about 12:30 AM in the area of opposite to ICICI Bank, near shop no. 5268/70, S. N. Marg within the jurisdiction of PS Kamla Market, all the aforesaid four accused persons in furtherance of their common intention committed murder of Ct. Bijender, No. 2318/C, posted at PS Kamla Market by giving knife blow to him. Further on the aforesaid date, time and place, all the four accused persons in furtherance of their common intention attempted to commit the murder of Ct. Sandeep by giving him knife blow. Further on the aforesaid date, time and place all the four accused persons in furtherance of their common intention voluntarily obstructed the public servants namely HC Baljeet, Ct. Sandeep and Ct. Bijender in the discharge of their public functions. Further, on the aforesaid date, time and place all the four accused persons in furtherance of their common intention assaulted and used criminal force against the public servants namely HC Baljeet, Ct. Sandeep and Ct. Bijender who were performing their public duty and intentionally deterred them from exercising their duty and further on the aforesaid date, time and place all the four accused persons in furtherance of their common intention voluntarily caused grievous hurt to Ct. Sandeep by giving him knife blows and by beating him and further on the aforesaid date, time and place accused Suraj was found in possession of a buttondar knife without any permit or license.
2. The brief facts which are born out from the record of the FIR No. 106/2012, PS: Kamla Market, Page No. 3 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
case are that in the intervening night on 10-11.09.2012 at about 12:40 am on receiving DD No. 6A, ASI Puran Chand along with Ct. Subhash reached at the spot i.e. Shop No. 5268-70, opposite of ICICI Bank, GB Road, Delhi where blood was lying on road and HC Baljeet Singh, Ct. Ravi Man and Ct. Karnail Singh met them who produced four accused persons namely Ashish Bahuguna @ Ashu, Manoj, Suraj and Aakash. HC Baljeet Singh also produced one buttondar knife recovered from possession of accused Suraj. ASI Puran Chand recorded the statement of HC Baljeet Singh and at that time all the four accused persons were also in custody of police at the spot of incident. HC Baljeet Singh produced the buttondar knife recovered from possession of accused Suraj to ASI Puran Chand. Thereafter ASI Puran Chand prepared sketch of knife and seized the same. Thereafter, ASI Puran Chand received DD No. 7, regarding the intimation of the death of Ct. Bijender at LNJP Hospital. After leaving Ct. Subhash to guard the spot, ASI Puran Chand went to hospital and collected three MLCs i.e. of Ct. Sandeep Kumar, Ct. Bijender and of Irshad. Thereafter, ASI Puran Chand returned back to the spot of incident and prepared a rukka and handed over the same to Ct. Subhash for registration of FIR. After registration of FIR, investigation of the present case was entrusted to Inspector Joginder Prasad.
3. Thereafter, IO/Inspector Joginder Prasad along with Ct. Subhash reached at the spot where he met with the Crime Team officials and other police staff. All the four accused persons were FIR No. 106/2012, PS: Kamla Market, Page No. 4 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
also present at the spot in the custody of the police officials. Crime team inspected the spot of incident and thereafter In- Charge Crime Team prepared a detailed report and handed over the same to IO Insp. Joginder Prasad. IO Insp. Joginder Prasad lifted the exhibits i.e. blood samples, blood stained earth control, and one blood handkerchief from the spot of incident and seized the same. One of the accused namely Aakash claimed himself to be juvenile and hence JWO SI Ajay Singh was called at the spot who conducted the proceeding regarding CCL Aakash. IO Insp. Joginder Prasad recorded disclosure statements of accused persons namely Ashish Kumar Bahuguna @ Ashu, Suraj Kumar and Manoj Kumar and arrested them. IO Insp. Joginder Prasad also inspected the TSR and collected the exhibits from there. IO Insp. Joginder Prasad also seized the blood stained clothes of accused persons. Thereafter IO sent the exhibits to FSL, Rohini. Accused Aakash was declared major by the Ld. JJB and hence he was transferred to Tihar Jail. Thereafter IO formally arrested accused Aakash with the permission of the Court. Complaint under Section 195 Cr.P.C was filed by concerned the ACP. On completion of investigation, charge-sheet was filed in the Court by the IO through SHO. Thereafter IO also filed the FSL report before the Court.
4. Vide order dated 0 6 . 1 2 . 2 0 1 2 , copy of the charge- sheet under Section 207 Cr.P.C was supplied to a l l the accused p e r s o n s and v i d e o r d e r d a t e d 1 3 . 1 2 . 2 0 1 2 the case was committed to the Court of Sessions u/s 209 Cr.P.C.
FIR No. 106/2012, PS: Kamla Market, Page No. 5 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
5. Vide order dated 20.07.2013, the Ld. Predecessor Court was pleased to frame charges under Sec 302/34, 307/34, 186/34, 353/34, 333/34 and 307/34 against all the accused persons. Additional Charge under Sec. 25 Arms Act was also framed against accused Suraj Kumar. Accused persons pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined 32 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
7. PW-1 ASI Ranbir Singh is the duty officer who proved DD no. 6 A, 7A and 8A Ex. PW1/A, Ex. PW1/B and Ex. PW1/E respectively. He also proved the copy of present FIR Ex. PW1/C alongwith endorsement of rukka Ex. PW1/D. He also proved certificate under Section 65-B Evidence Act Ex. PW1/F w.r.t the above-said FIR. In his cross-examination PW-1 ASI Ranbir Singh denied the suggestion that he had with-held the rojnamcha to manipulate the DD entries as per the convenience of the IO.
8. PW-2 Ct. Raj Kumar deposed that on 11.09.2012, he delivered the copy of FIR to Ld. MM, Joint Commissioner, Northern Range and Addl. Commissioner, Central District.
9. PW-3 Ct. Ravinder is the member of Crime Team and he deposed that on the intervening night of 10.09.2012 and 11.09.2012, he alongwith Crime Team In-Charge SI Dhan Singh went to the spot of incident and clicked the photographs of the spot of incident. He proved the 15 photographs Ex. PW3/1 to Ex.
FIR No. 106/2012, PS: Kamla Market, Page No. 6 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
PW3/15. He also proved the negatives of the said photographs Ex. PW3/16. In his cross-examination, PW-3 Ct. Ravinder deposed that when they reached at the spot, local police had already cordoned off the area.
10. PW-4 Ct. Sandeep Kumar is the injured as well the eye witness of the alleged incident. He deposed that on the intervening night of 10.09.2012 and 11.09.2012, he was on patrolling duty with HC Baljeet Singh and Ct. Bijender from 11:00 PM to 06:00 AM. He deposed that at about 12:30 AM, when they reached near HDFC Bank one person aged about 25 years who was drenched in blood came from Lahori Gate side and four persons were running ahead of him. He further deposed that the said persons disclosed his name as Irshad and told that the above-said four boys had assaulted him with knife near kotha no. 57. He further deposed that thereafter he alongwith HC Baljeet Singh and Ct. Bijender chased the above-said four boys and Ct. Bijender apprehended one boy namely Aakash and his two associates namely Manoj and Ashish Kumar Bahuguna @ Ashu tried to save accused Akash from Ct. Bijender and he had apprehended accused Suraj. He further deposed that accused Aakash exhorted Suraj by saying to stab them otherwise they would be apprehended and on this accused Suraj assaulted him with a knife on left side of his face due to which he lost control over accused Suraj and accused Suraj got rid from his clutches. He further deposed that thereafter accused Suraj rushed towards Ct. Bijender and gave him blow of knife on the left side of his FIR No. 106/2012, PS: Kamla Market, Page No. 7 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
chest. He further deposed that in the meantime, Ct Ravi Maan and Ct. Karnail Singh reached there and apprehended accused Manoj Kumar and Ashish Kumar Bahuguna @ Ashu. He further deposed that HC Baljeet Singh overpowered accused Suraj who was carrying knife. He also deposed that thereafter HC Baljeet Singh sent him and Ct. Bijender to hospital in TSR through one Shekhar. He also deposed that Ct. Bijender was declared brought dead. He correctly identified the accused persons in the Court. He also identified his uniform Ex. P-2 and uniform of HC Baljeet Singh Ex. P-2. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, PW-4 Ct. Sandeep Kumar deposed that when Irshad met them, the assailants were at the distance of about 20 metre and they were running from the corridor but came on road and they had already crossed them and they were running towards Ajmeri Gate. He also deposed that though it was dark but it was not so dark that they are unable to see the face of each other. He admitted that when he sustained injury, blood had fallen on the road from his wound. He denied the suggestion that after receiving injury, he became senseless and could not see as to who assaulted Ct. Bijender. He denied the suggestion that accused Ashish Kumar Bahuguna @ Ashu was not present at the spot.
11. PW-5 Insp. Mahesh Kumar is the drafts man. He proved the scaled site plan Ex. PW5/A.
12. PW-6 SI Dhan Singh is the In-Charge of Crime Team. He deposed about the proceedings conducted by him alongwith his FIR No. 106/2012, PS: Kamla Market, Page No. 8 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
staff HC Hari Kishan, finger print proficient and Ct. Ravinder Kumar, photographer. He proved his report Ex. PW6/A. He also identified the spot in the photographs Ex. PW3/1 to Ex. PW3/15. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he deposed that when he reached at the spot, police had already apprehended 2-3 accused persons and they were present at the spot. He also deposed that as per the seizure memo, blood sample on the gauge piece was taken only from one place. He admitted that in the log book, he had made consolidated entry of entire visit of crime team to different places of occurrence. He also proved the PCR call Ex. PW-6/DB. He also proved the video CD Ex. PW-6/DC in the Court. He deposed that he had no idea whether 'SN' mark was under the surveillance of CCTV or not. He denied the suggestion that videography played in the Court was manipulated document. He denied the suggestion that the accused persons were not present at the spot.
13. PW-7 Sh. Ashwani is the brother of deceased Ct. Bijender. He proved the dead body identification memo of deceased Ct. Bijender Ex. PW-7/A. This witness was not cross-examined by accused persons despite opportunity given to them.
14. PW-8 Sh. Dharamveer is the father of deceased Ct. Bijender. He proved the dead body identification memo of deceased Ct. Bijender Ex. PW-8/B and receipt of dead body vide memo Ex. PW-8/A . This witness was not cross-examined by accused persons despite opportunity given to them.
FIR No. 106/2012, PS: Kamla Market, Page No. 9 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
15. PW-9 Sh. Chander Shekhar @ Shekhar is the person who took Ct. Sandeep Kumar and Ct. Bijender to the hospital. He deposed that on the intervening night of 10.09.2012 and 11.09.2012, he was working as a servant kotha no. 5274 and after hearing hue and cry, he came down and saw Ct. Bijender and Ct. Sandeep Kumar in a pool of blood and at that time, Ct. Bijender was lying on the road. He also deposed that HC Baljeet Singh was there and he had apprehended 3-4 boys. He further deposed that on direction of HC Baljeet Singh, he took both the injured to JPN Hospital in TSR and at hospital Ct. Bijender was declared brought dead while Ct. Sandeep Kumar was admitted in the hospital for treatment. In his cross-examination, he admitted that there are numerous kotha at GB road and these functions all night and the movement of public there remains whole night.
16. PW-10 Sh. Suresh Kumar is the TSR Driver who took Ct. Sandeep Kumar and Ct. Bijender to the hospital. He deposed that on night of 10.09.2012, he stopped his TSR at instance of one head Constable and he saw one police constable and one civilian in pool of blood and the Head Constable asked him to take them to the hospital. He further deposed that he alongwith one boy took both the injured to JPN Hospital at about 12:45 AM and thereafter at a instance of IO, he went to PS Kamla Market. He further deposed that on next morning, sample of blood was taken from his TSR. He also deposed that the photographs of his TSR were also taken. He identified the photographs Ex. PW10/A to Ex. PW10/F. He also proved the seizure memo of blood FIR No. 106/2012, PS: Kamla Market, Page No. 10 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
stained seat cover Ex. PW-10/G. In his cross-examination, PW- 10 Sh. Suresh Kumar deposed that he did not notice twoards public persons as his entire attention was to take the injured to the hospital immediately. He admitted that the injured who was lying on the floor was not in his senses. He denied the suggestion that he did not take the injured to the hospital from GB road.
17. PW-11 Ct. Ravinder Bhatt is the DD writer who proved DD no. 70 B and 74/B Ex. PW11/A and Ex. PW11/B respectively. This witness was not cross-examined on behalf of accused persons despite opportunity given.
18. PW-12 Irshad is the injured and eye witness of the incident. He deposed that on the intervening night of 10/11 of the month of the year 2012 at about 12:00-12:15 AM, when he was smoking cigarette in front of kotha no. 57, four persons came down from stairs and one of them had pushed him with his shoulder. He further deposed that he called him whether he was blind and his companion asked him to whom he had called blind and thereafter the two boys started abusing him and picked a quarrel with him and in the meantime their two other companions also came there. He further deposed that accused Aakash asked accused Suraj to stab him with knife blow and thereafter accused Suraj had given four blows of knife near his right ear, neck, on back of left shoulder and on right side of back. He further deposed that he raise the alarm and got rid of himself from the clutches of accused persons and started running towards Ajmeri Gate. He further deposed that when he reached near liquor shop FIR No. 106/2012, PS: Kamla Market, Page No. 11 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
at GB road, he met with three police officials and he told them about the incident and that the said four persons who had assaulted him were chasing him. He further deposed that the two police officials chased the said boy however the said boy has also stabbed the two police officials all the four boys were over powered by the police officials. He further deposed that he went to JPN Hospital in an auto. He also deposed that the said incident took place on the intervening night of 10.09.2012. He also correctly identified the accused persons in the Court. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he deposed that the incident started just outside kotha no. 57 in the corridor. He further deposed that the police officials apprehended accused persons after some distance from the liquors shop towards Ajmeri Gate. He also deposed that accused Suraj had given knife blows to the police officials in his presence. He also deposed that he did not hand over his blood stained shirt to the police and he did not know where the same was. He also deposed that there was dim light at the place of occurrence but the light was sufficient to identify the persons. He denied the suggestion that he had consumed liquor. He also denied the suggestion that he had caused injury on head of accused Aakash. He also deposed that accused persons were chasing him to kill him.
19. PW-13 Salim Khan is the watchman of Kotha no. 5274. He deposed that on the date of incident, he was standing on the road outside kotha no. 5274 and he asked the numerous FIR No. 106/2012, PS: Kamla Market, Page No. 12 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
autowalas to remove their autos from there and he followed them till Hauz Qazi road and when he was returning at about 12:30 AM, he saw accused Bijender lying in the pool of blood in the road and Ct. Sandeep was also in the injured condition. He also deposed that both had sustained knife injuries and HC Baljeet had apprehended one person having knife whose name was revealed as Suraj. He also deposed that three other boys were also apprehended by police officials. He also deposed that HC Baljeet sent Ct. Bijender and Ct. Sandeep to hospital in TSR. He correctly identified accused Suraj in the Court. In his cross- examination, he deposed that since accused Suraj was having knife and police officials were in injured condition, he drew inference that they had sustained injury by knife. He denied the suggestion that he was deposing falsely at the instance of the police.
20. PW-14 HC Baljeet Singh is the complainant as well as the eye witness of the alleged incident. He deposed that on the intervening night of 10-11.09.2012, he alongwith Ct. Sandeep and Ct. Bijender was on patrolling duty in area of beat no. 9, Division-IV, GB Road. He deposed that he and Ct. Sandeep were in police uniform while Ct. Bijender was in plain clothes. He further deposed at about 12:15 AM, when they were present opposite HDFC Bank ATM, he saw one person who was in pool of blood and had sustained injuries in his neck who was coming running from Lahori Gate side who disclosed his name as Irshad. He further deposed that four boys were also running behind him.
FIR No. 106/2012, PS: Kamla Market, Page No. 13 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
He further deposed that injured Irshad told him that four person had beaten him and had caused injury upon him in front of kotha no. 57 GB Road. He further deposed that injured Irshad pointed out towards four persons who had caused injury to him and thereafter they chased them. He further deposed that Ct. Bijender apprehended one boy who disclosed his name as Aakash. He also deposed that Ct. Sandeep apprehended another boy who disclosed his name as Suraj. He further deposed that two other persons whose name were later on revealed as Ashish Kumar Bahuguna @ Ashu and Manoj tried to rescue their companion Akash from Ct. Bijender and in the meantime accused Akash exorted his companion Suraj to stab Ct. Sandeep and Ct. Bijender otherwise they would be apprehended. He further deposed that thereafter accused Akash had given knife blow to Ct. Sandeep due to which Ct. Sandeep lost his control over accused Suraj as he sustained injury near his left eye and thereafter accused Suraj gave a knife blow to Ct. Bijender who sustained injury near his heart. He further deposed that he rushed towards Ct. Bijender and apprehended accused Suraj and in the meantime Ct. Ravi Maan and Ct. Karnail also reached there and apprehended accused Ashish Kumar Bahuguna @ Ashu and Manoj. He further deposed that he stopped one TSR and sent Ct. Sandeep and Ct. Bijender alongwith one person to JPN Hospital. He further deposed that ASI Puran Chand came from the PS and conducted the proceedings at the spot. He also deposed that the Crime Team also reached at the spot and conducted the proceedings. He also deposed that during interrogation it was FIR No. 106/2012, PS: Kamla Market, Page No. 14 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
revealed that Aakash was juvenile and he was handed over to SI Ajay Singh. He also deposed that the remaining accused persons were arrested. He also deposed about the proceedings conducted by the IO at the spot. He also identified the case properties Ex. P- 1 to Ex. P-7. He also identified accused persons in the Court. This witness was cross-examined at length on behalf of accused persons at length. In his cross-examination, he deposed injured Irshad had gone to the hospital on his own in a separate auto. He also deposed that 4-5 public persons who were sleeping in the corridors also came at the spot after apprehension of the accused persons. He admitted that he was having service revolver as well as danda at the time of patrolling. He also admitted that the motorcycle was issued in his name at about 09:45 PM vide DD no. 70 B. He denied the suggestion that Ct. Bijender met him in injured condition during patrolling. He admitted that he had not seen the incident of stabbing that had taken place near kotha no. 57 with Irshad. He also deposed that he remembered that CCTV was installed inside the ATM of ICICI Bank but he did not remember whether same was installed outside the ATM or not. He also denied the suggestion that Ct. Bijender while patrolling on the motorcycle could not see the vehicle going ahead of him, carrying iron rods/sariya which were protruding out from the vehicle and he collided with the said vehicle and one of the sariya penetrated or pyres through ribs in his left side chest. He further denied the suggestion that in the meantime Irshad came there and when they asked him to hold the motorcycle and when he controlled the motorcycle he fell down and sustained injuries FIR No. 106/2012, PS: Kamla Market, Page No. 15 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
in his neck. He denied the suggestion that due to said incident he got scared as his motorcycle was involved in the incident. He denied the suggestion that the knife Ex. P-3 was got purchased through Ct. Ravi Maan in sum of Rs. 400/- on next day and same was planted in the incident.
21. PW-15 Ct Karnail Singh deposed that on 11.09.2012, at about 12:35 AM, he alongwith Ct. Ravi Maan reached at the spot and saw that 3-4 boys were scuffling/grappling with HC Baljeet, Ct. Bijender and Ct. Sandeep in front of Shop no. 5268-5670 and at that time Ct. Bijender was lying on the road in the pool of blood. He also deposed that bleeding was going on from the left temple of Ct. Sandeep. He further deposed that after seeing them, the remaining two boys started running but they apprehended them who disclosed their names as Manoj and Ashish Kumar Bahuguna @ Ashu. He also deposed that HC Baljeet had already overpowered accused Suraj and he showed them a knife and told them that both the Constables had been assaulted with the said knife. He also deposed that HC Baljeet got stopped one TSR and Ct. Bijender and Ct. Sandeep were sent to JPN Hospital with one person. He also deposed about the proceedings conducted by the IO at the spot of incident. He also deposed that on 03.10.2012, he collected 19 pulandas alongwith sample seal alongwith MHC(M) and deposited the same at FSL, Rohini vide RC no. 110/21. He identified all the accused persons in the Court. In his cross- examination, he deposed that he remained at the spot from 12:40 AM to 08:00 AM. He denied the suggestion that accused Aakash FIR No. 106/2012, PS: Kamla Market, Page No. 16 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
was lifted from his house. He also denied the suggestion that accused Manoj was not present at the spot. He also denied the suggestion that he did not join the investigation in the present case. He admitted that some of the Kothas were having guards and pimps. He denied the suggestion that he received phone call from HC Baljeet for the quarrel. He also deposed that when the knife was sealed in his presence, there was blood on the blade of knife.
22. PW-16 Dr. Akshay Charak proved his report Ex. PW16/A on the MLC of Ct. Sandeep. He opined that nature of injury is simple in nature. In his cross-examination, he deposed that the said injury cannot be caused by steel rod or steel scale. He further deposed that such injury can be caused by the sharp object such as knife.
23. PW-17 Dr. Jyoti Barwa proved the Postmortem report, Ex. PW-17/A of deceased Ct. Bijender. She further deposed that cause of death in her opinion was as a result of hemorrhage and shock, consequent upon penetrating trauma to the chest via injury no. 1 which was fatal and sufficient to cause death in the ordinary course of nature. She further deposed that the injuries were ante- mortem in nature, fresh in duration and were inflicted with sharp edged stabbing weapon. She also proved her subsequent opinion, Ex. PW-17/B and the sketch of knife Ex. PW-17/C. She deposed that in her opinion, the possibility that injury no. 1 on the dead body of deceased was caused by the said weapon cannot be ruled out. In her cross-examination, she deposed that only one injury FIR No. 106/2012, PS: Kamla Market, Page No. 17 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
was found externally on the chest which was ante-mortem in nature and there was no other injury seen in the body. She also deposed that in the injury no. 1, there was wound in the left lung and reaching upto the heart. She denied the suggestion that injury no. 1 can be caused by falling. She also deposed that injury no. 1 cannot be caused by a fabricated steel rod as in case of accident, there would be some associated injury such as by falling. She specifically explained that injury no. 1 cannot be caused in an accident as the pattern of injury is not such produced by being hit from a moving vehicle sideways. She also deposed that injury no. 1 was a stab wound.
24. PW-18 Ct. Subhash Chand deposed that on the intervening night of 10-11.09.2012 at about 12:40 am on receipt of DD No. 6A, he went to the spot of incident along with ASI Puran Chand where he met with HC Baljeet who narrated the incident to ASI Puran Chand. He also deposed that HC Baljeet produced one buttondar knife which was seized by ASI Puran Chand. He further deposed that ASI Puran Chand prepared rukka and handed over the same to him for registration of FIR and after registration of FIR he handed over original rukka and copy of FIR to IO/Inspector Joginder Prasad. In his cross-examination, he deposed that the area was cordoned off by a plastic tape. He also deposed that he did not notice any handkerchief soaked with blood in the cordoned off area. He also deposed that the cloths of HC Baljeet were stained with blood upper front side.
25. PW-19 Ct. Amit Kumar deposed that on 11.02.2012, he FIR No. 106/2012, PS: Kamla Market, Page No. 18 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
alongwith Ct. Shubh Ram, Ct. Karnail Singh and Ct. Dharmender took accused persons namely Ashish Kumar Bhahuguna @ Ashu, Suraj Kumar and Manoj Kumar to Lok Nayak Hospital for their medical examination. He also deposed that doctor handed over him three sealed parcels containing the blood samples of three accused persons duly sealed with the seal of 'LNH' which were handed over by him to IO. In his cross-examination, he admitted that all the four accused persons were examined in his presence as they took three accused persons to the hospital while SI Ajay Singh along with JCL Aakash met them there.
26. PW-20 HC Ram Dutt Singh is the MHC(M). He proved the entries in register no. 19 & 21 made by him exhibited as Ex. PW-20/A to Ex. PW-20/C. In his cross-examination, he deposed that there was no entry with respect to shoes, socks and chappals of accused persons. He also deposed that three mobile phones were deposited with him which were recovered from the personal search of accused persons.
27. PW-21 ASI Ishwar Singh deposed that on 17.11.2012, accused Aakash was produced before the court and after the permission of the court accused Aakash was interrogated and his disclosure statement, Ex. PW-21/A was recorded. He further deposed that accused Aakash was formally arrested vide arrest memo Ex. PW-21/B. In his cross-examination, he deposed that accused Aakash in his disclosure statement had stated that all the accused had consumed liquor prior to the incident.
FIR No. 106/2012, PS: Kamla Market, Page No. 19 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
28. PW-22 Dr. Sunil proved the x-ray report of Ct. Sandeep, Ex. PW-22/B. In his cross-examination, he deposed that there was no bone injury on the person of Ct. Sandeep.
29. PW-23 Sh. Chiranji Lal Sharma deposed that on 11.09.2012 at the instruction of IO, he had taken six photographs of the Auto bearing registration no. DL-1RK-7072, Ex. PW-10/A to Ex. PW-10/F. He also proved the CD of said photographs, Ex. PW-23/A. In his cross-examination, he deposed that IO had instructed him to take photographs in a manner so that registration number of that vehicle and blood appear in the photographs.
30. PW-24 Retd. ACP Ram Kumar proved his complaint under Sec. 195 Cr.PC, Ex. PW-24/A. In his cross-examination, he deposed that he did not meet any accused and he went to his office at PS. He also admitted that he did not witness the incident though he had reached the spot.
31. PW-25 Dr. Kirti proved the opinion, Ex. PW-25/A given by her with respect to the nature of injury of the person of Irshad and she deposed that the injury on person of Irshad was grievous in nature. She also proved the opinion, Ex. PW-25/B given by her with respect to the injury on the person of Ct. Sandeep and she deposed that the injury was grievous in nature. In her cross- examination, she denied the suggestion that she did not examine patient Sandeep and Irshad.
32. PW-26 SI Ajay Singh is the JWO who conducted the FIR No. 106/2012, PS: Kamla Market, Page No. 20 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
proceedings pertaining to accused Aakash as earlier accused Aakash had claimed himself to be juvenile. He proved the social background report of accused Aakash, Ex. PW-26/A. He also proved the version of accused Aakash, Ex. PW-26/B, his apprehension memo Ex. PW-26/C and his personal search, Ex. PW-26/D. He also proved the seizure memo of the cloths of accused Aakash, Ex. PW-14/H. He also proved the inquest report, Ex. PW-26/E and unnatural death report, Ex. PW-26/F. He deposed about the proceedings conducted by him in the present case. In his cross-examination, he deposed that he did not remember whether there was injury mark on the person on Aakash or not. He also deposed that when he reached at the spot of incident, he did not notice anyone holding the knife. He denied the suggestion that MLC of accused Aakash, exhibited as Ex. PW-26/DA was procured and manipulated document. He also denied the suggestion that accused Aakash was not taken by him to the hospital at 08:30 am. He also deposed that he did not know if Aakash was taken to hospital by Ct. Sandeep at 02:21 am or that he was bleeding from his forehead or that his forehead was bandaged. He deposed that he had reached the spot of incident at 05:45 am. After seeing the video CD, Ex. PW-6/DC he admitted that no area was cordoned off by plastic tape.
33. PW-27 Retd. SI Puran Chand is the first IO of the case. He deposed that on the intervening night of 10-11.09.2012, on receiving DD No. 6A at about 12:40 am, he along with Ct. Subahsh reached the spot of incident i.e. Shop No. 5268-70, FIR No. 106/2012, PS: Kamla Market, Page No. 21 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
opposite ICICI Bank, G. B. Road and blood was lying there. He further deposed that at the spot he met with HC Baljeet, Ct. Ravi Maan and Ct. Karnail Singh who produced four accused persons namely Ashish Baghuguna @ Ashu, Manoj, Suraj and Aakash. He further deposed that he recorded statement of HC Baljeet, Ex. PW-14/A. He also deposed that HC Baljeet produced one knife to him and he prepared the sketch of the same, Ex. PW-14/C. He also proved the seizure memo of knife, Ex. PW-14/B. He also deposed that on receiving DD No. 7 regarding death of Ct. Bijender, he went to LNJP Hospital. He further deposed that in the hospital he collected MLC of Ct. Sandeep, Ct. Bijender and Ashfaq Hussain. He further deposed that he returned to the spot from hospital and prepared a rukka, Ex. PW-27/A and handed over the same to Ct. Subhash for registration of FIR. He further deposed that after the registration of FIR, investigation was marked to Inspector Joginder Prasad who came to the spot and he handed over the seized pullanda and accused persons to him. He correctly identified all the four accused persons as well as knife Ex. P-3 in the court, during the trial. In his cross-examination, he deposed that Crime Team was present at the spot during his visit. He denied the suggestion that accused Manoj was not found at the spot. He also deposed that no blood was visible on the blade of knife. He also deposed that the accused persons and police personnels were standing on the corner of the road where incident took place. He denied the suggestion that he had inflicted injuries on the head of accused Aakash and got him admitted in the hospital same night. He deposed that he did not FIR No. 106/2012, PS: Kamla Market, Page No. 22 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
remember whether any truck/tempo 407 was there at the spot. This witness after seeing the MLC No. 173176 of one Akash S/o Dal Chand, dated 02.09.2012 submitted that the said MLC does not belong of accused Akash in the present case and this MLC belongs to some another persons who was admitted in the hospital with the alleged history of RTA. He admitted that several persons of labour class/workers were sleeping on the pavement adjacent to the crime spot as reflected in photographs Ex. PW- 3/15. He deposed that he did not make any inquiry from the persons sleeping on the pavement. After going through the photograph, he admitted that the barricades were placed on the road to protect the crime scene. He denied the suggestion that there was no knife or that the knife was purchased on the next day at around 12:00 noon and it was planted.
34. PW-28 Sh. S. S. Badwal, Assistant Director, CFSL, Guwahati, proved his report, Ex. PW-28/A regarding examination of the exhibits i.e. cloths and knife conducted by him. In his cross-examination, he denied the suggestion that he had prepared report as per the convenience of IO. The court made observation that at the time of opening of case property brought by the MHC(M), it was found that parcel B-1 containing such cloths were in rotten condition and having filthy smell and beyond recognition as on that day.
35. PW-29 Dr. Arvind Mohan proved the MLC of Ct. Sandeep, Ex. PW-25/B, MLC of Ct. Bijender, Ex. PW-29/A and MLC of Irshad, Ex. PW-25/A. In his cross-examination, he FIR No. 106/2012, PS: Kamla Market, Page No. 23 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
specifically denied that the injuries mentioned in MLC of Ct. Bijender, Ex. PW-29/A may be received in case of road accident. He admitted that a sharp edged fabrication rod or for that matter glass or any metal object having sharp and pointed as could cause such injury.
36. PW-30 Ms. L. Babyto Devi, Assistant Director, FSL Rohini proved DNA report, Ex. PW-30/A prepared by her. This witness was not cross-examined despite opportunity given to them.
37. PW-31 Ms. Sunita Gupta, Sr. Scientific Officer, FSL Rohini proved report Ex. PW-31/A. She also proved the serological report Ex. PW-31/B. In her cross-examination, she deposed that human blood was detected on knife Ex. K-1, however, the group of blood could not be ascertained. In her cross-examination, she denied the suggestion that she had prepared false and fabricated report at instance of IO.
38. PW-32 Insp. Joginder Prasad is the second IO in the present case. He deposed that on 11.09.2012 after the registration of the present FIR, the investigation of present case was entrusted to him. He further deposed that he along with Ct. Subhash went to the spot where he met with HC Baljeet, Ct. Ravi Maan, Ct. Karnail, Crime Team Incharge SI Dhan Singh, Ct. Ravinder and one more Head Constable. He further deposed that all the four accused persons were also there and they had been apprehended by the police officials. He deposed that he collected the exhibits from the spot and seized the same vide seizure memo Ex. PW-
FIR No. 106/2012, PS: Kamla Market, Page No. 24 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
26/DA. He further deposed that one of the apprehended person namely Aakash seemed to be juvenile and hence JWO SI Ajay was called at the spot. He further deposed that he interrogated accused persons namely Ashish Bahuguna @ Ashu, Manoj and Suraj and they were arrested at the spot vide arrest memo Ex. PW-32/A, Ex. PW-15/B and Ex. PW-14/D. He also proved the personal search memo of accused persons Ex. PW-32/B, Ex. PW- 15/C and Ex. PW-14/E along with their disclosure statements, Ex. 14/I, Ex. PW-15/A and Ex. PW-30/C. He also deposed about the proceedings conducted by him at the spot, at the hospital and at the Police Station. He also proved the seizure memo of the cloths of the accused persons Ex. PW-14/A. He also deposed that during the investigation, accused Aakash was declared as major. He also deposed that he filed the charge-sheet in the present case and later on he also filed the FSL report before the court vide application Ex. PW-32/D and Ex. PW-32/E. He also deposed that he filed the subsequent opinion with regard to the weapon of offence and the injury vide application Ex. PW-32/F and Ex. PW- 32/G. He correctly identified the accused persons and the case properties Ex. P-1, Ex. P-2, Ex. PW-32/P1 to Ex. PW-32/P14. This witness was cross-examined at length on behalf of accused persons. In his cross-examination, he deposed that Kotha no. 57 has been shown in the scaled site plan. He also deposed that place of incident is at the distance of about 150-200 meter from Kotha No. 57. He admitted that for all the incidents DD No. 6A, Ex. PW-1/A was recorded. He further deposed that when he reached at the spot, the spot of incident was already cordoned off FIR No. 106/2012, PS: Kamla Market, Page No. 25 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
and the road on which crime was committed was blocked from both sides and the tape mentioning 'do not cross the line, crime scene' was not used. He further deposed that the Crime Team had taken photographs in his presence. He denied the suggest that Mohd. Irshad along with Ct. Sandeep got injured with iron rod while lifting the bullet motorcycle of Ct. Bijender who was stuck with the protruding iron rod (sariya) on his chest. He denied the suggestion that he did not collect the mobile location and CDR of any accused persons because they were at different locations at the time of incident. With respect to the MLC of Akash S/o Dal Chand, he deposed that the said MLC does not pertains to the instant case as Akash mentioned in this MLC is another person who is major and his father's name is also different. He also deposed that he did not specifically inquire from accused Suraj as to from where he had procured the knife. He also deposed that he did not remember whether CCTV cameras were installed outside the ATM of HDFC Bank and ICICI Bank.
39. After closing of prosecution evidence, separate statements of all the four accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. Accused Ashish Kumar Bahuguna @ Ashu, Suraj Kumar and Aakash stated that they were not involved in the present case and all of them have been falsely implicated in the present case to cover up the accidental death of some police official. They stated that a false case had been foisted against them as a motorcycle of police was involved in an accident with truck laden with fabrication FIR No. 106/2012, PS: Kamla Market, Page No. 26 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
rods. They stated that all of them along with accused Manoj were passing from road situated at New Delhi Metro Station and at that time some police officials were using danda on public persons and one of the danda blow fell on the head of accused Aakash due to which, accused Aakash sustained head injury and due to fear, accused Ashish Kumar Bahuguna @ Ashu, Suraj and Manoj ran away from the spot leaving Aakash at the spot. They further stated that after about 30 minutes accused Suraj received a phone call from accused Aakash and at that time they were near Sindhiya House and at instance of accused Aakash they reached at the spot where they left him. They further stated that at that time 3-4 police officials were present there and they apprehended them and took them to the Police Station. They further stated that there was bandage on the head of accused Aakash at that time. Accused Manoj Kumar stated that he was not involved any such incident which took place at G.B. Road nor in the incident that took place with the police officials and it was false and concocted story.
40. Accused persons have examined eight defence witnesses. The nature and testimony of the defence witnesses has been briefly discussed as under.
41. DW-1 Sh. Khem Singh is the relative of accused Manoj. He deposed that on 10.09.2012, accused Manoj was working with him at a Rehri near bus stop Sindhiya House and on that day he handed over Rs. 5,000/- to him for depositing in a monthly committee but thereafter accused did not reach to his house and FIR No. 106/2012, PS: Kamla Market, Page No. 27 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
in the morning her mother called him and asked about Manoj. He further deposed that they searched for Manoj but Manoj could not be located and a missing report was also lodged at the PS. He further deposed that after about two months, one person who had been released from jail informed that Manoj was lodged in jail in some case. In his cross-examination, this witness could not tell the missing report number or the name of Police Station where the said missing report was lodged. He also admitted that he did not know where Manoj was present on 11.09.2012 at about 12:30 am.
42. DW-2 Smt. Manwati is mother of accused Manoj. She deposed on the lines of DW-1 Sh. Khem Singh. In her cross- examination, she admitted that she did not know where accused Manoj was present on 11.09.2012 at 12:30 am.
43. DW-3 Sh. Yogesh Sharma is employee of HDFC Bank, Shradhanand Marg, Ajmeri Gate, Delhi. He deposed that the police of PS Kamla Market had not procured and seized any footage with respect to the incident for period of 10.09.2012 to 09.09.2013.
44. DW-4 SI Subhash Chander deposed that RTI reply no. 12239-50/RTI Cell/Central District, dated 26.09.2022, Ex. DW- 4/A and Ex. DW-4/B have been wedded out.
45. DW-5 HC Ravi Maan deposed on the lines of Ct. Karnail Singh. This witness was declared hostile by the Ld. Defence Counsel and was cross-examined on behalf of accused persons.
FIR No. 106/2012, PS: Kamla Market, Page No. 28 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
In his cross-examination, this witness denied the suggestion that the persons who informed them about the accident was known to them. This witness was not cross-examined on behalf of Ld. Addl. PP for the State.
46. DW-6 Sh. Satender Kumar, UDC, Lok Nayak Hospital proved MLC of one Akaash, son of Dal Chand, aged about 18 years, Ex. DW-6/A. This witness was not cross-examined on behalf of Ld. Addl. PP for the State.
47. DW-7 ACP Kamlesh Kumari, proved the reply of RTI, Ex. DW-7/A and the letter Ex. DW-7/B. She also deposed that the said document have been wedded out and she had no personal knowledge about the information showed vide application, Ex. DW-1/A. This witness was not cross-examined on behalf of Ld. Addl. PP for the State.
48. DW-8 Sh. Manish Tyagi is the Branch Manager, ICICI Bank, Shradhanand Marg, Delhi. He deposed that as per their record, the police of PS Kamla Mark had not procured or seized any CCTV footage with respect to any incident for the period of 10.09.2012 to 09.09.2013.
49. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. S.S. Tripathi, Ld. Counsel for accused persons namely Ashish Kumar Bahuguna @ Ashu, Suraj Kumar and Aakash, Sh. U. S. Gautam, Ld. Counsel for accused Manoj.
FIR No. 106/2012, PS: Kamla Market, Page No. 29 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
50. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that complainant PW-14 HC Baljeet and injured PW-4 Ct. Sandeep who are the eyewitnesses of the alleged incident have narrated the entire incident in detail and they have identified all the accused persons in the court. He further argued that PW-12 Injured Irshad who is the victim as well as the eyewitness of the incident has also corroborated the version of PW-4 Ct. Sandeep and PW-14 HC Sandeep. He also argued that independent witnesses PW-9 Sh. Chandershekhar, PW-10 Sh. Suresh Kumar, PW-13 Sh. Salim Khan have also corroborated the prosecution story. He also argued that PW-17 Dr. Jyoti Barwa has proved the postmortem report of deceased Ct. Bijender and she has specifically deposed that injury caused to deceased Bijender cannot be caused by fabrication steel rod as in case of accident and injury no. 1 was sufficient to cause death in ordinary course of nature. He further argued that PW-31 Dr. Sunita Gupta has specifically deposed that there were brownish stains on knife Ex. K-1 and blood was detected on the same. He further argued that the IO as well as the other police officials have duly proved the proceedings conducted by them. He also argued that since the prosecution has proved its case against all the accused persons beyond reasonable doubt, all the accused persons should be convicted for the offences under which charges have been framed against them.
FIR No. 106/2012, PS: Kamla Market, Page No. 30 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
51. Per Contra Ld. Defence Counsels argued that the prosecution has miserably failed to prove its case against accused persons beyond reasonable doubt. To substantiate their points, they argued that the investigation in the present case has been conducted in an arbitrary manner. They argued that all the accused persons have been falsely implicated in the present case in order to save PW-14 HC Baljeet from Departmental action. They argued that deceased Bijender died in an accident and PW Irshad and PW Ct. Sandeep had sustained injuries while helping deceased Bijender. They also argued that no independent eyewitness has been joined in the investigation. They also argued that the testimony of prosecution witnesses suffer from material contradiction and hence cannot be relied upon. They also argued that earlier accused Aakash was taken to hospital by HC Sandeep and his MLC was got prepared but later on he was implicated in the present case along with other accused persons. They also argued that no blood was found in the pocket of the pant of accused Suraj despite the fact that he had already stabbed PW Irshad which is not reliable. They also argued that the prosecution witnesses have given different versions regarding the barricading of the spot of incident. They also argued that the DNA report is not in favour of prosecution and the blood of deceased and accused could not be matched with the blood on their cloths and weapon of offence. They also argued that no CCTV footage of the alleged incident was collected from the CCTV cameras installed outside the ATM booths of the bank. They also argued that since the prosecution has failed to prove its FIR No. 106/2012, PS: Kamla Market, Page No. 31 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
case against the accused persons beyond the reasonable doubt, all the accused persons should be acquitted under all the sections of law under which charges have been framed against them.
52. In the present case, charges under Sec. 302/34 IPC, 307/34 IPC, 186/34 IPC, 353/34 IPC, 333/34 IPC have been framed against all accused persons and additional charge under Sec. 25 Arms Act has been framed against accused Suraj Kumar. These Sections have been defined as follows:-
Section 302 IPC provides punishment for the commission of offence of murder which has been defined U/s 300 IPC.
300 Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1 When culpable homicide is not murder. Culpable homicide is not murder if the offendor, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the FIR No. 106/2012, PS: Kamla Market, Page No. 32 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
person who gave the provocation or causes the death of any other person my mistake or accident.
The above exception is subject to the following provisos:-
First-That the provocation is not sought or voluntarily provoked by the offendor as an excuse for killing or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of the public servant.
Thirdly-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanations: Whether the provocation was grave and sudden enough to prevent the offence amounting to murder is a question of fact.
Exception 2: Culpable homicide is not murder if the offendor, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm then is necessary for the purpose of such defence.
Exception 3: Culpable homicide is not murder if the offendor, being a public servant or adding a public servant acting for the advancement of public justice, exceeds the power given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4: Culpable homicide is not murder if it is committed without pre meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offendor's having taken undue advantage FIR No. 106/2012, PS: Kamla Market, Page No. 33 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
or acted in a cruel or unusual manner. Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5: Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years suffers death or takes the risk of death with his own consent.
307. Attempt to murder.
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and if hurt is cause to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts: When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.
186. Obstructing public servant in discharge of public functions.
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees or both.
353. Assault or criminal force to deter public servant from discharge of his duty "Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of FIR No. 106/2012, PS: Kamla Market, Page No. 34 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
333. Voluntarily causing grievous hurt to deter public servant from his duty.
Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
34. Acts done by several persons in furtherance of common intention When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 25 Arms Act provides punishment for the possession of arms without any license which has been defined as under:-
(1) Whoever--
(a) [manufactures, obtains, procures], sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm [or convert from FIR No. 106/2012, PS: Kamla Market, Page No. 35 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms] in contravention of section 6; or
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term 5 which shall not be less than [seven years but which may extend to imprisonment for life] and shall also be liable to fine.
[(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which 7 shall not be less than [seven years but which may extend to fourteen years] and shall also be liable to fine.
[Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years.] [(1AB) Whoever, by using force, takes the firearm from the police or armed forces shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.] (1AA) whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less FIR No. 106/2012, PS: Kamla Market, Page No. 36 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
9than [ten years] but which may extend to imprisonment for life and shall also be liable to fine.] [(1AAA)] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which 11 shall not be less than [seven years but which may extend to imprisonment for life] and shall also be liable to fine.
(1B) Whoever--
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturers number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub- section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub- clause (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or FIR No. 106/2012, PS: Kamla Market, Page No. 37 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less 12 than [two years but which may extend to five years and shall also be liable to fine] and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of 13 less than [two years].] FIR No. 106/2012, PS: Kamla Market, Page No. 38 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
[(1C) Notwithstanding anything contained in sub- section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation.--For the purposes of this sub-section, disturbed area means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause
(a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
[(3) Whoever sells or transfers any firearm, ammunition or other arms--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.] FIR No. 106/2012, PS: Kamla Market, Page No. 39 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
(4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
[(6) If any member of an organised crime syndicate or any person on its behalf has at any time has in his possession or carries any arms or ammunition in contravention of any provision of Chapter II shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
(7) Whoever on behalf of a member of an organised crime syndicate or a person on its behalf, -
(i) manufactures, obtains, procures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(ii) shortens the barrel of a firearm or converts an imitation firearm into a fire arm or converts from any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms in contravention of section 6; or
(iii) brings into, or takes out of India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall FIR No. 106/2012, PS: Kamla Market, Page No. 40 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Explanation.--For the purposes of sub-sections (6) and (7),--
(a) organised crime means any continuing unlawful activity by any person, singly or collectively, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person;
(b) organised crime syndicate means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime.
(8) Whoever involves in or aids in the illicit trafficking of firearms and ammunition in contravention of sections 3, 5, 6, 7 and 11 shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Explanation.--For the purposes of this sub-section, illicit trafficking means the import, export, acquisition, sale, delivery, movement or transfer of firearms and ammunition into, from or within the territory of India, if the firearms and ammunition are not marked in accordance with the provisions of this Act or are being trafficked in contravention of the provisions of this Act including smuggled firearms of foreign make or prohibited arms and prohibited ammunition.
(9) Whoever uses firearm in a rash or negligent manner or in celebratory gunfire so as to endanger human life or personal safety of others shall be punishable with an imprisonment for a term which may extend to two years, or with fine which may extend to rupees one lakh, or with both.
53. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence FIR No. 106/2012, PS: Kamla Market, Page No. 41 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons.
54. First of all the prosecution has to prove the presence of PW-4 Ct. Sandeep, PW-14 HC Baljeet, PW-15 Ct. Karnail Singh, DW-5 Ct. Ravi Maan, deceased Ct. Bijender and all the four accused persons namely Ashish Kumar Bahuguna @ Ashu, Suraj Kumar, Manoj Kumar and Aakash at the spot of incident at the time of incident. PW-11 Ct. Ravinder Bhat has proved DD No. 70B, Ex. PW-11/A and DD No. 74B, Ex. PW-11/B. As per contents of DD No. 70B, Ex. PW-11/A Ct. Bijender (since deceased), HC Baljeet, Ct. Ravi and Ct. Karnail Singh left for night beat patrolling at GB Road at 09:45 pm. As per the contents of DD No. 74B, Ex. PW-11/B, Ct. Sandeep left for night beat patrolling at 10:10 pm. Thus, PW-4 Ct. Sandeep, PW-14 HC Baljeet, PW-15 Ct. Karnail Singh, DW-5 Ct. Ravi Maan and Ct. Bijender (since deceased) were performing their duty in division no. 4, GB Road, Delhi. Accused persons namely Ashish Kumar Bahuguna @ Ashu, Suraj Kumar and Aakash in an answer to question no. 66 put to them in their statement recorded under Sec. 313 Cr.PC have admitted their presence at the spot by stating that they were passing from road situated at New Delhi Metro Station and at that time some police officials were using danda on public persons at the spot. All of them have stated that accused Manoj Kumar was also with them. Moreover, PW-4 Ct.
FIR No. 106/2012, PS: Kamla Market, Page No. 42 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
Sandeep, PW-12 Irshad, PW-14 HC Baljeet, PW-15 Ct. Karnail Singh and DW-5 Ct. Ravi Maan have also deposed that accused persons were present at the spot of incident at the time of incident. Thus, the prosecution has proved the fact that all the accused persons as well as the abovesaid police officials were present at the spot at the time of incident.
55. As per prosecution story, the first incident of stabbing took place in front of Kotha No. 57, GB Road, Delhi. PW-12 Irshad deposed that on the intervening night of 10-11.09.2012 at about 12:00/12:15 am, he was smoking cigarette in front of Kotha No. 57 and four persons came down stairs and one of them had pushed his shoulder. He further deposed that he asked the said person whether he was blind and thereafter, his companion asked him that he should tell him to whom he called blind. He also deposed that either accused Aakash or accused Manoj had struck him by shoulder and thereafter accused Suraj and Ashish came there. He also deposed that accused persons started abusing him. He specifically deposed that accused Aakash asked accused Suraj to give knife blow to him and thereafter accused Suraj had given four knife blows upon him. PW-12 Irshad also explained the points of his body where the said blows were given. He deposed that the first blow was given near his right ear then on neck, then on back of his left shoulder and one blow was given on the back of his right side and consequently bleeding started from his wound. The injuries mentioned by PW-12 Irshad have been corroborated by PW-29 Dr. Arvind Mohan who proved MLC of FIR No. 106/2012, PS: Kamla Market, Page No. 43 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
PW-12 Irshad, Ex. PW-25/A. PW-29 Dr. Arvind Mohan deposed that patient Irshad was brought to the hospital with the alleged history of stab injury at GB Road, Kamla Market at around 12:30 am. He further deposed that on local examination of patient Irshad, incised wound on the right side of neck, incised wound behind right ear and two incised wounds on the back portion were found on the body of patient Irshad. PW-12 Irshad has deposed that he himself went to the Lok Nayak Hospital. As per MLC of PW-12 Irshad also, the patient came to the hospital himself. Thus, PW-29 Dr. Arvind Mohan has completely corroborated the injuries narrated by PW-12 Irshad in his testimony, mode of reaching of PW-12 Irshad to the hospital as well as the spot where the alleged incident took place.
56. PW-12 Irshad deposed that he got rid of himself from the clutches of accused persons and started running towards Ajmeri Gate side and at that time all the four accused persons were chasing him. He also deposed that in order to prevent the loss of blood he removed his shirt and tied on his neck. He also deposed that when he reached near liquor shop, GB Road, three police officials met him and two of them were in police uniform while one was in plain cloths. PW-4 Ct. Sandeep has corroborated the version of PW-12 Irshad by deposing that at about 12:30 am when he along with Ct. Bijender and HC Baljeet were patrolling near HDFC Bank ATM, GB Road, he saw one person, aged about 25 years coming running from Lahori Gate side and he was drenched in blood and four boys were running ahead to him.
FIR No. 106/2012, PS: Kamla Market, Page No. 44 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
PW-14 HC Baljeet has corroborated the version of PW-4 Ct. Sandeep Kumar and PW-12 Irshad by deposing that on 10- 11.09.2012 at about 12:15 am when he along with Ct. Sandeep and Ct. Bijender was patrolling opposite HDFC ATM at GB Road, he saw one person who was in pool of blood as he has sustained injury on his neck was coming running from Lahori Gate side and four boys were also running behind him. PW-12 Irshad and PW-14 HC Baljeet have deposed that accused persons were running behind Irshad while PW-4 Ct. Sandeep has deposed that four persons were running ahead to Irshad. However, in his cross-examination PW-4 Ct. Sandeep has explained that when PW-12 Irshad met him, the assailants were at a distance of about approximately about 20 meters and they were running from the corridors but came on the road and they had already crossed him. It seems that accused persons were running behind PW-12 injured Irshad on paralal side i.e. in the corridors and when PW- 12 injured Irshad met the Police officials they crossed PW-12 injured Irshad and the police officials. Thus, PW-4 Ct. Sandeep and PW-14 HC Baljeet have corroborated the version of PW-12 injured Irshad.
57. PW-12 injured Irshad deposed that he told the police officials that four persons had assaulted him by knife and they were chasing him and consequently two police officials chased the said boys. PW-4 Ct. Sandeep deposed that PW-12 injured Irshad disclosed that the said four boys had assaulted him by means of knife near Kotha No. 57 and thereafter he along with FIR No. 106/2012, PS: Kamla Market, Page No. 45 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
HC Baljeet and Ct. Bijender chased them and apprehended them. Similarly PW-14 HC Baljeet also deposed that the injured person had pointed out towards four persons who caused injury and consequently they chased them to apprehend. Thus, PW-4 injured Ct. Sandeep and PW-14 HC Baljeet have corroborated the version of PW-12 injured Irshad. There is complete consistency in the versions of the three witnesses with respect to the same fact and hence their versions are reliable.
58. PW-4 injured Ct. Sandeep deposed that Ct. Bijender had overpowered one boy whose name was disclosed as Aakash and his two companions namely accused Manoj and accused Ashish tried to get rid of accused Aakash from clutches of Ct. Bijender. He also deposed that he apprehended another accused namely Manoj. PW-14 HC Baljeet has corroborated the version of PW-4 Ct. Sandeep by deposing that Ct. Bijender apprehended one boy whose name was revealed as Aakash and Ct. Sandeep had apprehended one boy whose name was revealed as Suraj. He further deposed that two persons namely accused Ashish and accused Manoj tried to get rid (rescue) of their companion Aakash from Ct. Bijender. Thus, there is complete consistency in the testimony of PW-4 injured Ct. Sandeep Kumar and PW-14 complainant HC Baljeet Singh with respect to same set of facts and hence their testimony is reliable as accused persons have failed to put any dent on their veracity.
59. PW-4 injured Ct. Sandeep Kumar deposed that when accused Manoj and accused Ashish were trying to get rid from FIR No. 106/2012, PS: Kamla Market, Page No. 46 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
Ct. Bijender (since deceased), accused Aakash exhorted accused Suraj by saying to stab them otherwise they would be apprehended and upon this accused Suraj had assaulted him by the means of a knife and inflicted injury on his left side of face and due to the said injury he lost control over accused Suraj and consequently accused Suraj got rid of himself from his possession and rushed towards Ct. Bijender and had given a blow of knife on the left side chest of Ct. Bijender but however, Ct. Bijender did not leave accused Aakash. PW-14 HC Baljeet has completely supported the version of PW-4 injured Ct. Sandeep Kumar. Complainant HC Baljeet Singh also deposed that when accused persons namely Aakash and Manoj were trying to get rid of their companion Aakash from Ct. Bijender, in the meantime accused Aakash asked accused Suraj to stab Ct. Sandeep and again said to stab Ct. Bijender otherwise they all would be apprehended and accordingly, accused Suraj had given a knife blow to Ct. Sandeep due to which Ct. Sandeep lost his control over accused Suraj and Ct. Sandeep has sustained injury near his left eye. He further deposed that consequently accused Suraj got rid of himself from the clutches of Ct. Sandeep and thereafter he had given knife blow to Ct. Bijender who was overpowering accused Aakash and Ct. Bijender had sustained injury near his heart. He further deposed that despite sustaining stab injury Ct. Bijender did not leave accused Aakash. Thus, both the witnesses have corroborated each other's version regarding the exhortion of accused Suraj by accused Aakash, acting of accused Suraj on the exhortion of accused Aakash, injury through a knife by accused FIR No. 106/2012, PS: Kamla Market, Page No. 47 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
Suraj at specific part of the body of PW-4 injured Ct. Sandeep Kumar and Ct. Bijender (since deceased) and not leaving of accused Aakash by Ct. Bijender despite sustaining stab injury. Thus, there is complete consistency in the testimony of PW-4 injured Ct. Sandeep Kumar and PW-14 HC Baljeet Singh with respect to the abovesaid fact and accused persons have failed to bring material contradiction in the testimonies of abovesaid witnesses and they have failed to create any doubt with respect to the abovesaid fact.
60. PW-4 injured Ct. Sandeep Kumar has deposed that he sustained stab injury near his left eye and Ct. Bijender (since deceased) sustained injury on left side of his chest. PW-14 HC Baljeet Singh has also deposed that injured Ct. Sandeep Kumar sustained injury near his left eye while Ct. Bijender sustained injury near his heart. PW-12 Irshad also deposed that accused Suraj had given knife blows to the two police officials. PW-9 Sh. Chandershekhar who is an independent witness also deposed that at about 12:30 am after hearing hue and cry he came down and saw that Ct. Bijender and Ct. Sandeep were in pool of blood. PW-13 Sh. Salim Khan who was the Chowkidar at Kotha No. 5274 also deposed that Ct. Bijender was lying on road in pool of blood and Ct. Sandeep was also in injured condition and both had sustained knife injuries. PW-29 Dr. Arvind Mohan has proved the MLC of PW-4 injured Ct. Sandeep, Ex. PW-5/B and MLC of deceased Ct. Bijender, Ex. PW-29/A. He deposed that as per MLC Ex. PW-25/B, PW-4 Ct. Sandeep had incised would on left FIR No. 106/2012, PS: Kamla Market, Page No. 48 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
side of his face measuring 3 cm x 1 cm and the patient was referred to Surgery Department for further treatment. He also deposed that as per MLC of deceased Ct. Bijender, Ex. PW-29/A there was deep incised would on the left side of the chest intercostal space measuring 1.5 cm x 1 cm and he was declared brought dead at 12:50 am. Thus, there is complete consistency in the testimony of all the abovesaid witnesses with respect to the injury sustained by PW-4 injured Ct. Sandeep Kumar and deceased Ct. Bijender and hence their testimony in this regard is reliable.
61. PW-4 injured Ct. Sandeep Kumar deposed that after they sustained injury, in the meantime Ct. Ravi Maan and Ct. Karnail Singh who were on patrolling reached there and Ct. Ravi Maan overpowered accused Aakash whereas Ct. Karnail Singh overpowered accused Manoj who were trying to get rid of accused Aakash from Ct. Bijender. He also deposed that HC Baljeet Singh had overpowered accused Suraj. PW-14 HC Baljeet Singh has also deposed that he rushed toward Ct. Bijender and apprehended accused Suraj and in the meantime Ct. Ravi Maan and Ct. Karnail Singh also reached there and Ct. Ravi Maan overpowered accused Ashish and Ct. Karnail Singh overpowered accused Manoj and despite sustaining stab injury Ct. Bijender did not leave accused Aakash. PW-15 Ct. Karnail Singh deposed that on 11.09.2012 at about 12:35 am on information from one passerby, he along with Ct. Ravi Maan reached to the spot of incident and saw that 3-4 boys were FIR No. 106/2012, PS: Kamla Market, Page No. 49 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
scuffling/grappling with HC Baljeet, Ct. Bijender and Ct. Sandeep and at that time Ct. Bijender was lying on the road in pool of blood and even at that time he had overpowered one boy. He further deposed that after seeing them two boys started running away but accused Manoj was apprehended by him while accused Ashish was apprehended by Ct. Ravi Maan. DW-5 HC Ravi Maan has also deposed on the same lines. PW-13 Sh. Salim Khan also deposed that HC Bajleet Singh had apprehended one person whose name was revealed as Suraj while three boys were also apprehended by the police officials. PW-12 injured Irshad also deposed that all the four accused persons were apprehended/overpowered by the police officials at the spot and since bleeding was going on from his wound he had gone to JPN hospital in Auto. Thus, there is complete consistency in the testimony of abovesaid witnesses with respect to arrival of PW- 15 Ct. Karnail Singh and DW-5 Ct. Ravi Maan (HC at the time of recording of evidence), apprehension of individual accused persons by particular police officials. All the abovesaid witnesses have corroborated each other's version and the accused persons have failed to bring the material contradiction on record with respect to the abovesaid facts and hence the testimonies of the abovesaid witnesses in this regard are reliable.
62. PW-4 injured Ct. Sandeep Kumar deposed that HC Baljeet Singh sent him and Ct. Bijender to LNJP Hospital in TSR along with one public person namely Shekhar and in the hospital Ct. Bijender was declared brought dead. PW-9 Sh. Chandershekhar FIR No. 106/2012, PS: Kamla Market, Page No. 50 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
@ Shekhar also deposed that at the direction of HC Baljeet Singh, he took Ct. Sandeep and Ct. Bijender to JPN Hospital in TSR where Ct. Bijender was declared brought dead. PW-13 Sh. Salim Khan also deposed that HC Baljeet Singh sent Ct. Bijender and Ct. Sandeep to hospital in a TSR. PW-14 HC Baljeet Singh also deposed that he got stopped one TSR and sent Ct. Sandeep Kumar and Ct. Bijender with one boy to JPN hospital. PW-10 Sh. Suresh Kumar deposed that his TSR was got stopped by one Head Constable and he saw one police Constable and one civilian in pool of blood and at instance of that Head Constable, he took both the injured in his TSR to JPN Hospital who were accompanied by one boy. As per the MLC of PW-4 Ct. Sandeep Kumar, Ex. PW-25/B and MLC of deceased Ct. Bijender, Ex. PW-25/A both the patients were brought by one Shekhar i.e. PW-9 Chandershekhar @ Shekhar. PW-23 Sh. Chiranji Lal Sharma proved the photographs of TSR, Ex. PW-10/A to Ex. PW-10/F in which the injured persons were taken to the hospital and in the said photographs blood can be seen. Thus, there is complete consistency in the testimony of all the abovesaid witnesses with respect to taking of PW-4 injured Ct. Sandeep Kumar and deceased Bijender to JPN Hospital in TSR of PW-10 Suresh Kumar with the help of PW-9 Chandershekhar @ Shekhar and hence their testimonies are reliable in this regard.
63. In the present case the stab injury to PW-12 Irshad, PW-4 Ct. Sandeep Kumar and deceased Ct. Bijender has been caused by accused Suraj. However, all the accused persons were together FIR No. 106/2012, PS: Kamla Market, Page No. 51 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
and their roles in the commission of offences has been explained by PW-12 injured Irshad, PW-4 Ct. Sandeep, PW-14 complainant HC Baljeet Singh and PW-15 Ct. Karnail Singh. Whether all the four accused persons have committed the offences in furtherance of their commons intention or not is to inferred from the facts and circumstances of the case and the said facts and circumstances and has to be tested upon the touchstone of the ingredients of Section 34 IPC as well as the law laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India in this regard. Section 34 IPC is based on the principle of joint liability. It deals with the doing of separate acts by different persons which may be similar or adverse which are done by them in furtherance of their common intention. In such a situation each person will be liable for the end result of that act if the act was done in furtherance of their common intention.
64. Hon'ble Supreme Court of India in judgment titled as 'Lallan Rai & Ors. Vs. State of Bihar, cited as AIR 2003 SC 333' has observed as under:-
" 20. A plain look at the statue reveals that the essence of Sec. 34 is simultaneous consensus of the mind of person participating in the criminal action to bring about a particular result. It is trite to record that such consensus can be developed at the spot. The observations above obtain spot from the decision of this court in Ramaswami Ayyangar & Ors. Vs. FIR No. 106/2012, PS: Kamla Market, Page No. 52 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
State of Tamil Nadu, 1976 Crl. L.J. 1563
21. In the similar vain, the privy council in (Barendra Kumar Ghose Vs. King Emperor) AIR 1925: 26 Crl. L.J. 431) stated the true purport of Sec. 34 as below:-
"the words of Sec. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Sec. 33 a criminal act in Sec. 34 includes a series of acts and, further, 'act' includes omission to act, for example an omission to interfere in order to prevent a murder being done before one's very eyes. By Sec. 37 when the offence is committed by means of several acts whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things 'they also serve who only stand and wait' ."
65. As per testimony of PW-12 injured Irshad, accused Aakash or Manoj struck his shoulder with him and thereafter all the accused persons started abusing him. He further deposed that accused Aakash caught hold him and asked accused Suraj to stab him and thereafter accused Suraj stabbed him. He specifically FIR No. 106/2012, PS: Kamla Market, Page No. 53 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
deposed that accused persons were chasing him to kill him and hence he has named all the accused persons for the said act. Since all the accused persons have acted differently i.e. by catching hold of PW-12 Irshad, stabbing, abusing and running behind him to kill him but they were doing the said acts on the basis of meeting of their minds and hence it can be said that they were acting in furtherance of their common intention. Similarly, PW-4 injured Ct. Sandeep Kumar and PW-14 HC Baljeet Singh have also deposed that when Ct. Bijender caught hold of accused Aakash, accused Aakash exhorted accused Suraj to stab the abovesaid police officials and accused persons namely Manoj Kumar and Ashish Kumar Bahuguna @ Ashu were trying to rescue accused Aakash from the custody of deceased Ct. Bijender. PW-15 Ct. Karnail Singh and DW-5 HC Ravi Maan have also deposed on the same lines showing the meeting of minds of all the accused persons. Thus, from the facts and circumstances of the case, it is clear that all the four accused persons have committed the alleged offences in furtherance of their common intention.
66. PW-32 IO/Inspector Jogendra Prasad and other Police witnesses i.e. PW-1 ASI Ranbir, PW-2 Ct. Raj Kumar, PW-3 Ct. Ravinder, PW-5 Inspector Mahesh, PW-6 SI Dhan Singh, PW-11 Ct. Ravinder Bhat, PW-18 Ct. Subhash, PW-19 Ct. Amit, PW-20 HC Ram Dutt, PW-21 ASI Ishwar, PW-24 ACP Ram Kumar, PW-26 SI Ajay and PW-27 SI Puran Chand have deposed about the proceedings conducted by them during the investigation of FIR No. 106/2012, PS: Kamla Market, Page No. 54 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
the present case. Though, some minor contradictions have come in the testimonies of some of police witnesses but these are not fatal to the prosecution case.
67. The complete chain of the custody of case property from the point of seizure to the point of opening at the FSL by PW-31 Ms. Sunita Gupta has been duly proved by the prosecution. PW- 20 HC Ram Dutt has proved the entries made by him register no. 19 & 21 and has specifically deposed that the seals of exhibits remains intact till same were in his custody. PW-15 Ct. Karnail Singh has deposed that he took 19 sealed pullandas along with sample seals at direction of IO vide RC No. 110/21 and deposited the same at FSL Rohini. He also deposed that the exhibits and sample seals remained intact while these remain in his possession. PW-31 Ms. Sunita Gupta has specifically deposed that on 03.10.2012, 19 sealed parcels were received in the office of FSL Rohini with the sample seals. Thus, the prosecution has successfully proved the case property remained intact from the point of seizure till the point of its examination at FSL Rohini and no tempering was done with the same.
68. PW-31 Ms. Sunita Gupta has proved her reports Ex. PW- 31/A and Ex. PW-31/B. She deposed that parcel K-1 was duly sealed with seal of 'PC' was opened and knife Ex. K-1 was taken out which was having few brownish stains. As per report Ex. PW-31/A blood was found on Ex. K-1 i.e. knife and it was human blood though its group could not be determined. Thus, the prosecution has proved that there was human blood on the knife FIR No. 106/2012, PS: Kamla Market, Page No. 55 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
recovered from the possession of accused which was recovered at the time of incident. She also deposed that the blood was found on Ex. K-1 i.e. knife, Ex. E-2 i.e. earth control, Ex. E-3 i.e. earth control, Ex. E-4 i.e. on the hanky, Ex. T-1 i.e. piece of raxin of seat cover of TSR, Ex. T-2 i.e. blood stains lifted from the floor of TSR, Ex. B-1a i.e. pant, Ex. B-1b i.e. T-shirt, Ex. B-1c i.e. baniyan, Ex. B-1d i.e. underwear, Ex. S-1 i.e. cloth, Ex. S-2 i.e. tissue paper, Ex. S-3 i.e. tissue paper, Ex. S-4 i.e. tissue paper, Ex. C-1b i.e. shirt, Ex. C-2b i.e. shirt, Ex. C-3a i.e. pant, Ex. C- 3b i.e. shirt, Ex. C-4a i.e. pant, Ex. C-4b i.e. t-shirt, Ex. B-2 i.e. blood stained gauze, Ex. D-1a i.e. pant, Ex. D-1b i.e. shirt, Ex. D-2a i.e. pant, Ex. D-2b i.e. shirt and Ex. D-2c i.e. baniyan. In most of the abovesaid exhibits human blood was found though in some exhibits no reaction took place. Thus, prosecution has proved that blood was found on the cloths of accused persons as well as on the cloths of deceased Ct. Bijender, injured Ct. Sandeep and HC Baljeet Singh. The accused persons failed to prove any dent on the testimony of PW-31 Ms. Sunita Gupta.
69. PW-30 Ms. L. Babyto Devi has proved the DNA Report, Ex. PW-30/A along with the Allele data, Ex. PW-30/B. She deposed that on examination blood was detected on the exhibits Ex. B-1a, B-1b, B-1c, B-1d, S-1, S-2, S-3, S-4, C-4a, C-4b, B-2, D-1a, D-1b, D-2a, D-2b and D-2c. She also deposed that male DNA was also generated from source of Ex. C-4a, C-4b, D-1a, D-1b, D-2a, D-2b and D-2c. Profile could not be generated from the source of Ex. B-1a (jeans pant of deceased Ct. Bijender), Ex.
FIR No. 106/2012, PS: Kamla Market, Page No. 56 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
B-1b (underwear of deceased Ct. Bijender). Ex. B-1c (baniyan of deceased Ct. Bijender), Ex. B-1d (t-shirt of deceased Ct. Bijender), S-1 (blood sample of accused Suraj Kumar), S-2 (blood sample of accused Manoj Kumar), Ex. S-3 (blood sample of accused Ashish Kumar) and Ex. S-4 (blood sample of accused Aakash), due to degradation of samples. Partial male DNA profile was generated from the source of Ex. B-2 but the Allele data from jeans and t-shirt of accused Aakash Kumar were not accounted in the Allele data taken from shirt and pant of HC Baljeet Singh and shirt, pant and baniyan of Ct. Sandeep Kumar. Though, the Allele data did not match but it has come on record that there was blood on the cloths of accused persons and the abovesaid police officials. Since DNA profile from number of exhibits could not generated and hence comparison could not be made. The said report is not fatal to the prosecution case.
70. PW-28 Sh. S. S. Badwal, Assistant Director, has proved his report Ex. PW-28/A. He deposed that during examination of the exhibits i.e. cloths and knife he found cut mark Q1 on the half sleeve t-shirt marked as Ex. B-1b which could have been caused by metalic knife marked as Ex. K-1. Thus, PW-28 S. S. Badwal has proved that the cut mark on the t-shirt of deceased Ct. Bijender could have been caused by knife Ex. K-1 which was recovered from the possession of accused Suraj Kumar.
71. All the prosecution witnesses have correctly identified the case properties as well as accused persons in the court during the trial and accused persons have failed to create any doubt FIR No. 106/2012, PS: Kamla Market, Page No. 57 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
regarding the identity of accused persons.
72. Accused persons have taken different defences during the trial. In the present case there are three eyewitnesses of the alleged incident i.e. PW-4 Ct. Sandeep Kumar, PW-12 Irshad and PW-14 HC Baljeet Singh. In the cross-examination of PW-14 HC Baljeet Singh, accused no. 2 i.e. accused Suraj Kumar has taken the defence that Ct. Bijender was patrolling on motorcycle and since there was no light, Ct. Bijender could not see a vehicle which was going ahead to him carrying iron rods/sariya which were protruding out from the vehicle or that Ct. Bijender colided with the said vehicle and one of the sariya was penetrated/ pierced through his ribs in the left side of his chest and when HC Baljeet Singh and PW-4 Ct. Sandeep were pulling Ct. Bijender one of the sariya hit at the head of Ct. Sandeep due to which he sustained injury and Irshad also came there and HC Baljeet and Ct. Sandeep asked him to hold the motorcycle but he failed to control the motorcycle as same was in starting position and consequently he fell down and sustained injury in his neck.
73. It is pertinent to mention that the defence of death of deceased Bijender in an accident and injury caused to PW-4 Ct. Sandeep Kumar and PW-12 Irshad has not been taken by accused no. 2 Suraj Kumar in the cross-examination of PW-4 Ct. Sandeep Kumar and PW-12 Irshad. It is also pertinent to mention that the other accused persons have not taken this defence even in the cross-examination of PW-14 HC Baljeet Singh. This raises serious doubts on the defence taken by the accused persons.
FIR No. 106/2012, PS: Kamla Market, Page No. 58 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
However, it is necessary to examine the defence taken by the accused persons minutely.
74. The defence taken by the accused persons is that one iron rod/sariya penetrated in the chest of deceased Ct. Bijender as he could not see the vehicle which was going ahead of him as there was no light and PW-4 Ct. Sandeep Kumar and PW-12 Irshad sustained injury by helping deceased Ct. Bijender. PW-4 Ct. Sandeep Kumar has specifically deposed that there was no so dark that they were unable to see the face of each other. Similarly, other prosecution witnesses have also deposed that there was sufficient light. None of the prosecution or defence witness have deposed that there was no light at the spot of incident at the time of incident. Moreover, even if there was no light the headlight of motorcycle could have given sufficient light to see the vehicle going ahead. None of the prosecution or defence witnesses have deposed that they had seen any tempo/truck carrying sariya at the spot of incident or that Ct. Bijender had met with an accident with the said vehicle. A call regarding the incident was made by one public person who had witnessed the incident and on the basis of which DD No. 6A was registered at PS Kamla Market. As per the contents of DD No. 6A, Ex. PW-1/A, some boys were quarreling with the police officials at GB Road in front of building no. 5268-70. Thus, the call regarding the incident did not pertain to any accident and rather it was regarding a quarrel between some boys and police official which has corroborated the prosecution story. PW-16 Dr. FIR No. 106/2012, PS: Kamla Market, Page No. 59 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
Akshay Charak has specifically deposed that the said injury cannot be caused by steel rod or steel scale and the said injury can be caused only by sharp object such as knife. Similarly, PW- 17 Dr. Jyoti Barwa has specifically deposed that injury no. 1 on the body of deceased Ct. Bijender cannot be caused by fabrication steel rod as in the case of accident and there would be some associated injury such as by falling and the pattern of injury was not such being produced by a moving vehicle sideways. PW- 17 Dr. Jyoti Barwa has specifically deposed that injury no. 1 was stab wound. PW-17 Dr. Jyoti Barwa has also proved her subsequent opinion, Ex. PW-17/B regarding the weapon recovered from the possession of accused Suraj and she has specifically deposed that the possibility that injury no. 1 on the dead body of deceased was caused by the said weapon cannot be ruled out. Thus, the prosecution has successfully proved that the said injury was caused by sharp edged weapon like knife and same are not possible in an accident or through iron rod or sariya. This defence taken by the accused persons is totally vague in nature and accused persons have failed to put any dent on the prosecution story.
75. Another defence has been taken by the accused persons in their statement recorded under Sec. 313 Cr.PC. It is pertinent to mention that the said defence has not been mentioned by the accused persons during the examination of prosecution witnesses. Accused Ashish Kumar Bahuguna @ Ashu, Suraj Kumar and Aakash have taken the defence in their statements FIR No. 106/2012, PS: Kamla Market, Page No. 60 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
under Sec. 313 Cr.PC that on the date of incident all of them including accused Manoj were passing on the road situated at New Delhi Metro Station and at that time some police officials were using danda on public persons at the spot and one of the danda blow fell on the head of accused Aakash. The accused persons further stated that after 30 minutes accused Suraj received a phone call from accused Aakash and at that time they were near Sindhiya House and accused Aakash told them that they should reach to the spot where they had left him. They further stated that thereafter they went to the spot and police officials apprehended them. The accused persons have not got preserved and produced the CDR and location of their mobile phone numbers and the call record between accused Aakash and Suraj under Sec. 91 Cr.PC to corroborate the defence taken by them. It is pertinent to mention that in the cross-examination of PW-14 HC Baljeet Singh, the suggestion has been given on behalf of accused Suraj that he had beaten accused Aakash with danda. Similarly suggestion has also be given to PW-12 injured Irshad that he had caused injury on the head of accused Aakash. Thus, three different defences with respect to the injury on the head of accused Aakash have been taken by the accused persons which cannot stand together which shows that a false defence have been taken by accused persons.
76. Accused persons have also taken defence that earlier accused Aakash was taken to the hospital on 11.09.2012 at about 02:21 am and his MLC, Ex. PW-6/A was prepared. In this regard FIR No. 106/2012, PS: Kamla Market, Page No. 61 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
accused persons have examined DW-6 Satender Kumar, UDC, Lok Nayak Hospital, who produced and proved the MLC of one Akash son of Sh. Dal Chand, aged about 18 years, male. The said person namely Akash, S/o Sh. Dal Chand was taken to hospital by one HC Sandeep but accused persons have neither produced HC Sandeep nor they have produced the particulars of FIR in which the said Akash, S/o Sh. Dal Chand was taken to hospital with the alleged history of RTA. The present case does not pertained to RTA. Moreover, PW-32 IO/Inspector Jogendra Prasad has specifically denied the suggestions in this regard. In the present case the spelling of name of accused Aakash is different from the alleged Akash, S/o Sh. Dal Chand and the father's name of accused Aakash facing the trial is Om Prakash and not Dal Chand and his age in the MLC has been mentioned as 17 years. Even the addresses of Akash, S/o Sh. Dal Chand and accused Aakash, S/o Sh. Om Prakash are totally different. Moreover, accused Aakash, S/o Sh. Om Prakash, per his MLC, Ex. PW-6/B had not sustained any injury on his head as alleged in the defence taken by the accused persons. Thus, the defence taken by accused persons is vague in nature and hence is not tenable.
77. Accused persons had examined eight defence witnesses. DW-1 Sh. Khem Singh and DW-2 Smt. Manvati are relatives of accused Manoj. In their cross-examination, they have admitted that they did not know where the accused Manoj was present on 11.09.2012 at 12:30 am and hence their testimonies are of no FIR No. 106/2012, PS: Kamla Market, Page No. 62 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
relevance in the present case. DW-3 Sh. Yogesh Sharma and DW-8 Sh. Manish Tyagi are the bank officials who deposed that the Police of PS Kamla Market had not requested or procured the CCTV footage from their ATMs. IO/PW-32 Inspector Jogendra Prasad has admitted that he had not collected any CCTV footage in the present case. Since no CCTV footage was got preserved on behalf of accused persons nor it was produced by the prosecution, it does not affect the prosecution story. Thus, the defence witnesses produced on behalf of accused persons have failed to put a dent on the prosecution story.
78. PW-12 injured Irshad deposed that accused Suraj had given four knife blows upon him and thereafter he raised alarm and got rid of himself from the clutches of accused persons and started running towards Ajmeri Gate and blood was oozing from his body and he tied shirt on his neck. He further deposed that accused persons were also chasing him to kill him. PW-4 injured Ct. Sandeep Kumar and PW-14 complainant HC Baljeet Singh have corroborated the version of PW-12 injured Irshad. PW-29 Dr. Arvind Mohan has proved the MLC of Irshad, Ex. PW-25/A. As per the MLC there were incised wounds on the right side of neck, behind right ear lobs and on the back portion on the body of Irshad. PW-25 Dr. Kirti has given the opinion regarding the nature of injury on the person of PW-12 injured Irshad and as per her opinion the nature of injury was grievous in nature. The neck is a vital and the sensitive part of body from where our different veins passes and any cut on the said veins may cause death of a FIR No. 106/2012, PS: Kamla Market, Page No. 63 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
person. As per the testimony of PW-12 injured Irshad four knife blows were given by accused Suraj upon him and accused Suraj had not stopped giving blows and rather he himself got free from the clutches of accused persons and started running towards Ajmeri Gate and that time also accused persons were chasing him with knife and hence from the fact and circumstances, it is clear that accused persons were having the intention to kill PW- 12 injured Irshad. Thus, the prosecution has proved the ingredients of offence punishable under Sec. 307/34 IPC qua PW-12 injured Irshad against all the accused persons.
79. PW-4 injured Ct. Sandeep Kumar deposed that when accused Aakash exhorted accused Suraj to stab them, accused Suraj stabbed him on the left side of his face while he was in his clutches. PW-14 HC Baljeet Singh deposed that Ct. Sandeep has sustained injury near his left eye. PW-29 Dr. Arvind Mohan has proved the MLC of PW-4 injured Ct. Sandeep Kumar, Ex. PW- 25/B and as per the MLC there was incised wound on the left side of face measuring 3 x 1 cm. PW-16 Dr. Akshay Charak has given the opinion on the injury of PW-4 Ct. Sandeep Kumar and as per clinical examination, the nature of injury was simple in nature. However, PW-25 Dr. Kirti has opined that the nature of injury is grievous in nature as the patient received a scar on the left side of his face. Since PW-4 injured Sandeep Kumar received a permanent scar on his face, the case falls within the purview of Clause Sixthly of Sec. 320 IPC as it has resulted in permanent dis-figuration of his face. Thus, accused Suraj gave a knife blow FIR No. 106/2012, PS: Kamla Market, Page No. 64 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
to Ct. Sandeep Kumar on his face just below his eyes. The portion of body near eyes is very sensitive and it is connected with the head. The said knife blow was given by accused Suraj intentionally at instance of accused Aakash which could have pierced in his eyes or in the head or forehead of PW-4 Ct. Sandeep as the same was done by accused Suraj intentionally which could have caused the death of PW-4 Ct. Sandeep Kumar and thus it can be concluded that the accused persons attempted to commit murder of PW-4 Ct. Sandeep Kumar. Thus, the prosecution has proved the ingredients of offence punishable under Sec. 307/34 IPC qua PW-4 injured Ct. Sandeep Kumar against all the accused persons.
80. PW-11 Ct. Ravinder Bhat has proved DD No. 70B, Ex. PW-11/A and DD No. 74B, Ex. PW-11/B. As per the contents of DD No. 70B and 74B, Ct. Bijender, Ct. Ravi Maan, Ct. Karnail Singh, HC Baljeet Singh and Ct. Sandeep left for night patrolling duty in division no. 4 at GB Road. Thus, through the abovesaid record, the prosecution has proved that deceased Ct. Bijender, PW-4 Ct. Sandeep Kumar, PW-14 HC Baljeet Singh, PW-15 Ct. Karnail Singh and DW-5 HC Ravi Maan were public servants and at the time of incident they were discharging their public functions assigned to them through the abovesaid duties. Since PW-12 Irshad approached the abovesaid police officials to save himself from the accused persons, the abovesaid police officials while apprehending the accused persons were discharging their public functions and as per the testimony of PW-4 Ct. Sandeep FIR No. 106/2012, PS: Kamla Market, Page No. 65 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
Kumar, PW-12 Irshad and PW-14 HC Baljeet Singh, they were obstructed by the accused persons in discharge of their public functions. Accordingly, the prosecution has proved the ingredients of offence punishable under Sec. 186/34 IPC.
81. PW-4 Ct. Sandeep Kumar and deceased Ct. Bijender were public servants and as per the testimony of PW-4 Ct. Sandeep Kumar, PW-12 Irshad and PW-14 HC Baljeet Singh, all the accused persons assaulted them and used criminal force against them while they were discharging their public functions assigned to them through DD No. 70B, Ex. PW-11/A and DD No. 74B, Ex. PW-11/B. Thus, the prosecution has proved the ingredients of offence punishable under Sec. 353/34 IPC against all the accused persons.
82. As per testimony of PW-4 Ct. Sandeep Kumar, accused Suraj gave him knife blow on the left side of his face. PW-12 Irshad and PW-14 HC Baljeet Singh have corroborated the version of PW-4 Ct. Sandeep Kumar in this regard. PW-16 Dr. Akshay Charak has opined that as per clinical records, the nature of injury on the body of Ct. Sandeep Kumar was simple in nature. However, PW-25 Dr. Kirti has opined that injury on the body of Ct. Sandeep Kumar was grievous in nature as he received a scar on the left side of his face. The case falls within the purview of Clause Sixthly of Sec. 320 IPC and since there was dis-figuration of the face of Ct. Sandeep Kumar, the opinion given by PW-25 Dr. Kirti is hereby accepted. Since the accused persons have caused grievous hurt to PW-4 Ct. Sandeep Kumar FIR No. 106/2012, PS: Kamla Market, Page No. 66 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
while he was discharging his public duty, the prosecution has proved the ingredients of offence punishable under Sec. 333/34 IPC against all the accused persons.
83. PW-24 Retd. ACP Ram Kumar has proved the complaint, Ex. PW-24/A filed by him before the court. Thus, the condition for taking cognizance and trying the accused persons under Sec. 186 IPC has been complied with.
84. Prosecution through PW-4 Ct. Sandeep Kumar, PW-12 Irshad, PW-13 Sh. Salim and PW-14 HC Baljeet has successfully proved that a buttondar knife was recovered from possession of accused Suraj Kumar. Accused Suraj Kumar has failed to create any doubt with respect to the alleged recovery from his possession. Thus, the prosecution has proved the ingredients of offence punishable under Sec. 25 Arms Act as accused Suraj Kumar could not produce any license or permit to carry the said knife.
85. It has been argued on behalf of accused persons that only a single knife blow was given to deceased Ct. Bijender and from the single knife blow it cannot be inferred that the accused persons had the intention to kill Ct. Bijender. This court has to determine whether the case of the prosecution falls within the purview of any Clauses of Sec. 300 IPC. As per the testimony of the prosecution witnesses, accused Suraj was having a knife and on exhortion by accused Aakash, he gave a knife blow on the left side chest of deceased Ct. Bijender due to which Ct. Bijender FIR No. 106/2012, PS: Kamla Market, Page No. 67 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
sustained injury and he was declared brought dead in the hospital despite the fact that he was taken to the hospital immediately. Prima-facie the stabbing of deceased Ct. Bijender by accused Suraj falls within the purview of Clause Thirdly of Sec. 300 IPC. Hon'ble Supreme Court of India in judgment titled as 'Arun Nivalaji More Vs. State of Maharashtra, cited as (2006) 12 SCC 613' while dealing with the scope of third Clause of Sec. 300 IPC has observed as under:-
"21. The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as the words "intention of causing death" occur in clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death in the ordinary course of nature. This is also borne out from Illustration (c) to Section 300 IPC which is being reproduced below:
"(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of FIR No. 106/2012, PS: Kamla Market, Page No. 68 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
murder, although he may not have intended to cause Z's death."
22. Therefore, the contention advanced in the present case and which is frequently advanced that the accused had not intention of causing death is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC.
23. The scope and ambit of clause Thirdly of Section 300 IPC was considered by this Court in the oftquoted decision in 'Virsa Singh Vs. State of Punjab' and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have given a single spear-blow and the injury sustained by the deceased was "a punctured wound 2'' x ½'' transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal... Three coils of intestines were coming out of the wound."
(SCR petitioner. 1497).
After analysis of the clause Thirdly, it was held :(SCR Per contra Ld. Addl PP for the State submits that. 1500-501) "[T]he prosecution must prove the FIR No. 106/2012, PS: Kamla Market, Page No. 69 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
following facts before it can bring a case under Section 300 '3rdly'.
First, it must establish, quite objectively, that a bodily injury is present.
Secondly, the nature of injury must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 3rdly.
It does not matter that there was no intention to cause death, [or] that there was FIR No. 106/2012, PS: Kamla Market, Page No. 70 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature [there is no real distinction between the two], [or even] that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
25. In order to ascertain that "there was an intention to inflict the particular bodily injury" the enquiry should not be directed to find out whether the offender had intention to cause those very injuries to the internal organs of the body which were actually found to be there in the medical examination. The intention has to be gathered from a host of circumstances like the seat of injury viz. the place or portion of the body where the injury has been caused, the nature of the weapon, its size and dimension or other attributes and the force applied in inflicting the injury. Being a FIR No. 106/2012, PS: Kamla Market, Page No. 71 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
question of fact it is difficult to lay down exhaustive tests to ascertain as to whether the offender intended to inflict that particular injury which is found on the body of the deceased but the features enumerated above will certainly play a vital role in arriving at a correct conclusion on the said issue.
26. The mere fact that a dangerous or deadly weapon was not used or the injuries were not caused on vital parts of the body may not necessarily take out the offence from the clutches of clause Thirdly of Section 300 IPC. Death may take place on account of large number of blows given by a blunt weapon like lathi on hands and legs causing fractures. Though the injuries may not be on a vital part of the body as the said term is generally understood, but if the medical evidence shows that they were sufficient in the ordinary course of nature to cause death, the offence would fall in clause Thirdly of Section 300 IPC. In 'Anda Vs. State of Rajasthan' where there were Section 300 IPC having regard to the fact that the doctor had opined that all these injuries collectively were sufficient to cause FIR No. 106/2012, PS: Kamla Market, Page No. 72 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
of death in the ordinary course of nature though individually no injury was sufficient in the ordinary course of nature to cause death. It was observed : (AIR petitioner.
148) "The third clause of Section 300 IPC views the matter from a general standpoint. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. Here the emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death.
The sufficiency is the high probability of death in the ordinary way of nature. When this sufficiency exists and death follows and the causing of such injury is intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The intentional injury which must be sufficient to cause death in the ordinary course of nature, is the determinant factor."
86. PW-17 Dr. Jyoti Barwa, has proved the postmortem report of deceased Ct. Bijender, Ex. PW-17/A. She has specifically deposed that the cause of death of Ct. Bijender in her opinion FIR No. 106/2012, PS: Kamla Market, Page No. 73 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
was as a result of hemorrhage and shock, consequent upon penetrating trauma to the chest via entry no. 1 which was fatal and sufficient to cause death in ordinary course of nature. She also deposed that the injuries was ante-mortem in nature, fresh in duration and was inflicted with sharp edged weapon. She also gave her subsequent opinion, Ex. PW-17/B regarding the weapon i.e. knife recovered from possession of accused Suraj and in her opinion the possibility of injury no. 1 on the death body of deceased was caused by the said weapon cannot be ruled out.
87. To bring the case within purview of Clause Thirdly of Sec. 300 IPC, the prosecution has brought the following facts on record:-
(i) PW-29 Dr. Arvind Mohan has proved the MLC of deceased Ct. Bijender exhibited as Ex. PW-29/A and on local examination there was deep incised wound inter-costal space measuring 1.5 cm x 1 cm on the body of deceased Bijender. Thus, the prosecution has proved the injury on the left side chest of body of deceased Bijender.
(ii) As per the testimony of PW-4 Ct. Sandeep Kumar, PW-12 injured Irshad and PW-14 HC Baljeet Singh and as per the facts and circumstances of the case, it is clear that accused Suraj had the intention to inflict that particular injury on the body of deceased Ct. Bijender and the said injury was not accidental or unintentional.
(iii) PW-17 Dr. Jyoti Barwa has proved the postmortem FIR No. 106/2012, PS: Kamla Market, Page No. 74 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
report Ex. PW-17/A of deceased Ct. Bijender and she has specifically deposed that the injury no. 1 caused on the chest of deceased Ct. Bijender was fatal and sufficient to cause death in the ordinary course of nature.
88. Thus, the prosecution has proved all the ingredients of Clause Thirdly of Sec. 300 IPC. Applying the law laid down by the Hon'ble Supreme Court of India in 'Arun Nivalaji More' Supra, this court is of considered opinion that all the accused persons were acting in furtherance of their common intention and they intended to inflict the injury which has been inflicted on the body of deceased Ct. Bijender and the said injury was and sufficient to cause death in ordinary course of nature and hence the case falls within the purview of Clause Thirdly of Sec. 300 IPC which has been duly proved by the prosecution.
89. PW-4 Ct. Sandeep Kumar and PW-12 Irshad are injured in the present case. They have specifically deposed against the accused persons with respect to the injury caused on their person. There is complete consistency in their statement given to the police and their testimony recorded in the Court. The testimony of the injured witnesses are to be appreciated as per the law laid down by the Hon'ble Supreme Court of India in this regard.
90. Hon'ble Supreme Court of India in judgment titled as Jarnail Singh & Ors. Vs. State of Punjab cited as (2009) 9 SCC 719 while dealing with the evidentory value of injured FIR No. 106/2012, PS: Kamla Market, Page No. 75 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
witness has observed as under:-
"28. Darshan Singh (PW-4) was an injured witness. He had been examined by the Doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa Vs. State of Karnataka, this Court has held that the deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
In State of U.P Vs. Kishan Chand, a similar view has been reiterated observing that the testimony of stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends supports to its testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan Vs. State of Haryana)."
FIR No. 106/2012, PS: Kamla Market, Page No. 76 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
91. Nothing has been brought on record by the accused persons to put any dent on the version of PW-4 Ct. Sandeep Kumar and PW-12 Irshad. The nature of injury on the person PW-4 Ct. Sandeep Kumar and PW-12 Irshad have been opined to be grievous in nature by PW-25 Dr. Kirti in her report Ex. PW- 25/A & Ex. PW-25/B. Both the abovesaid witnesses have specifically explained the role of each accused and they have deposed against all the four accused persons. Applying the law laid down by Hon'ble Supreme Cour of India in Jarnail Singh & Ors. (Supra) & Kishan Chand (Supra), this Court is of considered opinion that the testimony of PW-4 Ct. Sandeep Kumar and PW-12 Irshad cannot be discarded without any ground and the testimony of both the injured persons i.e. PW-4 Ct. Sandeep Kumar and PW-12 Irshad being injured are reliable.
92. It has been argued that the testimony of prosecution witnesses suffers from material contradictions. All the prosecution witnesses have deposed on the same lines and there are some minor contradiction in their testimonies. The contradiction in the testimonies are to be appreciated as per the established principles of law. Hon'ble Supreme Court of India in Judgement titled as 'Rammi @ Rameshwar Vs. State of Madhya Pradesh cited as (1999) 8 SCC 649' observed as under:-
"24. When an eye witness is examined at length, it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can FIR No. 106/2012, PS: Kamla Market, Page No. 77 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
successfully make his testimony totally non- discrepant. But Court should bear in mind that it is only when the discrepancy in the evidence of witness are so incompatible with the credibility of version that the Court is justify in Jettisoning his evidence. But true serious view to be adopted on mere variations falling in the narration of any incident (either as within the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
25. It is common practice in the Trial Courts to make out contradictions from a previous statement of a witness for confronting him during cross-
examination. Merely because there is inconsistency in the evidence, it is not sufficient to impair the credit of the witness. No doubt Section 155 of Evidence Act provides for impeaching the credit of evidence by proof of an inconsistent former statement. But a reading of Section would indicate that all inconsistent statements are not sufficient to impeach the credit of witness."
Similary Hon'ble Supreme Court of India in Judgement titled as 'Waman Vs. State of Maharashtra 2011 Cr.L.J 4827 (SC)' has held that the testimony of the witness cannot be disbelieved merely because of some omission in the statement u/s 161 Cr.P.C and the evidence before the Court.
93. In the present case only minor contradiction with respect to the cordoning off the spot of incident, arrival of senior officials at the spot of incident, running of accused persons etc. have come on record which are bound to happen in a criminal trial as per the law laid down by Hon'ble Supreme Court of India in 'Rammi FIR No. 106/2012, PS: Kamla Market, Page No. 78 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
@ Rameshwar (Supra)' & 'Waman (Supra)' and hence same are not fatal to the prosecution case.
94. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
95. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi) cited as (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from FIR No. 106/2012, PS: Kamla Market, Page No. 79 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the Cross examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to FIR No. 106/2012, PS: Kamla Market, Page No. 80 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
96. In case of Ramdas Vs. State of Maharashtra cited as (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her FIR No. 106/2012, PS: Kamla Market, Page No. 81 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
testimony. In the instant case we do not fine her evidence to be of such quality."
Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
97. Applying the law laid down by the Hon'ble Apex Court in 'Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that PW-4 injured Ct. Sandeep Kumar, PW- 12 injured Irshad and PW-14 complainant HC Baljeet Singh are witnesses of sterling quality as theri versions are natural and they have withstood the test of cross examination.
98. This court is of the considered opinion that the testimony of PW-4 injured Ct. Sandeep Kumar, PW-12 injured Irshad and PW-14 complainant HC Baljeet Singh are clear, cogent, credible, trustworthy and consistent and have been corroborated by the other prosecution witnesses, medical evidence on record and the circumstances.
99. The ingredients of offence punishable under section 302/34 IPC for the commission of offence of murder of deceased FIR No. 106/2012, PS: Kamla Market, Page No. 82 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
Ct. Bijender, under Sec. 307/34 IPC for the commission of offence of an attempt to murder of Ct. Sandeep Kumar, under Sec. 307/34 IPC for the commission of offence of an attempt to murder of Irshad, under Sec. 186/34 IPC for the commission of offence of obstructing public servent in discharge of their public function, under Sec. 353/34 IPC for the commission of offence of assault or criminal force to deter public servant from discharge of their public duty and under Sec. 333/34 IPC for the commission of offence of voluntary causing grievous hurt to deter public servant from their duty have been duly proved beyond reasonable doubt by the prosecution against all the accused persons namely Ashish Kumar Bahuguna @ Ashu, Suraj Kumar, Manoj Kumar and Aakash. The prosecution has also proved the ingredients of offence punishable under Sec. 25 Arms Act for possession of arms i.e. buttondar knife without any license against accused Suraj Kumar. The prosecution has successfully proved that all the four accused persons shared common intention in the commission of all the abovesaid offences.
100. In the light of aforesaid discussion, this court is of the considered opinion that prosecution has proved its case against accused persons namely Ashish Kumar Bahuguna @ Ashu, Suraj Kumar, Manoj Kumar and Aakash beyond reasonable doubt for the offences punishable under Section 302/34 IPC for the commission of murder of Ct. Bijender, under Sec. 307/34 IPC for the commission of the offence of attempt to commit murder of Ct. Sandeep Kumar, under Sec. 307/34 IPC for the commission FIR No. 106/2012, PS: Kamla Market, Page No. 83 of 84 State Vs. Ashish Kumar Bahuguna & Ors.
of the offence of attempt to commit murder of Irshad, under Sec. 186/34 IPC for the commission of offence of obstructing public servants i.e. Ct. Sandeep Kumar, Ct. Bijender and HC Baljeet Singh in discharge of their public function, under Sec. 353/34 IPC for the commission of offence of assault or criminal force to deter public servants i.e. Ct. Sandeep Kumar, Ct. Bijender and HC Baljeet Singh from discharge of their public duty and under Sec. 333/34 IPC for the commission of offence of voluntary causing grievous hurt on public servant i.e. Ct. Sandeep Kumar and Ct. Bijender to deter them from their public duty. The prosecution has also proved its case against accused Suraj Kumar under Sec. 25 Arms Act for the commission of offence of possession of arms i.e. buttondar knife without any license.
101. Accordingly, accused persons namely Ashish Kumar Bahuguna @ Ashu, Suraj Kumar, Manoj Kumar and Aakash are hereby convicted for the offences punishable under section 302/34, 307/34, 307/34, 186/34, 353/34 & 333/34 IPC. Accused Suraj Kumar is also convicted for the offence punishable under Sec. 25 Arms Act.
Digitally signedVIRENDER by VIRENDER Announced in the open court KUMAR KUMAR KHARTA Date: 2024.03.02 on 2nd day of March, 2024 KHARTA 15:27:38 +0530 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:02.03.2024 FIR No. 106/2012, PS: Kamla Market, Page No. 84 of 84 State Vs. Ashish Kumar Bahuguna & Ors.