Delhi District Court
State vs . 1. Sohan S/O Sh. Ajeet Parsad on 8 May, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 106/2013
Unique Case ID: 02404R0043762013
State Vs. 1. Sohan S/o Sh. Ajeet Parsad
2. Neeraj S/o Sh. Arun Parsad
3. Parveen S/o Sh. Arun Parsad
4. Sudhir S/o Sh. Kishor Mehto
5. Birju S/o Sh. Biroga Ram
All R/o G44, Mahavir Vihar, Sunday Bazar
Wali Gali, Kanjhawala, Delhi81.
(All Convicted)
FIR No. : 277/2012
Police Station : Kanjhawala
Under Section : 308/34 Indian Penal Code
Date of committal to Sessions Court : 08.05.2013
Date on which orders were reserved : 25.03.2014
Date on which judgment pronounced : 01.05.2014
JUDGMENT
Brief Facts:
(1) As per the allegations, on 09.12.2012 at about 9.30 PM at Sunday Bazar Road, Mahavir Vihar, Kanjhawala, Delhi, the accused Sohan, Neeraj, Parveen, Arun Prasad, Sudhir and Birju, in furtherance of common intention, voluntarily attacked upon the State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 1 of 87 victim Balram with iron rod / saria and danda and caused grievous injuries on his head and other vital parts of his body with such intention and under such circumstances that if the death of Balram would have occurred then, they all could have been guilty for committing the offence of culpable homicide not amounting to murder.
CASE OF PROSECUTION IN BRIEF:
(2) The case of prosecution in brief is that on 11.12.2012 on receipt of DD No. 5A the Investigating Officer reached at Safdarjung Hospital where he collected the MLC of the injured Balram Pandey who was declared unfit for statement at that time. Since the IO did not find any eye witness in the hospital, hence the DD was kept pending. Thereafter on 12.12.2012 IO again went to the Safdarjung Hospital and came to know that the injured Balram Pandey was discharged. Thereafter, on the same day (i.e. 12.12.2012) the complainant Gopal Pandey along with one Satish came to the police station and gave his statement to the police wherein he stated that he was residing along with his brother Balram Pandey on the given address and Satish was residing in the same premises on rent. He further stated that Balram and Satish were working in the Sobhit Plywood Factory, Kanjhawala, Delhi and the accused Sohan, Parveen, Neeraj, Sudhir and Birju who were also residing in the same area, State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 2 of 87 were also working in the same factory or adjoining factory. He further stated that on 9.12.2012 at 9:30 PM his brother Balram along with Satish were returning back from the Weekly Sunday Bazar after purchasing domestic articles and in the corner of the gali they met the accused Sohan, Sudhir and Birju and they started teasing both Balram and Satish saying "tunda haath kata" as Balram had lost his right hand fingers and Satish had lost the fingers of his left hand in an accident in the factory. The complainant further informed that Balram objected the accused not to tease them on which they (accused) started doing dhakka mukki with Balram and started saying "tunde tu hamara kya kar lega"..... Gopal further stated that he and Satish tried to pacify the matter and in that process Sohan fell down on the ground and got annoyed and exhorted Sudhir and Birju "is saale ki itni himmat mujhe dhakka de, maaro sale ko" after which Sudhir and Birju started beating Balram and thereafter Sohan went to his room and called his associates Neeraj and Parveen and they (Sohan, Neeraj and Parveen) brought iron rods in their hands and Sohan exhorted them saying "aaj is Balram ko sabak sikhana hai, ise nahi chhorna" after which all the accused started giving beatings to Balram and pushed him on the road after which Parveen exhorted saying "is tarah se iska kuch nahi bigdega, saale ke sar me maaro"
after which Sudhir and Birju started given leg blows on the chest and stomach of Balram and Neeraj, Sohan and Parveen gave saria blows State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 3 of 87 on the head of Balram on which public persons gathered at the spot and somebody made a call at 100 number after which all the five accused fled from the spot.
(3) The complainant Gopal further stated that thereafter he took Balram home with the help of Satish and also purchased medicines / pain killers from a nearby medical store as he could not assess the extent and seriousness of the injuries but when there was no relief in the night, in the morning of 10.12.2012 he along with Satish took Balram to Mangalam Hospital from where he was referred to Safdarjung Hospital and on 12.12.2012 after detailed check, the doctors informed that there was a serious injury on the head of Balram.
(4) On the basis of the above statement of Gopal, the present FIR was registered and during investigations, all the accused were apprehended, arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE (5) Charge under Section 308/34 Indian Penal Code was settled against all the accused namely Sohan, Neeraj, Parveen, Arun Prasad, Sudhir and Briju to which they pleaded not guilty and claimed trial.
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 4 of 87 EVIDENCE:
(6) In order to discharge the onus upon it, the prosecution has examined as many as sixteen witnesses.
Public Witnesses:
(7) PW7 Gopal is the eye witness / complainant and the brother of Balram who has deposed that he is a driver by profession and his younger brother namely Balram used to work in Shobhit Plywood Factory at Kanjhawla and one Satish also used to work in said factory. According to the witness, at the relevant point of time, they were residing at G Block, Sunday Bazar Wali Gali, House of Doctor Ji at Kanjawla, Delhi. He has deposed that on 9.12.2012 at about 9:00 PM, he along with his brother Balram and Satish were coming from the market after purchasing the vegetables and on the way when they reached at the corner of Sunday Bazar, the accused Sudhir, Birju and Sohan (correctly identified by the witness in the court) who were present there, started teasing his brother Balram by exhorting Banta Tunda as his brother Balram could not hold the articles from his right hand. According to the witness, his brother Balram requested them that he was getting late and not to tease him since they had to prepare the meals. The witness has deposed that thereafter when they started to proceed their room, his brother Balram hit Sohan with his left arm to proceed for his house as a result State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 5 of 87 of which accused Sohan fell down and then accused Sudhir, Birju and Sohan started giving beatings to his brother Balram as a result of which the packet of the vegetables which was in the hand of his brother Balram fell down in a drain. The witness has further deposed that in the meantime accused Sohan called Praveen and Neeraj (correctly identified by the witness in the court) from their room and they started giving beating to his brother with an iron rod and assaulted him on his head. According to the witness, accused Sohan, Praveen and Neeraj who were having iron rods which they had brought from their room which was situated near the place of incident and started giving iron rod blows on the head of his brother Balram.
The witness has deposed that at that time Sudhir and Birju caught hold of the neck of his brother Balram forcefully from the back side and other three accused i.e. Praveen, Neeraj and Sohan started giving rod blows on both the sides i.e. right and left side of his skull and due to beatings his brother Balram become unconscious. The witness has further deposed that even then accused Birju exhorted isko aur maaro and thereafter they threw his brother in a drain nearby and thereafter the accused persons fled from the spot along with the iron rods. According to the witness, thereafter he along with Satish took Balram to their room and his injuries were washed and they gave him some medicines but he could not digest the same. Witness has deposed that at about 3:30 AM in the early morning he along with State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 6 of 87 Satish took Balram to Balmiki Hospital but he was not got admitted there and thereafter they took Balram to Manglam Hospital where they got Balram admitted there. According to the witness, in Manglam Hospital they were advised that CT scan of his brother is to be required and a large amount of money would be required for the same and thereafter he went to his employer from where he took an amount and shifted his brother to Safdarjung Hospital where he was got admitted. The witness has deposed that from the Safdarjung Hospital a call was made to the police on which police came to the hospital and at that time he was not present while his brother was unconscious. According to the witness, when he came to the hospital after arranging the money, he was told by the doctor that police had come and they are making the inquiries on which he went to the Police Station and met to the Investigating Officer and his statement was recorded which is Ex.PW7/A bearing his signatures at point A. (8) The witness has deposed that thereafter he along with Satish and the Investigating Officer came to the place of incident and he showed the place of incident to the Investigating Officer who prepared the site plan and thereafter they along with Investigating Officer proceeded towards Plywood Factory where all the five accused present in the court namely Sohan, Neeraj, Praveen, Sudhir and Birju were found coming from the side of company. According to the witness, he pointed out towards the accused persons and they State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 7 of 87 were all apprehended by the police and arrested vide memos Ex.PW7/B1 to Ex.PW7/B5 respectively and their personal search was conducted vide memos Ex.PW7/C1 to Ex.PW7/C5 respectively bearing his signatures at point A and that of Satish at point B. The witness has deposed that the Investigating Officer recorded the disclosure statements of the accused persons vide Ex.PW7/D1 to Ex.PW7/D5 respectively bearing his signatures at point A and that of Satish at point B. (9) The witness has deposed that thereafter accused persons were brought to their room from where the accused Neeraj, Sohan and Praveen got recovered three iron rods from under the bed and the same were converted into pullandas and taken into possession by the Investigating Officer vide memo Ex.PW7/E1 to Ex.PW7/E3 respectively bearing his signatures at point A and that of Satish at point B. The witness has deposed that thereafter the accused persons pointed out the place of incident vide memo Ex.PW7/F bearing his signatures at point A and that of Satish at point B and thereafter the police took the accused persons and the iron rods to the Police Station and he along with Satish went to his room. According to the witness, during investigations he handed over the medical papers of his brother Balram of Manglam Hospital to the Investigating Officer which was taken into possession vide memo Ex.PW7/G bearing his State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 8 of 87 signatures at point A. (10) The witness has identified the case property i.e. iron rods/ bars having serial no.1, 2 and 3, as the same which were got recovered by the accused Neeraj, Sohan and Praveen. Witness has explained that the iron rod having serial no.1 was in the hand of Praveen which iron rod / saria is Ex.P1; the iron rods having serial no.2 and 3 were in the hand of Sohan and Neeraj which iron rods / saria are Ex.P2 and Ex.P3. However, the witness is unable to tell as to which iron rod / saria was in the hand of which accused. The witness has deposed that his brother Balram was not in a position to speak for about four and a half month.
(11) In leading questions by Ld. Addl. PP for the State the witness has admitted that the accused Praveen has exhorted is tarah kuch nahin bigrega, iske sir meh aur maro. He further admits that he along with Satish had tried to save Balram from the hands of the accused and that he and Satish had also received some injuries. (12) In his cross examination by Ld. Defence Counsel, the witness has deposed that he is having a valid LMV driving license and is driving an Omni Maruti Van belonging to one person namely Baman of village Jharoda on the route Najafgarh to Bahadurgarh and he was being paid on trip basis and his duty hours depend on the call as per the trip. According to the witness, on the day of incident he had not gone to his duty as it was Sunday and he did not receive any State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 9 of 87 call of trip and has voluntarily explained that there is no restriction to go on trip on Sunday. He has deposed that he had told to the police in his statement that on 9.12.2012 at about 9:00 PM he along with his brother Balram and Satish were coming from the market after purchasing the vegetables. Witness was confronted with the portion A to A of Ex.PW7/A where the fact of purchasing of vegetable was not found so specifically recorded as such and the only fact mentioned is of purchase of domestic items. Witness has admitted that there were number of public persons present at the spot at the time of the incident and has voluntarily explained that the place of incident is some distance away from the Sunday Bazar. According to the witness, public persons did not gather at the spot as the place of incident is a chowk and is not visible from the Sunday Market and states that the spot of the incident was not frequented by public persons at that time but one or two persons were passing through the same and no one had come out from the nearby houses. Witness has deposed that he had told the police in his statement that his brother Balram could not hold the articles from his right hand. He was confronted with the statement Ex.PW7/A where it was not found so recorded. According to the witness, he had not told the police in his statement that due to assault the vegetables scattered and fell in the drain. Witness has denied that he had not told the above said fact to the police as his brother Balwam was not having any vegetables at all State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 10 of 87 or that he was not present at the spot. According to the witness, he remained at the spot of incident for about half an hour during which period his brother was given beatings. He has deposed that he had seen the accused persons in the area prior to the incident and he also know them previously. According to the witness, prior to this incident there was no quarrel took place between them and the accused persons. He is unable to tell whether any quarrel had taken place in the factory between his brother, Satish and the accused persons. According to the witness, the accused Sudhir used to work in the same factory in which his brother was working and other accused were working in the adjoining factory. Witness has deposed that he along with Satish took his brother Balram to their room. According to the witness, his clothes were not blood stained since no blood oozed out from the body of his brother Balram. Witness has denied that he was not present at the spot and he never took his brother Balram to his room and that is why his clothes did not get blood stains or that his brother was beaten up by some other persons and due to previous enmity he have falsely implicated the accused persons in the present case to take revenge from them in order to extort money from them. According to the witness, he did not receive any iron rod blow in the quarrel or in an attempt to save his brother. Witness has denied that he was not present at the spot and that is why he did not receive any iron rod blow. According to the State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 11 of 87 witness, the place of incident is about 4050 steps from their room. He has deposed that he and his brother Balram used to reside in the tenanted room. He has further deposed that apart from him and his brother, two more tenants were residing in the house where he was residing on rent. According to the witness, one was an old lady who was residing on a room on ground floor whereas Satish and his wife and children used to reside in a room adjoining to his room. Witness has deposed that he went to the Police Station on 13.12.2012 at about 10:0010:30 AM (again said he went to the Police Station in the afternoon) and he remained in the Police Station about 22½ hours and returned back to his room at about 2:002:30 PM from the Police Station on 13.12.2012. According to the witness, Satish was accompanying him throughout and he came back to his room in a police gypsy. He has clarified that there were two police persons in the gypsy. Witness has denied that no such incident had taken place at the alleged spot. According to the witness, his brother was discharged from the hospital on 13.12.2012. He has deposed that he took his brother to the room on 13.12.2012 at about 9:30 AM. He has further deposed that he went to arrange money from his friends and employer in the early morning hours on 12.12.2012 and returned back to the hospital in the afternoon at about 3:00 PM and police came to the hospital in his absence. According to the witness, no police persons came to Safdarjung Hospital in his presence. State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 12 of 87 (13) Witness has denied that no iron rods were got recovered by the accused persons or that the iron rods have been planted on them and that at 9:009:30 PM no incident took place and that is why the injured was not taken to any hospital at that time. He has further denied that the injured was admitted in the hospital later on the next day. He has admitted that he was having a mobile phone at the time of the incident but has stated that he did not make any PCR call at that time. Witness has denied the suggestion that he was not present at the spot and that is why he did not make any call to the PCR or that Sohan, Praveen and Neeraj never came at the spot with iron rods nor they hit his brother Balram on his head or that the accused Sudhir and Birju never came on the spot nor they caught hold of the neck of his brother. Witness has denied that his brother was never teased by accused Sudhir, Birju and Sohan. The witness does not remember whether the accused persons used to tease his brother Balram by saying banta tunda prior to the incident. Witness has denied that he does not remember about the alleged teasing or prior teasing by the accused persons because his brother was never teased by the accused persons either prior to the incident or on the date of incident. Witness has denied that no site plan was prepared in his presence or that his signatures were obtained by the police on blank papers or that no disclosure statements of the accused persons were recorded in his presence or that the accused persons never pointed out the place of State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 13 of 87 incident in his presence.
(14) PW8 Satish has deposed that he was working in Shobit Plywood Factory in Kanjhawala and Balram was also working with him in same factory. According to the witness, in the same compound Balram and his elder brother Gopal was residing on the Ground Floor at the said premises and Gopal and his younger brother Balram was residing on the First Floor. He has deposed that Gopal was a driver by profession and used to drive a Omni Van. He has further deposed that on 9.12.2012 at about 9:0009:30 PM, he along with Balram and Satish were coming from the market after purchasing the vegetables from Sunday market and on the way when they reached at the corner of Sunday Bazar, accused Sudhir, Birju and Sohan (correctly identified by the witness) who were present there, started teasing him and Balram by exhorting Banta tunda as Balram could not hold the articles from his right hand and he could not hold the article from his left hand as their fingers amputated in some incident where he was working earlier and Balram was working. According to the witness, he and Balram requested them saying that they were getting late and not to tease them since they had to prepare the meals and thereafter when they started to proceed their respective destination, Balram hit Sohan with his left arm to proceed for his house as a result of which accused Sohan fell down and then accused Sudhir, Birju and Sohan become angry and started giving State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 14 of 87 beatings to Balram as a result of which the packet of the vegetables which was in the hand of his Balram scattered and fell down in the drain. The witness has deposed that in the meantime accused Sohan called Praveen and Neeraj (correctly identified by the witness) from their room and they started giving beating to Balram with an iron rod and assaulted him on his head.
(15) The witness has deposed that accused Sohan, Praveen and Neeraj who were having iron rods/ Saria which they had brought from their room which was situated near the place of incident and started giving iron rod blows on the head of Balram. He has further deposed that he and Gopal tried to intervene in the matter but accused persons also started beatings them. According to the witness, at that time Sudhir and Birju caught hold of the neck of Balram forcefully from the back side and other three accused i.e. Praveen, Neeraj and Sohan started giving rod blows on both the sides i.e. right and left side of his skull. The witness has deposed that due to beatings Balram become unconscious and in the mean time many public persons gatther there and some of the persons call the Police at 100. Witness has deposed that when accused were giving beatings, accused Birju exhorted iske sar (head) par aur maaro and thereafter they threw Balram in a drain nearby and then fled away from the spot along with the iron rods.
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 15 of 87 (16) The witness has deposed that thereafter he along with Gopal took Balram to the room and he was given some pain killer tablets so that anyhow night could be passed. According to the witness, on the next morning he along with Gopal took Balram to Manglam Hospital where they got admitted Balram there. He has deposed that in Manglam Hospital they were advised then that CT scan of Balram is to be required and a large amount is required for the same and thereafter Gopal went to arrange the money and he remained with Balram after which Balram was shifted to Safdarjung Hospital where he was got admitted and then from the Safdarjung Hospital a call was made to the police on which police came to the hospital. The witness has further deposed that in the Safdarjang Hospital inquiry was made from him and Gopal by the Police and then message was conveyed in Kanjhawala Police Station and thereafter on 12.12.2012 Balram was got discharged from Safdarjang Hospital and his statement was recorded.
(17) The witness has deposed that on 13.12.2012 the incident was reported to the police by Gopal and he also told about the facts in Police Station Kanjhawala to the concerned Investigating Officer and thereafter he along with police officer and Gopal proceeded for the investigation. According to the witness, when they were going towards Shobit Plywood factory and were at a distance approx. 100 mtrs. from the said factory all the five accused persons were found State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 16 of 87 coming from the side of Shobit Plywood factory. He has deposed that he and Gopal pointed out towards them and informed the Investigating Office and thereafter they were apprehended by the police officers and arrested vide memos Ex.PW7/B1 to Ex.PW7/B5 respectively and their personal search was conducted vide memos Ex.PW7/C1 to Ex.PW7/C5 respectively bearing his signatures at point B after which the Investigating Officer recorded the disclosure statements of the accused persons which are Ex.PW7/D1 to Ex.PW7/D5 respectively bearing his signatures at point B. The witness has deposed that thereafter the accused persons took the police party to their room from where the accused Neeraj, Sohan and Praveen got recovered three iron rods under the bed and the same were converted into pullandas and taken into possession by the Investigating Officer vide memo Ex.PW7/E1 to Ex.PW7/E3 respectively bearing his at point B. The witness has deposed that thereafter the accused persons pointed out the place of incident vide memo Ex.PW7/F bearing his signatures at point B and thereafter the police took the accused persons and the iron rods to the Police Station and he along with Gopal went to their room. The witness has identified the case property i.e. three iron rod/ Saria Ex.P1 to Ex.P3. (18) In leading questions put by Ld. Additional PP the witness has stated that he cannot tell as which of the Sarai was recovered by State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 17 of 87 which of the accused namely Neeraj, Parveen and Sohan as at the time of incident their main and prime motive was to save Balram from the clutches of accused persons and they did not notice which of the Saria was used by which accused but states that the three iron rods / Sarias which are being shown to him in the court were the same.
(19) In his cross examination by Ld. Defence Counsel, the witness Satish has deposed that the accused Praveen and Sudhir are working in the same factory in which he and Balram used to work whereas Birju, Sohan and Neeraj are working in the adjoining factory. Witness has admitted that he knew the accused persons even prior to the incident. He has deposed that prior to the incident the accused persons never teased him and Balram by saying bunta - tunda. Witness has admitted that on account of the deformity he and Balram were unable to do the work equal to the other normal factory workers. Witness has admitted that he and Balram are getting less salary as compared to that of other normal labourers. Witness has deposed that he is residing at the abovementioned address in Delhi since the year 2010. Witness has denied that he was not present along with Balram and has voluntarily explained that he and Balram always remained together. Witness has denied that Gopal was not with them at the time of the incident or that Sudhir, Birju and Sohan never teased them on the date of incident. Witness has admitted that public State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 18 of 87 persons had gathered at the spot and there was a heavy rush on account of Sunday Market also. According to the witness, the rush increased at the time of the incident. He has explained that blood did not ooze out from the body of Balram. Witness has admitted that he did not receive any injuries and has voluntarily explained that he only received minor injuries. Witness has further admitted that he did not receive any iron rod blow. Witness has denied that he was not present at the spot along with Balram and that is why he did not receive any iron rod blow or that Blaram is a drug addict and is a habitual drinker or that he received injuries while fighting with some other persons. He has denied that the accused persons have been falsely implicated in the present case on account of prior enmity and due to complex of getting lessor salary than the accused persons. According to the witness, at the time of incident he was having a mobile phone. Witness has admitted that he did not make any PCR call at 100 number. Witness has denied that he was not present at the spot and that is why he did not make any 100 number call. Witness has admitted that similar kind of iron rods/ saria are easily available in market. He is not aware as to who made a PCR call. According to the witness, he had not seen any person from the public who had made a PCR call. He is unable to tell the number of iron rod blows given to Balram by the accused persons. Witness has denied that he cannot tell the same because accused persons have been falsely State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 19 of 87 implicated in the present case or that he was not present at the spot or that the accused persons never gave any iron rod blows or beatings to Balram. According to the witness, the injured Balram was taken to the room at about 10:00 PM and they took the injured Balram to Manglam Hospital in the morning at about 10:0011:00 AM on 10.12.2012 and they remained in Manglam Hospital for about eight hours after which Balram was taken to Safdarjung Hospital on 11.12.2012 at about 2:303:00 AM. He has deposed that he did not sign any paper in Manglam Hospital nor at Safdarjung Hospital. Witness has denied that he never took the injured to any hospital and that is why he did not sign any paper in the hospital. He has deposed that thereafter on 12.12.2012 Balram was discharged from Safdarjung Hospital at about 6:007:00 PM after which they took the injured to his room at about 9:0010:00 PM. Witness has admitted that his statement was not recorded in the hospitals and that the his statement was not taken till 12.12.2012. According to the witness, his statement was recorded by the police at Police Station on 13.12.2012 in evening hours at about 3:004:00 PM. The witness has deposed that he reached the police station at about 2:002:30 PM on 13.12.2012 and remained there till 5:00 PM and thereafter he never visited the police station in connection with this case. He has further deposed that police never came to his house in connection with the case. According to the witness, he remained with Balram for about a month State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 20 of 87 after 13.12.2012 to take care of him in his room. Witness has deposed that in his presence police never came to the room of Balram during his stay with him for one month. According to the witness, on 12.12.2012 Balram was taken to the house of his sister at Najafgarh directly from Safdarjung Hospital and not at his room at Kanjhawla. He has deposed that there are three rooms in the house where he was residing. He has further deposed that he was living on first floor and Balram and his brother were living on the ground floor whereas the second adjoining room of Balram was empty. Witness has denied that they were not living in the same house. According to the witness, police obtained his signatures on some papers approximately 67 papers and the papers were already written but he is not aware as to what was written on the same. He has deposed that he used to come from Najafgarh to Kanjhawla to meet his wife for twothree times only. Witness has denied that he is deposing falsely to implicate the accused at the instance of the complainant and his brother Gopal or that the accused persons were not arrested in his presence or that nothing was recovered at the instance persons in his presence. Witness has denied that the iron rods / saria were planted upon the accused persons.
(20) PW15 Balram has deposed that he knew everything about the case and also knew the assailants who had caught injuries on him. The witness has deposed that at the time of incident his State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 21 of 87 brother Gopal and his friend Satish was also with him and it was evening time prior to 10:00 pm when they were returning from the market after purchasing some household articles. He has deposed that when they reached just near the corner of the Gali near the house of the accused, three persons namely Birju, Sohan and Sudhir were standing at the corner (witness has correctly identified the accused persons in the court) started teasing him and Satish as finger of his right hand was amputated and the finger of left hand of his friend Satish were amputated and called them "banta tunda" as he could not hold the articles from his right hand properly when he objected why they were using such objectionable words. According to the witness, when he objected it was some scuffle with him with the said persons as a result of which Sohan felt down and he got annoyed at the same and then accused Sohan called other two persons from their room namely Neeraj and Parveen (witness has correctly identified both the accused). The witness has deposed that initially all the accused persons gave him beatings with kick and fits and then they assaulted him on his head with rods/ Saria and then he felt on ground and become unconscious. He has deposed that for about four and a half month he was unable to speak properly.
(21) In his cross examination by Ld. Defence Counsel, the witness has deposed that prior to this present incident some hot words were exchanged between him and one boy, but he can not tell his State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 22 of 87 whereabout. Witness has denied at the time of incident he was consuming alcohol. He has deposed that he was not interrogated by the police at any point of time. Witness has admitted that many public persons gathered at the place of incident. He has deposed that accused persons used to taunt him as Banta tunda even prior to the incident and then he used to get annoyed and often responded to their taunting. Witness has denied that he was not teased by the accused namely Birju, Sohan and Sudhir. According to the witness, he was hit on his chest and stomach by the accused persons. Witness has denied that he was not hit by rods/sarai by Sohan, Neeraj and Parveen or that he was not beaten up by any of the accused persons or that none of the accused persons was present at the spot or that he is a drug addict and regular drinker / addicted to alcohol or that under the influence of intoxication he had quarreled with some body else and received injuries due to that quarrel or that those injuries were received by him by falling down in a pit/ drain during a quarrel with some public persons. Witness has further denied that the accused persons have been falsely implicated in the presence case and i.e. why no report was made by him, his brother or Satish on the day of incident. He has deposed that he was directly taken to the house of his sister at Najafgarh from Safdarjang Hospital after discharge. According to the witness, till now living at his sister house at Najafgarh since then. He has deposed that till date he had gone to State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 23 of 87 Kanjhawala from Najafgarh only two or three times in the month of August and September. Witness has denied that the accused persons have been falsely implicated by him, his brother and Satish only to extort money from them. He has denied that he is deposing falsely. Medical Evidence:
(22) PW5 Dr. Anil Sharma has deposed that on 10.12.2012 an injured namely Balram aged 22 years male had come to the hospital with the alleged history of trauma and inability to speak and was examined by RMO (Resident Medical Officer) who was working under his supervision. According to the witness, RMO referred the patient was referred to CT Scan - Head and accordingly his CT Scan was done and after that he sent him to higher center for further management. Witness has identified the handwriting and signatures of the RMO having seen him while signing and writing as he had worked under his supervision. According to the witness, the OPD slip of injured Balram prepared by RMO under his supervision is Ex.PW5/A and thereafter the relative of the patient took him to higher center. In his cross examination, the witness has denied that the RMO never worked under his supervision or that he have never seen him while writing and signing.
(23) PW6 Dr. Binay Kumar Aggarwal has deposed on behalf of Dr. Lalit. According to the witness, on 11.12.2012 the injured State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 24 of 87 Balram was brought to Safdarjung Hospital and was examined by Dr. Lalit and after examining him on, 12.12.2012 Dr. Lalit had prepared the Discharge Summary of injured Balram which is Ex.PW6/A which bears the signatures of Dr. Lalit at point A which the witness has identified having seen him while writing and signing in daily routine of work. This witness has not been cross examined on behalf of the accused despite opportunity.
(24) PW9 Dr. Meenakshi has deposed that on 11.12.2012 Balram Pandey was brought to the casualty of Safdarjang Hospital at 01:10 AM by his brother Gopal Pandey with a alleged history of assault 09.12.2012 and injury to head and front of neck. According to the witness, the patient was examined by Dr. Alok Gupta, MS (Ortho.) whose observations on the basis of CTScan are present from point A to A1 on Ex.PW9/A and signatures at point B which the witness has identified. The witness has deposed that on examination, the patient was found having abrasions on front over the neck after which he referred the patient to Neuro Surgery Ward. The MLC of Balram Pandey is Ex.PW9/A which bears her signature at point A. She has deposed that following injuries were found on the body of the patient.
1. EDH (Extra Dural Haemotoma) in left fronto pariatal Convexity.
2. Mild extra axial hemorrhage in right frontal and left State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 25 of 87 temporal region.
3. Small hemorrhage contusion with mild SAH (Subarachnoid hemorrhage) on left frontopariatal lobes.
4. Mildly displaced comminuted fracture of left parietal bone and right temporopartial bone.
(25) This witness has not been cross examined on behalf of the accused despite opportunity.
(26) PW10 Dr. Narottam Khadaria has deposed that on 10.12.2012 Balram aged 22 years was brought to the Diagnostic Centre being referred by Dr. Anil Sharma for NCCT head and after taking volume axial sections through head on a 182 slice/Sec.VCT Scanner the report was prepared which is Ex.PW10/A which bears his signatures at point A. According to the witness the following injuries were found on the person of the patient.
1. EDH (Extra Dural Haemotoma) in left fronto pariatal Convexity.
2. Mild extra axial hemorrhage in right frontal and left temporal region.
3. Small hemorrhage contusion with mild SAH ( Subarachnoid hemorrhage) on left frontopariatal lobes.
4. Mildly displaced comminuted fracture of left parietal bone and minimally displaced fracture of State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 26 of 87 right temporopartial bone.
(27) This witness has not been cross examined on behalf of the accused despite opportunity.
(28) PW14 Dr. Brijesh Singh has deposed that on 10.12.2012 Dr. Anvi Munjal was on duty in SGM Hopspital and she was on duty as J. R. and on that day injured Sohan was brought to the hospital during her duty hours in the hospital by one HC Jagbir of PCR at about 12.15 AM who was examined by Dr. (Ms) Anvi Munjal vide MLC No. 21302 which is Ex.PW14/A which bears the signatures of Dr. Anvi Munjal at point A. The witness has identified the handwriting and signatures Dr. Anvi Munjal on Ex.PW14/A having worked under his supervision during that span of time. The witness has deposed that as per MLC, there were abrasion on the right parietal region on the person of injured, there was also abrasion on left leg and abrasion on left little finger of the hand of the patient. This witness has not been cross examined on behalf of the accused despite opportunity.
Police / Official Witnesses:
(29) PW1 Ct. Mahesh Kumar has tendered his examination inchief by way of affidavit which is Ex.PW1/1 bearing his signatures at points A and B wherein he has relied upon the DD No. State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 27 of 87 56B, true copy of which is Ex.PW1/A. He has not been cross examined on behalf of the accused despite opportunity.
(30) PW2 HC Rajender Kumar has tendered his examinationinchief by way of affidavit which is Ex.PW2/1 bearing his signatures at points A and B and has relied upon the DD No. 5A, true copy of which is Ex.PW2/A. He has not been cross examined on behalf of the accused despite opportunity. (31) PW3 HC Anoop Singh has tendered his examinationin chief by way of affidavit which is Ex.PW3/1 bearing his signatures at points A and B and has relied upon the entry No. 2096 in Register No. 19 (running into four pages) copy of which is Ex.PW3/A (original seen and returned). In his cross examination, the witness has denied that the entries in the Register No. 19 has been manipulated at the instance of the Investigating Officer. (32) PW4 W/ASI Somna has tendered his examinationin chief by way of affidavit which is Ex.PW4/1 bearing his signatures at points A and B and has relied upon the computerized copy of FIR which is Ex.PW4/A (original seen and returned) bearing his signatures at point A and his endorsement on rukka which is Ex.PW4/B. In his cross examination, the witness has denied that the FIR is antedated and antetimed or that it has been lodged on the directions of the SHO to falsely implicate the accused persons in the State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 28 of 87 present case.
(33) PW11 Ct. Kuldeep Kumar has deposed that on 13.12.2012 he was posted as constable at Police Station Kanjhawala and was working as Computer Operator from 8 AM to 8 PM and on that day at about 12:15 PM Duty Ofifcer ASI Somna sent the tehrir which he entered in the computer and thereafter handed over the print out of computerized copy of FIR, original tehrir and certificate under Section 65B of Indian Evidence Act to the Duty Officre ASI Somna (now SI). Copy of FIR is already Ex.PW4/A. The certificate issued by him is Ex.PW11/A bearing his signature at point A. (34) In his cross examination by Ld. Defence Counsel, the witness has denied that FIR has been antedated and antetimed on the directions of senior officers. Witness has denied that he has issued the certificate under Section 65B Indian Evidence Act in a routine manner on the asking of senior officers.
(35) PW12 Ct. Ashok has deposed that on 13.12.2012 he was posted at Police Station Kanjhawla and on that day on receipt of a telephone call he along with Ct. Umesh, Ct. Rattan and Ct. Jarnail reached at Sunday Bazar Road, G Block, Mahavir Vihar, Kanjhawala, where they met SI Rahul along with Ct. Ranjeet along with Gopal and Satish. According to the witness, thereafter they reached at house of injured Balram and they went a room at first floor where Balram was lying in unconscious condition and not reacting. He has deposed State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 29 of 87 that he was already having a bandage on his head. He has further deposed that Gopal and Satish then led them to Sobhit Plywood Factory where the assailants Sudhir, Praveen, Neeraj, Birju and Sohan were stated to be employed. According to the witness, while they were about to enter the factory then some persons were seen coming out of the factory and Gopal and Satish pointed out towards them as the assailants Sudhir, Praveen, Neeraj, Birju and Sohan who had inflicted injuries upon Balram. Witness has deposed that thereafter they apprehended the accused Sudhir, Praveen, Neeraj, Birju and Sohan and they then brought to Mahavir Vihar where they were interrogated wherein they disclosed their involvement in the present incident and also disclosed that the saria with which they had inflicted injuries upon Balram was lying in their house. The witness has deposed that thereafter the Investigating Officer arrested he accused Sudhir, Praveen, Neeraj, Birju and Sohan, conducted their personal search and recorded their disclosure statement. (Witness has correctly identified all the accused in court). The witness has deposed that thereafter, the accused led them to their room at Mahavir Vihar where the accused Neeraj, Sohan and Praveen got recovered three sarias and disclosed that those were the saria with which inflicted the injuries upon Balram and the Investigating Officer SI Rahul then converted the sarias into separate pullandas and sealed the same with the seal of RK which seal after use was handed over to State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 30 of 87 Ct. Umesh. According to the witness, thereafter the three sarias were separately seized vide seizure memos Ex.PW7/E1, Ex.PW7/E2 and Ex.PW7/E3 after which the accused were taken to the hospital where their medical examination was got conducted and thereafter they were taken to the police station and kept in lock up. The witness has identified the sarias Ex.P1, P2 and P3 as the same as got recvered by the various accused.
(36) In a leading questions by the Addl. PP for the State, the witness has admitted that the accused Sohan, Praveen, Sudhir, Neeraj and Birju also took them to the spot i.e. Sunday Bazar Road, Mahavir Vihar where they pointed out the place of incident on which Investigating Officer prepared the pointing out memo Ex.PW7/F. (37) In his cross examination by Ld. Defence Counsel, the witness has deposed that all the documents were prepared by SI Rahul and are in his handwriting at the spot itself. Witness has admitted that none of the accused were interrogated at Sobhit Plywood Factory, Kanjhawla. He has deposed that nobody collected when apprehended the accused. and has voluntarily explained that they were coming out of the factory. According to the witness, they were all in uniform at that time. Witness has admitted that there were other works also coming out of the factory and has voluntarily explained that when they apprehended them they had already walked State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 31 of 87 up to the kacha rasta between Mahavir Vihar and the factory. Witness has admitted that no document was prepared at the spot where the accused were allegedly apprehended i.e. Sobhit Plywood Factory. According to the witness, all documents were prepared at G Block Mahavir Vihar and has voluntarily explained that Investigating Officer had procured a chair from somebody's house and while sitting near the chowk all the documents were prepared. Witness has denied that all the documents were prepared while sitting in the Police Station after the accused persons Sudhir, Praveen, Neeraj, Birju and Sohan were lifted from their houses after which he along with Ct. Ratan, Ct. Umesh, Ct. Jarnail and Ct. Ranjeet signed the same on the asking of the senior officers.
(38) The witness has deposed that the disclosure statements of the accused persons Sudhir, Praveen, Neeraj, Birju and Sohan were recorded in his presence but he cannot tell the contents of the disclosure. According to the witness, the Investigating Officer first prepared the personal search of the accused persons and then prepared the site plan, then prepared the disclosure statement and then prepared the arrest memos. The witness has deposed that when the arrest memos were prepared the iron rods / sarias had already been recovered by that time. According to the witness, all documentation was done in the end i.e. after the recovery of the sarias. He has deposed that he did not notice any blood stains on the State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 32 of 87 sarias. He has further deposed that he is not aware if the sarias had been sent to the FSL by the Investigating Officer. According to the witness, he is only aware that the relatives of the injured Balram had taken him to the hospital and he had already returned home after treatment when they reached his house. He has deposed that the Investigating Officer did not record the statement of Balram in his presence nor he recorded the statements of Satish and Gopal and has voluntarily explained that the same were already recovered. Witness has denied that the accused persons did not make any disclosure statements as above or that the disclosure statements of the accused Sudhir, Praveen, Neeraj, Birju and Sohan had been recorded by the Investigating Officer of his own in connivance with the family of Balram. Witness has further denied that he did not join the investigation as aforesaid or that he has been cited as witness only to fill up the lacuna of the prosecution case.
(39) PW13 Ct. Ranjeet Kumar Shah has deposed that 13.12.2012 he was posted at Police Station Kanjhawla as constable and on that day the duty officer handed over to him copy of FIR bearing No. 277/12 and original tehrir and directed him the same to SI Rahul who was already present at Sunday Bazar Road. According to the witness, he took the same the same to Sunday Bazar Road where he met SI Rahul along with to public persons namely Gopal and Satish and handed over the same to him. The witness has deposed State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 33 of 87 that they then tried to search for the accused at G Block Market Kanjhawala. He has further deposed that they then went to the house of injured where they found the injured Balram who was in unconscious state and unable to speak. According to the witness, SI Rahul then send information to Police Station and asked for more force on which Ct. Ashok, Ct. Umesh, Ct. Rattan and Ct. Jarnail reached at Sunday Bazar Road, G Block, Mahavir Vihar, Kanjhawala. The witness has deposed that thereafter, they all tried to search for the accused and reached Sobhit Plywood Factory which was pointed out to them by Satish and Gopal where the assailants Sudhir, Praveen, Neeraj, Birju and Sohan were employed. According to the witness, while they were about to enter the factory some person were coming out of the factory and Gopal and Satish pointed out towards them as the assailants Sudhir, Praveen, Neeraj, Birju and Sohan who had inflicted injuries upon Balram. The witness has deposed that they apprehended these persons. The witness has further deposed that SI Rahul then interrogated them with regard to their names and addresses who confirmed their names as Sudhir, Praveen, Neeraj, Birju and Sohan all original residents of Bihar. SI Rahul then prepared their memos of arrest, personal search and recorded their disclosure statement after which the accused Praveen, Sohan and Neeraj led them to their house from where they got recovered the sarias with which they had inflicted injuries upon Balram. The State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 34 of 87 witness has deposed that thereafter, the accused were taken to the hospital where their medical examination was got conducted and thereafter they were taken to the police station and kept in lock up. Witness has identified the accused Sohan, Neeraj, Praveen, Birju and Sudhir. He has also identified the sarias Ex.P1, P2 and P3 as the same as got recovered by the various accused.
(40) In his cross examination by Ld. Defence Counsel, the witness has deposed that he started from the Police Station along with the copy of FIR and original tehrir at about 1:00 PM by bus. According to the witness, it took him hardly seven minutes to reach the spot. He has deposed that no other public persons apart from Satish and Gopal were present at the spot with the Investigating Officer. He has deposed that all the documents were prepared by SI Rahul and are in his handwriting at the spot itself. He has explained that nobody collected when apprehended the accused and has voluntarily explained that Some passerbyes were just watching. The witness has deposed that they were all in uniform at that time but he does not know if there were other workers also coming out of the factory when the accused were apprehended and has voluntarily explained that he only focused on the accused. According to the witness, he had signed all the documents near the factory where they were prepared. He has deposed that the Investigating Officer had prepared the said documents while standing near the factory. He has State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 35 of 87 also deposed that he did not take the support of anything or any person. He has further deposed that SI Rahul did not take assistance of any person while preparing the documents. Witness has denied that all the documents were prepared while sitting in the Police Station after the accused persons Sudhir, Praveen, Neeraj, Birju and Sohan were lifted from their houses after which he along with Ct. Ratan, Ct. Umesh, Ct. Jarnail and Ct. Ranjeet signed the same on the asking of the senior officers.
(41) According to the witness, he does not recollect if the disclosure statements of the accused persons Sudhir, Praveen, Neeraj, Birju and Sohan were recorded in his presence and he cannot tell the contents of the same. Witness has deposed that he had signed the disclosure at the statement at the spot. He is unable to tell which document the Investigating Officer had prepared first. He is also not able to tell how many documents the Investigating Officer had prepared and according to him the entire proceedings took about one to one and a half hours. He has deposed that the sarias had been recovered after the accused had been arrested. He has further deposed that he did not notice any blood stains on the sarias. According to the witness, he is only aware that the relatives of the injured Balram had taken him to the hospital and he had already returned home after treatment when they reached his house. Witness has deposed that the Investigating Officer did not record the statement of Balram in his State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 36 of 87 presence nor the statements of Satish and Gopal was recorded in his presence and has voluntarily explained that the same were already recorded. Witness has denied that the accused persons did not make any disclosure statements as above or that the disclosure statements of the accused Sudhir, Praveen, Neeraj, Birju and Sohan had been recorded by the Investigating Officer while conniving with the family of Balram. Witness has further denied that he did not join the investigation as aforesaid or that he have been cited as witness only to fill up the lacuna of the prosecution case.
(42) PW16 SI Rahul has deposed that on 9.12.2012 he was posted as SI at Police Station Kanjhawala and on that day he was on emergency duty from 10 PM to 8 AM and at about 10:30 PM on receipt of DD No. 56 B which is Ex.PW1/A he along with the constable who was on duty in emergency reached Mahavir Vihar, Sunday Vihar road. According to the witness, the call was regarding a quarrel but he could not meet anybody. He has deposed that he came to know that the PCR vehicle had taken the injured to SGM hospital and thereafter he went to SGM hospital where he met one Sohan who was also an injured. According to the witness, he interrogated Sohan and he informed him that there was a quarrel in the bazar but it was not a big issue and he did not wish any action. He has deposed that he collected his MLC and returned to police station. According to the witness, on the night of 11.12.2012 they State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 37 of 87 received an information from Safdarjung hospital vide DD No. 5A which is Ex.PW2/A that one Balram has been admitted by his brother Gopal with the history of assault and head injury. Witness has deposed that on receipt of this information, he reached at Safdargung hospital where he found Balram admitted. He has further deposed that he collected his MLC. He has further deposed that Balram was unfit for statement and he could not record his statement and therefore he kept the call pending. According to the witness, he again went to Safdarjung hospital on 12.12.2012 and came to know that Balram had already been discharged and thereafter he returned to the police station.
(43) The witness has deposed that on 13.12.2012 at about 11:00 AM, Gopal and Satish came to the police station and Gopal made his statement to him which statement is Ex.PW7/A bearing his signatures at point B. According to the witness, he made his endorsement on the same vide Ex.PW16/A bearing his signatures at point A which he handed over to DO. The witness has deposed he then went to the spot along with Gopal and Satish and on the pointing out of Gopal he made site plan Ex.PW16/B bearing his signatures at point A. The witness has deposed that in the meanwhile Ct. Ranjeet came to the spot along with the original rukka and copy of the FIR which he handed over to him. According to the witness, he then went to the house of Balram where he was lying in the house with his head State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 38 of 87 in a bandage and he was not in a position to speak. The witness has deposed that Gopal was in a position to identify the assailants / accused therefore he along with Gopal and Satish went to House No. G 44 Mahavir Viar in search of accused persons but they could not be found and meanwhile he also sent information to the police station for more force. According to the witness, after sometime Ct Ashok, Ct. Umesh, Ct. Rattan and Ct. Jarnail reached at Sunday Bazar Road, G Block, Mahavir Vihar, Kanjhawala, where they met him and joined the investigations and at that time Gopal, Satish and Ct. Ranjeet were also with him. The witness has deposed that thereafter he briefed the above named Constables about the facts of the case and then they proceeded towards Shobhit Plywood Factory where the assailants Sudhir, Praveen, Neeraj, Birju and Sohan were stated to be employed. He has further deposed that while they reached near the factory some persons were found entering inside the factory and Gopal and Satish pointed out towards them as the assailants Sudhir, Praveen, Neeraj, Birju and Sohan. (Witness has correctly identified all these accused in the court) who had inflicted injuries upon Balram and also gave slaps to them and apprehended them after which they were arrested, their personal search was conducted and their disclosure statements were recorded by him. The witness has deposed that thereafter the accused Sohan, Praveen, Sudhir, Neeraj and Birju took them to the spot i.e. Sunday Bazar Road, Mahavir Vihar where they pointed out State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 39 of 87 the place of incident on which he prepared the pointing out memo Ex.PW7/F. The witness has further deposed that thereafter, the accused led them to their room at Mahavir Vihar where the accused Neeraj, Sohan and Praveen got recovered three sarias from under the bed and disclosed that those were the saria with which they inflicted the injuries upon Balram and he (witness) converted the sarias into separate pullandas and sealed the same with the seal of RK which seal after use was handed over to Ct. Umesh and thereafter the three sarias were separately seized vide seizure memos Ex.PW7/E1, Ex.PW7/E2 and Ex.PW7/E3. According to the witness, thereafter he recorded the supplementary statement of Gopal and Satish and they were relieved and thereafter he along with police constables and all the five accused persons returned to the police station and the accused were kept in lockup after their medical examination and the case property was deposited with the MHC (M) after which he recorded the statements of all the five constables under Section 161 Cr.P.C.
(44) The witness has deposed that on next day all the accused persons were produced before the Ld. Illaka Magistrate from where they were sent to JC. Thereafter, on 20.12.2012 Gopal Pandey brother of the injured Balram handed over him the medical papers of Balram which he took into possession vide memo Ex.PW7/G bearing his signatures at point B. According to the witness, during State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 40 of 87 investigations he collected the result on the MLC, and also got conducted the bony Xray to ascertain the age of the accused Neeraj and Sohan and collected the result of the same and placed the same on file and submitted his report in this regard which is Ex.PW16/C. The witness has deposed that he recorded the statement of the witnesses and after completion of the investigations he submitted the charge sheet in the Court through SHO. The witness has correctly identified all the accused as well as the iron rod / saria Ex.P1, P2 and P3 as the same as got recovered by the various accused persons. (45) In his cross examination by Ld. Defence Counsel, the witness has deposed that the person who had made the PCR call has not been cited as a witness in the present case and has voluntarily explained that he was some public person. He is unable to tell the name or address of the said persons but he did not get his call details retrieved. Witness has admitted that he did not meet any eye witness when he reached the spot on receipt of the call. According to the witness, he had interrogated Sohan but did not record his statement in the hospital and has voluntarily explained that he had not received much injuries and did not want any action and that is why he did not record his statement. Witness has denied that Sohan was insisting upon action but he deliberately did not record his statement. Witness has admitted that till the time he received the DD from Safdarjung Hospital he was not aware about the condition of Balram. Witness State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 41 of 87 has denied that he had met Gopal and Satish in the Safdarjung Hospital on 11.12.2012 itself where they had not named any of the accused. He has denied that on 13.12.2012 Gopal had falsely implicated the accused persons and gave his complaint in the police station on his tutoring. Witness has admitted in the complaint the details of the accused were given. He has denied that on the basis of the said details all the accused were lifted from their house and called to the police station where they were compelled to pay money to the complainant and injured but on their refusal they were arrested in the present case. According to the witness, during investigations he did not visit Nazafgarh for interrogation of the injured Balram nor did he join Balram in the investigations. Witness has admitted that he did not join the neighbours or public persons during the investigations and that the place of incident is frequently visited by public persons. Witness has denied that all the writing work was done while sitting at Police Station or that he have conducted the investigations casually and did not conduct the fair investigations.
(46) The witness has deposed that all the documents were prepared by him and are in him handwriting at the spot itself. Witness has admitted that the accused were interrogated near Sobhit Plywood Factory, Kanjhawla. He has deposed that nobody collected when apprehended the accused and has voluntarily explained that they were coming out of the factory. Witness has deposed that they were all in State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 42 of 87 uniform at that time. Witness has admitted that there were other workers also coming out of the factory. Witness has denied that no document was prepared at the spot where the accused were allegedly apprehended i.e. Sobhit Plywood Factory. According to the witness, he first prepared the arrest memos of the accused, thereafter personal search of the accused persons and then recorded their disclosure statement and then pointing out memo and thereafter recovery memos. The witness has deposed that he did not notice any blood stains on the sarias and the sarias had not been sent to the FSL. According to the witness, he did not record the statement of Balram. Witness has denied that the accused persons did not make any disclosure statements as above or that the disclosure statements of the accused Sudhir, Praveen, Neeraj, Birju and Sohan had been recorded by him of his own in connivance with the family of Balram. STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(47) After completing the prosecution evidence, statements of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material were put to them which they have denied.
(48) All the accused have stated that they are innocent and have been falsely implicated in this case. According to the accused Sohan, the injured Balram is in the habit of taking Ganja and used to State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 43 of 87 extort money from persons of the locality or passerbye to buy the same and on the date of incident i.e. 9.12.2012 at about 9 PM, he (Sohan) was beaten up by Balram as he (Sohan) refused to give him money for drinking liquor or Ganja. Sohan further stated that he sustained injuries on which he made a call at 100 number pursuant to which PCR Van came and he was taken to the hospital by HC Jagbir where he was examined vide MLC No. 21302 Ex.PW/14/A. According to Sohna later on Balram had a fight with some passerbye while he was trying to snatch money from that person and in that process Balramm fell down in a nali and sustained injuries.
FINDINGS:
(49) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel and also considered the testimonies of various witnesses examined by the prosecution and the memorandum of arguments filed by the parties.
My findings are as under:
Identity of the Accused persons:
(50) In so far as the identify of the accused persons is concerned, there is no dispute as the victims and the accused were known to each other and the accused have been specifically named in the complaint on the basis of which the present FIR had been State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 44 of 87 registered. All the accused have also been correctly identified in the court by the complainant Gopal and the victims Balram and Satish and their identity as such has not been disputed by them.
Delay in Registration of FIR:
(51) It is the admitted case of the prosecution that incident is dated 9.12.2012 whereas the FIR was registered on 13.12.2012 which after recording of the statement of the alleged eye witness Gopal. Ld. Defence Counsel submits that this delay is fatal to the case of prosecution case and should be read in favour of the accused persons.
However, before coming on merits of the grounds raised, I may observe that the Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy.
(52) In the case of Tulshidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has observed as under:
"..... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 45 of 87 involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle."
(53) Applying the above settled principles of law to the facts of present case, it is writ large that the delay in registration of FIR has been suitably explained by the Investigating Officer SI Rahul (PW16) who has in his testimony stated that on 9.12.2012 he was on emergency duty from 10 PM to 8 AM and at about 10:30 PM on receipt of DD No. 56 B he along with the constable who was on duty in emergency reached at the spot i.e. Mahavir Vihar, Sunday Vihar Road where he could not find anybody and came to know that the State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 46 of 87 PCR vehicle had taken the injured to SGM hospital and thereafter he went to SGM hospital where he met one Sohan (accused) who was also an injured in the incident but Sohan informed him that there was a quarrel in the bazar but it was not a big issue and he did not wish any action. SI Rahul further explained that thereafter on the night of 11.12.2012 an information was received from Safdarjung Hospital vide DD No. 5A that one Balram has been admitted by his brother Gopal with the history of assault and head injury after which he (SI Rahul) reached at Safdargung Hospital where he found Balram admitted but was unfit for statement and hence the call was kept pending. He further explained that he again went to Safdarjung Hospital on 12.12.2012 and came to know that Balram had already been discharged and it was on 13.12.2012 at about 11:00 AM when the complainant Gopal along with victim Satish came to the Police Station and Gopal made his statement to SI Rahul on the basis of which the FIR was registered. The relevant portion of the statement of IO / SI Rahul (PW16) is reproduced as under:
"On 9.12.2012 I was posted as SI at PS Kanjhawala. On that day I was on emergency duty from 10 PM to 8 AM. At about 10:30 PM on receipt of DD No. 56 B which is already Ex.PW1/A I along with the constable who was on duty in emergency reached Mahavir Vihar, Sunday Bazar Road. The call was regarding a State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 47 of 87 quarrel but I could not meet anybody. I came to know that the PCR vehicle had taken the injured to SGM hospital.
Thereafter I went to SGM hospital where I met one Sohan who was also an injured. I interrogated Sohan and he informed me that there was a quarrel in the bazar but it was not a big issue and he did not wish any action. I collected his MLC and returned to PS. On the night of 11.12.2012 we received an information from Safdarjung hospital vide DD No. 5A which is already Ex.PW2/A that one Balram has been admitted by his brother Gopal with the history of assault and head injury. On receipt of this information, I reached at Safdargung hospital where I found Balram admitted. I collected his MLC. Balram was unfit for statement and I could not record his statement and therefore I kept the call pending. I again went to Safdarjung hospital on 12.12.2012 and came to know that Balram had already been discharged. Thereafter I returned to the police station.
On 13.12.2012 at about 11:00 AM, Gopal and Satish came to the Police Station and Gopal made his statement to me which statement is already Ex.PW7/A bearing my signatures at point B. I made my endorsement on the same vide Ex.PW16/A bearing my signatures at point A which I handed over to DO...."
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 48 of 87
(54) It is writ large from the aforesaid that the entire delay in of registration of FIR is due to the indifferent and casual approach of the Investigating Officer. He had received information about quarrel after which he went to the spot but could not find anybody but did not bother to make any inquiry. He thereafter, went to the hospital where the accused Sohan met him who is also injured in the incident. Again on 11.12.2012 when he went to Safdarjung Hospital, it was open for him to record the statement of Gopal in case if Balram was not fit to make statement, which he has not done and it was only on 13.12.2012 when Gopal came to the Police Station then he (IO) was compelled to record his statement on the basis of which the FIR was registered. Here I may observe that the entire delay in registration of the FIR is attributed to the indifferent approach and conduct of the Investigating Officer and case of the victims cannot be suffer on account of the same.
(55) In view of the above, I hereby hold that the complainant and the victims are not only illiterate but also handicapped. They belong to poor strata of society and there is no reason that this delay should be read against them and in favour of the accused persons, rather on the contrary I am of the considered view that the delay which is entirely on account of the conduct of the Investigating Officer, has been explained and will not be fatal to the case of the prosecution.
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 49 of 87 Medical Evidence:
(56) The medical evidence on record has been duly proved by Dr. Anil Sharma (PW5), Dr. Binay Kumar Aggarwal (PW6), Dr. Meenakshi (PW9), Dr. Narottam Khadaria (PW10) and Dr. Brijesh Singh (PW14). Dr. Anil Sharma from Mangalam Hospital has proved that on 10.12.2012 the injured Balram, aged 22 years male was produced in the Hospital with the alleged history of trauma and inability to speak and was examined for the same after which he was referred to CT Scan - Head and accordingly his CT Scan was done and after that he sent him to higher center for further management.
In this regard the OPD slip of injured Balram is Ex.PW5/A. (57) Dr. Binay Kumar Aggarwal from Safdarjung Hospital has proved that on 11.12.2012 the injured Balram was brought to Safdarjung Hospital and was examined by Dr. Lalit and after examining him on 12.12.2012 Dr. Lalit had prepared the Discharge Summary of the injured Balram which is Ex.PW6/A. Dr. Meenakshi from Safdarjung Hospital has also proved that on 11.12.2012 Balram Pandey was brought to the casualty of Safdarjang Hospital at 01:10 AM by his brother Gopal Pandey with a alleged history of assault 09.12.2012 and injury to head and front of neck, and examined by Dr. Alok Gupta who made his observations on the basis of CTScan from point A to A1 on Ex.PW9/A. On examination, the patient was found having abrasions on front over the neck after which he referred the State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 50 of 87 patient to Neuro Surgery Ward (MLC of Balram Pandey is Ex.PW9/A) and following injuries were found on the body of Balram ➢ EDH (Extra Dural Haemotoma) in left fronto pariatal Convexity.
➢ Mild extra axial hemorrhage in right frontal and left temporal region.
➢ Small hemorrhage contusion with mild SAH (Subarachnoid hemorrhage) on left frontopariatal lobes.
➢ Mildly displaced comminuted fracture of left parietal bone and right temporopartial bone.
(58) Further, Dr. Narottam Khadaria (PW10) from Ganesh Diagnostic has proved that on 10.12.2012 Balram, aged 22 years was brought to the Diagnostic Centre being referred by Dr. Anil Sharma for NCCT (Head) and after taking volume axial sections through head on a 182 Slice / Sec. VCT Scanner the report was prepared which is Ex.PW10/A and the following injuries were found on the person of the patient.
➢ EDH (Extra Dural Haemotoma) in left fronto pariatal Convexity.
➢ Mild extra axial hemorrhage in right frontal and left temporal region.
➢ Small hemorrhage contusion with mild SAH (Subarachnoid hemorrhage) on left frontopariatal State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 51 of 87 lobes.
➢ Mildly displaced comminuted fracture of left parietal bone and minimally displaced fracture of right temporopartial bone.
(59) In so far the accused Sohan is concerned, his medical record has been proved by Dr. Brijesh Singh (PW14) from SGM Hospital who has proved that on 10.12.2012 at about 12.15 AM, Dr. Anvi Munjal has examined the injured Sohan who was brought to the hospital by one HC Jagbir of PCR vide MLC No. 21302 which is Ex.PW14/A under his supervision. He has proved that as per MLC, there were abrasion on the right parietal region on the person of injured, there was also an abrasion on the left leg and abrasion on left little finger of the hand of the patient.
Ocular Evidence:
(60) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborates each other on material aspect connected with the offence, there is no reason to reject their testimonies.
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 52 of 87 (61) The entire case of the prosecution rests upon the oral testimonies of complainant Gopal (PW7), his brother / injured Balram (15) and friend / another victim Satish (PW8). Both Balram and Satish are persons who suffer physical disability having lost their fingers of one hand each in an accident in the factory which fingers had to be amputated and hence while Balram was not in a position to hold the articles from his right hand whereas Satish was unable to hold the articles from his left hand. On 9.12.2012 while they were returning from factory and after making purchase from the vegetables market and at around 9:009:30 PM when they reached near the corner of Sunday Bazar, the accused Sudhir, Birju and Sohan who were already present there, started teasing them (Balram and Satish) by calling them names such as "Banta tunda" which was objected by them (victims). The accused Sohan, Birju and Sudhir also blocked the way of Balram and Satish and when Balram tried to clear the way by using his arm by pushing Sohan to one side, Sohan fell down on the road and got annoyed on which the accused Sudhir and Birju also became angry and they all started giving beatings to Balram as a result of which the packet of vegetables which Balram was holding in his hand fell and were scattered on the road. Meanwhile, the accused Sohan went to his room and called coaccused Parveen and Neeraj who all came back holding iron rods in their hands and started beating Balram on his head and when Satish intervened to save State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 53 of 87 Balram, he was also given beatings by the accused persons, while Sudhir and Birju caught hold of the neck of Balram forcefully from the backside and the other accused i.e. Parveen, Neeraj and Sohan started giving rod blows on both the sides i.e. right and left side of his skull, as a result of which Balram became unconscious after which somebody in the public made a call at 100 number. During this period, when the accused were beating Balram, it was Birju who was exhorting "iske sar (head) par aur maaro". In this regard the testimonies of Gopal, Balram and Satish are most relevant and since the prosecution is placing its heavy reliance on the testimonies of these witnesses, hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witnesses. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 54 of 87 should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:
Krishnan Vs. State reported in AIR 2003 SC 2978). (62) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross examiner and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 55 of 87 astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(63) Applying the settled principles of law and coming first to the testimony of Gopal (PW7) who is also the complainant in this case. The relevant portion of his testimony is reproduced as under:
"I am a driver by profession. My younger brother namely Blaram used to work in Shobhit Plywood Factory at Kanjhawla. One Satish also used to work in said factory. At the relevant point of time, we were residing at G Block, Sunday Bazar Wali Gali, House of Doctor Ji, Kanjawla, Delhi.
On 9.12.2012 at about 9:00 PM, I along with my brother Balram and Satish were coming from the market after purchasing the vegetables. On the way when we reached at the corner of Sunday Bazar, accused Sudhir, Birju and Sohan present in the court today (correctly identified) who were present there, started teasing my brother Balram by exhorting him as Banta tunda as my brother Balram could not hold the articles from his right hand. My brother Balram requested them that he is getting late and not to tease him since we had to prepare the meals. Thereafter when we started to proceed our room, my brother Balram hit Sohan with his left arm to proceed for his house as a result of which accused Sohan fell State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 56 of 87 down and then accused Sudhir, Birju and Sohan started giving beatings to my brother Balram as a result of which the packet of the vegetables which was in the hand of my brother Balram fell down in a drain. In the meantime accused Sohan called Praveen and Neeraj present in the court today (correctly identified) from their room and they started giving beating to my brother with an iron rod and assaulted him on his head.
Accused Sohan, Praveen and Neeraj who were having iron rods which they had brought from their room which was situated near the place of incident and started giving iron rod blows on the head of my brother Balram.
At that time Sudhir and Birju caught hold of the neck of my brother Balram forcefully from the back side and other three accused i.e. Praveen, Neeraj and Sohan started giving rod blows on both the sides i.e. right and left side of his skull. Due to beatings my brother Balram become unconscious. Even then accused Birju exhorted isko aur maaro. Thereafter they threw my brother in a drain nearby and thereafter the accused persons flee from the spot along with the iron rods.
Thereafter I along with Satish took Balram to our room and his injuries were washed and we gave him some medicines but he could digest the same. At about 3:30 AM in the early morning I along with Satish took Balram to Balmiki Hospital but he did not get admitted there. Thereafter we took Balram to Manglam Hospital where we got admitted Balram there. In Manglam State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 57 of 87 Hospital we were advised that CT scan of my brother is to be required and a large amount is required for the same. Thereafter I went to my employer from where I took some amount and shifted my brother to Safdarjung Hospital where he was got admitted. From the Safdarjung Hospital a call was made to the police on which police came to the hospital. At that time I was not present and my brother was unconscious. When I came to the hospital after arranging the money, I was told by the doctor that police had come and they are making the inquiries on which I went to the Police Station and met to the IO. My statement was recorded which is Ex.PW7/A bearing my signatures at point A. Thereafter I along with Satish and the IO came to the place of incident and I showed the place of incident to the IO who prepared the site plan. Thereafter we along with IO proceeded towards Plywood Factory where all the five accused present in the court today namely Sohan, Neeraj, Praveen, Sudhir and Birju found coming from the side of company. I pointed out towards the accused persons and they were all apprehended by the police and arrested vide memos Ex.PW7/B1 to Ex.PW7/B5 respectively and their personal search was conducted vide memos Ex.PW7/C1 to Ex.PW7/C5 respectively bearing my signatures at point A and that of Satish at point B. The IO recorded the disclosure statements of the accused persons vide Ex.PW7/D1 to Ex.PW7/D5 respectively bearing my signatures at point A and that of Satish at State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 58 of 87 point B. Thereafter accused persons were brought to their room from where the accused Neeraj, Sohan and Praveen got recovered three iron rods from under the bed. The same were converted into pullandas and taken into possession by the IO vide memo Ex.PW7/E1 to Ex.PW7/E3 respectively bearing my signatures at point A and that of Satish at point B. Thereafter the accused persons pointed out the place of incident vide memo Ex.PW7/F bearing my signatures at point A and that of Satish at point B. Thereafter the police took the accused persons and the iron rods to the Police Station and I along with Satish went to my room. During investigations I handed over the medical papers of my brother Balram of Manglam Hospital to the IO which was taken into possession vide memo Ex.PW7/G bearing my signatures at point A. ......"
(64) Witness Gopal has been exhaustively crossexamined by Ld. DLSA Counsel wherein he has admitted that he is driving Omni Maruti Van belonging to one Baman of village Jharoda. He has denied in his crossexamination that public persons does not gather at the spot and has explained that the spot of incident is not frequented by public persons at that time but one or two persons had passed through the spot but no one had come out from the nearby houses. State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 59 of 87 (65) Ld. Defence Counsel has also pointed out towards various improvements made by Gopal firstly to the extent that the fact of purchase of vegetables has not been specifically recorded and it finds a mention that they had purchased domestic items. I do not find this a material condition as the victims have already stated in their statements to the police that they had gone to market to purchase domestic articles on the basis of which FIR was registered. Ld. Counsel has also pointed out that the fact regarding vegetables scattering on the ground is also an improvement made by the witness Gopal. Here I may observe that the relevant fact is that the victims were returning from Sunday Bazar after making purchases of domestic articles when they were assaulted. Whether it was purchases of vegetables or domestic articles or whether they fell down on the ground or not, is not relevant and is not an issue before this court and hence I hold that the improvements in this regard made by the witness Gopal is not relevant. Gopal has explained that prior to this incident, no quarrel had even taken place between him and the accused. He has further stated that Sudhir was working in the same factory where his brother Balram was working whereas other accused were working in the adjoining factory. He has explained that the place of incident is about 4050 steps from the room where they were residing. He has further explained that there was an old lady residing on a room on ground floor whereas Satish and his wife and children used to reside State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 60 of 87 in a room adjoining to his room. He has also explained that on 13.12.2012 he had gone to the Police Station in the afternoon and remained there for about 2 to 2½ hours and returned back to his room in a police gypsy.
(66) Coming now to the testimony of Satish (PW8) who is also the eye witness and is suffering from physical disability. The relevant portion of which is reproduced as under:
"I was working in Shobit Plywood Factory in Kanjhawala. Balram was also working with me in same factory. In the same compound Balram and his elder brother Gopal was residing on the Ground Floor at the said premises and Gopal and his younger brother Balram was residing on the First Floor. Gopal was a driver by profession and used to drive a Omni Van.
On 9.12.2012 at about 9:0009:30 PM, I along with Balram and Satish were coming from the market after purchasing the vegetables from Sunday market. On the way when we reached at the corner of Sunday Bazar, accused Sudhir, Birju and Sohan present in the court today (correctly identified) who were present there, started teasing me and Balram by exhorting Banta tunda as Balram could not hold the articles from his right hand and I could not hold the article from my left hand as our fingers amputated in some incident where I was working earlier and Balram was working.
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 61 of 87 I and Balram requested them that we were getting late and not to tease us since we had to prepare the meals. Thereafter when we started to proceed our respective destination, Balram hit Sohan with his left arm to proceed for his house as a result of which accused Sohan fell down and then accused Sudhir, Birju and Sohan become angry and started giving beatings to Balram as a result of which the packet of the vegetables which was in the hand of my Balram scattered and fell down in the drain. In the meantime accused Sohan called Praveen and Neeraj present in the court today (correctly identified) from their room and they started giving beating to Balram with an iron rod and assaulted him on his head.
Accused Sohan, Praveen and Neeraj who were having iron rods/ Saria which they had brought from their room which was situated near the place of incident and started giving iron rod blows on the head of Balram. I and Gopal tried to intervene in the matter but accused persons also started beatings us.
At that time Sudhir and Birju caught hold of the neck of Balram forcefully from the back side and other three accused i.e. Praveen, Neeraj and Sohan started giving rod blows on both the sides i.e. right and left side of his skull. Due to beatings Balram become unconscious. In the mean time many public persons gatther there State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 62 of 87 and some of the persons called the Police at 100. When accused were giving beatings, accused Birju exhorted iske sar (head) par aur maaro. Thereafter they threw Balram in a drain nearby and thereafter the accused persons flee from the spot along with the iron rods.
Thereafter, I along with Gopal took Balram to the room and he was given some pain killer tablets so that anyhow night can be passed. On the next morning I along with Gopal took Balram to Manglam Hospital where we got admitted Balram there. In Manglam Hospital we were advised that CT scan of Balram is to be required and a large amount is required for the same. Thereafter, Gopal went to arrange the money and I remained with Balram. Thereafter, Balram was shifted Safdarjung Hospital where he was got admitted. From the Safdarjung Hospital a call was made to the police on which police came to the hospital. In the Safdarjang Hospital I and Gopal was inquired by the Police and then message was conveyed in Kanjhawala Police Station. Thereafter On 12.12.2012 Balram was got discharged from Safdarjang Hospital and thereafter my statements was recorded.
On 13.12.2012 the matter of the incident was reported to the police by Gopal and I also told about the facts in PS Kanjhawala to the concerned IO.
Thereafter I along with police officer, State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 63 of 87 Gopal proceeded for the investigation and we were going towards Shobit Plywood factory. When we were at a distance approx. 100 mtrs. from the said factory all the five accused persons present in the court today found coming from the side of Shobit Plywood factory. I and Gopal pointed out towards them and informed to the IO. Thereafter they were apprehended by the police officers and arrested vide memos already Ex.PW7/B1 to Ex.PW7/B5 respectively and their personal search was conducted vide memos already Ex.PW7/C1 to Ex.PW7/C5 respectively bearing my signatures at point B. IO recorded the disclosure statements of the accused persons which are already Ex.PW7/D1 to Ex.PW7/D5 respectively bearing my signatures at point B. Thereafter accused persons took the police party to their room from where the accused Neeraj, Sohan and Praveen got recovered three iron rods under the bed.
The same were converted into pullandas and taken into possession by the IO vide memo already Ex.PW7/E1 to Ex.PW7/E3 respectively bearing my at point B. Thereafter the accused persons pointed out the place of incident vide memo already Ex.PW7/F bearing my signatures at point B. Thereafter the police took the accused persons and the iron rods to the State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 64 of 87 Police Station and I along with Gopal went to our room.
(67) Witness Satish has been exhaustively cross examined. He is one of the victim. He has in his crossexamination he has admitted that on account of physical disability and has also admitted that he and Balram were unable to move and are drawing less salary as compared to other labours. He has denied that Gopal was not with them at the time of incident and also denied that the accused had never teased them. According to him, after the quarrel, blood was not oozing out from the body of Balram. He has explained that he received minor injuries and has denied the suggestion that he did not receive any injuries because he was not present at the spot. He has also denied that Balram was drug addict and is a habitual drinker and he received injuries while fighting with some other persons. Satish has admitted that at Mangalam Hospital and also at Safdarjung Hospital he had not signed any papers but has denied that his signatures are not present in any of the papers because he is not an eye witness.
(68) Coming now to the testimony of the injured Balram (PW15) who is also suffering from physical disability like Satish on account of an accident. The relevant portion of the same is reproduced as under:
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 65 of 87
"I know everything about the case. I also know assailants who had caught injuries on me. At the time of incident my brother Gopal and my friend Satish was also with me. But it was evening time prior to 10:00 pm. At that time we were returning from the market after purchasing some household articles. When we reached just near the corner of the Gali near the house of the accused , three persons were standing namely Birju, Sohan and Sudhir were standing at the corner correctly identified as finger of my right hand was amputated and the finger of left hand of my friend Satish were amputated and they started teasing me and Satish by saying Banta tunda as I could not hold the articles from my right hand properly when I objected why they were using such a objectionable words. When I objected it was some scuffle with me with the said persons as a result of which Sohan fell down and he become annoyed and then accused Sohan called other two persons from their room both present in the Court today namely Neeraj and Parveen (correctly identified). Initially all the accused persons gave me beatings with kick and fits and then they assaulted on my head with rods/Saria and then I felt on ground and become unconscious. About four and a half month I was unable to speak properly. ...."
(69) Witness Balram in his examinationinchief has corroborated the testimony of his brother Gopal and friend Satish and State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 66 of 87 has confirmed the incident in question. He has identified the accused persons who were teasing him initially saying "banta tunda", to which he objected pursuant to which there was a scuffle between him and Sohan as a result of which Sohan fell down on the ground and thereafter Sudhir and Birju also gave beatings to him after which Sohan went to his room and called Neeraj and Parveen who came there having iron rods in their hands after which he was assaulted by iron rods by the accused. In his crossexamination, Balram has admitted that prior to this incident there was an exchange of hot words between him and one boy whose details he cannot tell and has added that even prior to this incident the accused used to taunt him saying banta tunda on which he used to get annoyed and frequently responded to them. Balram has in his cross examination denied that he was not teased by the accused Birju, Sohan and Sudhir or that he was not hit by rods / sarias by Sohan, Neeraj or Parveen. He has further denied that he is a drug addict and regular alcoholic. He has also denied that the accused were not present at the spot or that they have been falsely implicated.
(70) A combined reading of the testimonies of these three witnesses confirms that they have corroborated each other on all material particulars relating to the time, place and manner in which the incident took place and to the extend that it all started when Sohan, Sudhir and Birju were initially teasing Balram and Satish on State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 67 of 87 account of their being handicapped. They have also proved that it was Balram who responded to the accused on which there was an scuffle between Balram and the accused Sudhir, Sohan and Briju on account of which Sohan fell down. They have also corroborated each other that thereafter Parveen and Neeraj were called to the spot who came armed with iron rods and Sohan also brought an iron rod with which injuries were inflicted upon Balram on his head. The medical evidence confirms the incident and even Sohan has not disputed the same as he too had received minor injuries in the incident and had to be taken to the hospital by the PCR officials and his MLC in this regard is Ex.PW14/A. (71) I am sure that if the victim Balram and Satish had been at fault, Sohan would have himself made a complaint against them, which is not the case. As per the IO SI Rahul, Sohan has simply stated that he does not want any action. It stands established from the evidence which has come on record that he (Sohan) was first assaulted as he was on the wrong side and hence he did not want to aggravate the issue and did not want action. The OPD slip of Balram at Mangalam Hospital dated 10.12.2012 is Ex.PW5/A. It is evident that on next day of the incident, Balram was unable to speak though he was conscious and oriented, the patient himself refused and wanted to referred to higher center for management. The MRI report of the injured Ex.PW10/A which confirms Extra Dural Haemotoma State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 68 of 87 in left fronto pariatal convexity, mild extra axial hemorrhage in right frontal and left temporal region, small hemorrhage contusion with mild SAH (Subarachnoid hemorrhage) on left frontopariatal lobes and mildly displaced comminuted fracture of left parietal bone and minimally displaced fracture of right temporopartial bone. The nature of injuries as shown in the MRI report are very clear. They cannot be caused on account of fall as is being raised by Ld. Defence Counsel. The said injuries are on different portions of head i.e. on the left fronto pariatal region, on the right frontal and left temporal region and left fronto pariatal lobes, which confirms repeated blows on different point of head of the victim and could not have been inflicted on account of fall. The injuries in question have been confirmed as 'grievous' rather in my opinion is 'dangerous'. (72) In this background, I hold that the oral testimonies of these witnesses find support from the medical evidence on record. The minor infirmities / contradictions are on account of the fact that the witnesses are totally illiterate factory workers two of whom i.e. Balram and Satish are handicapped with their fingers amputated suffering from permanent disability. I find the testimonies of these witnesses reliable and trustworthy on the basis of which I hold that the prosecution has been able to prove and substantiate the allegations made against all the accused persons of being first aggressor and State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 69 of 87 causing grievous injuries to Balram on various parts of the body including vital parts.
Arrest of the Accused and Recovery of the Weapon of Offence:
(73) The case of the prosecution is that all the accused were previously known to the victims and have been specifically named in the complaint on the basis of which the FIR was registered. Pursuant to registration of the FIR, since the victims were aware of the addresses of the accused, hence Gopal and Satish joined the investigating team and reached the factory where all the accused namely Sohan, Neeraj, Parveen, Sudhir and Birju, were employed.
While they reached near the factory, there were some persons entering inside the factory when Gopal and Satish pointed out the accused and thereafter all the accused were apprehended and arrested and their disclosure statements were recorded and pursuant to their disclosure statements, the weapon of offence i.e. saria / iron rods were got recovered by the accused Parveen, Neeraj and Sohan from their rooms at Mahavir Vihar from under the bed. I may observe that during the entire proceedings except for the complainant Gopal and Satish, no other independent public witness has been joined. Though I am not inclined to disbelieve the recovery of the said saria / iron rods but I may observe that the saira / iron rods are the items of use for construction purposes and easily available in the market. Further State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 70 of 87 these sarias / iron rods have no specific identification mark, rather the said saria / iron rod were not put to the victims / injured by way of judicial TIP as the same which were used by the assailants at the time of the incident. Further, the the said sarias / iron rods have not been sent to FSL to find out if there was any blood stains. Also the same have not been produced before the doctor for opinion if the injuries in question were possible by the use of the same. It is writ large that the IO has committed repeated defaults and not conducted the necessary investigations on the point of use of the saria / iron rods but at the same time, the ocular and medical record of the injured cannot be ignored. The injured as well as the eye witness have confirmed the use of the sarias and the medical evidence is also compatible with regard to the use of the sarias specifically keeping in view the MRI report and hence in the absence of any opinion of the expert, it is open for this court to conclude of its own as to whether the injuries could be possible by the use of such a weapon or not. (74) In view of the above, I hold that though the recovery of sarias / iron rods has been established by the prosecution yet it does not stands confirmed that the saria which were got recovered by the accused Sohan, Neeraj and Parveen were the same which were used upon the injured during the incident.
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 71 of 87 Common Intention:
(75) The case of prosecution is that the injuries inflicted upon the victim Balram was pursuant to common intention of the accused Sohan, Sudhir, Birju, Parveen and Neeraj and in this regard the prosecution places its reliance upon the testimonies of public witnesses / injured / eye witness. Now, it has to be seen whether Section 34 Indian Penal Code is attracted or not. Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 72 of 87 commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.
As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 73 of 87 Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.
(76) Applying the settled principles of law to the facts of the present case it is evident that there is ample material on record to prove that all the accused persons shared common intention. It is writ large that the eye witnesses are very categorical with regard to the manner in which the injuries have been inflicted upon Balram. Initially there was a scuffle between Balram and the accused Sohan, Sudhir and Birju when these accused were teasing Balram on account of his physical deformity and in the said scuffle Sohan fell down after which Birju and Sudhir started beating Balram and thereafter the accused Neeraj and Parveen also came to the spot armed with sarias / iron rods. In this regard the testimony of eye witness Satish is very categorical. He has proved that it was Sohan, Parveen and Neeraj who had brought the iron rods from their rooms and hit Balram. According to him, it was Sudhir and Birju who caught hold of the neck of Balram while the other accused namely Parveen, Neeraj and Sohan gave iron rods blows upon Balram from both sides. The medical evidence confirms the injuries upon Balram from both sides State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 74 of 87 and confirms the oral testimonies of Satish in this regard. It is settled law that the intention may develop at the spot itself and in the present case it is writ large from the testimony of Balram that even previously the accused had been teasing him on account of his physical deformity but on the date of incident when he objected to those remarks made by the accused who also obstructed his way, there was scuffle and thereafter all the accused acted together by catching hold of Balram which was in common consortium as attributed to them and I hereby hold that common intention so attributed to the accused persons is hereby established. In view of the above, the accused Sohan, Sudhir, Birju, Neeraj and Parveen have been held guilty for the offence under Section 308 read with 34 Indian Penal Code. FINAL CONCLUSION:
(77) In the case of Sharad Birdhichand SardavsState of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 75 of 87 is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(78) Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the Investigating Officers. On the basis of the evidence on record the following aspects stand established:
➢ That the identity of the accused Sohan, Birju, Sudhir, Neeraj and Parveen stands established.
➢ That on 9.12.2012 at about 9:00/9:30 PM the complainant Gopal along with injured Balram and Satish were returning home after making purchases of vegetables and other household articles from weekly market (Sunday Bazar).
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 76 of 87 ➢ That when they reached the corner of Sunday Bazar, the accused Sohan, Sudhir and Birju met them who started teasing Balram and Satish (whose fingers were amputated in some incident) on account of their physical deformity saying banta tunda.
➢ That when Balram opposed, there was a scuffle in which Sohan fell down on the ground on which Sudhir and Birju started beating Balram due to which the packet of the vegetables which Balram was holding in his hand scattered and fell down in the drain.
➢ In the meanwhile Sohan went to his room and came back along with Parveen and Neeraj duly armed with sarias / iron rods.
➢ That thereafter Sudhir and Birju caught hold of the neck of Balram from back side while the accused Parveen, Neeraj and Sohan gave iron rods blows on the both sides of skull of Balram as a result of which Balram became unconscious.
➢ That in the meantime public persons gathered at the spot and somebody made a call at 100 number and Balram was taken to the hospital where he was treated for the injuries received by him.
➢ The medical record of the injured Balram is compatible State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 77 of 87 to the oral testimonies of the complainant Gopal, the injured Balram and eye witness Satish.
➢ The apprehension and arrested of the accused Sohan, Sudhir, Birju, Neeraj and Parveen has been duly proved and established by the police witnesses.
(79) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(80) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 78 of 87 and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.
(81) In view of the above discussions, I hereby hold that the prosecution has been able to prove and establish the allegations against the accused Sohan, Sudhir, Birju, Neeraj and Parveen for the offence under Section 308 read with Section 34 Indian Penal Code who are hereby held guilty and accordingly convicted for the same.
(82) Be listed for arguments on sentence on 6.5.2014.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 01.05.2014 ASJ (NW)II: ROHINI
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 79 of 87
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 106/2013 Unique Case ID: 02404R0043762013 State Vs. 1. Sohan S/o Sh. Ajeet Parsad
2. Neeraj S/o Sh. Arun Parsad
3. Parveen S/o Sh. Arun Parsad
4. Sudhir S/o Sh. Kishor Mehto
5. Birju S/o Sh. Biroga Ram All R/o G44, Mahavir Vihar, Sunday Bazar Wali Gali, Kanjhawala, Delhi81.
(All Convicted) FIR No. : 277/2012 Police Station : Kanjhawala Under Section : 308/34 Indian Penal Code Date of conviction: 01.05.2014 Arguments concluded on: 06.05.2014 Date of Sentence: 08.05.2014 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. PP for the State.
Convicts Sohan, Sudhir, Birju, Parveen and Neeraj with Ms. Neelam Singh, DLSA Counsel.
ORDER ON SENTENCE:
(1) As per the allegations, on 09.12.2012 at about 9.30 PM at Sunday Bazar Road, Mahavir Vihar, Kanjhawala, Delhi, the accused State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 80 of 87 Sohan, Neeraj, Parveen, Arun Prasad, Sudhir and Briju, in furtherance of a common intention, voluntarily attacked upon the victim Balram with iron rod / saria and danda and caused grievous injuries on his head and other vital parts of his body with such intention and under such circumstances that if the death of Balram would have occurred then, they all could have been guilty for committing the offence of culpable homicide not amounting to murder.
(2) On the basis of the testimonies of the various prosecution witnesses particularly the complainant Gopal, victim Balram and eye witness Satish, and on the basis of the testimonies of other witnesses and other circumstantial evidence on record this Court vide a detail judgment dated 01.05.2014 has held the accused Sohan, Neeraj, Parveen, Arun Prasad, Sudhir and Briju guilty of the offence under Section 308 read with Section 34 Indian Penal Code. (3) Heard arguments on the point of sentence. The convict Sohan is stated to be aged about 1920 years having a family comprising of aged grandfather, aged parents, four sisters (two of whom are unmarried) and one younger brother who is studying and are all residing at his native village. He is the sole bread earner of his family. He is a poor person and earn his livelihood by working in the plywood factory and is not involved in any other case. State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 81 of 87 (4) The convict Birju is stated to be aged about 35 years, totally illiterate having a family comprising of aged father, wife and five minor children (i.e. four sons, aged 12 years, 10 years, 8 years 4 years and one daughter 5 years), all residing at his native village. He is a poor person and earn his livelihood by working in the plywood factory and is not involved in any other case.
(5) The convict Sudhir is stated to be aged about 30 years, totally illiterate having a family comprising of wife and four minor daughters (aged 10 years, 8 years, 5 years and 3 years) who are residing with him at Delhi whereas his aged parents and two younger brothers who are residing at his native village. He is a poor person and earn his livelihood by working in the plywood factory and is not involved in any other case.
(6) The convict Parveen is stated to be aged about 21 years, totally illiterate having a family comprising of grandfather, parents, three brothers (two of us are married), one sisters (unmarried), wife, two sons (aged 3 years and 2 years) and one daughter (aged 6 years) who are all residing at his native village. He is a poor person and earn his livelihood by working in the plywood factory and is not involved in any other case.
(7) The convict Neeraj is stated to be aged about 21 years, totally illiterate having a family comprising of grandfather, parents, three brothers (two of whom are married), one sisters (unmarried) State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 82 of 87 who are all residing at the native village. His marriage is fixed for 10.5.2014 in his native village. He is a poor person and earn his livelihood by working in the plywood factory and is not involved in any other case.
(8) The Ld. DLSA Counsel for the convicts has vehemently argued that all the convicts are young boys and belong to poor families having no previous criminal involvements. It is prayed that a lenient view taken against the convicts. On the other hand the Ld. Addl. PP for the State has prayed for a stern view keeping in view the allegations involved.
(9) I have considered the rival contentions. All the convicts are young boys, totally illiterate belonging to poor families. They are first time offenders not involved in any other case. The victims who belong to the same native area as of the convicts Sohan, Neeraj, Parveen, Arun Prasad, Sudhir and Briju, has also been duly compensated and an amount to the tune of Rs.2,10,000/ has already been given to the victims. This Court has been informed that now both the victim and the convicts are living in peace and harmony even after the incident and the victim has no complaints against the convicts. The victims have made a statement before this Court that they have no objection if a lenient view is taken against the convicts. (10) The Social Investigation Reports in respect of all the convicts have been received which I have duly perused. According to State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 83 of 87 the report of the Probation Officer the convicts Sohan and Neeraj are reported to be in hopeless stage when they think over the possible punishment and realize their mistake. It is also reported that there is a full scope of improvement in their behaviour as well as in way of social life and the convicts had shown rectified behaviour in the open society and always observed disciplined norms of the society and fulfill all terms and conditions of probations and determined to follow the norms of society.
(11) The Probation Officer has reported that the convict Parveen is reported to be in hopeless stage when he think over the possible punishment and realizes his mistake. It is also reported that there is a full scope of improvement in his behaviour as well as in way of social life. He fears that the social reputations of his family will be in danger is something adverse will happen. He is the sole bread earner of his family and the convict got rehabilitation and leading healthy social life without any doubt. He had shown rectified behaviour in the open society and always observed disciplined norms of the society and fulfills all terms and conditions of probations and determined to follow the norms of society.
(12) In so far as the convict Sudhir is concerned, it is reported by the Probation Officer he is reported to be in mental agony and suffering from neurotic problem of depression. He is in hopeless stage when he think over the possible punishment and realizes his State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 84 of 87 mistake. It is also reported that there is a full scope of improvement in his behaviour as well as in way of social life. His social reputations of the family will be in danger is something adverse will happen. He is the sole bread earner of his family and the convict got rehabilitation and leading healthy social life without any doubt. He had shown rectified behaviour in the open society and always observed disciplined norms of the society and fulfills all terms and conditions of probations and determined to follow the norms of society.
(13) The convict Birju is reported to be in mental agony and suffering from neurotic problem of depression. He is in a hopeless stage when he think over the possible punishment and realizes his mistake. It is also reported that there is a full scope of improvement in his behaviour as well as in way of social life. His social reputations of the family will be in danger is something adverse will happen. He is the sole bread earner of his family and the convict got rehabilitation and leading healthy social life without any doubt. He had shown rectified behaviour in the open society and always observed disciplined norms of the society and fulfills all terms and conditions of probations and determined to follow the norms of society.
(14) As per the Social Investigation Reports, all the convicts belong to bread struggler group of society and a strong State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 85 of 87 recommendation is made for their rehabilitation. Even the landlords and employers of the convicts have given certification of the good behaviour of the convicts.
(15) This being the background, no useful purpose would be served by taking any harsh view against the convicts since any harsh view at this stage will take away the chances of their reformation. I hold that the interest of justice require that the convicts should be given the benefit of Probation of Offenders Act. (16) I accordingly direct that the convicts Sohan, Sudhir, Birju, Neeraj and Parveen be released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958 for a period of One Year with Supervision (each), on their furnishing personal bond in the sum of Rs.30,000/ (each) with one local surety of the like amount (each). The convicts are also directed to appear and receive sentence when called upon during such period and in the meantime to keep the peace and maintain good behaviour. In case of any default or repetition of the offence, the convicts shall have to undergo Simple Imprisonment for a period of One Year. (17) The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 86 of 87 Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
(18) Copy of the judgment and order on sentence be given to the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
(19) File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 08.05.2014 ASJ (NW)II: ROHINI
State Vs. Sohan etc., FIR No. 277/12, PS Kanjhawala Page 87 of 87