Delhi District Court
The Apex Court For The Conduct Of ... vs . on 4 September, 2010
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ-II,NORTH, DELHI.
SESSIONS CASE NO: 05/2009
Computer ID No. 02401R0099482009
FIR No: 303/08
P.S. Subzi Mandi
U/S: 302/120B/34 IPC
DATE OF INSTITUTION: 05.02.09
DATE ON WHICH THE JUDGEMENT
HAS BEEN RESERVED: 21.08.2010
DATE ON WHICH THE JUDGEMENT
HAS BEEN DELIVERED: 04.09.2010.
State
Versus
1. Ravi
s/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
2. Rajesh
s/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
3. Vijay @ Toofan
s/o Shyam Lal
r/o 2098, Tilak Chowk,
Mukim Pura,
Delhi.
4. Ravinder @ Sardara
2
s/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
5. Vijay Kumar
s/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
6. Smt. Bimla
w/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
7. Sunil @ Sand
s/o Late Sh. Madan Lal @ Mohan Lal
r/o T-501, Kabir Basti,
Malka Ganj, Delhi.
8. Pradeep @ Kale
s/o Sh. Kishan Lal
r/o T-501, Kabir Basti,
Malka Ganj, Delhi.
9. Neeraj @ Nanhe
s/o Sh. Rakesh Kumar
r/o H.No. 2100, Mukimpura,
Tilak Chowk,
Subzi Mandi, Ghantaghar, Delhi.
APPEARANCE:
Sh. Ashok Kumar, Ld. Additional Public Prosecutor for
State.
Mr. Mr. S.S. Tyagi, Adv. for convict Vijay @ Toofan
Mr. Rajeev Kanwar, Adv. for convict Neeraj @ Nanhe
Mr. Hans Raj, Adv. for remaining convict persons
07.09.2010
ORDER ON SENTENCE
3
1. Heard on the point of sentence and perused the record.
2. Sh. Hans Raj, Ld. Counsel for convict persons has urged
that convict Rajesh s/o Jagdish Prasad about 35 years of age,
married having two daughters aged about 8 years and 6 years.
It is also pointed out that convict Rajesh is not a previous
convict nor facing any other criminal case either.
3. Mr. Hans Raj, Ld. Counsel in regard to convict Vijay s/o
Jagdish Prasad states that he is about 26 years of age and un-
married. It is also stated that convict is not a previous convict
nor facing any other criminal case either.
4. Convict Ravinder @ Sardar is stated to be about 24 years
of age and he is not a prveious convict nor facing any other
criminal trial. It is pointed out that the three brothers namely
Rajesh, Vijay and Ravinder are engaged in cable business.
5. So far as accused Pradeep @ Kale is concerned, he is
about 28 years of age, bachelor and working as Ward Boy in
St. Stephen Hospital.
6. Accused Sunil @ Sand is stated to be about 29 years of
age, bachelor and working in UTI Bank at Shakti Nagar, Delhi.
Both convicts Pradeep and Sunil @ Sand are stated to be not
previous convicts and nor facing any other criminal case.
7. Mr. Rajeev Kanwar, Ld. Counsel for convict Neeraj @
Nanhe has urged that his client is about 28 years of age. It is
urged that he is the sole bread earner in the family having old
aged parents and an un-married sister. It is also pointed out
that he is not a previous convict nor facing any other criminal
trial.
8. Mr. S.S. Tyagi, Ld. Counsel for convict Vijay @ Toofan has
urged that convict is about 37 years of age having two
4
daughters aged 9 and 7 years. He is self employed running a
shop for doing petty electrical works and it is also stated that
convict is not a previous convict nor facing any other criminal
case.
9. On perusal of the record, I find that convict Rajesh is in J/C
since 2.8.09, convict Vijay Kumar s/o Jagdish Prasad is in J/C
since 7.11.2008, convict Ravinder @ Sardare is in J/C since
17.3.09, convict Pradeep @ Kale is in J/C since 11.11.08,
convict Vijay @ Tufan & Neeraj @ Nanhe are in J/C since
1.11.08 and convict Sunil @ Sand is in J/C since
23.3.09.Having regard to the broad facts and circumstances of
the case and considering the submissions made today at the
Bar and also considering the period already spent by the
convicts in the judicial custody, the convicts Rajesh, Vijay @
Toofan, Neeraj, Vijay, Pradeep @ Kale and Ravinder @
Sardare besides convict Sunil @ Sand are sentenced for the
period already undergone by them in judicial custody u/s 323
r.w. Section 506 IPC.
10. Coming to the main convicts Ravi and his mother
Bimla, it is similarly urged that accused Ravi s/o Jagdish
Prasad is about 24 years of age, un-married and not a
previous convict and also engaged in cable business along
with his brothers. On behalf of convict Bimla, it is urged that
she is about 55 years of age. I am afraid, the age of convict
Ravi or for that matter his mother Bimla is not a mitigating
circumstance to deal with the nature and gravity of offence that
has been committed by them. It is borne out from the record
that during the quarrel with deceased Rajesh s/o Om Prakash,
the convict Bimla brought pistols and gave one of it to convict
5
Ravi who shot dead deceased from a close range. At the cost
of repetition, both convict Bimla and Ravi entertained a
common intention at the spur of the moment to finish the life of
the deceased Rajesh.
11. Mr. Ashok Kumar, Ld. APP for the State has urged
that this case falls in the category of the "rarest of rare" case
as the convicts had murdered the deceased brutally and he
has prayed for the death penalty for the convicts.
12. On a conspectus of all the facts and circumstances,
I find that this case certainly does not fall in the category of
"Rarest of Rare" cases and the extreme penalty of death is not
warranted in this case. The penalty of life imprisonment to the
convicts would meet the ends of justice as it would not only
serve as a deterrent for them as well as the other convicts
besides criminal elements in the society but would also give an
opportunity to the convicts to reform themselves.
13. Therefore, I sentence the convicts namely Ravi
and Smt. Bimla to undergo imprisonment for life. The
convicts are sentenced to pay fine of Rs 10.000/ each in
default to undergo imprisonment for a period of three years.
14. The convicts have been supplied copy of the
judgment dated 04.09.2010 as well as the order on sentence
passed today i.e 07.09.2010 free of costs.
15. The convicts have also been apprised that they
shall be at liberty to file an Appeal against this judgment and
sentence before the High Court of Delhi. They have been
apprised that in case they cannot afford to engage an
advocate, they can approach the Legal Aid Cell, functioning in
Tihar Jail or write to the Secretary, Delhi High Court Legal
6
Services Committee 34-37, Lawyers Chamber Block, High
Court of Delhi, New Delhi. File be consigned to record room.
ANNOUNCED IN THE OPEN (DHARMESH SHARMA)
COURT TODAY i.e 07.09.2010 ASJ-II / NORTH,
DELHI
7
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ-II,NORTH, DELHI.
SESSIONS CASE NOS: 05/2009 & 05/2010
Computer ID No. 02401R0099482009
SESSIONS CASE NOS: 05/2009
Computer ID No. 02401R0031702010
FIR No: 303/08
P.S. Subzi Mandi
U/S: 302/120B/34 IPC
DATE OF INSTITUTION: 05.02.09
DATE ON WHICH THE JUDGEMENT
HAS BEEN RESERVED: 21.08.2010
DATE ON WHICH THE JUDGEMENT
HAS BEEN DELIVERED: 04.09.2010.
State
Versus
1. Ravi
s/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
2. Rajesh
s/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
3. Vijay @ Toofan
s/o Shyam Lal
r/o 2098, Tilak Chowk,
Mukim Pura,
Delhi.
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4. Ravinder @ Sardara
s/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
5. Vijay Kumar
s/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
6. Smt. Bimla
w/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
7. Sunil @ Sand
s/o Late Sh. Madan Lal @ Mohan Lal
r/o T-501, Kabir Basti,
Malka Ganj, Delhi.
8. Pradeep @ Kale
s/o Sh. Kishan Lal
r/o T-501, Kabir Basti,
Malka Ganj, Delhi.
9. Neeraj @ Nanhe
s/o Sh. Rakesh Kumar
r/o H.No. 2100, Mukimpura,
Tilak Chowk,
Subzi Mandi, Ghantaghar, Delhi.
SESSIONS CASE NO: 05/2010
FIR No: 100/09
P.S. Kamla Market
U/S: 25/54/59 Arms Act
DATE OF INSTITUTION: 25.01.2010
State
Vs.
9
Rajesh
s/o Jagdish Prasad
r/o T-1209, Kabir Basti,
Malka Ganj, Delhi.
APPEARANCE:
Sh. Ashok Kumar, Ld. Additional Public Prosecutor for
State.
Mr. Rajesh Khanna, Adv. for accused Ravi
Mr. Mr. S.S. Tyagi, Adv. for accused Vijay @ Toofan
Mr. R.K. Gupta, Adv. for accused Neeraj @ Nanhe
Mr. Hans Raj, Adv. for remaining accused persons
04.09.2010
JUDGMENT:
16. The nine accused persons namely Ravi, Rajesh, Vijay Kumar and Ravinder @ Sardare all sons of Jagdish Prasad along with their mother Smt. Bimla w/o Jagdish Prasad besides Pradeep @ Kale, Vijay @ Tufan, Neeraj @ Nanhe and Sunil @ Sand s/o Madan Lal have been arraigned for trial for entering into a criminal conspiracy to murder one Rajesh s/o Om Prakash and then through accused Ravi and Rajesh both sons of Jagdish Prasad murdering the deceased Rajesh s/o Om Prakash by causing him a bullet injury by using a desi katta/country made pistol on the night at about 9.30 p.m. on 30.10.08.
17. Before proceedings further, it may be indicated that accused Rajesh s/o Jagdish Prasad is also arraigned for trial under the Arms Act for using an improvised pistol 7.65 m.m. bore at the time of occurrence.
18. Further, there is a cross case which is the subject 10 matter of FIR no. 304/08 of the same Police Station where the accused Ravi and Vijay both sons of Shri Jagdish Prasad are alleged to have been assaulted and stabbed with the intention to commit their murder by accused Sonu and Ravi @ Babli both sons of Om Prakash i.e. brother of deceased Rajesh in furtherance of common intention with accused Sanjay s/o Raj Kumar and Vikas s/o Ram Babu. As per the guidelines laid by the Apex Court for the conduct of cross-cases titled Sudhir vs. State of M.P. : 2001 Criminal Law Journal 1072, both cases have been tried by this Court and evidence in the two cases have been recorded separately on different dates and I proceed to decide the present FIR 303/08 knowing fully that Court is not supposed to look into the evidence that has been recorded in FIR no. 304/08 which shall be decided by a separate judgment following the present on. FACTS
19. The case of the prosecution case is that on 30.10.08 DD no. 36A at P.S. Subzi Mandi Ex.PW12/A was recorded on an information by the PCR that there had been a quarrel near House no. C-1198, Kabir Basti, Malka Ganj, Delhi. The said inquiry was marked to ASI Sunder Singh (PW12) who reached the spot along with Const. Rajesh and simultaneously information was given to Inspector Virender Singh, SHO (PW30) and SI Dr. P.S. Bhardwaj.
20. The case of the prosecution further is that on reaching the spot ASI Sunder Singh found blood splattered around the ground in the Gali near house no. T-1029, Kabir Basti, Malka Ganj and inquiries revealed that one person Rajesh had been shot dead by someone who had been 11 removed to Hindu Rao Hospital. In the meantime, Inspector Virender Singh (PW30) also arrived at the spot and the police party went to Hindu Rao Hospital. Many public persons from the side of the injured Rajesh were present and police party was told that injured was declared Dead but the family members were not satisfied and therefore, the injured had been shifted to Tirath Ram Hospital. The MLC Ex. PW30/A was procured which revealed that the unknown male patient was brought dead with gunshot injury and the police party confronted a mob who took away the body on a hospital bed; that the dead body was taken to Tirath Ram Hospital and Statement of Rakesh Kumar, brother of deceased Rajesh Kumar Ex. PW1/A was recorded which may be summarized to the effect that "they are four brothers and on 30.10.08 Lagan Ceremony of daughter of their neighbourer Tittu was going on and his brother Rajesh and other members of the family were attending the function when at about 9.30 p.m. his elder brother Rajesh was taken away from the function by Rajesh and Vijay @ Toofan; that when his brother Rajesh did not come back after sometime, he felt worried and along with his sister-in-law (Bhabi) Anita (PW4), they went towards the house of Jagdish Prasad ; and there they found that his brother Rajesh was being held captive by accused Vijay @ Toofan and Nanhe and their mother Bimla Devi brought two pistols and gave one each to her sons Ravi and Rajesh and then Ravi and Rajesh fired at his brother Rajesh ; that one Sardare and Vijay Kumar were having knives and he was shown the knives threatening him with dire consequences and he 12 was pushed away along with other passers by". He also alleged that "accused Sunil @ Sand and Pradeep caught hold of him when he tried to save his brother Rajesh and in the melee his sister in law (Bhabi), after the pistol was fired, snatched the pistol from Ravi but she was overpowered by Rajesh s/o Jagdish Prasad and the pistol was retrieved from her". He complained that all the accused persons shot dead his brother pursuant to a well planned criminal conspiracy. On the basis of said complaint Ex. PW1/A rukka was written and the same was sent for registration of FIR at about 00.30 hours on 31.10.08 ultimately resulting in recording of present FIR Ex. PW14/A at 00.40 hours.
21. The case of the prosecution is that the mobile team was called to the spot, the entire area was scanned, photographs were taken, statement of Smt. Manto (PW3), mother of the deceased, Rajesh s/o Om Prakash and Smt. Anita w/o Neelu (PW4) were recorded. Accused Ravi was arrested on 31.10.08 who disclosed that he had been beaten by Sonu brother of deceased Rajesh last year and he was having animosity towards them. The accused persons were thereafter arrested one by one. Needless to state that after investigation of case, the present charge-sheet was filed arraigning the accused persons for trial.
CHARGE
22. Needless to state, charge was framed against the accused persons u/s 120B IPC besides Section 302 IPC for the murder of deceased Rajesh s/o Om Prakash and also for brandishing knives and threatening the family members of the 13 deceased u/s 323/506 Part II of IPC. Accused Rajesh s/o Jagdish Prasad was further charged u/s 27/54/59 of the Arms Act. The accused persons pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
23. The prosecution in order to prove its case examined as many as 30 witnesses. The main prosecution witnesses were PW1 Rakesh Kumar s/o Om Prakash and brother of the deceased besides his mother Smt. Manto, PW3 and PW4 Smt. Anita. Their evidence needs to be discussed in some detail and therefore, I shall dwell into the same later on in this judgment.
24. So far as medical evidence is concerned, PW2 was Dr. S. Lal who conducted postmortem on the deadbody of deceased Rajesh and proved postmortem report Ex. PW2/A interalia deposing that deceased died due to a single bullet wound which was probably a contact wound.
25. The following police witnesses were also examined :
PW5 was SI Mahesh Kumar, Draftsman. He deposed preparing the scaled site plan Ex. PW5/A at the instance of the IO ; PW6 was SI Amar Singh who was member of the mobile crime team that inspected the place of occurrence and he proved his report Ex. PW6/A ; PW7 was another member of mobile crime team Const. Ramesh who deposed taking photographs at the scene of crime which are Ex. PW7/1 to 10 and proved the negatives thereof as Ex. PW7/11 to 20 ; PW9 was Const. Veer Pal Singh. He was associated during the investigation of this case with IO Inspector Virender Singh on 31.10.08 and deposed during this time accused Ravi was arrested from the Fourth Floor, New Surgical Ward of LNJP 14 Hospital vide memo Ex. PW9/A that accused was brought to the spot preparing a pointing out memo Ex. PW9/C and making a disclosure statement Ex. PW9/D. He also deposed that on 1.11.08, he was associated in the investigation during which time accused accused Vijay @ Toofan and Nanhe came to the P.S. and were arrested vide memo Ex. PW9/E and PW9/G respectively ; PW10 was HC Sanjay Kumar. He deposed collecting five sealed parcels with the seal of VS and two sealed parcels with the seal of AAA, Subzi Mandi Mortuary from the MHCM at the instruction of the IO and depositing the same with FSL, Rohini ; PW11 was Const. Dilawar Singh. He was deputed along with HC Jagminder at JPN Hospital, Ward no. 4 from where accused Vijay was admitted who was discharged at 4 p.m. On 7.11.08 and then arrested in his presence vide memo Ex. PW11/A ; PW12 was ASI Sunder Singh who was the first police officer who reached the place of occurrence and taking part in the investigation ; PW13 was Const. Anuj Kumar. He was associated with the IO Inspector Virender Singh and deposed reaching the spot on 30.10.08 along with IO and taking the rukka and getting the FIR recorded at P.S. Subzi Mandi. He also deposed collecting four parcels from MHCM at 31.8.09 and depositing the same with FSL Rohini ; PW14 was HC Om Prakash, Duty Officer at P.S. Subzi Mandi who recorded the Fir Ex. PW14/A on 31.10.08 ;
PW15 was HC Jagmohan in whose presence the accused Vijay was arrested at four p.m. on 7.11.08 after his discharge at LNJP Hospital ; PW16 was Const. Sant Kumar. He joined the investigation with the IO on 2.8.09 that the accused Rajesh s/o Jagdish Prasad was produced in the Court on his arrested 15 in FIR no. 100/09 u/s 25/54/59 of Arms Act of P.S. Kamla Market ; PW17 HC Ram Phal. He deposed collecting the case property i.e. a sealed parcel containing desi katta along with MHCM in FIR no. 100/09 of P.S. Kamla Market ; PW18 was Const. Anil Kumar also deposed collecting the case property from Malkhana Incharge, P.S. Kamla Market and depositing the same with MHCM ; PW19 was Const. Randhir Singh, PW20 was Const. Ram Karan and PW22 was SI Jai Pal from P.S. Kamla Market who deposed accused Rajesh s/o Jagdish Prasad at about 2.30 a.m. in the intervening night of 1st and 2nd August 2009 on the information by secret informer and recovering a desi katta from his possession ; PW21 was HC Namo Narain who was Duty Officer who recorded FIR no. 100/09 Ex. PW21/A ; PW23 was ASI Mahesh Chand. He was SO to Additional DCP, Central District, Delhi. He deposed that no sanction had been accorded by the DCP u/s 39 of the Arms Act as against accused Rajesh s/o Jagdish Prasad in FIR no. 100/09 ; PW24 was HC Zora Singh, LDC, Home Department, Delhi Secretariat, I.E. Estate. He purchased the copy of Notification dt. 17.2.1979 Marked A ; PW25 was Woman Const. Anita Kumari. She deposed conducting the personal search of accused Smt. Bimla Devi and arresting her on 21.3.09 vide Arrest Memo Ex. PW25/A ; PW26 was Const. Bhupinder Singh. He deposed about arrest of accused Sunil @ Sand on 24.3.09 vide memo Ex. PW26/A ; PW27 was ASI Suresh Chand from Crime Branch. He deposed arresting accused Ravinder @ Sardare on 17.3.09.
26. Expert witnesses were PW28 Mr. Puneet Puri, Sr. Scientific Officer who proved the Ballistic Report Ex. PW28/A 16 in regard to desi katta marked F-1 allegedly recovered from the accused Rajesh and another expert witness was PW29 Ms. Anita Chari, Sr. Scientific Officer who proved the FSL report cum Serological Report in regard to various exhibits which reports are Ex. PW29/A and PW29/B. Lastly the Investigating Officer was examined as PW30 on whose evidence I shall dwell later in this judgment.
STATEMENTS OF ACCUSED PERSONS U/S 313 Cr.PC
27. On the close of the prosecution evidence, the incriminating evidence was put to the accused persons one by one in their statements as per Section 313 Cr.P.C. the accused persons claimed that they were innocent and have been falsely implicated in this case. The entire defence put forth by the accused persons could be summarized pointing out the defence of accused Ravi and Vijay who stated in one voice that at about 9.30 p.m. or 9.45 p.m, they were present in their house when deceased Rajesh s/o Om Prakash with his brothers Ravi, sonu besides Sanjay, Vikas and few others came to their house and started shouting and abusing them ; that on hearing the noise and the knock at their door, accused Vijay went out and the deceased Rajesh s/o Om Prakash with his brothers and others started beating him so much so that deceased Rajesh s/o Om Prakash also stabbed Vijay ; that on hearing his cries, accused Ravi also came out and tried to save his brothers. They stated that a scuffle took place during which a desi katta went off and the bullet hit Rajesh s/o Om Prakash who sustained injuries. They stated in one voice that it was the deceased and his brothers and others who had come prepared with arms, ammunition and knives in order to 17 commit tresspass in their house and assault Vijay.
28. In fact accused Vijay @ toofan, Neeraj @ Nanhe, Pradeep, Ravinder @ Sardare, Smt. Bimla, Rajesh besides Sunil @ Sand stated that they were not present at the scene of occurrence and had no knowledge as to how the incident had occurred. The accused persons did not chose to lead any evidence in their defence.
29. Mr. S.S. Tyagi, Adv. for accused Vijay @ Toofan made a brief submissions to the effect that the real issue is who was the aggressor party resulting in the present incident. He urged that no evidence has been led that any Lagan or Tika Ceremony was going on ; that in the postmortem report of the deceased, semi digested food has been found which as per the doctor had been consumed about 1 ½ hours prior to his death.
30. The bulk of the arguments were advanced by Mr. Rajesh Khanna, Adv. for accused Ravi. It was urged that the entire investigation in this case was not fair and tainted ; that FIR was ante-timed and it was not lodged promptly in order to fabricate the facts ; that the real genesis of the dispute has not been explained by the prosecution and that PW1 Rakesh Kumar and PW3 were not only interested witnesses but also made material improvements in their testimony in the Court over their statements made to the police ; that PW4 Smt. Anita neither supported the prosecution case nor the defence and she was treated as hostile witness by the prosecution. Coming back and forth on the manner in which investigation was done, Mr. Khanna urged that ASI Sunder Singh (PW12) spoke half truth and half lies and his evidence clearly suggest 18 that no worthwhile investigation was done by PW30 Inspector Virender Singh ; that the incident had occurred at the entrance of the house of accused Ravi and Vijay, just at the stairs and the accused persons were within their right to safeguard their life and property when accused Vijay was attacked and stabbed by deceased Rajesh along with others and he pointed out that PW4 Anita in her evidence testified that it was Sanjay, accused in FIR no. 304/08 who had stabbed Vijay ; that there was material mis-representation in the charge-sheet on the part of the IO concealing the fact that in the same incident accused Ravi and Vijay were stabbed ; that PW1 and PW3 have not explained anything as to how the injuries were sustained by accused Ravi and his brother co-accused Vijay. He lastly urged that the prosecution has failed to establish the motive for the killing of the deceased Rajesh. In his submissions Mr. Khanna interalia relied on decisions in :
i)Babu Ram & Ors. Vs. State of Punjab: 2008 (1) JCC 770
ii)Hem Raj & Ors. Vs. State of Haryana: AIR 2005 Supreme Court 2110
iii)Darshan Singh Vs. State of Punjab & Anr: 2010 (1) C.C. Cases (SC) 305
iv)L/NK Meharaj Singh Vs. State of Uttar Pradesh: 1995 CRI. L.J. 457
v)Moti Singh vs. State of Maharashtra : JT 2002 (2) SC 133
31. Mr. R.K. Gupta, Adv. for accused Neeraj @ Nanhe made a brief submission to the effect that his client was not named or assigned any role in the statement of Smt. Manto (PW3) and Smt. Anita (PW4) u/s 161 Cr.P.C. and he urged that PW1 Rakesh was an interested witness. Mr. Hans Raj, Adv. for remaining accused persons urged that their clients were not present at the spot at the time of incident and they 19 have been roped in by the so called eye-witnesses who were interested to wreck their vengeance upon the entire family and the police playing into their hands.
32. Per contra Mr. Ashok Kumar, Ld. APP for the State urged to the contrary.
33. I have heard Ld. APP for the State and the Ld. Defence Counsel for the accused persons and I have also perused the oral and documentary evidence on the record of the case.
EYE-WITNESS ACCOUNT
34. At the cost of repetition, the main witnesses for the prosecution were PW1 Rakesh Kumar, brother of the deceased, his mother PW3 Smt. Manto and PW4 Smt. Anita. The evidence of the said witnesses corroborate each other to the effect that a function i.e. Lagan/Tika ceremony of one Titu's daughter, who was a neighbourer, was going on very near to the place of occurrence. It is also in evidence of PW1 Rakesh that his deceased brother Rajesh along with his brothers Ravi and Sonu were present in the function besides their mother and Smt. Anita. Evidence of PW3 Smt. Manto also suggests that besides deceased Rajesh, her other family members were also present and this fact is also corroborated by PW4 Smt. Anita. Evidence of PW1 Rakesh and PW3 Smt. Manto clearly bring out that deceased Rajesh had left the Pandal where the function was going on at the behest of accused Rajesh and Vijay @ Toofan. In fact PW4 Smt. Anita also deposed that she saw accused Vijay @ Toofan making a gesture towards deceased Rajesh and called him outside the Tent and they went away. This indicates that exit of deceased Rajesh s/o 20 Om Prakash from the Pandal was a friendly one and not a coerced or forced one. Much has been urged by Mr. Khanna, Ld. Counsel for accused Ravi that no reliable evidence is led that any function or Lagan/Tika ceremony was going on in the neighbourhood. But in the face of evidence of PW1, PW3 and its corroboration by PW4 Smt. Anita, there is no scope for doubt that the deceased Rajesh along with his family members were attending the function and he was last seen going away with accused Rajesh and accused Vijay @ Toofan.
35. The second part of this evidence starts with PW1 Rakesh Kumar deposing that when his brother did not return, he was worried and as he became little suspicious, he started walking towards the house of accused Rajesh also informing his Bhabi/sister-in-law PW4 Smt. Anita. In his cross- examination PW1 stated that he was going towards the house of accused Rajesh, a child met him on the way, who told him that a quarrel was going on between someone and his brother Rajesh. The witness was confronted with his earlier statement to the police u/s 161 Ex. PW1/A where the version that a child had met and told him so was not found. To my mind, this variation coming in the evidence of PW1 is insignificant so as to merit any attention which could benefit the defence. PW3 Smt. Manto also deposed that after her son Rajesh left and sometimes thereafter a child came running and told her that a fight was going on between her son Rajesh and accused Ravi, Rajesh & Vijay @ Toofan. PW4 Anita also corroborated the version of PW1 and PW3 to the effect that she was informed that some quarrel was going on between deceased Rajesh and others and she immediately rushed towards the house of 21 accused Rajesh. Now it must be understood that PW3 and PW4 were illiterate women coming from lower middle income group/class and the circumstances were such that must have caused great fear, anxiety and turmoil in their mind and mere omission of a fact in their statement that a child came and informing them of a quarrel does not benefit the defence.
36. The third continuing part of this saga is the evidence of PW1 Rakesh that when he reached the spot i.e. house of accused Ravi and Rajesh, he saw that his brother was being held by accused Nanhe @ Neeraj and Vijay Toofan and accused Bimla brought two pistols from her house and gave one each to Ravi & Rajesh ; that accused Ravi then fired at his brother Rajesh only once whereas accused Rajesh also fired but in the air. He further went on to depose that accused Sardare @ Ravinder and Vijay who were real brothers were having knives and they scared the public persons to go away from the spot ; that accused Sunil @ Sand and Pradeep caught hold of him ; that his Bhabi/sister-in-law Anita grappled with accused Ravi and managed to snatch the pistol from him but she was overthrown on the ground by accused Rajesh who was able to snatch it back from her and thereafter the accused persons ran away from the spot. This evidence is corroborated by PW3 Smt. Manto to the effect that when she reached the spot, she saw that her son Rajesh was being beaten up by accused Ravi, Rajesh, Vijay @ Toofan and Nanhe and her other son Rakesh who had reached prior to her was being held captive by accused Pradeep and Sunil @ Sand. She then went on to depose that she asked them as to why they were beating her son and on that accused Vijay @ 22 Toofan pushed her and she fell on the ground ; that in the meanwhile Smt. Bimla went to the roof of her house and brought two pistols and gave one each to her sons accused Ravi and Rajesh. She then deposed that accused Ravi fired at her son Rajesh while accused Rajesh also fired but she did not see where he fired as she went blank in fear and anguish. She deposed that accused Vijay and Sardare were having knives and they forced the public to go away from the place of occurrence. It is in her evidence that she had her injured son Rajesh on her lap and seeing the blood oozing out of his mouth, she became semi unconscious. She was put a leading question by the Ld. APP for the State on which she stated that Anita had snatched the pistol from the hand of accused Ravi and accused Rajesh grappled with her and they were able to take back the pistol from her.
37. It is in this part that the evidence of PW4 who is otherwise an independent witness becomes quite crucial. It may be indicated that she was not related to the deceased party and she was a married woman living in the neighbourhood knowing both the parties. Anyhow, she deposed that as she followed Smt. Manti from Lagan/Tika the function on way to the house of Rajesh, she saw 3-4 boys shouting and hurling abuses near the house of accused Ravi and the accused was present at the terrace of his house along with his mother Smt. Bimla trying to pacify the agitating boys and in the meanwhile accused Ravi came down the stairs 4-5 steps down and fired at deceased Rajesh s/o Om Prakash. She deposed that she grappled with accused Ravi and snatched his pistol and ran away towards the adjoining gali but 23 was chased by accused Ravi and another boy who were able to retrieve the pistol from her and then accused and other boy ran way. This witness was treated as hostile by the prosecution and cross-examined by the Ld. APP for the State. In her cross-examination, she admitted that deceased Rajesh had been taken away by accused Vijay @Toofan at about 9.30 p.m. but she denied giving a statement to the police that accused Rajesh s/o Jagdish Prasad was also present at the place of occurrence. She also denied the suggestion that she gave any statement to the police that she saw accused Ravi and his brother co-accused Rajesh assaulting the deceased Rajesh and in the meanwhile the mother of accused Rajesh and Ravi coming out of her house and handed over pistols to each of them with exhortation to kill Rajesh (son of Om Prakash). She also denied the presence of other accused persons namely Neeraj @ Nanhe, Vijay Kumar, Pradeep, Ravinder @ Sardare and Sunil @ Sand at the spot.
38. Indeed PW1 and PW3 were interested witnesses but that alone does not wash away their entire testimony. The judicial caution for appreciations of evidence is that their evidence must be subjected to serious scrutiny and it must be found whether their version is truthful and thus believable. At the cost of repetition, evidence of PW1 and PW3 clearly bring out that deceased Rajesh was taken away from the Lagan/Tika function; that a quarrel had taken place for some reason or the other and that when they reached the spot, PW1 was seen held captive by accused Pradeep and Sunil @ Sand while deceased Rajesh was being beaten up by accused Ravi, Rajesh, Vijay @ Toofan and Nanhe. Evidence of PW3 is 24 corroborated by PW1 that it was accused Smt. Bimla who brought two pistols and gave it to accused Ravi and Rajesh exhorting them to kill Rajesh s/o Om Prakash. The evidence of PW1 and PW3 appears to be truthful that accused Bimla brought the pistols and gave it to her sons Ravi and Rajesh exhorting them to kill Rajesh s/o Om Prakash and witness very truthfully stated that it was accused Ravi who fired at the deceased Rajesh who as per the postmortem report Ex. PW2/A sustained a Contact Wound of the size of 1.6 x 1.6 cm. cavity deep over left side upper chest placed 5 cm left to midline and 4 c.m below the mid point of clavicle resulting in charing around the wound going left to right and downward and backward direction. The evidence of PW1 and PW2 as corroborated by PW4 Anita that it was accused Ravi who fired at the deceased Rajesh and she had the guts to snatch the pistol from accused Ravi and ran away but was overpowered by accused Ravi and some other accused who together retrieved the pistol from her appears to be truthful and believable.
39. Before I proceed further in this case, I must reiterated that I find the evidence of PW1 and PW3 believable that all the accused persons were present at the spot. After all the incident occurred in front of the house of the accused Ravi, Vijay, Rajesh, Ravindra and Bimla. Much was urged by Mr. Khanna, Ld. Counsel for accused that accused Ravi exercised his right to private defence in as much as the deceased Rajesh along with his brothers came armed with desi katta and knives and tried to tresspass into his house and the accused Ravi had no option but to save himself and in the melee the bullet was 25 fired. I do not find the defence plea plausible. Indeed the incident as per the scaled site plan Ex. PW5/A or for that matter Ex. PW30/B occurred just outside the house of the accused Bimla, Ravi, Vijay, Rajesh and Ravindra perusal thereof vis a vis photographs of place of occurrence Ex. PW7/1 to PW7/10 would show that there was a small open chabutra/plate form in front of their house and there were open stairs/poudies (sidia) going over to the first floor of the premises. The blood was found splattered at a place which is at the bottom of the stairs/poudies and shown at point B in the site plan and the photographs and also just three feet away at point 'A' in the site plan visible clearly in the photographs. It is in the evidence of IO that the blood swabs were taken from both the spots and as per the FSL report Ex.PW29/A and B, swabs pertained to blood group 'A' belonging to the deceased Rajesh.
40. Much was also argued by Mr. Khanna, Ld. Counsel for the accused that the prosecution has not explained how injuries were sustained by accused Ravi and accused Vijay which are reflected in the certified copies of their MLCs in FIR no. 304/08 Ex. DX-1. Now here is an interesting twist to the entire story. PW1 and PW3 denied that any injuries were caused or sustained by any person from accused party. PW4 Smt. Anita on the other hand stated in her cross-examination that when she was able to snatch the pistol from the accused Ravi, the co-accused Vijay and Ravi were trying to snatch it back from her and one Sanjay stabbed accused Vijay to save her from him. It is always said that cross-examination is a double edged weapon which may cut both ways. PW4 did not 26 say so in her cross examination but on defence question she blurted out the truth that has caused a serious dent in the defence plea that it was deceased Rajesh who stabbed accused Vijay. Incidentally, the person Sanjay in evidence of PW4 is one of the accused in FIR no. 304/08. It must be understood that principle of falses in uno falses in omnibus is not applicable in criminal law in India. The version of PW4 which appears to be spontaneous and truthful could be relied upon by the prosecution particularly in view of sub section 2 of section 154 of the Indian Evidence Act. I do not find much merit in the defence plea that PW1 and PW3 did not explain the nature of injuries on the body of accused Ravi and Vijay. It must be seen that PW3 Smt. Manto must have been aghast and under great mental turmoil when she saw her young son in a pool of blood and in a semi conscious state, she was not able to perceive how the quarrel went on thereafter. PW1 was categorical that accused Ravi did not sustain any injuries in the incident nor Vijay sustained any injuries at the hands of deceased Rajesh. Perusal of certified copy of MLC of the accused Ravi would show that he sustained a superficial CLW measuring 2 x 1 cm over right gluteal region i.e., buttocks and bite wounds on his both hands. I have no doubt in my mind that these injuries were self inflicted by accused Ravi to create a sham defence. The bite marks on his hands, if any, would indicate that somebody tried to flee from his clutches/grip or snatch something from him. Surprisingly, this witness if he sustained any injuries did not go to any hospital nearby his place of residence and chose to get himself admitted after more than 1½ hours of the incident at LNJP Hospital which is 27 about 10-12 km from his place of incident. So far as the injuries on the body of accused Vijay is concerned, that has been explained by PW4 Anita but PW 4 was not asked how or where he was stabbed. In my considered opinion, the 2cm incised wound on the stomach was also self inflicted. The wound only pierced into the outer wall and not penetrate enough so as to cause any serious damage. PW 4 too reached the hospital after more than one and half hour and there is no evidence who took them to the hospital located about 10-12 kms. from the place of occurrence.
41. The presence of PW-1 Rakesh Kumar at the spot cannot be doubted. He categorically deposed that he took his deceased brother to HR Hospital and from there his younger brother Sonu shifted the deceased Rajesh to Tirath Ram Hospital. So far as PW-3 Smt. Manto is concerned, she was confronted with her statement Ex.PW 3/DB. Incidentally, this was a statement recorded by the IO soon after the incident. PW3 in such statement revealed that her son Rajesh was killed when accused Bimla brought pistols and gave each to her son Rajesh and Ravi and accused Ravi fired at her son deceased Rajesh S/o Om Prakash. She also stated that pistol was snatched by Anita from accused Ravi but accused Ravi , Rajesh and his another brother were able to snatch it back from her. This statement Ex.PW 3/DB was recorded when the witness was in a state of shock, anguish and under great mental turmoil. The anxiety of PW-3 Smt. Manto in stating that none of her son except Rakesh was present at the spot could be out of her anxiety to shield her sons Ravi and Sonu who arrived later on at the spot. The certified copy of complaint of 28 accused Ravi marked DX-1 in this proceeding to the effect that deceased Rajesh S/o Om Prakash had come along with his brother Sonu and Ravi and some others and abused them and deceased Rajesh S/o Om Prakash stabbed his brother Vijay cannot be believed since such complaint was lodged much after the incident sometimes at about 8:15a.m in the morning on 31.10.2008. Moreover, nothing is explained by accused Ravi as to where he was for more than one and half hours after the incident. It must be indicated that accused was arrested at about 3:15p.m on 31.10.2008 as per Arrest Memo Ex.PW 9/A and he had all the time to concoct and fabricated the facts. Lastly, the accused Ravi had a motive to kill deceased Rajesh s/o Om Prakash since he had a tiff earlier with the deceased which was subject matter of FIR no. 436/07 of P.S. Subzi Mandi u/s 324/341/34 IPC wherein deceased Rajesh, Sanjay and Sonu were arrayed as accused and in which the accused Ravi got injured. This fact was also brought out by PW3 Smt. Manto in her evidence that about a year prior to the incident, there had been a quarrel between accused Ravi and her son Sonu.
INVESTIGATION BY THE POLICE
42. As per the evidence led on the record, statement of PW1 Rakesh which is Ex.PW1/A appears to have been recorded at about 12 midnight and the rukka was sent at 00.30 hours on 31.10.08 and the FIR got recorded at 00.40 hours Ex. PW14/A. Was there any delay in registration of FIR as vehemently urged by the Ld. Defence Counsel? It must be seen that it is categorical evidence of PW12 ASI sunder Singh that he reached the spot i.e. place of occurrence at 9.55 p.m. 29 where on enquiry, it was revealed that one Rajesh was shot by someone and was removed to Hindu Rao Hospital. It is also in evidence of PW12 that PW30 Inspector Virender Singh arrived at the place of occurrence and then went to Hindu Rao Hospital. Cross-examinations of PW1 and PW3 besides that of PW12 ASI Sunder Singh and the IO PW30 reflect that after the incident, there was an unsavory, if not un-precedented situation that a mob of 100 to 150 persons reached Hindu Rao Hospital and when deceased Rajesh was declared dead, the mob was not satisfied and it is recorded in the MLC Ex. PW30/A that the mob left with the deceased on a hospital bed taken from the casualty at about 11.25 p.m. As per the MLC, the deadbody was brought in the hospital at 10.10 p.m and though the doctors tried to revive the patient with basic life saving procedures in the emergency ward, the patient was declared dead at 10.30 p.m. It is in the evidence that the body of the deceased was taken to Teerath Ram Hospital and the police party reached Teerath Ram Hospital where the deadbody was taken into custody and it is then statement of PW1 Rakesh was recorded. Judicial cognizance of the fact can be taken that the place of occurrence is very near to Hindu Rao Hospital and there is a walking distance of about 10 minutes through an exclusive passage. However, if one takes vehicular route, it might take longer because either one could approach Hindu Rao Hospital from Subzi Mandi Chowk (South) or through the Ridge from the North. The plea by the Ld. Defence Counsel that the FIR was kept open and was recorded after lodging of FIR no. 304/2008 where the accused Ravi and Vijay are the victims has no substance. The FIR no.
30304/08 appears to have been recorded on 31.10.08 at about 8.15 a.m. To my mind, there was no delay on the party of the police in getting the FIR recorded.
43. Much was also urged that in the report of the Mobile Crime Team Ex. PW6/A, it was clearly mentioned that the deceased and victim had already taken to the hospital but PW12 in his evidence only stated about the victim Rajesh s/o Om Prakash and not stating anything about accused Vijay. It was urged that in the Mobile Crime Team Report Ex. PW6/A, it was PW12 ASI Sunder Singh who was named as IO and no worthwhile investigation was conducted by Inspector Virender Singh. This plea ignores the tough conditions in which the police has to work at times. PW12 ASI Sunder Singh without any doubt was the first one to reach the spot and he did go to the hospital but when investigation was taken over by Inspector Virender Singh, he again went to the spot when members of the Mobile Crime Team were available and it is in the evidence that he was present during the time of inspection and taking of photographs by the members of the Mobile Crime Team. It is during this time that PW30 Inspector Virender Singh was probably attending to the mob and was taking steps for retrieving the body and getting the statement of complainant recorded and then he also came to the spot to take stock of the situation and carried on with the investigation. There is nothing in the law that two police officials cannot work in co-ordination. No specific evidence is required to be led in this regard and it has to be assumed that everything was correctly and legally done in the ordinary course of business. Therefore, I do not find that there was any delay in lodging the 31 FIR and the investigation was in any way tainted or unfair to the defence.
44. However, I may hasten to state that the I.O. has has failed in his duties to give his own findings as to which of the party was the aggressor but that alone can not preclude this Court from finding out the truth on appreciation of entire evidence on the record.
POSTMORTEM
45. As per evidence of PW-2 Dr. S. Lal from Aruna Asaf Ali Hospital, who conducted the postmortem on the body of the deceased Rajesh S/o Om Prakash on 31.10.2008 at about 10:45 a.m onwards, in the category of external injuries besides the above referred bullet wound, the deceased Rajesh S/o Om Prakash had following injuries as well : (1). Reddish abrasion 0.5 x 0.4 c.m over left side forehead placed 1.5c.m above eye- brow and 4.5c.m left to midline. (2). Multiple reddish abraison in area of 2 x 1.5 c.m over bridge of nose. The cause of death was undoubtedly heamorrhagic shock due to anti mortem injuries to lungs and aorta and sufficient in the ordinary course of nature to cause death. The injuries no. 1 & 2 were opined to have been produced by blunt force impact which goes to suggest that the deceased Rajesh S/o Om Prakash was beaten up before he was fired at. At the cost of repetition, the nature of wound was such that it was within the range of flame of fire arm and it was a contact wound as per PW-2. This corroborates the version of PW-1 Rakesh Kumar, PW-3 Smt. Manto besides PW-4 Anita that deceased Rajesh S/o Om Prakash was beaten up and fired from close range. It may also 32 be indicated that mere fact that the weapon of offence was not recovered is hardly of any consequence in the face of there being no doubt about the cause of death.
CONSPIRACY / COMMON INTENTION
46. The entire scenario in which the incident occurred brings out a strong inference that all the accused persons were present at the place of occurrence, that deceased Rajesh S/o Om Prakash was being beaten up by accused Ravi and his brothers Rajesh, Vijay @ Toofan and Nanhey and then all of a sudden accused Bimla brought two pistols giving one each to her son accused Ravi and accused Rajesh exhorting them to kill deceased Rajesh S/o Om Prakash. So far as other accused persons are concerned, PW-1 Rakesh Kumar and PW-3 Smt. Manto did say that accused Rajesh fired in the air probably to intimidate or scare them all. There is no evidence as against the accused Vijay @ Toofan, Neeraj @ Nanhey, Ravinder @ Sardare and accused Vijay and for that matter accused Sunil @ Sand that they exhorted accused Ravi to fire at deceased Rajesh S/o Om Prakash.
47. In the case of State (N. C. T. of Delhi) v. Navjot Sandhu"2005 CRI. L. J. 3950 " the law on conspiracy was discussed in detail and their lordships extensively quoted with approval the observations in In the case of State v. Nalini [1999 (5) SCC 253], where Hon'bele Mr. Justice S.S.M. Quadri after a survey of case law made the following pertinent observations (at paragraph 662) :
"In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowl- edge of a plan for committing an illegal act or a le-33
gal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collabo- rators on the basis of mere knowledge unless they commit acts or omissions from which a guilty com- mon intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such inten- tion was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such of- fences even if some of them have not actively par- ticipated in the commission of those offences.
The theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ulti- mately committed by some of them, without the par- ticipation of others. Those who committed the of- fences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal con- spiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substan- tive offence not committed by them. Criminal of- fences and punishments therefor are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by ex-tension of a common law principle.
(Para 12) A distinction was maintained between the conspiracy and the offences committed pursuant to the conspiracy. It is only in order to prove the exis- tence of conspiracy and the parties to the conspira- cy, a rule of evidence is enacted in S. 10 of Evi- dence Act based on the principle of agency. S. 10 of the Evidence Act provides that anything said, done or written by one of the conspirators in refer- ence to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition prescribed in 34 the opening part of the section. Thus, the evidence which is in the nature of hearsay is made admissi- ble on the principle that there is mutual agency amongst the conspirators. Whether or not the con- spirators will be liable for substantive offences other than the conspiracy and, if so, to what extent and what punishment has to be given for the conspiracy and the other offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law. The offence cannot be spelt out by applying the principle of agency if the statute does not say so. For instance, in the case of S. 34, IPC, the constructive liability for the crime is specifically fastened on each of those who participate in the crime in furtherance of the common intention. But S. 120-B does not convey that idea.
In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the ac- cused charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. v. Fal- cone (109 F. 2d,579) was referred to: "This distinc- tion is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders." At paragraph 518, Wadhwa, J, pointed out that the criminal re- sponsibility for a conspiracy requires more than a merely passive attitude towards an existing conspir- acy. The learned Judge then set out the legal posi- tion regarding the criminal liability of the persons accused of the conspiracy as follows :
"One who commits an overt act with knowl- edge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
It was further observed in the cited case that:
One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated ap-35
proach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Ke- har Singh's case that "the innocuous, innocent or in- advertent events and incidents should not enter the judicial verdict." .
48. Coming to the instant case, I am afraid it is doubtful if the accused Rajesh, Vijay @ Toofan, Neeraj @ Nanhey, Ravinder @ Sardare, Sunil @ Sand and accused Vijay had hatched any criminal conspiracy to kill the deceased Rajesh S/o Om Prakash. It appears that a quarrel suddenly erupted and the accused persons started beating up deceased Rajesh S/o Om Prakash and soon thereafter PW-1 Rakesh Kumar with his mother PW-3 Smt. Manto and PW-4 Smt. Anita arrived at the scene. There is no evidence that the accused persons except accused Ravi and Bimla had anything to do with the pistols. Their mere physical presence at the spot is not conclusive unless some overt or covert act is shown on their part. As the evidence suggests, the pistols were not already there when the quarrel started and it was brought on the spot all of a sudden. It was only accused Bimla who after bringing the pistols, exhorted her son accused Ravi and Rajesh to kill the deceased Rajesh S/o Om Prakash. Well, accused Rajesh did not choose to do so while accused Ravi did not hesitate to fire at the deceased. There is nothing in the evidence of PW-1 Rakesh Kumar and PW-3 Smt. Manto and for that matter in the evidence of PW-4 Smt. Anita that other accused persons made any exhortion or Lalkara to kill deceased Rajesh S/o Om Prakash. To my mind, only accused 36 Bimla and accused Ravi forged a common intention at the spur of the movement, as soon as family members of the deceased Rajesh S/o Om Prakash arrived to finish the deceased Rajesh S/o Om Prakash. I do not see how there was a common intention amongst accused Bimla and Ravi on the one hand and other accused persons to commit murder of deceased Rajesh S/o Om Prakash. The other accused persons were probably taken aback with the turn of events and as soon as there was a fire they acted in the manner which signifies self protection and intimidating away the family members of the deceased and the crowd so that nothing further happens. At the most, it manifestly appears that the accused Rajesh, Vijay @ Toofan and Neeraj @ Nanhey intentionally caused hurt to deceased Rajesh S/o Om Prakash and as soon as deceased Rajesh S/o Om Prakash was shot, they were on their toes in panic. At the cost of repetition, the evidence goes to suggest that accused Ravi fired at deceased Rajesh S/o Om Prakash at the exhortation given by his mother Bimla. The manner in which the bullet injury was sustained by the deceased Rajesh S/o Om Prakash would go to suggest that accused Ravi was standing at stairs and shot the deceased from above. The deceased Rajesh S/o Om Prakash was brought to the spot from Lagan / Tika ceremony and it is not fathomable that he was armed with any desi katta or knife. I do not see as to how the right of private defence could be available to accused Ravi when he had no reasonable apprehension of getting hurt in the manner the defence has tried to project the entire quarrel. CASE LAW RELIED ON BY DEFENCE 37
49. I would be failing in my duties if I do not reflect the case law cited by the Ld. Counsel for the accused Ravi. There is nothing to discern from the facts that the prosecution suppressed the genesis or the origin of the occurrence and has not presented the true version of the incident. Therefore, with due respect, the case of Babu Ram v. State of Punjab, (Supra) has no application to this case. Moreover, the defence version about the injuries sustained by accused Ravi and Vijay do not appear to be believable. So far as the case of Hem Raj v. State of Haryana (Supra) is concerned it was held by their lordships that unexplained omissions to examine independent eye witnesses would give rise to adverse inference when evidence of alleged recorded eye witnesses is not found reliable and there are serious doubts on the point of their presence on the scene of crime. Suffice to state the presence of PW-1 Rakesh and his mother PW-3 Manto at the scene of crime cannot be doubted. It is not the quantity of evidence that matters but its quality. At the cost of repetition, I find the evidence of PW-1 Rakesh and his mother PW-3 Smt. Manto quite natural and truthful. The case of Moti Singh v. State of Maharashtra, (Supra) was one where it was held that Section 100 of the IPC confers the right of the private defence of body upto the voluntarily causing death or any other harm to the assailant, if the offences which occasions the exercise of the right be of any acts as may reasonably cause the apprehension that grievous hurt be the consequence of such assault.
50. Well, there is nothing to discern from the evidence that it was the deceased Rajesh or the complainant party 38 which was the aggressor leading to the present incident. CONCLUSION
51. In the said view of the discussion, I find that accused Ravi S/o Jagdish and accused Bimla wife of Jagdish Prasad are guilty of committing murder of deceased Rajesh S/o Om Prakash and thus they are convicted u/s 302 IPC read with Section 34 IPC.
52. So far as accused brother Rajesh, Vijay @ Toofan , Neeraj, Vijay, Pradeep @ Kale and Ravinder @ Sardare besides accused Sunil @ Sand S/o Mandal Lal are concerned, they are acquitted of the charge u/s 302 and 120 B of I.P.C. Giving them the benefit of doubt but I find that the prosecution has been able to show beyond reasonable doubt that they intended to cause and did cause voluntarily hurt to deceased Rajesh S/o Om Prakash besides his brother Rakesh and Anita and also threatened them to cause hurt and indulged in criminal intimidation with a view to cause hurt or bodily injuries or death to the complainant party and thus I convict them u/s 323 and section 506 of the I.P.C. r.w. 34 of IPC.
53. Let they be heard on point of sentence on 07.09.2010.
FIR NO. 100/09 PS KAMLA MARKET U/S 25/54/59 OF ARMS ACT :
54. This case should not take long for a decision. The prosecution against the accused Rajesh S/o Om Praksh under the Arms Act is that as per PW1 Rakesh and PW3 Smt. Manto the accused is alleged to have fired from a country made pistol in the air. There is no recovery of any 39 empty cartridge from the spot or the place of occurrence. No witness for the prosecution has identified the country made pistol Ex.P1 as the one that was seen in the hands of the accused Rajesh S/o Om Prakash at the time of incident.
Therefore, accused cannot be convicted u/s 27 of the Arms Act. The case is simple one of recovery of unlicensed fire armed Ex. P1 from his possession. The accused Rajesh S/o Om Prakash can only be convicted u/s 25/54/59 of Arms Act but for the fact that no permission or sanction was accorded in this regard u/s 39 of Arms Act
55. The sum result is that accused Rajesh S/o Om Prakash cannot be convicted u/s 27 of Arms Act or for that matter of u/s 25 of the Arms Act. Reference in this connection can be had to decision in Sunil Nayak v. State, 2009 (6) AD, Delhi 613 DB.
56. The case of the prosecution against the accused Rajesh u/s 25/54/59 of Arms Act falls flat. The accused Rajesh s/o Jagdish Prasad is thus acquitted. This file be consigned to the record room.
ANNOUNCED IN THE OPEN (DHARMESH SHARMA)
COURT TODAY i.e 04.09.2010 ASJ-II / NORTH,
DELHI
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