Sc No.44/15 Fir No.291/11 State vs Ajay Bind Etc. Page No. 1/73 on 29 March, 2016

[Cites 7, Cited by 0]

Delhi District Court

Sc No.44/15 Fir No.291/11 State vs Ajay Bind Etc. Page No. 1/73 on 29 March, 2016

       IN THE COURT OF SH. NARESH KUMAR MALHOTRA, 
       ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI 
                      COURTS, DELHI.

       IN THE MATTER OF

       SESSIONS CASE NO.44/15 & OLD SC No. 06/13
       ID No. 02401R0075452013
       FIR No. 291/11
       P.S Nihal Vihar
       U/S  323/302/34/174A IPC

       STATE
                      VERSUS

       (1) Ajay Bind
       S/o Sh.Naresh Bind
       R/o Vill.Jankidih Beldaria, 
       Manan Pur, PS Chanan Distt.Lakhi Sarai, 
       Bihar. 

       (2) Shankar Bind 
       S/o Sh.Biranchi Bind
       R/o Vill. Jankidih Beldaria, 
       Manan Pur, PS Chanan Distt.Lakhi Sarai, 
       Bihar. 

        (3) Raju @ Braham Dev Bind
        S/o Sh.Dhan Bind
        R/o Vill. Jankidih Beldaria, 
        Manan Pur, PS Chanan Distt.Lakhi Sarai, 
        Bihar. 
         


SC No.44/15  FIR NO.291/11   State Vs.Ajay Bind etc.              Page No. 1/73
        DATE OF INSTITUTION          : 30.05.2013
       DATE OF RESERVING THE ORDER : 19.03.2016
       DATE OF DECISION             :     22.03.2016 

       JUDGEMENT

1. The essential facts of the case are that on 17.10.2011 on receipt of DD no. 51A, ASI Ajaib Singh alongwith Ct. Diwan reached at the SGM hospital and collected the MLC no. 16574 of Ram pal S/o Sh.Medi Lal, but he did not find the injured in the hospital. Thereafter, ASI Ajaib Singh reached at the spot but no eye witness was found and accordingly, DD no.51A was kept pending. He came to know that deceased Ramesh @ Ram Asray S/o Sukhdev was admitted in Safdarjang hospital vide MLC No.185738 dt.18.10.2011 and during treatment, he has died and intimation in this regard was given to PS Vikas Puri. As in the MLC, there was mentioning of alleged history of RTA, FIR no. 365/11 U/s 279/337 IPC was registered at PS Vikas Puri. During investigation, IO recorded statement of Sh.Jitender S/o Sh.Rampal to the effect that he is doing a job of white washing. On 17.10.2011, he was present at his house. His father in law Ram Asray and mother in law had come at his house SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 2/73 to meet his wife Gudia. At about 09:30 PM, they heard a noise from the outside of the house and came outside the house and saw that their neighbours who were working as Kabaris namely Ajay Bind, Shankar and Raju and they were under the influence of liquor and were abusing each other. He has further stated that in the meanwhile, his father in law asked him as to who were these persons. The complainant told to his father in law that they are their neighbours and they used to give abuses daily. On this, his father in law felt very bad and his father and father in law went towards those persons to make them understand. He has further stated that his father in law asked them to keep quite and not to use abusive language. On this, all the accused persons namely Ajay Bind, Shanker and Raju started giving beatings to his father and father in law with hammer, danda and iron rod. After giving injuries to his father and father in law, all the three accused persons had fled from the spot. As his father in law Ram Asray received grievous injuries on his head, his mother in law took him in a rickshaw to the hospital. PCR reached after half an hour as someone made a call to the police, who took his father to the SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 3/73 hospital. He has further stated that he came to know afterwards that his father in law has admitted in Safdarjang hospital and during treatment, he has died.

2. On the statement of the complainant, FIR no. 291/11 of PS Nihal Vihar U/s 304/34 IPC was registered and investigation was carried out.

3. During investigation, deadbody of deceased Ramesh @ Ram Asray was handedover to his relatives after postmortem. The site plan was prepared. Statement of the witnesses were recorded and efforts were made by the police officials to trace the accused persons but they could not be arrested. Thereafter, all the accused persons were declared Proclaimed Offener by the Court of Ld.M.M. vide order dt. 06.07.2012 and the chargesheet U/s 302/34 IPC was filed against all the three accused persons as PO. Thereafter, supplementary chargesheet was filed against all the three accused persons. Accused Ajay Bind and Brahmdev @ Raju were arrested on 20.02.2013 by HC Kartar Singh. Both the accused persons were produced before the Ld.Area M.M. Both the abovesaid accused persons were made Confessional Statements. Weapon of offence i.e.hammer and danda SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 4/73 could not be recovered from them. Thereafter, accused Shankar Bind was arrested on 09.03.2013 by the Spl. Crime Branch. He has also made a confessional statement.

4. Charge for the offence U/s 302/323/34 IPC were framed against all the accused persons and three separate charges for the offence U/s 174A IPC were framed against all the accused persons on 25.07.2013 to which they pleaded not guilty and claimed trial.

5. To prove its case, the prosecution has examined as many as 28 witnesses, which are as follows :

PW1 Smt.Indra Devi, PW2 Smt.Rani, PW3 Sh.Jitender, PW4 Sh.Shiv Karan, PW5 Sh.Ram Prasad, PW6 Sh.Rampal, PW7 Ms.Gudiya, PW8 SI More Dwaj, PW9 HC Anil Kumar, PW10 ASI Jagat Singh, PW11 SI Radhey Shyam, PW12 HC Dharmender Kumar, PW13 HC Yashwant Singh, PW14 Dr.Ashishi Kumar, PW15 Dr.Subhajit Dhar, PW16 HC Mukesh Kumar, PW17 Dr.Binay Kumar, PW18 HC Anil Kumar, PW19 Dr.Atul Gupta, PW20 Sh.Raju, PW21 HC Surender, PW22 HC Kartar Singh, PW23 SI Jai Prakash, PW24 ASI Ajab Singh, PW25 HC Sant Raj, PW26 SI Ritesh Kumar, SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 5/73 PW27 Insp.Sahdev Rana and PW28 Insp.Parminder Singh.

6. PW1 Smt.Indra Devi has deposed that on 17.10.2011 at about 09:30 PM, she was at Chandan Vihar at the house of her daughter Gudiya. Her Samdhi Ram Pal, her husband Ram Asrey, her daughter Gudiya and son in law Jitender were present at the house of her daughter. She has further stated that then there was a noise and on hearing the noise, all of them came out of the house and saw that there was quarrel going on. She has further stated that the Kabadis i.e. Ajay Bind, Shankar and Raju were quarreling. Her husband had gone to intervene (Samjhane ke liye) and then Raju, Shankar and Ajay started using abusive language. She has further stated that her husband was asking them not to abuse and he also spoke loudly. At that time, Ajay brought a hammer (Hathora) and hit her husband and then her husband was assaulted with Saria and a danda. She has further stated that she did not know who assaulted her husband with a saria and who assaulted him with danda. Thereafter, all the accused persons had run away.

On specific Court inquiry, she has stated that SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 6/73 she could not see who hit her husband with the Saria and who hit her husband with danda. She has further stated that then she went forward to save her husband and at that time Ajay hit and pushed her. On seeing that her husband had been injured on the head, she immediately took her husband to the doctor.

She has further stated that her Samdhi Ram pal had also sustained injuries, but she did not know who had caused him injuries. She has further stated that she took her husband to DDU hospital, but he was not admitted there as she was told that they did not have equipments for treatment of the injury of head and then she took her husband in Ambulance to Safdarjang hospital. This witness has correctly identified all the three accused persons in the court.

7. PW2 Smt.Rani has deposed that on 17.10.2011 at around 08:45 PM/09:00 PM, she was at her house and her brother in law Jitender telephoned her and informed that they had a quarrel with Kabadis residing in front of their house. Thereafter, she alongwith her husband was going towards the spot and at that time, when she had crossed the ganda nala, she found her mother bringing SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 7/73 her father in a rickshaw. She has further stated that from there, she alongwith her mother and husband took her father Ramesh @ Ram Asray in an Auto Rickshaw to DDU hospital. There at DDU hospital, they refused to treat her father and then they took her father to Safdarjang hospital and took him to Emergency and he was treated there. She has further stated that her father had received injuries on his head and he did not recover and expired during the course of treatment. She has further stated that she had identified the deadbody of her father.

8. PW3 Sh.Jitender has deposed that on 17.10.2011 at around 09:30 PM, he was at his room. His mother in law Indra Devi and father in law Ramesh reside in Kali Basti and had come to his room at 09:15 PM. His wife Gudiya was also present when his father in law and mother in law had come and they were all seated in his room, when they heard a noise "Shor Sharaba" from outside. He has further stated that thereafter, they all came out of the room and saw accused persons Ajay, Shankar and Raju were quarreling each other. He has further stated that his father and father in law said that they would go and talk to them to placate them "Samjhate hain". His father in SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 8/73 law then asked the accused persons in a loud voice "Chup ho jao". Then accused Ajay got angry and he picked up a hammer and hit the same on the head of his father in law. Then accused Shankar and Raju also picked up a danda and saria from the Kabad (Scrap) and started beating his father and father in law with the same. Then he went forward to save his father and father in law from those three persons, but he was also pushed (dhakka mukki) and then Ajay, Shankar and Raju escaped from the spot.

This witness has further stated that then his mother in law Smt.Indira Devi took his father in law in a rickshaw as he had been injured a lot and took him to the hospital. At that time, he was looking after his father who had also been injured. He had also telephoned Rani, elder sister of his wife and Shiv Karan, his brother in law. This witness has further stated that he did not know where or which hospital, his father in law had been taken by his mother in law. He has further stated that lateron, he came to know that his father in law had expired. This witness has correctly identified all the three accused persons before the Court.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 9/73

9. PW4 Shiv Karan has deposed that on 17.10.2011, his parents in law Smt.Indira Devi and Sh.Ram Asrey had gone to meet Gudiya in the night/evening. He has further stated that then Jitender, the brother in law of his wife, telephoned him and informed that there had been a quarrel with Kabadis "Saamne wale kabario se" and he should come. He has further stated that thereafter, he and his wife Rani reached on foot near Ganda nala, where they saw that Smt.Indira Devi, his mother in law was bringing his father in law Ram Asrey in a rickshaw. They took an auto and took his father in law to DDU hospital but he was not admitted there as there was no equipment for treating head injury. Then they took Ram Asrey to Safdarjang hospital in an Ambulance. He has further stated that after sometime, doctor informed that Ram Asrey had expired.

10.PW5 Ram Prashad has deposed that Ramesh @ Ram Asrey was his elder brother. It was 17.10.2011, Ram Asrey had a quarrel with the Kabadis and due to the quarrel, Ramesh @ Ram Asrey was seriously injured and he was admitted to Safdarjang hospital. The next day in the morning, he received a phone call and reached at SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 10/73 Safdarjang hospital. There, Rani, daughter of Ram Asrey informed that Ram Asrey had expired. He has further stated that he and Rani were taken to the mortuary for identification of the deadbody and they identified the deadbody of Ram Asrey vide his statement Ex. PW5/B. He has further stated that in the evening, the deadbody was handedover to Vinod (uncle of Rani) and to him vide receipt Ex. PW5/A.

11.PW6 Sh.Rampal has deposed that on 17.10.2011 and at around 09:00 PM, he alongwith Ram Asrey, Gudia, Indira Devi and Jitender were present in his room and they were having snacks. At that time, at about 09:30 PM, there was a loud noise "Shor macha" and they all came out and saw that the Kabaris i.e.accused Ajay, Raju and Shankar were quarreling amongst themselves and were using abusive language and had consumed a lot of liquor. He has further stated that Ram Asray asked him as to who were these persons and he replied that they were the Kabaris and used to quarrel every day in the same manner. Ram Asrey then said that he would talk to them and make them understand and they went to them. He has further stated that Ram Asrey spoke to the three SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 11/73 accused persons but they did not keep quite and continued to quarrel and then Ram Asrey said in a loud voice "Chup Raho" and on this there was a hammer lying in front of the accused Ajay and he hit it on the head of Ram Asrey. He ran to save Ram Asrey. At that time, accused Raju had taken a Lath (wooden stick) and Shankar had taken a Saria. All three of them i.e. Ajay, Raju and Shankar started assaulting Ram Asrey and as he had intervened to save him, they also assaulted him. At that time, Jitender, his son and Smt.Indira Devi came running. He was hit on his head and became unconscious, however, he did not know who had hit on his head.

This witness has further stated that he regained consciousness on the next morning at 04:00 AM at Sanjay Gandhi hospital and lateron, his statement was recorded by the police.

12.PW7 Ms.Gudiya has deposed that on 17.10.2011 at around 09:00 PM, she alongwith her mother Smt.Indira Devi, her father Sh.Ramesh @ Ram Asrey, her father in law Sh.Rampal and her husband Jitender were present inside her house at Chander Vihar, Nilothi, Room no.4 SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 12/73 and were having snacks. At that time, there was a sound of vulgar abuses and "Shor Sharaba" coming from the outside. She has further stated that all of them came out of the house to see. Her father asked her husband and father in law as to who were these persons and why they were quarreling. Her father in law and husband informed her father that these persons were the Kabadis who used to reside in front of their house and it was their regular daily feature to quarrel, to make noise and to use vulgar abuses. She has further stated that her father said that he would go and persuade them and make them understand and thereafter, her father and father in law went together. Her father then went to persuade the three accused persons i.e.Ajay, Shankar and Raju.

She has further stated that her father asked the three accused persons to keep quite and to stop abusing, but the accused persons did not desist. Then her father in a loud voice told the accused persons "Chup ho jao". The three accused persons got angry and accused Ajay Bind picked up a hammer lying close by him and hit the same on his father's head. She has further stated that other two accused persons Raju and Shankar also picked SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 13/73 up the hammer "Hathora" and a Saria lying nearby and gave beatings to her father and father in law. She has further stated that her father was seriously injured and her father in law also was injured and became unconscious and fell down. When her husband and mother went to intervene, the three accused persons left their weapons and pushed them and ran away.

In reply to a specific Court quarry, this witness has stated that at the time of assaulting, she was present outside her house close to the spot of occurrence. She has further stated that thereafter, her mother took her father in a cycle rickshaw to Safdarjang hospital. She and her husband had brought her father in law in the house. She has further stated that on the next morning, they received a telephone call from Safdarjang hospital that her father had expired at 07:30 AM. This witness has further stated that accused Shankar and Raju had a Saria and Danda in their hands but she did not know as to who had the Saria and who had the danda in their hands as she had not seen them at that time.

13.PW8 SI More Dwaj has proved the computerized copy of FIR no. 291/11 U/s 304/34 IPC as Ex. PW8/A. This SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 14/73 witness has further deposed that he had also recorded the DD no. 36A dt. 19.10.2011, copy of which is proved as Ex.PW8/B.

14.PW9 is HC Anil Kumar, however, he has been discharged as he has not made the entry.

15.PW10 ASI Jagat Singh has deposed that on 17.10.2011, at around 23:44 hours, a call of quarrel was received from mobile no. 9990126118 and the PCR van bearing Power 66 went at the spot. This witness has recognized the signatures of ACP Sh.Kali Ram as he has signed on the same in his presence, attested copy of Form no.1 is proved as Ex. PW10/A. He has further deposed that the IO had taken the copy of Form no.1 from PS Model town and attested copy of the same is proved as Ex. PW10/A.

16.PW11 SI Radhey Shyam has deposed that on 20.10.2011, Insp.Sehdev Rana had given the police file bearing FIR no. 291/11 to him and informed that the injured who had been admitted in Safdarjang hospital had expired and postmortem has to be conducted. Thereafter, he and Ct.Rajesh went to Safdarjang hospital and gave a request for conducting the inquest proceedings and the postmortem. This witness has SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 15/73 proved his signatures at point A on the application Ex. PW11/A, filed by him seeking the conducting of the autopsy. He has further stated that the brief facts of the case in form no. 25.35 (1)(B) is in his handwriting and bears his signatures at point A on Ex.PW11/B. He has further stated that he had recorded statement of identification of corpse of the deceased, which bears his signatures at points B on Ex.PW5/D and Ex. PW11/C. This witness has further stated that after the identification of the corpse of the deceased and after the postmortem, the body of deceased was handedover by him to Sh.Ram Prasad vide Ex. PW5/A. Thereafter, the doctor handedover to him the clothes of the deceased, the blood gauze and blood sample in a sealed condition and he seized the same vide seizure memo Ex.PW11/D.

17.PW12 HC Dharmender Kumar has produced the register containing FIR no. 365/2011 dt. 17.10.2011 of PS Vikas Puri U/s 279/337 IPC, photocopy of the same is proved as Ex.PW12/A. He has further stated that this FIR no. 365/2011 has been cancelled vide order dt. 09.04.2012 passed by Ld.M.M. of PS Vikas Puri.

18.PW13 HC Yashwant Singh has deposed that on SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 16/73 17.10.2011 at 11:50 PM, information was received that there had been a quarrel near the Machhi market, Chander Vihar, near the drain and he alongwith the PCR Van reached the spot and found injured Rampal, who was taken in the PCR van to Sanjay Gandhi hospital.

19.PW14 Dr.Ashish Kumar has deposed that on 18.10.2011, he examined the patient Rampal aged 35 years brought with an alleged history of physical assault. He has also proved the MLC of this patient as Ex.PW14/A and his signatures at point A on the MLC. He has further stated that he has advised medication and the patient was conscious and oriented. There was no history of loss of consciousness nor of vomiting nor of conblusion.

20.PW15 Dr.Subhajit Dhar has deposed that on 18.10.2011, patient Ramesh S/o Sukhdev was examined by Dr.Sweta Razdan, SR Surgery and the MLC is not in his handwriting and he has only countersigned the same at point A on Ex.PW15/A. This witness has recognized the handwriting of Dr.Sweta Razdan, SR Surgery and also identified her signatures at point B on the said MLC. He has also recognized the handwriting of Dr.Mayank Arora at point X to X1 and at point C on the said MLC. In reply SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 17/73 to a specific court query, this witness has stated that the patient was unconscious and needed endotrachel intubation and ambubag ventilation because the patient was suffering from respiratory failure.

21.PW16 is HC Mukesh Kumar, who was discharged by the court as DD nos. 51A dt. 17.10.2011 and 31A dt. 18.10.2011 have been recorded by SI Satya Pal and ASI Ajab Singh respectively and both of whom are available in the PS Nihal Vihar.

22.PW17 Dr.Binay Kumar has proved his endorsement at portions I to I and his signatures at point J. He has further stated that he has opined that as per surgery opinion, injury is simple in nature as mentioned in Ex. PW14/A.

23.PW18 HC Anil Kumar has recognized the handwriting of ASI Satpal Singh on the DD no. 51A dt. 17.10.2011. He has also produced DD entry no. 31A dt. 18.10.2011 of PS Nihal Vihar written by ASI Ajab Singh, photocopy of the same is proved as Ex. PW18/B.

24.PW19 Dr.Atul Gupta has deposed that on 20.10.2011, he received inquest papers at about 03:00 PM from IO/SI Radhey Shyam of PS Nihal Vihar to conduct autopsy on SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 18/73 the deadbody of the deceased Ramesh Chand s/o Sh.Sukhdev Singh, which was identified by Smt.Rani, Sh.Ram Prashad and the IO. This witness has proved the P.M.report as Ex.PW19/A and his signatures at point A. He has further stated that the cause of death in this case was coma due to antemortem injury to head produced by blunt object. The injury to the head was sufficient in the ordinary course of nature to cause death. Time since death was about two days. He has further stated that he has preserved the blood on gauze and clothes of the deceased in sealed parcels and both the sealed parcels were handedover to the IO alongwith sample seal.

This witness has further deposed that following injuries were found on the head of deceased :

(1)Below the scalp, there was patchy extravasation of blood over bilateral parieto occipital region. (2)Depressed fracture of righto temporal bone of size 7 x 4 cm was present.

(3)Sutural fracture of right coronal suture was present.

(4)Multiple fractures of right occipital bone and transvers fracture of right mastoid.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 19/73

(5)In the brain, sub arachnoid and sub dural haemorrhage was present over bilateral parietal region. Edema was also present.

25.PW20 Raju has deposed that three years ago i.e. 2011, there was a quarrel between Jiten and the person who was killed in the quarrel and he had received a phone call and telephoned the police at number 100. He has further stated that deceased Ram Asre was his Mama (maternal uncle) and Jiten is his brother in law i.e.son in law of deceased Ram Asrey. The wife of Jiten is Gudiya and they used to live at Chander Vihar near the Nala. He has further stated that Shiv Karan, the elder son in law of his maternal uncle Sh.Ram Asrey had telephoned him that there was a quarrel and father and father in law of Jiten i.e.Sh.Ram Asrey were injured in that quarrel. He has further stated that father of Jiten was taken by the police to the hospital as he had been seriously injured. Jiten and his Mami had taken Ram Asrey in a rickshaw to DDU hospital and then he went home. This witness has proved his statement Ex. PW20/1 and his signatures at point A.

26.PW21 HC Surender has deposed that on 09.03.2013, SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 20/73 secret informer came and gave him information in the office that the accused Shankar Bind wanted in FIR no. 291/2011 of PS Nihal Vihar would come around 05:00 PM near the Kodia Pul, Old Delhi Railway station and he gave this information to the Incharge SI Ritesh Kumar, who gave this information to the ACP in his office. Thereafter, on the instructions of ACP, SI Ritesh Kumar made a raiding party consisting of Ct.Raj Singh, HC Sant Raj, HC Kartar Singh, Ct.Jitender, Ct. Lala Ram, Ct.Ashok Kumar and secret informer and left in two private vehicles at around 03:30 PM and reached near the Red Fort vide DD no. 6. Thereafter, they came near Kodia Pul and around 05:00 PM, the secret informer pointed towards a person coming from Old Delhi towards Kodia Pul. He has further stated that on the signal of secret informer, Ct.Raj Singh and he attempted to stop that person but that person ran back towards the Old Delhi Railway Station then Ct.Raj Singh and he whilst running apprehended that person. His name was revealed as Shankar Bind. He made a statement which was recorded in relation to his being wanted in FIR no. 291/11 of PS Nihal Vihar.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 21/73

This witness has further stated that thereafter, accused Shankar Bind was taken to the office at Sun Light Colony, where his personal search was conducted and the accused was arrested. SI Ritesh Kumar informed the ACP and brother of accused Shankar Bind, regarding his arrest. He has further stated that vide DD no. 35A dt. 09.03.2013, information of the apprehension of accused Shankar Bind was given to PS Nihal Vihar telephonically to the duty officer.

This witness has further stated that on 10.03.2013, after getting the accused Shankar Bind medically examined at LNJP hospital, he was produced before the court, where Insp.Parminder of PS Nihal Vihar had sought police custody remand of the accused Shankar Bind, but the same was not granted by the Court and the accused was remanded to Judicial custody till 20.03.2013. Then he gave the original kalandra prepared by him qua the arrest of accused Shankar Bind to Insp.Parminder. This witness has proved the Certificate issued by Sh.K.P.S.Malhotra, ACP, SCR Crime Branch, New Delhi regarding DD no.9 dt. 09.03.2013 and DD no.6 dt. 09.03.2013 as Ex. PW21/A. SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 22/73 This witness has proved the Arrest memo as Ex. PW21/A, personal search memo as Ex.PW21/B, disclosure statement of accused Shankar Bind as Ex.PW21/C, original Kalandra U/s 41.1 (C) of the Cr.P.C. as Ex.PW21/D, true copy of DD no.9 dt. 09.03.2013 as Mark PW21/E and true copy of DD no.6 dt. 09.03.2013 as Mark PW21/D.

27.PW22 HC Kartar Singh has deposed that on 20.02.2013, secret informer came to his office at Special Unit Sunlight Colony and informed him and HC Sant Raj that Ajay Bind was was wanted in an FIR of PS Nihal Vihar and his associates would come to Mithai Pul at about 02:30 PM/03:00 PM and if a raid was conducted, they could be apprehended. It was also informed that they would come to meet their other associates and planning to travel to Maharashtra. Thereafter, he produced the secret informer before SI Ritesh, who further informed the ACP and on the directions of ACP, a raid was conducted by SI Ritesh under his own supervision comprising of himself, HC Sant Raj, HC Surender, Ct.Jitender, Ct.Lala Ram and Ct.Raj Singh after lodging DD no.5, copy of the same is Mark PW22/2, of the receipt of secret information and SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 23/73 also regarding their departure. Thereafter, they left the office in two private cars, one belonging to HC Sant Raj and one belonging to SI Ritesh and at about 01:55 PM, they reached the Peeli Kothi, near Fire Station, Pul Mithai.

This witness has further stated that at 02:40 PM, two persons came from the directions of Naya Bazar on foot and stood on the pavement in front of fire station and they were identified by the secret informer as Ajay Bind and Raju @ Brahm Dev. He has further stated that the entire team went forward to cover those two persons while stating that they belonged to Delhi Police Crime Branch, upon which those two persons starting running but HC Sant Raj apprehended accused Raju @ Brahm Dev and this witness had apprehended accused Ajay Bind. This witness has correctly identified both the accused persons. He has further stated that on enquiry, it was learnt that both these accused persons were wanted in FIR no. 291/2011 of PS Nihal Vihar and had been declared PO and there was also an award of Rs.50,000/ cash qua the apprehension of these two persons. After conducting proper enquiry, both the abovesaid accused SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 24/73 persons were arrested by SI Ritesh at 07:10 PM vide DD no.11 (copy of the same is Mark PW22/1) U/s 41.1(C) of the Cr.P.C. and brought both the accused persons to the office of Sunlight Colony.

This witness has further stated that on 21.02.2013, both the abovesaid two accused persons were produced by him before the Ld.ACMM, North, where SI Parvinder was present and he handedover the photocopy of the Kalandra U/s 41.1 (C).

This witness has proved the Arrest memo of both the accused persons namely Ajay Bind and Brahm Dev @ Raju as Ex. PW22/A and Ex. PW22/B, their personal search memos Ex.PW22/C and Ex. PW22/D, their disclosure statements as Ex.PW22/E (that of accused Raju @ Brahm Dev) and Ex. PW22/F (that of accused Ajay Bind). This witness has further stated that original roznamcha containing the DD no. 5 and 11 dt. 20.02.2013 of Spl. Unit Crime Branch, Sunlight Colony, Delhi has been misplaced.

28.PW23 SI Jai Prakash has deposed that On 20.02.2013, at about 09:20 PM, he received a message from Spl.Crime Team, Sunlight Colony regarding the SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 25/73 apprehension of two accused persons namely Ajay Bind and Raju @ Dharam Dev Bind and the said information was reduced in writing vide DD no. 34A, true copy of the same is proved as Ex. PW23/A and copy of the same was handedover to MHC(R) to further inform the IO.

This witness has further deposed that on 09.03.2013, at about 07:00 PM, he received a message from Spl.Crime Team, Sunlight Colony regarding the apprehension of accused Shankar Bind and the said information was reduced into writing vide DD no. 35A, true copy of the same is proved as Ex. PW23/B and copy of the same was handedover to MHC(R) to further inform the IO.

29.PW24 ASI Ajaib Singh has deposed that on 17.10.2011 at about 11:50 PM, DD no.51A, true copy of the same is Ex.PW24/A was assigned to him, which was regarding quarrel at Chander Vihar drain. Accordingly, he alongwith Ct.Diwan reached the informed place where he came to know that injured has been taken to Sanjay Gandhi hospital by the PCR Van. No eye witness met him at the spot. Thereafter, he alongwith Ct.Diwan reached Sanjay Gandhi hospital and found MLC of injured Rampal and SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 26/73 on further inquiry, it was revealed that injured Rampal had left the hospital. Thereafter, again he went to the spot, where again no eye witness met him and then the returned to PS and kept on inquiring the facts.

This witness has further stated that on 18.10.2011 at about 09:00 AM, again they visited the spot, where injured Rampal met him and informed that one of his relative Ramesh @ Ram Asrey had also sustained injuries and he was not aware as to where Ram Asrey was admitted or whether he had sustained injuries or otherwise. Accordingly, he kept the DD no.51A pending.

This witness has further stated that on 19.10.2011, one person namely Jitender s/o Rampal came in PS and he gave his statement before him which is proved as Ex. PW24/B. During inquiry, it was revealed that injured Ram Asrey was admitted in Safdarjang hospital and during treatment, he expired and FIR no. 365/11 U/s 279/337 IPC of PS Vikas Puri was registered on the basis of DD entry as on the MLC, RTA was mentioned. Thereafter, he prepared rukka Ex.PW24/C and handedover the same for getting the case registered U/s 304/34 IPC and thereafter, the investigation of this case SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 27/73 was handedover to Insp.Rana.

This witness has proved the statements of Smt.Indira Devi as Ex.PW24/D, Gudiya as Ex.PW7/DB, statement of Rampal as Ex.PW19/DA, Raju Ex. PW20/1, Jitender as Ex. PW24/E, Rampal as Ex.PW24/F and that of Rani Ex. PW24/G. He has further stated that he had recorded all these statements during inquiry as the case U/s 279/337 IPC was registered at PS Vikas Puri and facts were not clear at that time.

30.PW25 HC Sant Raj has deposed that on 20.10.2013, one informer came and informed him and HC Kartar that accused Ajay Bind wanted in case FIR no. 291/11 of PS Nihal Vihar would come at Mithai Pul near Old Delhi Rly. Station around 02:30 or 03:00 PM and this information was conveyed to SI Ritesh. Thereafter, on the instructions of ACP, a raiding party was conducted comprising of himself, HC Kartar Singh, HC Surender, Ct.Raj Singh, Ct.Lala Ram, Ct.Jitender, SI Ritesh and the informer and left the office after lodging DD no.5. He has further stated that they reached Old Delhi Rly.Stn. around 01:45 PM and at around 01:55 PM, they reached at Mithai Pul. He has further stated that at about 02:45 PM, accused Ajay SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 28/73 Bind and Raju @ Brahm Dev (witness has correctly identified both the accused persons before the court) were apprehended near Mithai Pul. This witness has proved the Arrest memos as Ex.PW22/A and Ex. PW22/B, personal search memos as Ex.PW22/C and Ex. PW22/D and disclosure statements as Ex.PW22/E and Ex.PW22/F in respect of accused Ajay Bind and Brahm Dev @ Raju.

31.PW26 SI Ritesh Kumar has deposed that on 20.02.2013, at about 12:40 PM, HC Kartar and HC Santraj had produced one informer concerning presence of accused Ajay Bind and after verifying the information, he formed a raiding party and proceeded to apprehend the accused Ajay Bind after lodging DD no.5, who was arrested in this case. This witness has stated that DD no.5 dt. 20.02.2013 was searched in the Crime branch unit but no such record was found, reason being that roznamcha was burnt and report in this regard was found, photocopy of the same is marked as Mark PW26/A. He has also proved the copy of DD no.5 as Mark PW26/B. This witness has further stated that roznamcha containing DD no.6 dt. 09.03.2013 is also reported missing vide report Ex.PW26/A and DD SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 29/73 no.6 is Marked as Mark PW26/C.

32.PW27 Insp.Sahdev Rana has deposed that on 19.10.2011, investigation of the present case was marked to him and he reached the spot alongwith Ct.Diwan, where he recorded statements of Gudiya and Jitender. He prepared site plan of the spot at the instance of Gudia and Jitender which is proved as Ex.PW27/A. He directed SI Radhey Shyam to get the postmortem done on the deadbody of Ramesh @ Ram Asrey, which was got done. He obtained documents from SI Radhey Shyam and placed the same on record. Thereafter, he recorded statements of Indirawati, Rani, Shiv Karan, Rampal, Raju, ASI Ajaib singh and HC Yashpal on 22.10.2011. He made efforts to trace the accused persons but in vain. On 31.03.2012, he was transferred and he handedover the record of this case to MHC(R).

33.PW28 Insp.Parminder Singh has deposed that on 31.03.2012, investigation of this case was assigned to him and he made efforts to trace the accused persons but they could not be traced. Thereafter, he got issued NBWs against all the them and in pursuance of NBWs, search of the accused persons were made but they could not be SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 30/73 found. Thereafter, he got issued process U/s 82 Cr.P.C. against all the accused persons and the same were duly executed. He has further stated that he had sent the requisitiions U/s 41 Cr.P.C. dt. 02.04.2012, 14.07.2012, 20.09.2012 and 01.10.2012 (Ex.PW28/A1 to A4) to the officer Incharge PS Chanan Distt.Lucky Sarai Bihar in respect of the aforesaid accused persons. After the execution of the process U/s 82 Cr.P.C., they were declared PO by the court concerned and he filed the chargesheet against all the abovesaid accused persons as PO.

He has further deposed that on 20.02.2013, he received DD no.34A and came to know that accused Ajay Bind and Raju @ Brahmdev were arrested by the Crime branch and they would be produced on 21.02.2013 in the concerned court.

This witness has further stated that on 21.02.2013, he alongwith Ct.Arjun came to the Tis Hazari Court. HC Kartar Singh and HC Sant Raj from Crime Branch met them. He obtained the copy of Kalandra and relevant documents prepared by HC Kartar Singh. HC Kartar Singh produced the accused Ajay Bind and Raju @ SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 31/73 Brahmdev and he obtained the permission to interrogate the accused Ajay Bind and Raju @ Brahmdev. After taking permission, he interrogated both the accused persons and recorded the disclosure statements of accused Ajay Bind Ex.PW28/B and that of accused Raju @ Brahmdev Ex.PW28/C. He arrested the accused persons vide Arrest memos Ex.PW28/D (that of accused Ajay Bind) and Ex.PW28/E (that of accused Raju @ Brahmdev), conducted their personal searches vide memos Ex.PW28/F (that of accused Ajay Bind) and Ex. PW28/G (that of accused Raju @ Brahmdev). He got two days PC remand of both the accused persons.

This witness has further stated that both the accused persons Ajay Bind and Raju pointed out the place of occurrence i.e. near Chander Vihar Nala, Nilothi Extension vide Pointing out memo Ex.PW28/H. This witness has further stated that on 09.03.2013, he received DD no. 55A and came to know that third accused Shankar Bind was arrested by the Crime Branch and he would be produced on 10.03.2013 in the concerned court. On 10.03.2013, he alongwith Ct. Arjun came to the Tis Hazari Court. HC Surender Kumar SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 32/73 had produced the accused Shankar Bind in the concerned court alongwith one Ct.Raj Singh. He obtained the copy of Kalandra and relevant documents from HC Surender Kumar. He obtained the permission from the concerned court to interrogate the accused Shankar Bind. After obtaining the permission, he interrogated the accused Shankar Bind and recorded his disclosure statement Ex. PW28/I. He arrested the accused Shankar Bind vide Arrest Memo Ex.PW28/J. During the investigation, he collected the PCR form and relevant DD entries. He recorded the statements of the witnesses U/s 161 Cr.P.C. After completion of the investigation, he filed the Chargesheet after the arrest of the accused persons.

34.Thereafter, statements of accused persons U/s 313 Cr.P.C. were recorded, wherein they have stated that they are innocent and have been falsely implicated in this case. They have not committed any crime. They were picked up and shown as arrested on the basis of fake documents. Their signatures were obtained on blank papers and forms. However, all the accused persons did not adduce any defence evidence.

35.I have heard Ld.Chief. P.P.for the State, Sh.Shitiz Sharma, SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 33/73 ld.Counsel for the accused Shankar Bind and Brahm Dev @ Raju and Sh.K.Singhal, ld. Counsel for accused Ajay Bind and have perused the record carefully.

36.It is contended by Sh.Shitiz Sharma, ld. Counsel for accused Shankar and Brahm Dev @ Raju that PW3 Jitender has categorically stated that his signatures were taken on blank papers. In crossexamination done by the Ld.Chief PP for the State, PW3 Jitender did not admit that he had made any statement to the police. It is also contended that PW6 Sh.Rampal in his initial statement in Ex.PW24/F had mentioned about one Bablu S/o Nawab with whom a quarrel had taken place of Kabaris but police has not cited Bablu as a witness in the list of witnesses. It is also contended that Rampal in his statement Ex.PW24/A did not state that Ram Asrey had also received injuries in the alleged quarrel. It is also contended that PW7 Gudiya in her statement to the police had not mentioned the name of her husband Jitender and she was also confronted with this fact in her crossexamination. Further PW3 did not make any call to the police. He had not accompanied the injured Rampal or the deceased to the hospital thus, it shows that PW3 SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 34/73 Jitender was not present at the spot at the time of alleged occurrence.

It is further contended by ld.defence counsel that PW1 Smt.Indira Devi has categorically stated in the court that she has seen all the accused persons first time in the court. She has further stated in her examination that name of the accused persons were disclosed to her by her daughter Gudia. It is also contended that no TIP proceedings were conducted by the IO. On the MLC of injured Ram Asrey, it is mentioned that there is a history of Road Traffic Accident(RTA). Further it is contended that deceased Ram Asrey was taken to Safdarjang hospital and on the information given by Shiv Karan that Ram Asrey has received injuries in a road accident, FIR no. 365/11 U/s 279/337 IPC of PS Vikas Puri has been registered, thus, it is proved that Ram Asrey has received injuries in an accident and he was not assaulted by the accused persons and lateron, false statements were given by the witnesses to falsely implicate all the accused persons. Further it is contended by the ld.defence counsel that no investigation was conducted in respect of FIR no. 365/11 and it is proved that deceased died during the SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 35/73 injuries received by him in an accident.

It is also contended that in the present case, only one injured received injuries and in form Ex. PW10/A, there is only mentioning of shifting of one injured to the hospital. It is also contended that there is a delay of lodging of the FIR to the police. The alleged incident is of dt. 17.10.2011 but PW3 Jitender had given his statement only on 19.10.2011. Thus, there is a delay in registration of the FIR and the prosecution is not able to explain the delay properly. Further it is contended that HC Ishwar Singh, who had conducted the proceedings against the accused persons U/s 82/83 Cr.P.C.has been dropped by the Ld.Chief PP for the State on 20.11.2013 and the concerned Ld.M.M. has also not been examined in the witness box to prove the proceedings U/s 82/83 Cr.P.C. against the accused persons and to prove that all the accused persons were ever absconded. It is further contended that DD no.6 and 9 were never produced in the court in respect of the arrest of accused persons. Further it is contended that site plan was not prepared at the instance of PW7 Gudiya and PW3 Jitender. It is further contended that prosecution is not able to prove its SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 36/73 case beyond reasonable doubt and it is prayed that accused persons be acquitted.

37.It is also contended by Sh.K.Singhal, ld. Counsel for accused Ajay Bind that for sustaining conviction u/s 302 IPC r/w Section 34 IPC, the prosecution is required to prove that the deceased had died homicidal death. Further it is contended that PW19 Dr.Atul Gupta has not specifically stated that the deceased died a homicidal death. Thus, it is proved that deceased died due to injuries suffered in Road side accident. It is also contended that Dr.Atul Gupta has not raised any objection that it was not a case of road accident. The IO has not produced any document to show that the deceased Ram Asrey was firstly taken to DDU hospital. IO had not taken into possession the blood or any other material from the spot. Further it is contended that as no blood was taken from the spot, this falsifies the case of the prosecution and it is not proved that any incident of quarrel had taken place at the spot as alleged by the prosecution.

Further it is contended by the ld.defence counsel that there are two separate incidents, in one incident SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 37/73 Rampal received injuries and he was taken to Sanjay Gandi hospital, Mangol Puri by the PCR officials and the incident of receiving injuries by Ram Asrey is a separate incident and when the witnesses came to know that Ram Asrey has died, then to take revenge from all the accused persons regarding injuries received by injured Rampal, they have been falsely implicated all the accused persons. It is also contended by ld.defence counsel that PW20 Raju has also stated that a quarrel had taken place between Jitender and Ramesh. It is also contended that as the third version has come in the testimony of PW20, it is not proper to believe story put forward by the prosecution. It is also contended that no weapon of offence has been recovered at the instance of accused persons. Houses of the accused persons were not searched though they fled from the spot after the alleged incident as per the prosecution case. It is also contended that as no weapon of offence was recovered from the spot or at the instance of accused persons, the story put forward by the prosecution is hardly believable. PW6 Rampal has categorically stated that the police had picked up Saria, hammer and Lath in his presence but no SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 38/73 recovery is shown in the chargesheet submitted by the police. Further it is contended that in any statements, which were recorded by ASI Ajaib Singh, during inquest proceedings of the deceased i.e.statements of Indira Devi Ex.PW24/D, Gudiya Ex.PW7/DB, Rampal Ex. PW19/DA, Raju Ex.PW20/1, Jitender Ex.PW24/E, Rampal Ex.PW24/F and that of Rani Ex.PW24/G, no names of the accused persons were mentioned. Description of any of the accused is not mentioned in any of the abovesaid statements, so benefit of doubt must go to the accused persons as police has not carried out TIP of any of the accused persons. It is prayed that accused be acquitted.

38.On the other hand, ld. Chief PP for the State has contended that the prosecution is able to prove its case against all the accused persons. It is prayed that all the accused persons be convicted.

39.Now I am dealing with the contentions of the ld.defence counsels one by one.

40.First and foremost contention of the ld.defence counsel for the accused persons is that deceased Ramesh @ Ram Asrey met with an accident and he SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 39/73 received injuries in road side accident and this fact is mentioned on the MLC of the deceased, when he was taken to Safdarjang hospital and the history was given by son in law of deceased i.e.Shiv Karan "as alleged history of RTA". It is also contended that FIR no. 365/11 U/s 279/337 IPC was registered and PW19 Dr.Atul Gupta has stated that injury no.1 is possible by way of fall. Thus, the deceased died due to the injuries received in an accident.

It is an admitted fact that the deceased Ram Asrey s/o Sukhdev was taken to Safdarjang hospital at about 01:28 AM on 18.10.2011 and history was given by his son in law Shiv Karan as "RTA. On this intimation, a telephonic communication was sent to PS Vikas Puri that a person has been admitted in an accidental condition who met with an accident at Kali Basti drain and he was admitted by her daughter Rani in the hospital. On this information, DD no.5B dt. 18.10.2014 of PS Vikas Puri was registered. On this information, SI Roshan Lal went to the spot of the accident but no information was gathered and on the intimation, FIR no.365/14 U/s 279/337 IPC was registered, which was proved by PW12 SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 40/73 HC Dharmender Kumar. Lateron, this FIR was cancelled by the Orders of Ld.M.M. as during investigation of this FIR, it was revealed that false information was given by the witness.

41.Now the question arises whether Shiv Karan, son in law of the deceased or Rani, daughter of the deceased had given false intimation to the doctors of Safdarjang hospital at the time of admission.

It is an admitted fact that after the incident, deceased Ram Asrey was taken by PW1 Smt.Indira Devi to the hospital in a rickshaw. PW1 Smt.Indira Devi has stated this fact that she took her husband in a cycle rickshaw. It is the case of the prosecution that Jitender (PW3) gave intimation to Shiv Karan and Shiv Karan gave intimation to PW20 Raju and PW20 Raju made a call at 100 number. PW20 Raju had deposed that he made a call at 100 number. He has also stated that his Maama Ram Asrey was taken to DDU hospital. PW1 Smt.Indira Devi has also stated that she took her husband to DDU hospital but he was not admitted there as she was told that they did not have equipments for treatment of head injury and then she took her husband to SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 41/73 Safdarjang hospital. PW2 Smt.Rani has stated that her brother in law Jitender telephoned her and informed that a quarrel had taken place with the Kabaris residing in front of their house and when she alongwith her husband Shiv Karan were going towards the spot and at that time,when she had crossed the ganda nala, she found her mother bringing her father in a ricksaw. From there, she alongwith her husband, her mother took her father Ram Asrey in an auto rickshaw in DDU hospital, where they refused to treat her father and then they took him to Safdarjang hospital. PW4 Shiv Karan had also stated that Jitender telephoned him and informed that there is a quarrel with Kabaris (Samne wale Kabario se) and he should come. When he alongwith his wife Rani reached on foot near the Ganda Nala, saw that Indira Devi his mother in law was bringing his father in law Ram Asrey in a rickshaw and then he took his father in law in an auto rickshaw to DDU hospital but he was not admitted at DDU hospital and informed that there was no equipment for treating head injury and then they took Ram Asrey to Safdarjang hospital in an ambulance.

The fact of taking the deceased Ram Asrey by SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 42/73 PW1 Smt.Indira Devi is not disputed by the accused persons. Moreover, PW2 Rani and PW4 Shiv Karan have categorically stated that when they reached at Ganda Nala, they found Smt.Indira Devi was bringing Ram Asrey in a rickshaw. It is also stated by PW1 Smt.Indira Devi, PW2 Smt.Rani and PW4 Sh.Shiv Karan that they took the deceased Ram Asrey to DDU hospital in an auto but he was not admitted there as they were informed that there was no equipment for treating head injury and then they took the deceased to Safdarjang hospital.

PW1 Smt.Indira Devi in crossexamination stated that there was no accident of her husband and stated voluntarily that she had mentioned at the time of admission of her husband at Safdarjang hospital that he (deceased) had been injured in an accident falsely out of fear so that her husband could be admitted there as at the DDU hospital, her husband had not been admitted.

PW2 Smt.Rani also stated that there at DDU hospital, the doctors refused to treat her father and then they took her father to Safdarjang hospital. Thus, explanations have been given by PW1 Smt.Indira and SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 43/73 PW4 Shiv Karan that as the doctors had not admitted Ram Asrey in DDU hospital, so they falsely stated at Safdarjang hospital that it was an accident, so the injured could be admitted in the hospital.

Moreover, the fact of taking the injured Ram Asrey by PW1 Smt.Indira Devi is corroborated with the testimony of PW2 Smt.Rani and PW4 Sh.Shiv Karan. PW4 Sh.Shiv Karan also gave explanation that his wife falsely told at Safdarjang hospital that there had been an accident as his father in law was not been admitted at DDU hospital. I am of the view that this point is properly explained by PW1 Smt.Indira Devi, PW2 Smt.Rani and PW4 Sh.Shiv Karan.

42.Now the question arises whether the accident had taken place with the deceased or he had died as a result of accident.

SI Roshan Lal had conducted an enquiry and found that no information about the accident was gathered. SI Roshan Lal also went at Ganda Nala but no accidental site was traced and the Ld.M.M. has also cancelled the FIR no. 365/11 and during investigation of FIR, the facts of the case were revealed to the IO and lateron the SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 44/73 statements of the witnesses were recorded.

Moreover, prosecution has examined PW19 Dr.Atul Gupta and he has proved the P.M. report as Ex. PW19/A. As per P.M.report, following external injuries were present on the body of deceased :

(1)Stitched lacerated wound 4 x 0.2 cm. On right parieto occipital region.

(2)Lacerated wound 4 x 0.5 cm on vertex. (3)Stitched lacerated wound 4 x 0.2 cm.on centre of the forehead.

(4) Reddish abrasion 4 x 1 cm vertically placed on left side of the forehead.

(5)Stitched lacerated wound 2 x 0.2 cm on left side of the cheek.

(6)Lacerated wound 2 x 0.2 cm on left side of the chin.

(7)Stitch lacerated wound 3 x 0.2 cm. on dorsum of the left hand.

On internal examination, following injuries were found on the person of deceased :

Scalp : Patchy extravasation of the blood seen over bilateral parietooccipital region.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 45/73

Skull : Depressed fracture of right parieto temporal bone of size 7 x 4 cm.Sutural fracture of the right coronal suture present. Multiple fractures of right occipital bone, transverse fracture of right mastoid.

Brain : Subarachnoid and sub dural haemorrhage present over the bilateral parietal region. Edema present.

             Neck :          All structures intact. 
               Sternum and Ribs  : NAD
              Lungs :        Both lungs congested.    
               Stomach :             Blackish material present.  
               Heart  :   NAD
               Walls :       NAD
               Intestines :   NAD
              Liver, spleen, kidneys : Congested 
              Bladder  : Empty

The doctor Atul Gupta (PW19) had opined that the cause of death in this case is coma due to antemortem injury to the head produced by blunt object. The injury to the head is sufficient in the ordinary course of nature to cause death and time since death is about two days.

In the crossexamination, PW19 Dr.Atul Gupta SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 46/73 has stated that injuries no.1 to 7 as mentioned in his P.M.report Ex.PW19/A were possible due to multiple falls. He has also stated that it is highly unlikely that the present case is a case of an accident and he says so because of injury no.2 i.e.lacerated wound 4 x 0.5 cm. on the vertex, though not impossible and the vertex is in the centre on the top of head. However PW19 Dr.Atul Gupta had denied that all the injuries are not possible in an accident, but it is highly unlikely that the present case is a case of an accident. The accused persons should have led some cogent evidence to prove that infact an accident had taken place with the deceased.

Moreover, it is not made clear by the accused persons as to how the accident had taken place with the deceased and what type of vehicle is involved in the accident and where the accident had taken place. The accused has not even made it clear as to how the accident had taken place. Simply by giving history of road side accident at the time of admission of the injured in Safdarjang hospital will not give any benefit to the accused persons when no material has been placed on record by the accused persons to prove that infact an SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 47/73 accident had taken place.

Intimation was given by PW20 Raju to the police on 11:50 PM and on the telephonic information by PW20 Raju, DD no. 51A dt. 17.10.2011 of PS Vikas Puri was registered. This DD no. 51A was registered at 11:50 PM on 17.10.2011, wherein it is mentioned that a quarrel has taken place near Machhi Market chowki and the phone number is 9990125118. If we peruse the Form no. 1, which is proved on record as Ex. PW10/A, this information was given on 17.10.2011 at about 23:44 hours, wherein it is mentioned that "Chander Vihar ke paas jo ghar ban rahe h, police chowki ke pas, Machhi Market paar karke Charch ke paas "Jhagra". Thus, intimation of quarrel was given to the police at about 11:40 PM on 17.10.2011 and on this information DD no. 51A dt. 17.10.2011 was recorded. Moreover, PW10 ASI Jagat Singh has stated that a call was received from mobile phone at 23:44 hours. Thus, information of quarrel wa given to the police before reaching of the injured Ram Asrey in Safdarjang hospital, Further, PW13 HC Yashwant Singh has stated that he was on PCR duty on the intervening night of SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 48/73 17/18.10.2011 and at 11:50 PM, an information was received that there had been a quarrel near the Machhi Market, Chander Vihar, near the drain and he alongwith the PCR van and other staff reached at the spot and found one injured namely Rampal, who was taken in the PCR Van to Sanjay Gandhi hospital.

PW14 Dr.Ashish Kumar has proved the MLC of Rampal as Ex. PW14/A, who was taken to Sanjay Gandhi hospital at 18.10.2011 at about 01:30 AM and the patient has given the alleged history of assault. There was injury of 3 x 1 x 1 cm vertex region and 4 x1 x1 cm.occipital region.

Moreover, no suggestion was given to PW14 Dr.Ashish Kumar that injuries on the person of Rampal were caused in RTA. PW17 Dr.Binay Kumar has proved that the injuries on the person of injured Rampal was simple in nature. Even no suggestion was given to PW17 Dr.Binay Kumar that injuries were possible in an accident. Thus, at the time of admission, the patient Rampal himself gave the history of assault, therefore, it cannot be said that both the injured persons received injuries in an accident. From the testimonies of PW1 Smt.Indira SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 49/73 Devi, PW2 Smt.Rani and PW4 Shiv Karan, it is not proved that any road side accident had taken place with the deceased Ram Asrey and from the testimony of PW19 Dr.Atul Gupta, it is not proved that the deceased had died due to the injuries received in an accident.

43.It is further contended by the ld.defence counsel that there is delay in lodging the FIR.

The intimation was given to the police by PW20 Raju at 11:50 PM. After giving intimation by PW20 Raju, PCR Van officials reached at the spot alongwith PCR van and took the injured Rampal in PCR van to the hospital. Statement of injured Rampal was recorded by ASI Ajaib Singh of PS Vikas Puri on 18.10.2011 and he stated that after finishing his work, he came to his room and on 17.10.2011 at about 09:30 PM, when he was present at his room and taking dinner, he heard some noise from the outside his house and when he came outside, he saw that some persons were quarreling with Bablu S/o Nawab. When he tried to intervene, someone hit him with a danda from his back side and he became unconscious.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 50/73

Thus, on 18.10.2011, Rampal has given statement about the receiving injuries with a danda. Though this witness has denied to make any statement to the police but as on 18.10.2011 itself, Rampal has given statement to the police and lateron on 19.10.2011, statement of Jitender was recorded.

PW24 ASI Ajaib Singh has stated that on receiving the information, ASI Ajaib Singh went to the hospital but Rampal already left the hospital and he again went to the spot but none found. He has also stated that on 18.10.2011, at about 09:00 AM, he met with Rampal, who informed that one of his relative Ramesh @ Ram Asrey had also sustained injuries, but he was not aware as to where Ram Asrey was admitted. This witness has also stated that he recorded the statement of Jitender Ex. PW24/B on which the FIR was registered and he had recorded statements of some of the witnesses in the PS i.e.statement of Jitender Ex.PW24/B, Indira Devi Ex. PW24/D, Gudiya Ex.PW7/DB, Rampal Ex.PW19/DA and Ex.PW24/F, Raju Ex.PW20/1 and that of Rani Ex. PW24/G, prior to the registration of this case. He has also stated that he had recorded these statements during SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 51/73 inquiry as a case U/s 279/337 IPC was registered at PS Vikas Puri. I am of the view as intimation was given by Raju PW20 at about 11:50 PM and DD no. 51A was recorded at 11:50 PM and statement of injured Rampal was recorded during inquiry/investigation of FIR no. 365/11. On 18.10.2011 and on 19.10.2011, statement of Jitender and other witnesses were recorded and ultimately, statement of Jitender was recorded at 08:40 PM. I am of the view that when the IO has recorded the statement of Rampal on 18.10.2011, he should have immediately register the FIR.

As the intimation was given by PW20 Raju at about 23:44 hours on 17.10.2011 and DD no.51A was registered and the statements of Indira Devi, Jitender, Rampal, Gudiya were recorded during inquiry / investigation of FIR no. 365/11 U/s 279/336 IPC. I am of the view that there is no delay in reporting the matter to the police.

44.Further It is vehemently contended by the ld. Counsel for the accused persons that in the statements of PWs Smt.Indira Devi, Jitender, Gudiya, Rampal, Raju, Rani and Shiv Karan, recorded by ASI Ajaib Singh, names SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 52/73 of the accused persons are not mentioned. It is also contended that accused persons have been falsely implicated in the present case.

Statement of PW1 Smt. Indira Devi was recorded on 19.10.2011 by the IO/ASI Ajaib Singh and she stated that on 17.10.2011, she alongwith her husband had come to meet her daughter in her house and they heard a noise of quarrel outside. Her son in law Jitender came out and saw that some persons who were Kabaris were quarreling each other. They started beating her son in law and her husband and Samdhi also came out and Kabaris also gave beatings to them. She saw that after giving beatings, they fled from the spot. She also stated that she called her Banja Raju and he made a call at 100 number and Ram Asrey was taken to the hospital.

PW7 Gudiya also in her statement recorded by ASI Ajaib Singh also stated that on the day of incident, her father and mother came to meet her at her house and Kabaris were quarreling themselves and on hearing the noise, her husband and father in law Rampal were separating them, but they started beating her husband and father in law with danda and Saria and her father SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 53/73 Ram Asrey was also given beatings by them and they fled from the spot. Rampal also gave statement about the quarrel. Raju gave statement about giving intimation to the police from mobile phone number 9990125118. Jitender has also given statement on 19.10.2011 which is proved as Ex.PW24/E to the effect that after hearing the noise, he alongwith his father and father in law came outside the house and Kabaris started beating them and they gave injuries with danda and saria and his father in law Ram Asrey was taken by his mother in law Smt.Indira Devi and sister in law Smt.Rani. He has also stated that this quarrel had taken place with the Kabaris and his father and father in law were also given beatings. Statement of injured Rampal was also recorded on 19.10.2011.

PW24 ASI Ajaib Singh has stated that the statements of abovesaid witnesses were recorded during inquiry of the case FIR No. 365/11 U/s 279/337 IPC. After recording their statements, when the facts of abovesaid case were clear, he had recorded another statement of Jitender on the same day i.e. on 19.10.2011. Statement of Jitender falsified the FIR no. 365/11 and on SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 54/73 the statement of Jitender, the present FIR was recorded and thereafter, on the same day, supplementary statement of Jitender was also recorded.

I am of the view that when proper facts were not coming in the statements of the witnesses recording during inquiry of case U/s 279/337 IPC, no benefit can be given go the accused persons that their names were not mentioned in the statements given to ASI Ajaib Singh.

45.Now from the testimonies of PWs Jitender, Rampal, Gudiya, Smt.Indira Devi, whether it is proved that accused persons had assaulted Rampal and Ram Asrey.

(i) PW1 Smt.Indira Devi had deposed that on 17.10.2011, she was at Chander Vihar at the house of her daughter namely Gudiya. Her Samdhi Rampal, her husband Ram Asrey, her daughter Gudiya and Son in law Jitender were present at the house of her daughter. There was a noise "Shor Sharaba" and on hearing the noise, all of them came out and saw that there was a quarrel going on. She gave the names of Kabaris as Ajay, Shankar and Raju. She has also stated that her husband had gone to SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 55/73 intervene "Samjhane ke liya and then Raju, Shanker and Ajay started using abusive language. Her husband was asking them not to abuse and he also spoke loudly. At that time, accused Ajay brought a hammer (Hathoda) and hit her husband and then her husband was assaulted with a Saria and a danda. She has further stated that after assaulting, all the three accused persons ran away from the spot.

This witness took her husband in a rickshaw to the hospital. On the way, PW2 Rani and PW4 shiv Karan met her and thereafter, injured was taken to DDU hospital and from there, to Safdarjang hospital. During crossexamination, this witness stated that whatever she stated before the police, she has deposed before the court. I am of the view that as this witness took the injured to hospital, her presence at the spot cannot be doubted.

(ii) PW3 Jitender also deposed on the same lines and stated that his mother in law and father in law came to his room at 09:15 PM on 17.10.2011. He and his wife Gudiya were present at the house. They were all seated in his room, when they heard a noise "Shor Sharaba"

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 56/73

from outside. All of them came out of the room and saw persons namely Ajay, Shanker and Raju quarreling each other. His father in law and father said that they would go and talk to them to placate them "Samjhate hain" and his father in law then asked those persons in a loud voice "Chup ho jao". He also stated that then Ajay got angry and he picked up a hammer and hit the same on the head of his father in law and Shankar and Raju also from the Kabada,picked up danda and saria and started beating his father and father in law with the same.

In crossexamination, this witness remain firm. PW3 Jitender gave intimation to PW2 Rani and PW4 Shiv Karan. PW4 Shiv Karan informed PW20 Raju. PW20 Raju gave intimation to the police by dialing 100 number. Presence of PW3 Jitender cannot be doubted at the spot as he intimated to PW2 Rani and PW4 Shiv Karan about the incident.

(iii) PW6 Rampal has also deposed that he, Ram Asray, his son's father in law, Smt.Indira Devi, mother in law of his son, Gudiya and Jitender were present in his room. At about 09:30 PM, there was a loud noise "Shor Macha" and they all came out and saw that the Kabaris SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 57/73 namely Ajay, Raju and Shankar were quarreling amongst themselves and were using abusive language and they had consumed a lot of liquor. This witness also identified all the accused persons. Ram Asrey then asked him as to who were these persons and he replied that they were the Kabaris and used to quarrel everyday in the same manner. Ram Asrey then said that he would talk to them and make them understand and they went to them. He also went with him. Then Ram Asrey spoke to the three accused persons but they did not keep quite and continued to quarrel and then Ram Asrey said in a loud voice "Chup Raho" and on this there was a hammer lying in front of the accused Ajay and he hit it on the head of Ram Asrey. He ran to save Ram Asrey. At that time, accused Raju had taken a Lath and Shankar had taken a Saria. All three of them i.e. Ajay, Raju and Shankar started assaulting Ram Asrey and he had intervened to save him, they assaulted him also. At that time, Jitender his son and Indira Devi came running but he had been hit on his head and became unconscious. He regained his consciousness on the next morning at 04:00 AM at Sanjay Gandhi hospital.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 58/73

This witness received injuries in the incident. He was taken to Sanjay Gandhi hospital by PCR officials. His MLC is proved as Ex.PW14/A. He gave his statement to ASI Ajaib Singh about the quarrel during inquiry of FIR no. 365/11 of PS Vikas Puri. In crossexamination, he stated that he is not aware in which hospital Ram Asrey was admitted. As PW6 Rampal received injuries during the incident, his presence at the spot cannot be doubted.

(iv)PW7 Gudiya also deposed on the same lines that her father and mother came to meet her at about 09:00 PM on 17.10.2011 and at that time, they was a sound of vulgar abuses and 'shor sharaba' was coming from outside. All of them came out to see and her father asked her husband and father in law as to who were these persons and why they were quarreling. Her father in law and husband informed her father that these persons were the Kabaris, who used to reside in front of their house and it was their regular daily feature to quarrel, to make a noise and to use vulgar abuses. Thereafter, her father and father in law went together there and her father then went to persuade the three accused persons i.e. Ajay, Shankar and Raju. Her father asked them to keep quite SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 59/73 and to stop abusing, but the accused persons did not desist. Her father then in a loud voice told the accused persons "Chup ho jao" and then they got angry. Thereafter, accused Ajay picked up a hammer lying close by and hit the same on her father's head. The other two accused persons namely Raju and Shankar also picked up the hammer "Hathora" and Saria lying nearby and hit her father and father in law with the same and also beat them. Her father was seriously injured and her father in law was also injured and became unconscious and fell down.

This witness during crossexamination admitted that her father was seriously injured and fell down. She also stated that she was present outside her house close to the place of occurrence and she had seen the incident. She also stated the distance between her house and the place of occurrence. She also stated that her mother took her father in a cycle rickshaw. In crossexamination, she also stated that she knew the accused persons as they used to reside in front of her house. Even this witness has stated that quarrel had taken place for about 15 minutes. Similar statement was given by PW3 that SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 60/73 quarrel had taken place for 15 minutes. I am of the view that PW7 Gudiya is also a witness to the incident and her presence at the spot at the time of incident cannot be doubted.

(v)PW1 Smt.Indira Devi, PW4 Shiv Karan, PW6 Rampal and PW7 Gudiya have deposed that accused Ajay Bind gave a hammer blow on the head of Ram Asrey. Accused Shankar and Raju were having danda and saria in their hands. All the accused persons gave injuries with hammer, saria and danda to Ram Asrey and Rampal. ld. Counsels for the accused persons are not able to shatter the testimonies of these witnesses in any manner or to doubt their presence at the spot. All the witnesses deposed about raising quarrel by accused persons and they also deposed that Ram Asrey and Rampal went outside the house to made the accused persons understand. It is also deposed that when Ram Asrey asked them to keep quite then Ajay hit him with hammer on his head and Shankar and Raju gave danda and saria blows to them. All the witnesses gave minute details of the incident. I am of the view that PW1 Smt.Indira Devi, PW4 Shiv Karan, PW6 Rampal and PW7 Gudiya are SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 61/73 truthful witnesses and their presence at the spot cannot be doubted.

I am also of the view that accused persons gave injuries with hammer, Saria and Danda to Ram Asrey and Rampal in furtherance of their common intention and due to the injuries Ram Asrey died at Safdarjang hospital in the morning of 18.10.2011.

46.It is vehemently contended by the ld. Counsel that PW1 Smt.Indira Devi has admitted in her crossexamination that she has not given the names of Ajay, Shankar and Raju to the police and their names had been given by her daughter Gudiya to the police. She has also stated that she had not given the name of Ajay to the police as having hit her husband with a hammer on his head but she had told the police the truth that her husband had been hit with a hammer on his head. She also stated in crossexamination that the name of Ajay was given by her daughter Gudiya to the police. Her daughter told the police that Ajay, Raju and Shankar after assaulting her husband had run away. She has further stated in the crossexamination that she did not recall whether she gave the description of the accused persons to the police.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 62/73

I am of the view that PW7 Gudiya was residing in a jhuggi alongwith her husband Jitender. PW6 Rampal also residing with them. On the day of incident, PW1 Smt.Indira Devi alongwith her husband Ram Asrey came to meet their daughter PW7 Gudiya at her house, where the Kabaris were quarreling with each other. If the witness had not disclosed the names of accused persons and their names were given by her daughter, even then, I am of the view that no benefit can be given to the accused persons as it is a natural that PW7 Gudiya will tell PW1 Smt.Indira Devi about the names of accused persons who had assaulted her father and father in law. As PW1 Smt.Indira Devi was not residing there and PW7 Gudiya her daughter was residing in front of house of accused persons. I am of the view that this contention carries no force.

47.It is also contended by the ld. Counsel for the accused persons that PW3 Jitender and PW6 Rampal have admitted that their signatures were taken on blank papers. Thus, witness have resiled from their statements and no reliance can be given by these witnesses.

I fail to appreciate this contention of ld. Defence SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 63/73 counsel as PW3 Jitender stated about his signatures on blank papers but he also stated that his statement was taken by the police. PW6 Rampal also stated that at the PS, his signatures were taken on 34 papers and he also stated that he was asked about the quarrel and police had taken his statement about the quarrel. This witness also stated that whatever he has deposed today before the court, was stated by him before the police.

I am of the view that both the witnesses had stated that whatever they stated to the police, have deposed before the court. I am also of the view that if they stated that their signatures were taken on blank papers, no benefit can be given to the accused persons and both the witnesses deposed about the statement recorded by ASI Ajaib Singh during inquiry of FIR no. 365/11 U/s 279/337 IPC. Both these witnesses have not stated that their statements were not recorded thereafter.

48.It is contended by the ld. Counsel that PW1 Smt.Indira Devi has failed to tell the court as to who assaulted her husband with a saria and who assaulted him with danda and saria. She has categorically admitted that she could not see who hit her husband with the saria and who hit SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 64/73 her husband with danda. Thus, it is not proved that which accused had caused which injury.

I have perused the entire testimony of PW1 Smt.Indira Devi. PW1 Smt.Indira Devi deposed that she alongwith her husband went to the house of her daughter where her husband and father in law were present. The counsels for the accused persons are not able to dent the testimony of this witness. Moreover, she had categorically stated that she took the injured first at DDU hospital and then to Safdarjang hospital. This fact is corroborated with the testimonies of PW2 Rani, PW4 Shiv Karan, PW3 Jitender and PW7 Gudiya. All these witnesses have categorically stated that PW1 Smt.Indira Devi took the injured Ram Asrey in cycle rickshaw and on the way, PW2 Rani and PW4 Shiv Karan met her and they all took the injured to DDU hospital and from there to Safdarjang hospital. I am of the view, if PW1 Smt.Indira Devi has not deposed as to what injury caused by which accused but in examination in chief, this witness has categorically stated that Ajay picked up a hammer and hit the same on the head of her husband and her husband had also assaulted by saria and danda. She has also SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 65/73 categorically stated that her daughter told the police that accused Ajay, Shankar and Raju after assaulting Ram Asrey and Rampal, had run away from the spot.

49.It is vehemently contended by the ld. Counsel for the accused persons that PW6 Rampal has admitted that all the three accused persons had left Saria, danda and hammer and ran away from the spot. He has also stated that the police had recovered Saria, hammer and danda in his presence, but as per the prosecution case, nothing was recovered from the spot or at the instance of accused persons.

I am of the view that if the police had not taken into possession the weapon of offence i.e.hammer, danda and Saria then it is not of consequences when the testimonies of PW1 Smt.Indira Devi, PW3 Jitender, PW6 Rampal and PW7 Gudiya are not shattered in any manner.

50.It is also vehemently contended by the ld.defence counsel that TIP of all the accused persons were not conducted. Thus, benefit of doubt must go to the accused persons.

I fail to appreciate this contention of ld.defence SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 66/73 counsel for the accused persons as admittedly accused persons were residing in front of the jhuggi of PW3 Jitender and PW7 Gudiya and all the accused persons were earlier known to them and it is not the case that some unknown persons had given beatings to Ram Asrey and Rampal. I am of the view that if no TIP proceedings of the accused persons have been conducted, it is having no consequences.

51.In the present case, there is no motive of PW1 Smt.Indira Devi, PW3 Jitender, PW6 Rampal and PW7 Smt.Gudiya to falsely implicate the accused persons. No previous enmity has been stated by the accused persons with these witnesses. Moreover, no reason has been given by the accused persons as to why the witnesses will exonerate the real culprits and falsely implicated the accused persons.

52.Further it is contended by Sh.K.Singhal, ld. Counsel for accused Ajay Bind that passing conviction U/s 302 IPC, the prosecution is required to prove that the deceased had died a homicidal death. As I discussed earlier in Para no.42 of the Judgment that the deceased had died homicidal death and not due to an accident and as per SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 67/73 the testimony of PW19 Dr. Atul Gupta, who has stated that the cause of death in this case was coma due to antemortem injury to head produced by blunt object. The injury to the head was sufficient in the ordinary course of nature to cause death. Thus, it is proved that the deceased died homicidal death.

53.It is also contended by the ld. Counsel for the accused persons that as the police has not recovered weapon of offence, thus, it is not proved that the accused persons had committed any offence.

I fail to appreciate this contention of the ld.defence counsel. In the present case, all the accused persons have absconded and accused Ajay and Raju were arrested on 21.02.2013 and accused Shankar Bind was arrested on 09.03.2013. The date of incident is 17.10.2011. Thus, if the weapon of offences were not recovered when the accused persons were arrested after a gap of one year and four months, it is not helpful to the accused persons when they are not able to shatter the testimonies of eye witnesses in any manner.

54.It is contended that DD no.5 Mark PW26/B and 6 Mark PW26/C have not produced by the prosecution.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 68/73

I have perused the testimony of PW26 SI Ritesh Kumar who has given the explanation that he has searched the record but Roznamcha was burnt. But this witness has duly proved the photocopies of DD no.5 Mark PW26/B. He has also stated that DD no. 6 dt. 09.03.2013 is also reported missing and he has also proved the same as Mark PW26/C. DD nos. 5 & 6 are in respect of arrest of accused persons and PW21 HC Surender Kumar has deposed about the arrest of accused Shankar Bind on 09.03.2013 and PW22 HC Kartar Singh has deposed about the apprehension of accused Raju and Ajay Bind on 20.02.2013.

Nothing has come in the crossexamination of PW21 HC Surender Kumar and PW22 HC Kartar Singh to show that the accused persons were not arrested on the date and time given by the witnesses. PW23 SI Jai Prakash has proved the copy of DD no.34A as Ex. PW23/A and he also proved the copy of DD no. 35A regarding the apprehension of accused Shankar Bind as Ex.PW23/B. Thus, this contention carries no force.

55.It is also contended that in the present case, Charge U/s 174A IPC against all the accused persons has not SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 69/73 been proved.

In the present case, prosecution has not examined any witness to prove the Proclamation U/s. 82/83 Cr.P.C. against all the accused persons nor any Magistrate has been examined to prove the order, vide which the accused persons were declared PO. Thus, nothing has been placed on record by the prosecution to prove the process U/s 82/83 Cr.P.C. and nor the Magistrate has been examined regarding declaration of accused persons as PO. Thus, all the accused persons namely Ajay Bind, Shankar and Raju are hereby acquitted for the offence punishable U/s 174A IPC.

56.It is an admitted fact that all the accused persons were residing in front of the jhuggi of PW3 Jitender and PW7 Gudiya and no suggestion was given to any of the witness that they were not residing in front of the jhuggi of PW3 Jitender and PW7 Gudiya. After the commission of murder, they fled from the spot and accused Ajay Bind and Raju were arrested on 20.02.2013 and accused Shankar Bind was arrested on 09.03.2013. At no point of time, it was suggested by the accused persons to the witnesses that they were not residing in Delhi in front of SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 70/73 Jhuggi of PW3 Jitender and they had not gone anywhere after the incident. Moreover, no reason has been given by the accused persons as to why they left Delhi after the incident.

57.It is also vehemently contended by the ld.defence counsel that PW3 Jitender was not present and he had not received any injury and he has not taken his father Rampal to Sanjay Gandhi hospital. It is also argued that it is not believable that PW3 Jitender will not receive any injury in the quarrel/incident.

I fail to appreciate this contention of the ld.defence counsel as PW3 Jitender gave intimation to PW2 Rani and PW4 Shiv Karan about the quarrel. PW2 Rani also categorically stated that her brother in law telephoned her and informed her about the quarrel "Saamne wale Kabario se". PW4 Shiv Karan also stated that Jitender made a telephonic call to his wife and told about the quarrel "Saamne wale Kabario se". Thus, immediately after the quarrel, PW3 Jitender gave intimation to PW2 Rani and PW2 Rani and PW4 Shiv Karan are also corroborating this fact. No suggestion was given either to PW2 Rani, PW3 Jitender and PW4 Shiv SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 71/73 Karan that PW3 Jitender does not make any call to PW2 Rani. Thus, this contention carries no force.

58.In view of above discussion, I am of the considered view that all the accused persons had given injuries to Ram Asrey and Rampal with hammer, saria and danda and due to which injured Ram Asrey had died. The prosecution has proved its case beyond reasonable doubt. Accordingly, all the accused persons namely Ajay Bind, Shankar and Raju are hereby held guilty and convicted for the offence punishable U/s 302/323/34 IPC. As the prosecution is not able to prove the case for the offence U/s 174A IPC against all the accused persons, they are acquitted for the offence U/s 174A IPC.

59.Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.

They be heard on the Quantum of Sentence.

60.In the present case, investigation is not carried out by the police in a fair and diligent manner. It is an admitted fact that on the information received from the doctor, case FIR no. 365/11 U/s 279/337 IPC was registered at SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 72/73 PS Vikas Puri but no police official visited Safdarjang hospital to record the statement of any witness. Even after registration of the present case, IO of the present case did not visit the spot to inspect whether blood was present at the spot or not. The houses of the accused persons were also not searched. IO has not filed any application to any of the doctor to ascertain whether the injuries on the person of Ram Asrey and Rampal can be inflicted with hammer, Saria and danda. Investigation in this case is carried out in a casual manner. Copy of this Judgment be sent to DCP concerned to take appropriate action against erring police officials.

ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA) COURT ON: 22.03.2016 ASJ05 (West), THC, Delhi.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 73/73

IN THE COURT OF SH. NARESH KUMAR MALHOTRA, ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.

IN THE MATTER OF SESSIONS CASE NO.44/15 & OLD SC No. 06/13 ID No. 02401R0075452013 FIR No. 291/11 P.S Nihal Vihar U/S 323/302/34/174A IPC STATE VERSUS (1) Ajay Bind S/o Sh.Naresh Bind R/o Vill.Jankidih Beldaria, Manan Pur, PS Chanan Distt.Lakhi Sarai, Bihar.

(2) Shankar Bind S/o Sh.Biranchi Bind R/o Vill. Jankidih Beldaria, Manan Pur, PS Chanan Distt.Lakhi Sarai, Bihar.

(3) Raju @ Braham Dev Bind S/o Sh.Dhan Bind R/o Vill. Jankidih Beldaria, Manan Pur, PS Chanan Distt.Lakhi Sarai, Bihar.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 74/73

Contd....2...

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 75/73

: 2 :

ORDER ON SENTENCE 29.03.2016 :

Present : Sh. R.K.Pandey Ld. Chief P.P.for the State.

Both the Convicts are in J/C. Sh.Shitiz Sharma, ld. Counsel for the convicts Shankar Bind and Brahm Dev @ Raju.

Sh.K.Singhal and Sh.Prasanna, ld. Counsels for convict Ajay Bind.

Arguments on the point of Sentence have been advanced.

Record perused.

It is contended by Sh.Shitiz Sharma, Ld. Counsel for the convict Shankar Bind that convict Shankar Bind is aged about 31 years. He is married and having three children. His father is handicapped and mother is totally blind. There is no other male member to look after his family and old parents.

It is further contended by Sh.Shitiz Sharma, ld. Counsel for the convict Braham Dev @ Raju that convict Braham Dev @ Raju is aged about 39 years. He is married and having three children. His parents are alive and dependent upon him. There is no other male member in the family to look after them. It is prayed that lenient view be SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 76/73 taken.

It is contended by Sh.K.Singhal, ld. Counsel for convict Ajay Contd....3...

: 3 :

Bind that convict Ajay Bind is 29 years old. He is married and having two children. There is no other male member to look after his family. He is a poor person. His mother has already expired and father is alive who is handicapped. Even as per the case of the prosecution, the incident occurred in a spur of moment and there was no intention to kill the deceased. It is prayed that lenient view be taken.

On the other hand, Ld. Chief P.P.for the State has contended that allegations against all the convicts are grave and serious in nature and they had committed the murder of deceased Ram Asrey who had come to meet his daughter Gudiya. It is further contended that when all the convicts were quarreling each other and were abusing, then deceased Ram Asrey and injured Rampal went there and tried to settle the matter, but all the convicts did not stop and gave injuries to Ram Asrey with hammer, danda and saria, as a result of which Ram Asrey died. Other injured Rampal had also SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 77/73 received injuries from the hands of all the convicts. Further it is contended by the Ld. Addl. P.P.for the State that all the convicts be awarded death penalty and no leniency be shown to the convicts.

All the Convicts namely Ajay Bind, Shankar and Braham Dev @ Raju are convicted U/s 302/323/34 IPC. It is to be seen whether the case of the convicts fall within the category of rarest of the Contd....4...

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 78/73

: 4 :

rare cases.

7. In Mahesh Dhanaji Shinde Vs. state of Maharashtra 2014 (3) SCALE 96 a three Judge Bench of the Hon'ble Supreme Court, reaffirmed the decision in Shankar Kisanrao Khade Vs. State of Maharashtra (2013) 5 SCC 546, wherein it was held that :

"While awarding death sentence the "crime test"

has to be fully satisfied i.e. 100% and "criminal test" should be 0%. In other words, there ought to be no mitigating circumstances favouring the accused. If there was any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of accused, not being a menace to the society, no previous tract record etc., then the "criminal test" may favour the accused to avoid capital punishment. Even if both the tests were satisfied i.e.aggravating circumstance to the fullest and no mitigating circumstance favouring the accused, still the Court had to apply the Rarest of Rare test (RR Test). The RR test depended upon the perception of the society i.e. it is "Society centric" and not "Judge centric". Thus the test is whether the society will approve awarding of the death sentence for certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 79/73 minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to Contd....5...

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 80/73

: 5 :

constitutional compulsion, reflected by the will of the people and not the will of the judges".

8. In Machhi Singh Vs. State of Punjab AIR 1983 SC 957, the Supreme Court noted the principles culled out in Bachan Singh's case for awarding death sentence. It was held that the following propositions emerged from Bachan Singh's case :

"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscionably exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 81/73 circumstances before the option is exercised."

The threeJudge Bench further laid down that the Court may award the extreme penalty of death sentence in the rarest of rare cases when society's collective conscience is so shocked that it will expect the Contd....6...

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 82/73

: 6 :

holders of the judicial power to inflict the death penalty irrespective of their personal opinion as regards the desirability or otherwise of retaining death penalty.

9. Turning to the case on hand, the Court finds that the aggravating circumstances could be stated as under :

(a) All the convicts were quarreling and abusing each other while consuming liquor.

(b) The deceased tried to settle the matter.

(c) There was no provocation by the deceased.

(d)The convicts and the deceased were not known to each other.

The mitigating circumstances could be as under :

(a) There are no earlier criminal history of the convicts.

(b) The convicts are of young age.

(c) The convicts belong to lower middle class family.

10. Although there are aggravating circumstances as noted above, there is no material placed on record by the State to show that all the Convicts are the persons who cannot be reformed or menace to the society. No such material has been placed during the trial of this case which could have been SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 83/73 placed in the present proceedings. From the material already on record, it is evident that the over all conduct of all the convicts namely Ajay Bind, Shankar Bind and Raju were Contd....

7...

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 84/73

: 7 :

satisfactory in jail and there were no complaints against them. Thus, in these circumstances the death penalty cannot be awarded to all the convicts.

All the convicts gave injuries to deceased Ram Asrey with hammer, danda and Saria, as a result of which he died on the next day of incident at the hospital. All the convicts have also given injuries to injured Rampal with danda and Saria, as a result of which he had also received injuries. I, therefore, sentence all the convicts namely Ajay Bind, Shankar Bind and Raju @ Braham Dev Bind to undergo Rigorous Life Imprisonment U/s 302/34 IPC and to pay a fine of Rs. 15,000/each (Rupees fifteen thousand each) and in default of payment of fine, they shall further undergo SI for six months each. Further, it is ordered that out of payment of fine of Rs.45,000/, Rs.30,000/ (Rupees thirty thousand only) will go to the wife of the deceased.

All the Convicts namely Ajay Bind, Shankar Bind and Raju @ Braham Dev Bind are further sentenced to undergo Rigorous Imprisonment for one year U/s 323/34 IPC and to pay fine of Rs.1,000/each (Rupees one thousand each) and in default of payment of fine, they shall further undergo SI for 15 days each.

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 85/73

Further keeping in view the facts and circumstances of this case, I deem it fit and proper to make a recommendation U/s 357 A Contd....8...

SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 86/73

: 8 :

Cr.P.C. to West District Service Legal Authority to award appropriate compensation to the wife of deceased Ram Asrey under the Delhi victim Compensation Scheme 2011 or under any such scheme applicable.

Both the sentences of the convicts shall run concurrently.

Benefit of Section 428 Cr.P.C. be given to all the convicts.

Copy of the Judgment and Order on Sentence be given to all the convicts free of cost.

Copy of this order and Judgment be also sent to Ld.Secretary, West District Legal Service Authority, Tis Hazari Courts, for necessary compliance. Ahlmad is also directed to mention the name and address of wife of the deceased Ram Asrey on a paper and sent alongwith the Judgment and order to the Ld.Secretary, West District DLSA, Tis Hazari Courts, Delhi.

File be consigned to record room.

ANNOUNCED IN THE OPEN                                      (NARESH                     KR. 
MALHOTRA)
COURT ON: 29.03.2016                                       ASJ05   (West),  THC, 

SC No.44/15  FIR NO.291/11   State Vs.Ajay Bind etc.              Page No. 87/73
 Delhi.




SC No.44/15  FIR NO.291/11   State Vs.Ajay Bind etc.              Page No. 88/73
                        FOR  TRIAL
       WARRANT OF COMMITMENT ON A SENTENCE OF 
           IMPRISONMENT BY A SESSIONS JUDGE

(SECTION 383 OF THE CRIMINAL PROCEDURE CODE) IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ05 : WEST DISTRICT, TIS HAZARI COURTS, DELHI SESSIONS CASE NO.44/15 & OLD SC No. 06/13 ID No. 02401R0075452013 FIR No. 291/11 P.S Nihal Vihar U/S 323/302/34/174A IPC To The Jail Superintendent Tihar, Delhi.

In the abovesaid case, accused Ajay Bind S/o Sh.Naresh Bind R/o Vill.Jankidih Beldaria, Manan Pur, PS Chanan Distt.Lakhi Sarai, Bihar is held guilty and convicted for the offence punishable U/s 302/323/34 IPC.

Accordingly, Convict Ajay Bind is sentenced to undergo Rigorous Life Imprisonment U/s 302/34 IPC and to pay a fine of Rs.15,000/ (Rupees fifteen thousand only) and in default of payment of fine, he shall further undergo SI for six months. Further, it is ordered that out of payment of fine of Rs.15,000/, Rs.10,000/ (Rupees ten SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 89/73 thousand only) will go to the wife of the deceased. Contd.....2.

: 2 :

Convict Ajay Bind is further sentenced to undergo Rigorous Imprisonment for one year U/s 323/34 IPC and to pay fine of Rs.1,000/ (Rupees one thousand only) and in default of payment of fine, he shall further undergo SI for 15 days.

Benefit of Section 428 Cr.P.C. be given to the convict.

This is to authorize and require you, the said Superintendent, to receive the said convict into your custody in the said jail together with this warrant to undergo the sentence as awarded by this Court.

Given under my hand and the seal of the Court on this 29th day of March, 2016.

Note : Fine not paid. (Naresh Kumar Malhotra) ASJ05/West/THC/Delhi/29.03.2016 SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 90/73 FOR TRIAL WARRANT OF COMMITMENT ON A SENTENCE OF IMPRISONMENT BY A SESSIONS JUDGE (SECTION 383 OF THE CRIMINAL PROCEDURE CODE) IN THE COURT OF SH. NARESH KUMAR MALHOTRA:

ASJ05 : WEST DISTRICT, TIS HAZARI COURTS, DELHI SESSIONS CASE NO.44/15 & OLD SC No. 06/13 ID No. 02401R0075452013 FIR No. 291/11 P.S Nihal Vihar U/S 323/302/34/174A IPC To The Jail Superintendent Tihar, Delhi.

In the abovesaid case, accused Shankar Bind S/o Sh.Biranchi Bind R/o Vill.Jankidih Beldaria, Manan Pur, PS Chanan Distt.Lakhi Sarai, Bihar is held guilty and convicted for the offence punishable U/s 302/323/34 IPC.

Accordingly, Convict Shankar Bind is sentenced to undergo Rigorous Life Imprisonment U/s 302/34 IPC and to pay a fine of Rs.15,000/ (Rupees fifteen thousand only) and in default of payment of fine, he shall further undergo SI for six months. Further, it is ordered that out of payment of fine of Rs.15,000/, Rs.10,000/ (Rupees ten SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 91/73 thousand only) will go to the wife of the deceased.

Contd.....2.

: 2 :

Convict Shankar Bind is further sentenced to undergo Rigorous Imprisonment for one year U/s 323/34 IPC and to pay fine of Rs.1,000/ (Rupees one thousand only) and in default of payment of fine, he shall further undergo SI for 15 days.

Benefit of Section 428 Cr.P.C. be given to the convict.

Given under my hand and the seal of the Court on this 29th day of March, 2016.

Note : Fine not paid. (Naresh Kumar Malhotra) ASJ05/West/THC/Delhi/29.03.2016 SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 92/73 FOR TRIAL WARRANT OF COMMITMENT ON A SENTENCE OF IMPRISONMENT BY A SESSIONS JUDGE (SECTION 383 OF THE CRIMINAL PROCEDURE CODE) IN THE COURT OF SH. NARESH KUMAR MALHOTRA:

ASJ05 : WEST DISTRICT, TIS HAZARI COURTS, DELHI SESSIONS CASE NO.44/15 & OLD SC No. 06/13 ID No. 02401R0075452013 FIR No. 291/11 P.S Nihal Vihar U/S 323/302/34/174A IPC To The Jail Superintendent Tihar, Delhi.

In the abovesaid case, accused Raju @ Braham Dev Bind S/o Sh.Dhan Bind R/o Vill. Jankidih Beldaria, Manan Pur, PS Chanan Distt.Lakhi Sarai, Bihar is held guilty and convicted for the offence punishable U/s 302/323/34 IPC.

Accordingly, Convict Raju @ Braham Dev Bind is sentenced to undergo Rigorous Life Imprisonment U/s 302/34 IPC and to pay a fine of Rs.15,000/ (Rupees fifteen thousand only) and in default of payment of fine, he shall further undergo SI for six months. Further, it is SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 93/73 ordered that out of payment of fine of Rs.15,000/, Rs. 10,000/ (Rupees ten thousand only) will go to the wife of the deceased. Contd.....

2.

: 2 :

Convict Raju @ Braham Dev Bind is further sentenced to undergo Rigorous Imprisonment for one year U/s 323/34 IPC and to pay fine of Rs.1,000/ (Rupees one thousand only) and in default of payment of fine, he shall further undergo SI for 15 days.

Benefit of Section 428 Cr.P.C. be given to the convict.

This is to authorize and require you, the said Superintendent, to receive the said convict into your custody in the said jail together with this warrant to undergo the sentence as awarded by this Court.

Given under my hand and the seal of the Court on this 29th day of March, 2016.

Note : Fine not paid. (Naresh Kumar Malhotra) ASJ05/West/THC/Delhi/29.03.2016 SC No.44/15 FIR NO.291/11 State Vs.Ajay Bind etc. Page No. 94/73

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

Sc No.44/15 Fir No.291/11 State vs Ajay Bind Etc. Page No. 1/73 on 29 March, 2016