Delhi District Court
Additional Sessions Judge( West02) vs State Of on 15 December, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST02) , DELHI.
SC NO. 22/3/09
State
Versus
1 Bakshish Singh @ Manny,
2 Sandeep Singh @ Sunny,
Both S/o Sh. Manjeet Singh,
R/o G155, Vikaspuri,
Delhi.
(i)Case arising out of FIR No. 167/09
U/S:302/120B /34 IPC
P.S. Vikaspuri
(ii) Date of FIR 12/06/09
(iii) Date of Institution 28/10/09
(iv) Date of Final Arguments 25.11.2010
(v) Judgment reserved on 08.12.2010
(iv) Date of judgment 15.12.2010
S.C. No. 22/3/09 Page 1/38
JUDGMENT
Rahul Marwah deceased is the brother of Deepak Marwah PW24 and both the accused persons are first cousin. There was money matter between the accused persons from one hand and Deepak Marwah & Rahul Marwah (deceased) on the other side. To resolve the dispute regarding the payment of money a meeting of all the four cousin brothers with their relatives took place at the shop of PW4 Bhupinder Singh @ Pinda at Mayapuri, Delhi . One party was demanding the money and other party Deepak and Rahul said that they did not have to give any money and in a few minutes meeting was over without resolving the issue. On the same day on 11.6.2009 at about 3.30 pm at near J86 Vikaspuri, one Accent car No. HR51U7925 has hit Rahul Marwah and because of the collision of the car Rahul Marwah fell down at the road. Information was sent to the house of the deceased through PW3 Manju Puri. The mother PW15 Smt. Joginder Kaur and PW24 Deepak Marwah reached at the spot removed the injured initially to Chanan Devi Hospital and thereafter shifted to Action Balaji Hospital where injured Rahul Marwah was remained admitted and remained in comma till 25.6.2009 the date when he was expired. PW21 SI Perm Singh received the initial investigation through DD entry No. 3A from Action Balaji Hospital, Paschim Vihar, who alongwith Ct. Surender reached at Action Balaji S.C. No. 22/3/09 Page 2/38 Hospital found Rahul Marwah admitted in the hospital vide MLC No. l756/09 and the patient was declared unfit for statement. He did not find any eyewitness in the hospital and returned back at J86 Vikaspuri which was the house of the injured and SI Prem Singh was informed by the neighbourers that nobody was present in the house and all of them have gone to the hospital. SI Prem Singh put his endorsement on Ex. PW21/A and the rukka was prepared, handed over to Ct. Surender who got the present case registered.
SI Prem Singh had also met one Mrs. Manju Puri near the house of the injured and at her instance prepared the site plan Ex. PW21/B. SI Prem Singh also recorded the statement of the Ct. Surender and also made inquiries from the neighbourhood but could not find whereabouts of the accused. On 25.6.2009 SI Prem Singh received information from Action Balaji Hospital that the injured Rahul Marwah has expired and also got conducted the post mortem on the dead body from DDU Hospital. SI Prem Singh had also seized the cloths of the deceased which the deceased was wearing at the time of accident vide seizure memo Ex. PW21/C and the clothes were handed over by the brother of the deceased Rahul Marwah and also recorded statement of Deepak Marwah. The registration number of the offending vehicle No. HR51U7925 of make Hyundai Accent was told to SI Prem Singh by Deepak Marwah and he had sent a constable to Faridabad for getting the registration address of the vehicle. Section 304 IPC was added to the case and investigation was S.C. No. 22/3/09 Page 3/38 transferred on 30.6.2009 to Inspector Arunender.
SI Prem Singh had again joined the investigation of the case on 6.7.09 along with the IO Insp. Arunender, SI Dharampal and Ct. Sumer Singh. They had gone to G155, Vikaspuri. The said house belonged to the accused persons. The house was found locked. IO asked two three persons from the neighbourhood and he was informed that Sunny and Munny had gone to Vikas Nagar and they will returned back to their house in the evening. The IO had also requested to join 34 persons to join the raiding party but none was agreed. They all reached near DAV school Nala and barricades were put up and they all stood at one side of the road and gypsy along with the driver Naresh was parked on the opposite side of the road. At about 7 pm the aforesaid offending vehicle was seen coming from Vikasnagar side and the IO signaled the vehicle to stop and SI Prem Singh put the barricade in front of the vehicle and it was stopped. Accused Bakshish Singh @ Manny was driving the vehicle and accused Sandeep Singh @ Sunny was sitting beside him. They were both made to get out of the car and both were interrogated. The car was seized vide seizure memo Ex. PW1/A, disclosure of the accused were also recorded vide Ex. PW1/H and J signed, both the accused were arrested vide arrest memo Ex. PW1/B and D and they were personally searched vide memo Ex. PW1/C and E. Both the accused were brought near J86 Vikaspuri and they pointed out the spot of occurrence near J86 Vikaspuri vide pointing out memo Ex. PW1/F and S.C. No. 22/3/09 Page 4/38 G. Both the accused were medically examined. The car was got inspected through head of the Department of Forensic Dr. Komal Singh and later on deposited in the Malkhana. Second time opinion of Dr. Komal Singh was obtained regarding involvement of the car on 11.6.2009. PW25 Insp. Arunender Singh collected the postmortem report. On the basis of investigation section 302/120B IPC was added on 22.7.2009. Said Accent car was got mechanically examined by Retired ASI Devender PW23 through letter Ex. PW25/A. Mechanical Inspector appended his report beneath his letter. On 15.7.2009 Insp. Arunender has also collected one sealed parcel and sample seal of DDU hospital through seizure memo Ex. PW19/A. On 17.7.2009 one eyewitness namely Mohan Singh Uppal met him at the police station and he got recorded his statement u/s 161 Cr.P.C through one constable. On 10.9.2009, FSL CBI Lodhi Estate Team came at P.S. Vikaspuri, who inspected and examined the aforesaid Accent car from different angle. On 13.8.2009 SI Mahesh Draftsman and PW Surjit Singh are called. IO alongwith SI Mahesh and one constable went at the place of occurrence. Surjit Singh also reached at the spot and SI Mahesh Draftsman took the rough notes at the instance of Surjit Singh. On 13.8.2009, IO Insp. Arunender got sent the sealed parcel after getting it collected from MHC(M) through Special Cell CBI, Lodhi Estate for matching purpose by the CBI officials, who had inspected the offending vehicle on 10.8.2009 and made further enquiries conducted serious interrogation S.C. No. 22/3/09 Page 5/38 regarding the call details etc. On 8.9.2009, Insp. Arunender called Gurjit Singh whose company had purchased the aforesaid car from Lease India Plan Ltd and taken the photocopy of the delivery receipt and taken the same into possession vide Ex. PW18/A. On 9.9.2009 he called Sourab Pal who purchased the aforesaid Accent car and taken the photocopy of the delivery receipt through seizure memo E x. PW19/B. On 6.7.2009 both the accused persons have also pointed the place of occurrence and eyewitness Surjit also identified both accused persons at the Police Station. Insp. Arunender also recorded the statement of witnesses and after completion of investigation the challan was prepared. He identified both the accused persons. During the process of investigation he had collected the CDR (call details record) from different service provider same is Ex. PW20/A and B. Identity of the aforesaid Accent car is not disputed by Ld. Defence Counsel.
PW14 Surjeet Singh has deposed that on 11.6.2009 he was going towards J Block in his car. After parking the vehicle he started walking on foot to go towards his inlaws house at J86 Vikaspuri. While walking he realized that his mobile was not with him and he thought that it might be in Car while he turned back, saw a golden colour Accent Vehicle and it hit Rahul Marwah who was coming out from the park and going towards his house and the same time he was talking on his mobile phone. After hitting Rahul Marwah, the vehicle Hyundai Accent went ahead. When the vehicle went ahead Rahul tried to get up as he had fallen on the S.C. No. 22/3/09 Page 6/38 left side of the road. Immediately the said vehicle reversed and Sunny was sitting on the left side of the driver. The vehicle was being driven by accused Bakshish @Manny. Accused Sunny told accused Manny that Rahul is getting up and that he should hit him again and take the vehicle back. The vehicle again hit Rahul and then the vehicle speed away.
Similarly PW24 Mohan Singh Uppal has testified in his deposition as deposed by PW14. PW24 Mohan Singh Uppal has deposed that on 11.6.2009 at about 5.30 pm when he was going towards house of Puran Chacha in Vikaspuri. He saw that one Accent car golden metallic colour was standing there. The Accent car picked up the speed and collided with Rahul. At that time he had seen Rahul coming out from park and talking on his mobile phone. Rahul fell down on direction of his right hand side. The vehicle than approached and neared him. The driver of the car than looked behind and reversed the car and again dashed against Rahul. The vehicle had dragged Rahul for some distance. Then the vehicle speed away at a fast speed. There were two sardars present in the car and the second Sardar was sitting on the front of passenger seat. He identified both the accused persons to be the same persons who were sitting in the vehicle . The accused Manny wearing the black T shirt was the person who was driving the vehicle and the other person Sunny was sitting besides him. He had gone towards the house of the injured Rahul. While he came outside the family members of the injured had already taken him to the hospital in a vehicle. The number of the Accent car was HR S.C. No. 22/3/09 Page 7/38 51U7925.
On 12.6.2009 an FIR No. 167/09 u/s 279/337 IPC was lodged at P.S. Vikaspuri alleging that one Rahul was admitted in Balaji Hospital in matter of road accident took place on 11.6.2009 near Vikaspuri Road and later on the police investigated & concluded that Rahul was killed by accused persons hence they were arrested. Police filed the charge sheet and charge under section 302/34/120B IPC was framed against accused persons. Both of them pleaded not guilty for the same and claimed trial.
In order to prove the allegation against the accused persons , prosecution examined 25 witnesses out of which Pw14 Surjit Singh and PW24A Mohan Singh Uppal are the eye witnesses and all other witnesses are supporting/corroborating the case of the prosecution and documents prepared during the course of investigation, except PW4 Bhupinder, who turned hostile.
In order to prove the money dispute, prosecution led PW4 Bhupinder, PW24 Deepak and PW15 Smt. Joginder Kaur who have deposed that there was a money dispute between the parties and to resolve the money transaction dispute. On 11.6.2009 at about 12 pm a meeting took place at Mayapuri in the presence of relatives of both parties where hot talks took place between parties and money dispute could not be resolved. It is further admitted case of the prosecution by the accused persons that there was money transaction dispute in between the parties and this fact is further corroborated with the fact that accused S.C. No. 22/3/09 Page 8/38 persons produced one cheque bearing No. 095472 amounting to Rs. 3,00,000/ vide Ex. PW24/DA. It is further admitted fact that on 11.6.2009 at about 12 pm a meeting took place at Mayapuri in the presence of relatives of both parties where money dispute could not be resolved. The prosecution alleged that since there was a money dispute between parties and a meeting to this effect has also been organized but there was no solution found in the meeting and there was exchange of hot words between the parties. Accused persons have threatened with dire consequences to kill the deceased Rahul Marwah. To this effect PW24 Deepak Marwah stated that during the said meeting accused persons threatened deceased as well as to the family members that they will not spare. PW4 Bhupinder and PW14 Joginder Kaur corroborated this fact with respect to the money lending and meeting between the parties and there was a tense between the parties to this issued which created inimical terms. As such accused persons have motive to kill the deceased Rahul and to fulfill there plan both the accused persons chases the deceased Rahul and his brother Deepak on the same day. It is also matter of fact that Rahul after sustaining head injury due to hit by above mentioned car and took him to the Balaji Hospital , Paschim Vihar, Delhi and remained in coma till 25.6.2009 where he expired.
PW10 Dr. Pareejet Saurabeh and PW8 Dr. Harsimran Singh proved the nature of injury and admission of the deceased in the Action Balaji Hospital. Initially the injured Rahul was admit in U.K. Nursing S.C. No. 22/3/09 Page 9/38 Home, Vikaspuri but after seeing the condition of the patient as serious he was directed to take to some other hospital at Mata Chanan Devi Hospital but in that hospital no bed was available and they provide their van to shift the patient to Action Balaji Hospital, Paschim Vihar and Rahul was admitted there. This fact has also been corroborated by PW17 Joginder Kaur and PW24 Deepak who immediately after the incident reached at the spot, took the injured to Action Balajee Hospital.
PW 10 Dr. Pareejet Saurabheh vide MLC No. 1756 Ex. PW10/A has proved that the injured Rahul Marwah was brought by Deepak Marwah on 11.6.2009 at about 6.45 pm with history of alleged road traffic accident. PW10 Dr. Om Prabha deposed that the patient was unfit for recording the statement. PW8 Dr. Harsimran Singh deposed that patient Rahul suffered fracture of right frontal bone extending to involve the right orbit and spenoid bone with the internal hemorrhage and brain contusion and prove the CT report vide Ex. PW8/A. PW17 Dr. Komal Singh who conducted the post mortem on the body of deceased Rahul on 25.6.2009 and opined that the cause of death was, due to head injury subsequent to the road traffic accident and proved the postmortem report i.e. Ex. PW17/A. He found on external examination there were multiple graced abrasions over the left leg, left knee, left elbow and left ankle and on internal examination there was massive sub scapular contusions. There were massive subdural and sub surarachanoid hemorrhage contusions on the bilaterally frontal lobs with S.C. No. 22/3/09 Page 10/38 the collection in the brain stem approximately 50 ml. He further deposed that there were multiple injuries on the head including the frontal and parietal area, all the injuries cumulatively are only possible in road traffic accident.
During investigation Hyundai Accent car No. HR51U 7925 was recovered from the possession of accused persons on 6.7.2009 when they were arrested while driving the same car coming from Vikas Nagar side and going towards Vikas Puri seen by the police and further their disclosure statement were recorded and pointing out memo were prepared on their arrest. The identity of the offending vehicle and wearing cloths of the deceased were not being disputed by counsel for the accused persons during the trial.
Ld. Counsel for the complainant and Ld. APP for State has also relied upon case titled as Mohd. Naseem Vs. State 1 (2010) DLT (CRI) 523 (DB), Vikram Singh & Ors Vs. State of Punjab 1 (201) DLT (CRI) 529 (SC) and State of Punjab Vs. Karnail Singh, 2003(3) JCC 1313.
After conclusion of the prosecution evidence, statement of accused persons has been recorded u/s 313 Cr.P.C. Accused Bakshish Singh @ Manny in his statement has deposed that on 11.6.2009 a meeting was organized at the shop of PW4 Pinda @ Bhupinder Singh at Mayapuri Delhi, which was attended by him, husband of PW15 Smt. Joginder Kaur, Rahul deceased, Deepak and his father Manjeet Singh regarding S.C. No. 22/3/09 Page 11/38 money transaction between him, deceased Rahul and Deepak. He further deposed that Rahul and Deepak had borrowed Rs. 3 lakhs from him in the month of December 2008 and Deepak had issued one post dated cheque No. 095472, dated 12.5.2009 drawn on UTI Bank Ltd. amounted to Rs. 3 Lakhs against the borrowed amount Rs. 3 lakhs but till today Deepak and his family never returned a single penny from the said borrowed amount. The said cheque was returned by the Bank account of Deepak Marwah with the remark of " Account closed". He further deposed that he has been falsely implicated in this case alongwith his brother on the instigation of the family members of the deceased due to the non payment of borrowed amount by deceased Rahul and his brother Deepak Marwah and their family members. He also denied other incriminating evidence led by prosecution with the contention that he does not want to lead any defense evidence. Similarly accused Sandeep Singh @ Sunny also give the statement u/s 313 Cr.P.C.
Ld. counsel for accused persons submitted that there are major contradiction and improvements in the deposition of PW14 Surjit Singh, PW24A Mohan Singh Uppal, PW15 Smt. Jogender Kaur, PW24B Deepak Kumar and IO PW25 Insp. Arunender Singh, their cross examination demolish the whole prosecution case against both the accused persons. He has also relied upon a judgment in case titled as Liyakat Hussain Vs. State (2008(4) JCC 2614, Paras 22 &23) wherein it has been observed that " cross examination of a witness is as much a part of evidence as the S.C. No. 22/3/09 Page 12/38 examination in chief, if only examination in chief of the prosecution witnesses who supported the prosecution case is to be considered and not their cross examination then conviction would follow almost in every case even if an accused has been able to illicit from the witnesses certain answers in cross examination which demolish the prosecution case and convicting the accused in that manner, would be totally unfair."
It is further submitted with respect to the site plan dated 12.6.2009 prepared by initial IO SI Prem Singh (PW21) second scaled site plan was prepared by PW22 SI Mahesh Kumar on dated 13.8.2009 on the request of PW25 Insp. Arunender Singh. In the site plan position of car and presence of independent witness does not shown. The PW3 Manju Puri does not said single word regarding preparation of site plan dated 12.6.2009, while PW21 stated that he prepared site plan dated 12.6.2009 at the instance of PW3 Manju Puri. Similarly regarding the site plan dated 13.8.09, PW22 SI Mahesh Kumar shows the presence of Surjit Singh, Manju Puri, Mohan Singh Uppal but at the time of preparing scaled site plan only Surjit Singh was present which is also doubtful both the site plan contradictory regarding Accent car from which side it was coming and in whose presence of aforesaid witnesses at the place of incident.
It is also contended by the Defence Counsel that as per prosecution story two witnesses namely PW14 Surjit Singh and PW24B Mohan Singh Uppal have seen the incident and were present at the spot. PW14 Surjit S.C. No. 22/3/09 Page 13/38 Singh who is real brother in law of deceased Rahul and Deepak stated that he gave his first statement on 25.6.2009 and PW24B Mohan Singh Uppal who is very much known and friend of cousin brother of Rahul gave his statement to the police on 17.7.2009 much after the date of incident. Therefore, the deposition made by both the eyewitnesses is after a sufficient period of gape from the date of incident. There is no justifiable explanation given by them as to why their statement was recorded at such a belated stage. PW3 Manju Puri, PW15 Smt. Joginder Kaur and PW24A Deepak Marwah in their examination corroborated the fact as stated by PW14 Surjit Singh and PW24B Mohan Singh Uppal and it is denied that they were not present at the spot as they introduced and planted by the initial IO/PW21 SI Prem Singh and PW25 Insp. Arunender Singh in collusion and also at the instance of family members of deceased Rahul Marwah; only in order to falsely implication of both the accused persons in this case with the object not to returning the borrowed money. PW14 Surjit Singh has deposed that the car was not run over the body of deceased Rahul while reversing the alleged Accent car and on the other hand PW24B Mohan Singh Uppal stated that the alleged car was run over the body of the deceased Rahul while reversing the alleged Accent car, which shows that the both the witnesses neither present nor the eyewitnesses of the alleged incident. The injuries on the body of the deceased and the post mortem report does not corroborate the version and the manner described by both the S.C. No. 22/3/09 Page 14/38 eyewitnesses. Similarly PW24A Deepak Marwah also revealed in his deposition that both the alleged eyewitnesses i.e. PW14 Surjit Singh and PW24B Mohan Singh Uppal was not present at the spot. PW24A Deepak Marwah in his examination has stated that his brother in law PW14 Surjit Singh has left his mobile at his residence on the day of alleged incident but PW14 Surjit Singh stated that he was very much having his mobile phone with him on that day of alleged incident. Regarding presence of PW24B Mohan Singh Uppal, PW24A Deepak Marwah stated that he was not aware whether Mohan Singh Uppal met him or to his mother on that day of alleged incident, but in cross examination , PW24B Mohan Singh Uppal stated that he had told to the mother and brother of deceased Rahul that Rahul is lying in pool of blood on the day of alleged incident and these are the major contradiction between the statement of public witnesses which proved that the present accused persons has been falsely implicated at the instance of police and family members of the deceased.
It is further also contented by defense counsel that PW25 Inspector Arunender Singh did not cited MHC(M) of P.S. Vikaspuri as a witness in the list of witnesses nor he recorded any statement of MHC(M), which is also fatal to the case of the prosecution. PW25 Insp. Arunender Singh has also admitted in his cross examination that he did not make any effort to know about the location of PW14 Surjit Singh whether he was available in Delhi or not from 11.6.2009 to 25.6.2009, nor S.C. No. 22/3/09 Page 15/38 he tried to know the truthfulness of the statement of Surjit Singh. No efforts was made to examine the presence of Surjit Singh at the spot on that date of alleged incident i.e. from the verification of mobile location of Surjit Singh, despite knowing that the first statement given by brother in law of Surjit Singh and mother in law in which they have not stated anywhere in their statement regarding the presence of PW14 Surjit Singh at the spot. PW25 Insp. Arunender IO also not verified this point nor made any efforts either to collect any document regarding the presence of PW24B Mohan Singh Uppal i.e on the day of alleged incident in Delhi i.e on 11.6.2009 and on the day of statement given by Mohan Singh Uppal on 17.7.2009, despite there was an opportunity earlier to give statement. PW25 Insp. Arunender did not take PW24B Mohan Singh Uppal at the spot on 17.07.09 but showing his presence in the scaled site plan dated 13.8.09 vide Ex.PW22/A. PW25 Insp. Arunender stated the position of Mohan Singh Uppal and Manju Puri , despite they were not present and as to how he told the position of PW3 Manju Puri and PW24B Mohan Singh Uppal by the IO PW25 Insp. Arunender to the draftsman, when he has not examined PW3 and PW24B regarding their position at the spot.
It is further submitted that PW25 IO Insp. Arunender has also not verified the important facts regarding money transaction between the accused persons and family members of the deceased and PW15 Smt. Joginder Kaur and PW24A Deepak Marwah admitted that they have borrowed money but on returning the borrowed amount PW15 Smt. S.C. No. 22/3/09 Page 16/38 Joginder Kaur told that she had already returned the amount but PW24A Deepak told that he had returned the amount but when, both the witness remain silence about the date , month and year and exact amount is also not clear.
It is further pointed out that the PW25 Insp. Arunender Singh stated that the case property was deposited in the Malkhana and later on taken from Malkhana for sending to the expert opinion but unable to produce a single document, about the deposit of the case property or taken out the case property from the Malkhana, which shows malafide intention of the Investigation Officer and no proper investigation was conducted and there is every likelihood of tempering of the case property, which shows negligence on the party of the IO as he has not investigated the case in the right spirit as such there is every likelihood of tempering of the case property. Further PW25 Insp. Arunender Singh mention in the challan u/s 173 Cr.P.C that he had obtained the call detail report (CDR) of three mobile which belongs to accused persons but placed on record only two CDR, one belongs to accused Bakshish Singh and another is of Puran Lal ( father of deceased) i.e Ex.PW20/A and Ex. PW20/B which also creates doubt in fair investigation as not conducted by the IO, which also shows that Investigating Officer wants to implicate the present accused persons in this case at any cost and also he had concealed documents which proves innocence of accused persons.
It is further contented that the investigation conducted by PW21 SI S.C. No. 22/3/09 Page 17/38 Prem Singh and PW25 Insp. Arunender, shows that they have not conducted the fair investigation, however they are adamant to involve the accused persons in the present case in collision with the family members of the deceased with the ulterior motive. PW4 Bhupinder Singh never told any where that any threat received by him as alleged by PW24A Deepak Marwah in respect of non payment of borrowed amount. PW3 Manju Puri and PW24A Deepak Marwah in their cross examination on behalf of accused persons have also admitted that so many children were present at the time of alleged incident and shouted after seeing the Rahul but no children have been interrogated or cited as a witness. PW24A Deepak Marwah and PW23 ASI Devender Kumar, Mechanical Inspector have nothing alleged against the accused persons nor any damaged or mark of tyre found at the body of the deceased, there is no blood stained found on the offending vehicle, even through the vehicle in question was also not examined by PW17 Dr. Komal Singh as expert , therefore, it does not draw any inference in favour of the prosecution and against the accused persons. The deposition of PW23 ASI Devender Kumar and PW17 Dr. Komal Singh does not prove the prosecution case rather it create serious dent in the case of the prosecution since PW17 Dr. Komal Singh have stated that the injuries on the persons of deceased due to head injury subsequent to the road traffic accident and he cannot comment that the injury sustained on the body of the victim are caused by hitting by the offending vehicle intentionally.
S.C. No. 22/3/09 Page 18/38
It is further contented that the arrest of accused persons and recovery of car and alleged disclosure statements are also create doubt int he prosecution story. There are four Pws namely PW1 Ct. Sumer Singh, PW16 Insp. Dharampal, PW21 SI Prem Singh and PW25 IO Insp. Arunender are the witnesses and they all in their cross examination have made so many contradiction which proved that the accused persons have been brought on 6.7.2009 alongwith car from there house in afternoon through SI Prem Singh and Ct. Sumer Singh. The accused persons have also given their statement u/s 313 Cr.P.C which proved that the accused persons have been falsely implicated in this case and there are so many oral and documentary evidence which proved the innocence of the accused. In these circumstances accused persons are liable to be acquitted. Ld. Counsel also relied upon case titled as Liyakat Hussain Vs. State, 2008(4)JCC 2614 , wherein it was observed that "... Even in cases based on circumstantial evidence absence of motive for the crime is not fatal.... Recoveries made at the instance of accused Evidentiary value of mere evidence of recovery of weapon of offence at the instance of the accused cannot by itself proved that he had committed the murder mere recovery of the dead body on the point out of the accused is not a conclusive piece of evidence to held the accused guilty for the commission of murder.... Cross examination of a witness is as much a part of evidence as the examinationinchief....".
Keeping in view all the aforesaid discussion, facts and S.C. No. 22/3/09 Page 19/38 circumstances of the case and the authority cited, it is well settled law that while appreciating the evidence led by the prosecution it has to be first ascertained whether the prosecution has proved its case by looking at the broad probabilities of the case and thereafter to see and identify the embellishments and then determine whether the embellishments have dented the broad probabilities proved by the prosecution. There can hardly ever be a case where minor discrepancies or errors do not creep in, for the reason every human being has human falling and limitation and God has yet to create a perfect human being. On the contrary where a fool proof case without any embellishment or variations is brought before a court, that itself becomes ground to suspect the credibility of the case brought before the court by labeling the witnesses as parrots and hence not speaking through their own tongue but being made to speak the words through remote control.
The given situation may vary from person to person. In a crowded market place a shot is fired through a firearm and a pedestrian on the street falls down. The noise of the shot attracts the attention of persons in the street who instinctively turn towards the spot where from the sound of the firearm was heard. The first glimpse of some catches the sight of somebody running. The eyes of these persons would tend to follow the movement of the person fleeing and when questioned about the features of the said person and the clothes worn by him, these persons would give good description of the person whom they saw fleeing. Simultaneously, S.C. No. 22/3/09 Page 20/38 the eye of some persons catches the sight of a person falling. These onlookers tend to look on the said person and when questioned would give a good description of what happened to the person who was shot. Yet again, some persons react to the aid of the victim by attempting to flag down a motor vehicle or a rickshaw and thus these persons would be least expected to depose about who was running away and in what manner the victim fell. Further, each one of them would not notice the presence of the other. It may be kept in mind that single shots are fired in the flash of the moment and the assailants flee in the wink of the eye. It just depends upon the eye of the viewer as to what segment of the event is noticed.
Witnesses and in particular those who are illiterate tend to be laconic while stating a fact and disclose the same in broad terms and not with technical niceties. Waling on a street , when one is near a landmark spot on the street, and if something happens, one tends to remember, the spot with reference to the landmark and white disclosing the spot a person with lower levels of literacy may not appropriately state that the spot was near the landmark and would state that the spot was at the landmark itself.
In cross examination by Ld. APP it is admitted by PW14 Surjit Singh that ".... Sunny had taken out his neck and saw behind and told Manny that Rahul is getting up ( uth raha hai, Sunny ne car se bahar garden nikaal kar pichhe dekha)...... Both the accused had caused injuries to Rahul with the intention to cause his death. PW14 Surjit Singh in cross examination of Defence Counsel denied the suggestion that "..... he was S.C. No. 22/3/09 Page 21/38 present in his house on 11.6.2009 at about 5.51 pm and he had received a call from his brother in law Deepak regarding the alleged incident took place with Rahul, on 11.6.2009 at about 5.30 pm near the house of his in laws. The offending vehicle was parked near the gate of mandir." Counsel for accused cross examined on the point of location and the position of the mobile through the call detailed report which have been denied vehemently one after the other and further stated that "....offending vehicle came from his behind in a very high speed but the injured did not jump over the offending vehicle. The injured was fell down on the left side i.e. towards the Banglow side. He had seen the alleged incident from 1012 paces. He did not chase the offending vehicle as he was in shocked...."
Submission made by counsel for accused persons are that present PW14 Surjit Singh is a planted witness and is not an eyewitness as location of the mobile are showing his presence at the different place. Even otherwise he has not deposed to the police or to any other family members about the said incident soon after it.
So far as actual physical murder is concerned, the relationship between the two families was strained on account of the money transaction and and refusal to pay the loan amount. The cheque Ex. PW24/DA was proved by Defence counsel in statement u/s 313 Cr.P.C which is undisputed issue of motive, it can be used vis a vis as a tool for the alleged crime. This fact has not been disputed. It is also undisputed S.C. No. 22/3/09 Page 22/38 that the deceased Rahul had died as homicidal death having suffering multiple superficial and fracture injuries on the vital part of the body, which Dr. Komal Singh (PW17) notices in the course of post mortem examination. The fracture injury on Scalp are fatal injuries resulting in hemorrhagic and eventual death of the victim Rahul. All the circumstances adverted the above, chillingly point towards the guilt of the accused persons. The deposition of the PW14 Surjit Singh is also being corroborated by PW24 Mohan Singh Uppal who also narrated in his examination the collision of the accent car with the deceased Rahul. He had seen the deceased Rahul coming out of the park. The accent car has dashed against Rahul and dragged him for some distance. The said offending vehicle was speed away at fast speed in front of him. He has also identified both the assailants as both are Sardar, one was driving the car and second Sardar was sitting on passenger seat...... The accused 'Manny' wearing the black Tshirt was the person who was driving the vehicle and the other person Sunny was sitting beside him...." It is also testified that at about 5.30 pm , he left Shanti PG Guest House to go to the house of his Puran Chacha which is situated in Vikaspuri, he had taken a cycle rickshaw and he reached at the house of Puran Chacha in Vikaspuri in about 510 minutes and time to time also knows about the development of the health of Rahul Mahajan through telephonically. The delay in recording his statement by the IO have also been explained by stating that as both accused persons as well as deceased and their family S.C. No. 22/3/09 Page 23/38 members are near relatives to each other and they have good thought the deceased Rahul Mahajan might have recovered his health and relation between the parties will not be strain but when he came to know the death of the deceased then came to Delhi and deposed to the police about the incident.
PW24 Deepak Marwah deposed regarding the threat given to kill by both accused persons due to non payment of the alleged dues amount and on the day of incident, to resolve the dispute meeting has also been placed but no settlement has been arrived and he came to know through local resident that a accent car No. HR51U7925 ( Golden Metallic Colour) hit his brother which was driven by two sikh person and he had apprehension that the accused persons Bakshish Singh and Sandeep Singh had hit and kill his brother Rahul. The case of the prosecution is not only based on circumstantial evidence but also on the testimony of eyewitnesses i.e. PW14 Surjit Singh and PW24 Mohan Singh Uppal. Both the witnesses have narrated the incident as happened in their presence. The identity of the offending vehicle as well as cloths of the deceased has not been challenged by the accused persons. Even the post mortem report also corroborated the nature of injuries as received by deceased Rahul Mahajan due to heavy impact of the Accent Car No. HR51U7925. The ocular evidence of PW14 and PW24 has been corroborated by the medical evidence of PW17 Dr. Komal Singh. PW17 Dr. Komal Singh who conducted the post mortem has clearly stated that S.C. No. 22/3/09 Page 24/38 injuries which was found on the body of the deceased could have been caused with the vehicular accident. He has also examined the offending vehicle and deposed that the multiple injures on the head including the frontal and the parietal area. All the injuries cumulatively are only possible in road traffic accident.
Admittedly this case is not only based on the testimony of the eyewitnesses but also on the circumstantial evidence, all the links in the chain of evidence must be so intertwined that they must singularly, unambiguously and convincingly point to the guilt of the accused persons. Hypothesis of the innocence of the accused persons has to be excluded.
The act of the accused persons in absconding after a long duration, they have also got recovered the offending accent car as well as also pointed out the place of incident. The accused persons themselves produced the original cheque of worth of Rs. Three Lakhs, which has alleged to have been payable by the deceased and his family members. The accused persons in their statement u/s 313 Cr.P.C also admitted that there was a meeting organized on 11.6.2009 regarding the money transaction and the amount of Rs. Three Lakhs is alleged to have been due and recoverable from deceased Rahul and his family members. All such circumstances and relevant factors probablising the guilty intent of their mind. Such a conduct is relevant under the provisions of Section 8 of the Indian Evidence Act.
In the statement u/s 313 Cr.P.C accused persons had admitted the S.C. No. 22/3/09 Page 25/38 money transaction showing their anguish for non payment of the amount which resulted into taking revenge in fool mood. The meeting was over within a period of 23 minutes without any positive result which also reflect the conduct of the accused persons as they do not wanted to forgive the person who has allegedly borrowed the amount and that had become full of thorns, this evidence was reflection of their mental psyche and an insight into their mind which appeared to be traumatized and unhappy, which is also relevant U/s 8 of the Evidence Act.
Ld. Counsel for accused has pointed out several lacunae in the investigation and has submitted that the case of prosecution cannot be accepted as it is culmination of tainted investigation. It has been submitted that there are several lacunae in the investigation and the Investigation Officer failed to carry out the investigation on the expected lines. Investigation is the main component of the Criminal Justice systems. Fair investigation is the right of the accused and tainted investigation is bound to prejudice the accused. It is also a matter of common knowledge that investigating agency sometime fails to carry out the investigation as per norms. The investigation part in the Criminal Justice system requires lot of improvement. The Scientific investigation is also the need of the hour. In the present case also there are certain lacuna in the investigation but no further investigation was carried out in this regard. However, rejecting the case of the prosecution merely on the basis of defective investigation would amount to paying the premium for the faults of an Investigating S.C. No. 22/3/09 Page 26/38 Officer. It would also amount to playing into the hands of Investigation Officer. Reference can be made to Karnal Singh Vs. State of M.P. (1995) 5 SCC 518. In this case the apex court inter alia held that " Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused persons solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer, if the investigation is designedly defective"
It has also been held time and again by the superior courts that in the case of defective investigation, the case of the prosecution should be examined dehors such omissions otherwise the mischief done deliberately would be perpetuated and justice could be denied to the complainant/victim party. Reference can be made to Ram Bihar Yadav Vs. State of Bihar (1994) 4 SCC.517. In Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920, the apex court dealt with plea of tainted investigation and inter alia held that " In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person S.C. No. 22/3/09 Page 27/38 solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective."
In Paras Yadav and others Vs. State of Bihar (1999 (2) SCC
126) it was held that " if the lapse or omission is committed by the investigating agency, the prosecutions evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the Courts; otherwise the designed mischief would be perpetuated and justice could be denied to the complainant party."
It was also observed in Ram Bihari Yadava Vs. State of Bihar and others( 1998 (4) SCC 517) that " if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice".
No doubt there are some common defects in the investigation, but on the same time, where the defect in the investigation is distinguishably defect due to the negligence or inexperience of the investigating agency. Case of the prosecution cannot be throw out, it will tantamount to be play in the hands of the Investigating Agency and S.C. No. 22/3/09 Page 28/38 miscarriage of justice as well as also injustice to the victim family.
So far as with respect to the common intention of the accused persons for the alleged offence u/s 34 of the IPC. PW14 Surjit Singh and PW24 Mohan Singh Uppal deposed that accused Bakshish Singh @ Manny was driving the offending vehicle and accused Sandeep@ Sunny was sitting on the passenger seat. The accused Sandeep Singh have play role in this incident who observed the deceased while hit with the offending vehicle after incident when he again stand up then instigated to the coaccused Bakshish Singh @ Manny that the Rahul is again stand up, as such coaccused Bakhshish Singh @ Manny reverse the offending vehicle and again hit to the body of Rahul. Herein the role of Sandeep Singh @ Sunny is gather a common intention with the motive to cause utmost hurt to the deceased Rahul to kill him.
PW14 Surjit Singh in his deposition stated that the vehicle was being driven by accused Bakshish Singh @ Manny. Accused Sunny told accused Manny that Rahul is getting up and then he should hit him again and take the vehicle back. There is no suggestion in the cross examination of by defence Counsel to this effect to the PW14 Surjit Singh. It is suggest that alleged incident is case of hit and run case and both the accused has been falsely implicated. PW24 Mohan Singh Uppal testified that the accent car picked up speed and collided with Rahul at that time he had seen Rahul coming out from park talking on his mobile, the driver of the car then look behind and again dashed against the Rahul. S.C. No. 22/3/09 Page 29/38 The accused Manny wearing the Black Tshirt who was driving the vehicle and the other person Sunny was sitting besides him. The common intention is to be gathered from the conduct of the assailants through mental and physical act for commission of the crime and the behaviour of the assembled act on or before the occurrence, it is an inference which is to be deduced from the facts and circumstances of the case. The ingredients of section 34 of IPC the offence has been attracted in pursuance of common intention from the act and conduct of both the accused persons.
Section 34 IPC contemplates the doing of an act by several persons in furtherance of common intention. The necessary conditions for the application of section 34 of the Code are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention is not necessary. If these two ingredients are established all the accused would be liable for the said offence. Criminal sharing overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of section 34 IPC. Proof of participation by acceptable evidence in certain circumstances would lead to a conclusion that the accused has common intention to commit the offence. Presence or absence of community of interest may not be of much significance. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with S.C. No. 22/3/09 Page 30/38 section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. A person may be associated with a crime either as a principal or as an abettor. Section 34 deals with cases wherein all accused persons are principals whereas section 107 enacts law as to abetment. An Abettor is a person, who does not himself commit a crime but aids, instigates or encourages another person to commit a crime. Here the person who commit an offence is different than the person who aids, abets or instigates to do that act.
The act of the accused Sandeep @ Sunny as per the deposition of PW14 Surjit Singh and PW24 Mohan Singh Uppal has specifically created a vital role of accused Sandeep @ Sunny as awakening to the Manny to reverse the vehicle and again hit. The accused Sandeep Singh @ Sunny has told to the accused Bakshish Singh @ Manny to reverse and hit the vehicle again to the deceased Rahul which shows the common intention to commit the crime. The common intention is only to commit crime, coaccused Sandeep Singh @ Sunny actually abstracted coaccused Manny participated in that plan and acting in concert pursuant to conciliation to the commission of offence as both were together on each occasion. The dictionary meaning of " furtherance"
is " advancement" or "promotion".
As regard to the role of the Sandeep @ Sunny, the evidence on record of PW14 Surjit Singh and PW24 Mohan Singh Uppal testified and S.C. No. 22/3/09 Page 31/38 specifically erred mark that accused Sunny sitting on the passenger seat and gave direction to his associate Manny to reverse the car as Rahul again stand up then on his instance car was again reverse and hit to the Rahul. If car will not reverse and hit to the Rahul that thing would have been different and Rahul may be survive, it shows that accused Sunny shared the common intention to commit the crime. Apart from it, the conduct of the accused persons through out after the incident left their premises and run away to face the investigation. Accused persons after failure of result of meeting, have threatened to got recover the alleged due amount by hook and crook. Such conduct is relevant u/s 8 of the Evidence Act to probablising their guilt. The ocular version corroborated by documentary evidence, including the medical opinion. The disclosure statement of the accused persons representation psyche and show their displeasure.
So far as with respect to the to the offence u/s 34 IPC, initially the FIR was registered u/s 279/337 IPC on the basis of rukka prepared by SI Prem Singh vide DD No. 3A dated 12.6.09 Ex. PW13/A and PW21/A. Exception I to IV to section 300 of IPC specify the cases, where culpable homicide will not amount to murder. Exception IV to section 300 of IPC provides that culpable homicide is not murder if it is committed without premeditation;
(ii) it is committed in a sudden fight; and
(iii) the act is committed in the heat of passion upon a sudden S.C. No. 22/3/09 Page 32/38 quarrel provided the offender does not take any undue advantage and does not act in a cruel and unusual manner.
This exception deals with a case where the heat generated by passion clouds sober reasoning of the man and ample him to do an act which he, would not have done in a sober state of mind. In such a case, there is no deliberation or determination to fight with each other and the quarrel takes place at the spur of moment for which both the parties are to be blamed. In a case of this nature, the quarrel may have been started by one party, but it would not have taken a serious turn had it not been aggravated on account of some act or conduct of other party. The number of wounds suffered by the deceased will not be a decisive factor to decide whether a case falls under the main section or it falls under Exception IV to the Section, the requirement of the Section being that the accused must have acted in a fit of anger and the occurrence should not be premeditated or preplanned.
In the present case it is admitted fact that both parties are in near relation and there was a money transaction. There was failure of a meeting to resolve the issued of payment of borrowed amount and the meeting was finished without any result. Thereafter the behaviour of both the parties against each other are strange. There are evidence for extending threat and recovery of money. No consistent evidence of taking revenge by means of murder or used any other mode for committing the crime. There was no pre planned or pre settled for S.C. No. 22/3/09 Page 33/38 causing the death of deceased Rahul. It has come on record that there was no suspicious created upon the accused till the Rahul was expired and statement of PW14 Surjit Singh and PW24 Mohan Singh Uppal was recorded much after expiry of the deceased Rahul. The rough site plan and scaled site plan have also a little variation showing the presence of eyewitness, offending vehicle and the direction of the fallen of the injured/deceased. If there is any intention to commit crime, the accused should not allowed to go to the deceased and threat on dire consequences can be extended from place where the meeting was arranged and there is sufficient distance between the place of meeting and place of incident. The weapon of offence used for commission of crime is an Accent car No. HR51U7925. There is no tyre marks on the body of deceased nor any blood was detected from the place of incident or from the offending vehicle. The MLC and the postmortem report shows that there was multiple fractures on the person of deceased. Though it came in the evidence that accused persons have a malice when found that deceased and his brother reluctant to pay the alleged due amount. There was some altercation followed by quarrel but there was no such incident as taken place between the accused and deceased and his brother Deepak at the meeting place.
In Prakash Chand Vs. State of H.P. 2004(11) SCC, there was a quarrel between the deceased and the accused when the dogs of the accused entered the kitchen room of the deceased. Consequent to the S.C. No. 22/3/09 Page 34/38 verbal altercation that ensued, the accused went to his room, took out his gun and fired a gun shot at the deceased, as a result of which pellets of the gun shot pierced the chest of the deceased, resulting in this death. It was held by the Supreme court that proper conviction of the accused would be under section 304 Part I of IPC and not under section 302 thereof. In Posuram Deshmukh Vs. State of Chhatisgarh , AIR 2009 SC 2482, the deceased had blocked the water course to the field of the accused and he refused to remove the blockade despite request from the accused and some altercation took place between them. The accused persons one of whom was carrying a square iron plate fitted at the one end of a stick and the other who was carrying lathi attacked the deceased with the weapons they were carrying, causing his death. It was held by the Supreme court that appropriate conviction of the appellant/accused would be under section 304 Part I of IPC. In Shaikh Azim Vs. State of Maharashtra, 2008 (11) SCC 695, the deceased and his son were present at their house alongwith other family members. They noticed some filthy thrown in the backyard of their house from the side of the house of the accused and expressed their displeasure in this regard. The family members of the accused also abused them. One of the accused holding a stick, the other holding an iron rod and the third accused holding the stick , came out of their house and gave blows on the head of the deceased. When his son rushed to his rescue, the accused also gave injuries to him with iron rod and sticks. The deceased succumbed to the injuries caused S.C. No. 22/3/09 Page 35/38 to him. It was held that the appropriate conviction of the appellant/accused would be under section 304 Part I of IPC. In Sekar Vs. State 2002 VIII AD (S.C) 295 = 2002 (8) SCC 354, there was exchange of hot words between the deceased and accused on release of a sheep which was destroying the crops of the deceased. The accused and others got the sheep untied which led to exchange of hot words between the parties. When the deceased fell down after the accused had given injuries on his head and left shoulder, the accused again inflicted another blow on his neck. It was held that the case was covered by Exception IV to Section 300 of IPC. In Surinder Kumar Vs. Union Territory AIR 1989 SC 1094, there was heated argument between the parties followed by uttering of filthy abuses. The appellant/accused got enraged, picked up a knife from the kitchen and gave one blow on the neck of the witness and three knife blows, one on the shoulder the second one the elbow and the third one the chest of the deceased. The Supreme Court convicted the appellant under section 304 of IPC.
In the instant case, there is no pre plan or pre arranged for committing the crime. The accused persons follow the deceased and suddenly hit him with the vehicle. There was not previous enmity between the family members of the accused and the family members of the deceased. The accused persons have no motive to commit the murder of the deceased and the injuries was caused during the course of the incident which was under the heat of passion of very triable matter S.C. No. 22/3/09 Page 36/38 involving the payment of alleged due money. The injuries caused by vehicular accident is not within the knowledge of the assailants as to whether it was sufficient in ordinary course of nature to cause death. The only intention was to maximum damage to the body of deceased. The deceased after sustaining the injuries has been shifted from one hospital to the others and there was a damage to limb and the body of the deceased due to transportation and non providing of the timely medical aid. There was no specific intention of the accused persons to commit murder of the deceased. They just wanted to teach the lesson in lieu of non payment of dues. The conduct of the accused persons does not show their intention to commit murder upon any given occasion. The injuries contemplated would have caused death with the knowledge of the accused persons.
Under the facts and circumstances of the case and the material on record the case of the prosecution came within the preview of ingredients for offence u/s 304 Part (II)/34 of the IPC. The accused persons done the act with the knowledge that the injury would likely to cause death but there may not be intention to cause death or an injury likely to cause death. The intention to cause simple or grievous hurt but not an injury likely to cause death.
Therefore, in view of the facts and circumstances of the case and the deposition made by prosecution witness, the prosecution succeeded to bring home the guilt of the accused persons for offence punishable u/s S.C. No. 22/3/09 Page 37/38 304 Part II of the IPC read with section 34 of the IPC. The deposition made by the prosecution witnesses are consistent, trustworthy and believable as the accused persons have a knowledge of the injured to be caused to the deceased is likely to cause the death in the ordinary course of the nature. Therefore, both accused persons namely Bakshish Singh @ Manny and Sandeep Singh @ Sunny, both S/o Sh. Manjeet Singh are hereby convicted for offence punishable u/s 304 Part II of the IPC read with section 34 of the IPC.
ANNOUNCED IN THE OPEN COURT TODAY ON 15.12.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST04) DELHI S.C. No. 22/3/09 Page 38/38