Shyam Sunder & Raj Kumar vs State (Delhi Admn.) 1996 Jcc 35. on 26 July, 2007

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Delhi District Court

Shyam Sunder & Raj Kumar vs State (Delhi Admn.) 1996 Jcc 35. on 26 July, 2007

                              1


IN THE COURT OF SH V.K. GOYAL, ADDL. SESSIONS JUDGE: DELHI.

SESSION CASE NO. 23/06

                          DATE OF INSTITUTION:-21.01.1988.

                          DATE ON WHICH THE JUDGMENT
                          HAS BEEN RESERVED:-18.07.2007.

                          DATE ON WHICH THE JUDGMENT
                          HAS BEEN DELIVERED:-24.07.2007.


                          FIR NO. 441/87
                          PS NABI KARIM.
                          U/S 147/148/149/302 OF IPC.

STATE

VERSUS

1. FAKIR CHAND @ FAKIRA,
  S/O.GANESHI LAL,
  R/O.HOUSE NO.7907, NAI BASTI,
  NABI KARIM, NEW DELHI.

2. JAGDISH @ KALIA,
   S/O.HIRA LAL,
   R/O.HOUSE NO.7898, KATRA GHASI RAM,
   NAI BASTI, NABI KARIM,
   NEW DELHI.

3. RAM SAWROOP,
   S/O.BABU LAL,
   R/O.HOUSE NO.7896, KATRA GHASI RAM,
   NAI BASTI, NABI KARIM,
   NEW DELHI.
                                      2




4. NIRMAL SINGH @ GORIYA,
   S/O. HIRA LAL,
   R/O.HOUSE NO.7898, KATRA GHASI RAM,
   NAI BASTI, NABI KARIM,
   NEW DELHI.

5. VIJAY,
   S/O.BODH RAJ,
   R/O.HOUSE NO.7900, KATRA GHASI RAM,
   NAI BASTI, NABI KARIM,
   NEW DELHI.

6. HIRA LAL, (EXPIRED)
   S/O.MANGAL RAM,
   R/O.HOUSE NO.7898, KATRA GHASI RAM,
   NAI BASTI, NABI KARIM,
   NEW DELHI.

7. DURGA PRASAD,
   S/O.MANGAT RAM,
   R/O.HOUSE NO.7898, KATRA GHASI RAM,
   NAI BASTI, NABI KARIM,
   NEW DELHI.


JUDGMENT:

1. An information was given by one ASI Ram Kumar from PCR at about 8.55 pm that there was a quarrel at House no.7880, Arakashan Road. Police be sent. It was recorded as DD No.21A dated 27/10/87 at Police Station Nabi Karim and was handed over to SI Durga Dutt, who 3 left the Police Station for the spot with Ct.Matu Ram.

2. At about 8.56 pm. ASI Tek Ram from PCR had informed that one Anil Kumar had given information from public phone that in Ram Nagar, Nai Basti, near Maharani Hotel, some sikh persons were quarreling having swords. Police be sent. This information was recorded as DD No.22A dated 27/10/1987 Police Station Nabi Karim. It was handed over to Ct.Satbir Singh, who had handed over the same to SI Durga Dutt at the spot, who had already gone there.

3. The case was registered on the statement dated 27.10.1987 of one Sardar Baldev Singh S/O Sardar Attar Singh, R/O 7880, Aarakshan Road, Pahar Ganj, Delhi, wherein he has stated that today he was present at his house and at about 8.45 pm night, he heard some noise about a quarrel in the gali. He came down from his house and saw that his eldest son Bhagwant Singh @ Billa was being dragged inside the katra and was also being beaten by the boys namely (1) Jagdish @ Kalia S/O Hira Lal, (2) Nirmal Singh @ Goriya S/O Hira Lal, (3) Ram Sawroop S/O Babu Lal, (4) Fakir Chand @ Fakira S/O Ganeshi Lal (5) Durga Parsad S/O Mangat Ram and (6) Hira Lal S/O Mangal Ram, of Katra Ghasiram, Nai Basti, Paharganj, whom he knew being his 4 neighbourers. His son Bhagwant Singh was raising alarm of "bachao- bachao". Meanwhile, his another son Deputy Singh and his nephew Jagjit Singh also rushed to rescue Bhagwant Singh, but they all started pelting stones and bricks on his son Bhagwant Singh in front of Katra Ghasi Ram.

4. He has further stated that Ram Sawroop, Goriya and Hira Lal had also caught hold his son Bhagwant Singh and pushed him down on the ground forcibly. Jagdish @ Kalia gave brick blows badly on his face and forehead. When he, his son and nephew as well as other neighbourers reached then these persons started running. Durga Prasad and Fakira climbed on the roof. At that time, Jagdish @ Kalia gave a lalkara to Fakira and Durga from the ground that they should kill Bhagwant Singh. On hearing this, they pushed the wall and through the same on Bhagwant Singh on the ground with intent to kill him. He himself also sustained head injuries and blood came out from his injuries. Bhagwant Singh sustained serious injuries on his face and forehead and blood oozed out from his injuries. Thereafter, both the accused threw a cot from the roof on the chest of Bhagwant Singh. He with the help of his son Deputy Singh and nephew Jagjit Singh and other 5 neighbourers removed Bhagwant Singh in injured condition from the gali and took him to JPN hospital in the police jeep, where he was declared brought dead. Stitches were also given on his head. All these persons are notorious persons in the locality and used to quarrel in the area. They all also used to tease the sisters and daughters of the locality people. His son Bhagwant Singh and he himself many times tried to restrain them from doing such activities and due to this, they were having enemity with them and to take a revenge of this, they all with their common intention committed the murder of his son and caused injuries to him.

5. On this statement, a rukka was prepared by SI Jagjit Singh and got registered the case FIR no. 441/87 under section 147/148/149/302/323 of IPC Police Station Nabi Karim.

6. During the investigation, site plan was prepared and photographs of the spot were taken by the photographer of Crime Team. Statements of witnesses were recorded. IO got prepared scaled site plan from the draftsman. All the seven accused persons were arrested. Out of which, accused Fakir Chand @ Fakira, Jagdish @ Kalia, Ram Sawroop, Nirmal @ Goriya and Vijay were sent to judicial custody. Accused Hira 6 Lal was admitted to bail. Accused Durga Prasad was admitted to interim bail till 18.01.1988. Proceedings u/s.174 of Cr.P.C. were conducted in respect of deceased Bhagwant Singh. Opinion regarding the cause of death was given by the doctor concerned on the postmortem report. Earth control, blood, two blood stained bricks, debris of wall containing brick pieces and other material, broken cot were taken into possession vide separate seizure memos.

7. From the hospital, blood stained clothes of the deceased, viscera and blood sample were taken and were sent for expert opinion to CFSL.

8. After completion of investigation, charge sheet was filed against all the accused persons before the court of concerned learned Metropolitan Magistrate. It was committed to the court of sessions and was assigned to this court.

9. On 18/07/1988, after hearing the arguments, charges were framed against all the seven accused persons under section 147/148, 302 read with section 149 of IPC and 323 read with section 149 of IPC to which they all pleaded not guilty and claimed trial.

10. To prove its case, prosecution has examined PW-1 to 20 in all. 7 Out of which, PW-2 is complainant Baldev Singh. He was examined on 13/01/1993, 22/08/96 and 02/04/1997 and his cross examination was deferred. Thereafter, he expired on 04/07/1997.

11. PW-5 is Deputy Singh. He has stated that at the time of incident, he was residing at 7880, Arakashan Road, Paharganj, New Delhi. Deceased Bhagwant Singh was his elder brother. He know all the accused persons present in the court. At the time of occurrence, they were living in their neighbourhood. On 27/10/1987 at about 8.45 pm, he was present in his house and was watching TV. He saw his father walking fastly and going out of the house and he also heard alarm of his brother Bhagwant Singh saying bachao-bachao. He also followed his father and went out of the house and saw accused persons ie. Jagdish @ Kalia, Nirmal Singh @ Goriya, Ram Sawroop, Fakir Chand, Durga Parsad, Hira Lal and Vijay, were dragging his brother towards Katra Ghasi Ram. Accused Kalia sat down on the chest of his brother and gave a brick blow on the upper portion of nose touching forehead. Accused Nirmal and Hira Lal had caught hold of his brother from his arms and Ram Sawroop had caught hold of his brother from his leg and accused Vijay had thrown stones upon his brother. Accused Fakir 8 Chand and Durga Dass went upstairs and threw a kacha wall on his brother Bhagwant Singh. Vijay also followed them and went upstairs and then they threw a cot on his brother. He and his father went towards his brother. None of the persons of their locality had dared to come there as they were all afraid of accused persons as they are gundas of that area.

12. In the meantime, police also arrived there and his brother was removed to the hospital, where he was declared as having brought dead. He and his father also accompanied the police in taking Bhagwant Singh to the hospital. His father had also sustained injuries in the alleged incident on his head. On seeing the police, all the accused persons had escaped from the spot. He joined the inquest proceedings and identified the dead body of his brother vide his statement Ex.PW-5/A, which bears his signatures at point A.

13. His cousin Jagjit Singh had also come to their house on the day of occurrence in order to fix the date of marriage of his sister. After having food at about 8.30-8.45 pm, he had gone for stroll outside the house and at the time of occurrence, he had also reached there and had seen the accused persons giving beatings to his deceased brother at the 9 spot. He also reached of his own to the hospital, where the deceased was taken.

14. PW-7 is Jagjit Singh. He is nephew of the complainant. He was partly examined on 09.07.1998 and his examination-in-chief was deferred for the want of case property. Later on, he was not produced by the prosecution for further examination.

15. PW-9 is Harbhajan Singh. He has stated that in the year 1987, talks were going on for the marriage of his son Harjeet Singh with Surjit Kaur daughter of Mehar Singh. On 27/10/1987, he had a talk with Baldev Singh on telephone and he told him that date of marriage had been fixed as 22/11/1987 but he told him that he will confirm the date after consultation with his other family members. When he telephoned at about 9 pm to Baldev Singh, he came to know of the incident and was stunned to hear, hence the marriage was postponed.

16. PW-10 is Wazir Chand. He has stated that on 27/10/1987, at about 8.45 pm, he heard voice of brick batting in gali Ram Nagar, Nai Basti and saw that Sardar Baldev Singh with some others was taking his injured son Bhagwant Singh towards Sanjeevan Nursing Home. He was in injured condition and was appearing as unconscious. He did not see 10 injuries on the person of Baldev Singh as he was standing at a little distance. Police had come on the spot after about half an hour. He does not know who had caused injuries to Bhagwant Singh. He know accused persons present in the court but he did not see them causing injuries to Bhagwant Singh or Baldev Singh. In the year 1984 also, Bhagwant Singh had come running to his room and he was praying to save him as somebody was hitting him. He did not see the accused persons chasing him even in 1984. This witness has been cross examined by the learned APP as he has resiled from his previous statement.

17. Witnesses to the investigation of the PCR are PW-12,13 and 16.

18. PW-13 is ASI Tek Ram. He has stated that on 27/10/87, he was posted in PCR and on the information in the PCR, he recorded DD No.22A, which has been destroyed vide order dated 27/02/1990. Again said, the said DD was got recorded in the Police Station Nabi Karim on his information.

19. PW-12 is HC Randhir Singh. He has stated that on 22/10/87, he was on duty at PCR Van R-19 from 8.00 am to 8.00 pm. Again from 8 PM to 8 AM. At about 8.45 pm, he received an information regarding 11 some quarrel, which was going on near Maharani Hotel in the street in the area of Police Station Nabi Karim. He reached at the spot and found huge number of public persons collected there. They disbursed them and found a person lying on the ground in injured condition bleeding profusely. He was a sikh gentleman. He put him in the PCR Van and got him admitted in the Irwin Hospital and gave information to the PCR Van. He did not see any other injured person at the spot nor he removed any one else to the hospital. He was cross examined by ld.APP as he has resiled from his earlier statement. In the cross examination, he has stated that his statement was recorded by the IO. He has been confronted with some part of his statement.

20. PW-16 is HC Brahm Pal. He has stated that on 27/10/87, he was on duty on PCR Van R-19 with HC Randhir Singh from 8.00 pm to 8.00 am and on receipt of call at about 8.45 pm, they reached at the spot and found public persons collected there. Two sikh persons namely Baldev Singh and Bhagwant Singh were found there. Injured Baldev was bleeding from his head while blood was coming out from the mouth of Bhagwant Singh. They removed both the injured to JPN Hospital. Bhagwant Singh was declared dead. Baldev Singh was admitted in the 12 hospital.

21. Witnesses to the investigation are PW-17,18,6,8,11,1,4,14 and

15.

22. PW-17 is HC Hari Chand. He has stated that he alongwith constable Vijay was on patrolling duty in the area on 27/10/87, while posted in Police Station Nabi Karim. When they reached near Ajanta Hotel, Arakashan Road, SI Jagjit Singh and Ct.Naresh Kumar met them there. They also joined them for patrolling. When they reached near South Eastern Transport Company, they saw a PCR Van had come at a fast speed from Katra Ghasi Ram. They rushed towards Katra Ghasi Ram. There was a great noise and many persons had collected there. They disbursed the crowd. SI Durga Dutt and Ct.Matu Ram were already present there. They were left behind. SI Jagjit Singh alongwith SI Durga Prasad and Ct.Naresh went to JPN Hospital after making some enquiries by SI Jagjit Singh at the spot. He alongwith Ct.Vijay Kumar and Ct.Matu Ram were directed to remain present at the spot. IO came back at the spot after about 1 or 1½ hour and prepared site plan. One Charpai, brick bats blood and earth control etc. were taken into possession. Photographs of the spot were taken. They came to know 13 about the incident from the public persons. He has identified the signatures of SI Jagjit Singh on rukka mark A and also on site plan Ex.PW-1/DA, recovery memos and all the inquest proceedings.

23. PW-18 is SI Jagjit Singh. He has stated that on 27/10/87, he was posted at Police Station Nabi Karim. He was on patrolling duty with Ct.Naresh in the Ilaka and when they reached near Ajanta Guest House, they met Ct.Hari Chand and Ct.Vijay and they also joined the patrolling with them. When they all reached at Arakashan Road, they saw a PCR Van coming on a fast speed from Katra Ghasi Ram. They also heard some noise and reached there. They saw public persons gathered there. Crowd was disbursed. SI Durga Dutt and Ct.Matu Ram were already present there. All the injured persons, who were two in number, were removed to hospital by PCR Van. He also went to the hospital and left behind Ct.Hari Chand, Ct.Vijay and Ct.Matu Ram at the spot. Injured Bhagwant Singh was declared brought dead and injured Baldev Singh was discharged after First Aid. He recorded statement Ex.PW-2/A of Baldev Singh and made endorsement Ex.PW-18/A and sent a rukka through Ct.Naresh to Police Station for the registration of the case. FIR Ex.PW-4/A was registered. He also examined witnesses Deputy Singh, 14 Jagdish Singh and HC Randhir Singh of PCR in the hospital. Thereafter, he came back to the spot alongwith SI Durga Dutt and injured Baldev Singh. On the pointing out of Baldev Singh, he prepared site plan Ex.PW-18/B. Photographer was also called, who took the photographs of the spot. These are mark A1 to A11. He recorded the statement of the photographer. He took into possession the blood from the spot vide memo Ex.PW-1/A, blood stained earth control vide memo Ex.PW-1/B, two bricks and piece of china clay having blood stains vide memo Ex.PW-1/C and one cot vide memo Ex.PW-1/D. Except cot, the other articles were sealed separately with the seal of JSG. He handed over all the exhibits to SI Durga Dutt to deposit the same in the Malkhana. He alongwith Ct.Hari Chand and Ct.Vijay Singh went in search of accused persons.

24. On 28/10/87, he arrested accused Fakir Chand and Durga Prasad. Their personal search were conducted vide memos Ex.PW- 18/C and Ex.PW-18/D. Accused both were kept in lock up. He deposited the case property in Police Station Malkhana and left for JPN Hospital mortuary. He prepared inquest papers Ex.PW-18/E to Ex.PW- 18/K and Ex.PW-5/A and sent the dead body for postmortem. After the 15 postmortem, dead body was handed over to its legal heirs. He also seized two sealed pullandas and postmortem report vide memo Ex.PW- 11/A. He also seized the clothes of the deceased vide memo Ex.PW- 18/L.

25. On 29/10/87, he arrested accused Hira Lal, who is now dead. On 31/10/87, he arrested accused Jagdish. Accused Ram Saroop was arrested on 02/11/87. Accused Nirmal Singh was arrested on 23/11/87. Accused Vijay was arrested on 27/11/87. He sent the exhibits to CFSL and obtained report Ex.PW-18/M. He got prepared the scaled site plan and prepared the challan against the accused persons after the completion of the investigation.

26. PW-6 is ASI Raghubir Singh. He has stated that on 27/10/87, he was posted as Photographer in Crime Team Central District, Police Station Pahar Ganj. He was called by SI Jagjit Singh at the spot at Gali Katra Ghasi Ram, Nai Basti, Ram Nagar, Nabi Karim and at the instance of IO, he took the photographs of the spot from different angles. Pieces of bricks, stones, broken cot and blood stains were lying in the gali. He had also taken photographs of these articles. Negatives of the photographs have been destroyed vide order no.18449 Gen.(1) Crime & 16 Railway dated 26/07/94. He has identified the photographs taken by him at the spot which are 12 in number and are marked as A-1 to A-12.

27. PW-8 is Inspector Devinder Singh, Draughtsman, Crime Branch. He has stated that on 08/12/87, on the request of IO, he visited the place of occurrence at Arakashan Road, Police Station Nabi Karim and prepared rough notes and took measurements on the pointing out of Baldev Singh. Subsequently, on the basis of those notes, he prepared scaled site plan Ex.PW-8/A in his office on 03/08/88. All the marginal notes are in his handwriting. He had destroyed the rough notes after preparing the scaled site plan.

28. PW-11 is Ct.Ram Sarup. He has stated that on 28/10/87, he was posted in Police Station Nabi Karim. On that day, he and Ct.Jai Pal had gone to JPN Hospital where IO completed the inquest proceedings. SHO also reached there and took all the papers of the inquest proceedings. They came to mortuary, JPN Hospital. After postmortem of the dead body, it was handed over to Baldev Singh, father of the deceased. SHO and IO went to the court. He remained at the mortuary. Doctor gave them two sealed parcels and wooden box containing viscera with sample seal, which they handed over to the IO, which he 17 seized vide memo Ex.PW-11/A. So long as the pullandas remained in his custody, seals on them remained intact.

29. PW-1 is SI Durga Dutt. On the intervening night of 27/28th October, 1987, he was Emergency Officer at police station Nabi Karim and was on duty from 8.00 pm to 8.00 am. On receipt of DD entry no. 21A Mark A at 8.55 PM dated 27/10/87 from Duty Officer for enquiry, while he was going to the place of occurrence alongwith constable Matu Ram and when he reached Qutab Road, near Tail Mill Road, constable Satbir Singh came to him and handed over to him the copy of DD entry no. 22A dated 27/10/1987. He discharged constable Satbir Singh and alongwith constable Matu Ram reached near Maharani Guest House and on enquiry, he came to know that a jhagra was taking place in Nai Basti, Ram Nagar. When he proceeded alongwith Ct.Matu Ram to the said place, he found SI Jagjit Singh alongwith constable Vijay Singh, Naresh Kumar and constable Harish Chand dispersing the crowd near katra Ghasi Ram.

30. At that place, he came to know that the injured persons had been removed to the hospital by the PCR van. He left constable Vijay, constable Harish Chand and constable Matu Ram at the said place to 18 guard the spot and he alongwith SI Jagjit Singh, constable Naresh went to JPN hospital. From there, SI Jagjit Singh obtained the MLC's of Bhagwant Singh and Baldev Singh. Bhagwant Singh had been declared to be brought dead and Baldev Singh had been discharged. Thereafter, SI Jagjit Singh recorded the statement of Baldev Singh and sent a rukka to the police station through constable Naresh Kumar for the registration of the case. At the hospital, SI also recorded the statements of one HC of PCR and Jagjit Singh and son of Baldev Singh. Thereafter, he alongwith SI Jagjit Singh and Baldev Singh had come to the spot at Katra Ghasi Ram. SI inspected the spot and prepared site plan. Photographs of the spot were also taken. He also lifted blood sample and blood stained bricks and a piece of blood stained china clay and earth sample. A blood stained cot, earth samples were also taken. The cot was lying at the spot and was in broken condition. Same was also taken into possession. The blood sample, bricks stained with blood, china clay and earth sample were put in separate parcels and were sealed with the seal of JSG and were seized vide memos Ex. PW-1/A to PW-1/D. No parcel was prepared of the broken cot. Seal after use, parcels and the said cot were handed over to him.

31. He has brought the articles to the police station and on the next day at about 9 AM, he handed over the same to SI Jagjit Singh. He did not tamper with the said articles or the samples till such time they remained in his custody. He has exhibited both the DDs as mark A and B. He has identified the case property i.e. charpai as Ex.P-1, two bricks as Ex.P-2 and Ex.P-3 and piece of china clay as Ex.P-4 before the court.

32. PW-4 is Inspector Bhim Singh. On 27/10/1987, while posted at police station Nabi Karim, he was working as duty officer from 4 PM to 12 night. On that day, at about 10.35 PM, he received one rukka with the endorsement of SI Jagjit Singh through constable Naresh Kumar for registration of a case under section 147/148/149/302/323 of IPC. On the basis of the same, he recorded FIR no. 441/87, copy of which is Ex.PW- 4/A. After registration of the case, he sent the special report to the illaqa Magistrate and the senior police officials through constable Sikandar Kumar and a copy of the FIR and rukka was handed over to constable Naresh Kumar for handing over the same to the IO. He has brought the original FIR register. He has also recorded DD no. 25A dated 27/10/1987 for registration of the case.

33. He also recorded DD no. 21A at 8.55 PM, and 22A at 8.56 PM which were got recorded by ASI Ram Kumar and ASI Tek Ram respectively from PCR. Copies of both the DDs are Ex. PW-4/B and Ex. PW-4/C. On the same day, he also recorded DD No.80B at about 8.46 pm, copy of which is Ex.PW-4/D. He has stated that the Roznamcha containing these DDs has been destroyed vide letter no.1554-57/NAR/C dated 17/02/1994 from the DCP.

34. PW-14 is ASI Subash Chand. He has stated that on 27/10/87, SI Jagjit Singh deposited one charpai and three sealed pullandas of this case, which he entered in the malkhana register at serial no.1073.

35. On 28/10/87, again he was working as MHC(M) and SI Jagjit Singh deposited one sealed wooden box alongwith two sealed envelopes and a sample blood, which he entered in the register at serial no.1077. He also deposited the sample seals. On 30/10/87, SI Jagjit Singh also deposited one sealed pullanda duly sealed with the seal of CMO JPN Hospital, which he entered in the register at serial no.1081.

36. On 06/11/87, he sent all these pullandas to CFSL through Ct.Vijay Singh vide RC No.118/21. So long as the pullandas remained in his custody, the seal on them remained intact. After depositing the 21 pullandas, Ct.Vijay Singh gave him a receipt. Copy of entries is Ex.PW- 14/A.

37. PW-15 is HC Satinder Kumar. He has stated that on 27/10/87, he was posted at Police Station Nabi Karim and on that day, Duty Officer handed over to him Special Report to be delivered to concerned Ilaka Metropolitan Magistrate and Senior Police Officers and he delivered the same to them on that very day.

38. Witnesses to the MLC are PW-3,19 and 20.

39. PW-3 is A. R. Mehto, record clerk, JPN hospital, Delhi. He has been examined on 25/07/1997 but his examination-in-chief was deferred. Later on, he has not been further examined by the prosecution.

40. PW-19 is Dr. M.S.Chopra, Head of Casualty and Emergency, LNJP Hospital and stated that he is working in the above hospital since 1977. He has seen MLC No.101599 of Bhagwant Singh, who was brought dead to casualty. MLC Ex.PW-3/A was prepared by Dr.Manoj, who has left the services of the hospital. The said doctor had also worked with him and he had seen him writing and signing during the official course of duties.

41. He has further stated that he has seen MLC Ex.PW-3/B, which 22 was prepared by Dr.Prem Kumar, who has also left the services of the hospital. The said doctor had also worked with him and he had seen him writing and signing during the official course of duties.

42. PW-20 is Dr.Bishnu Kumar. He has stated that on 27/10/87, while he was posted as Professor in Department of Forensic Medicines at Maulana Azad Medical College, he conducted the postmortem on the body of Bhagwant Singh S/o.Baldev Singh aged about 35 years, which was brought by Ct.Ram Sawroop of Police Station Nabi Karim and was identified by Sh.Baldev Singh and Sh.Deputy Singh, father and brother respectively of the deceased. The probable time between death and the postmortem examination was about 14-15 hours.

43. On external examination of the body, following injuries were present.

1. Abrasion 7 X 6 cm on the outer upper part of right side of forehead.

2. Multiple abrasions with superfacial lacerations in its middle in 4 X 2 cm area on the middle of forehead above the bridge of the nose.

3. Lacerated wound 4.5 X 4 cm in the bridge of the nose and area around exposing the underneath nasal bone which has fractured in 23 several pieces with surrounding abrasions of 6 X 5 cm.

4. Linear abrasion 7 X 1 cm vertical on the right side of cheek.

5. Abrasion 5 X 3 cm on the front of right shoulder joint region.

6. Abrasion 2 X 1 cm on the outer back part of lower part of right arm.

7. Multiple abrasions in 4 X 1 cm in the back and outer part of right elbow.

8. Abrasions 5 X 2 cm on the middle region of right forearm in inner back part.

9. Abrasion 6 X 1.5 cm in the outer part of front of right elbow region.

10. Graze abrasion 6 X 5 cm on the outer border of right forearm at the junction of upper 1/3rd with lower 2/3rd.

11. Graze abrasion 3 X 3 cm on the back of right hand at the base of thumb.

12. Abrasions 0.5 X 0.5 cm on the front of right knee region.

13. Multiple abrasion in 2.5 X 0.5 cm on the upper front part of the right leg.

14. Abrasion 15 X 3 cm, transverse on the upper front part of right side chest above the level of nipple with oblique markings.

15. Graze abrasion 6 X 2 cm, vertical on the back in the upper outer scapular region.

44. On internal examination, stomach contained cream colour semi- digested food with questionable alcoholic smell, wind pipe contained blood. Internal examination of head showed blood extra vasation in scalp in both frontal regions with fissured fracture involving both side frontal bones and continuous on to the base in both frontal and middle fossae. Bruising on the base of right temporal and occipital lobes in outer part was also seen. Subarachnoid patchy haemorrhages were present in outer surfaces of both cerebral hemispheres. Ventricles of brain were filled with blood mainly in lateral ones. Medulla and Pons were oedematous with evidence of mushrooming of Medulla on cutting. Pituitary gland showed plenty of bruising.

45. He has further stated that rest of the organs did not show anything significant. In his opinion that death in this case was due to cranio-cerebral damage mainly as a result of blunt force impact on head and nose region. All the injuries were ante mortem, recent and could be 25 caused by blunt object or surface. Viscera was preserved as there was suspicion of alcoholic intoxication. Postmortem report is Ex.PW-20/A.

46. After completion of the evidence, statements of all the six accused persons were recorded. They have denied the evidence on record and stated that they are innocent and falsely implicated in the present case. No such incident occurred at the spot. They were not present there.

47. In defence, DW-1 Bhim Rao, has been examined, who has stated on 27/10/1987, he had come from Sadar Market with the article which he had purchased at about 8-8.15 PM. He got down from the rikshaw and he fell for nature of cause and near from the place, he heard some noise and turned back and only Sardar persons were visible. A scuffle was going on from the sardar. Billey was brought by sardar i.e. 5/6 in numbers and started giving beating. Meanwhile, 3-4 more persons i.e. balley etc. and further persons arms with sword and when they came there, those Sardarji's left him and ran from there. None of the accused persons were present there.

48. I have heard the learned APP for the State and counsel Sh.Jitender Sethi for all the six accused persons and also gone through 26 the material placed on record.

49. The learned defence counsel has contended that two DDs were recorded. Out of which, DD no. 21A was recorded at about 8.55 pm regarding a quarrel at House no.7880, Arakashan Road and was handed over to SI Durga Dutt, who left the Police Station for the spot with Ct.Matu Ram and DD no. 22A was recorded at about 8.56 PM regarding the information that some sikh persons were quarreling having swords near Maharani Hotel, Nai Basti and the same was handed over to Ct.Satbir Singh, who had handed over the same to SI Durga Dutt at the spot, who had already gone there.

50. It is also contended that police reached at the spot but neither any of the accused person is sikh nor was found having sword with him. It is further contended by the learned defence counsel that PW-18 has admitted in his cross examination that he made enquiries about DD no. 22A but did not record the statement of any person. In support of his contention, the learned defence counsel has relied upon the judgment Shyam Sunder & Raj Kumar Vs State (Delhi Admn.) 1996 JCC 35.

51. It is further contended by the learned defence counsel that as per deposition of PW-18, a quarrel took place at 7880, Arakashan Road 27 but PW-5 is silent about the quarrel took place at 7880, Arakashan Road.

52. It is contended by the learned defence counsel that there is no public witness although area is fully populated. It is also contended by the learned defence counsel that the electric polls have not been shown in the site plan. In the scaled site plan, electric polls have been shown at point E,F and G but it is not mentioned whether these were in working condition or not. It is further contended that the witnesses have contradicted each other regarding some material point. PW-12 has resiled from his previous statement and has stated that he removed only one person to JPN hospital, who was declared brought dead by the doctor and Baldev Singh was not discharged after First Aid. PW-10 has stated that Baldev Singh removed his son to Sanjeevan Nursing Home.

53. It is further contended that PW-18 has stated that he met with PW-5 and Baldev Singh whereas the name of PW-5 has not been mentioned in the rukka. In the cross examination, PW-18 has stated that Baldev Singh met him after sending the rukka and the name of Baldev Singh is mentioned in the rukka. It is contended that from this, it is clear that FIR is anti time and in support of the same, the learned defence 28 counsel has relied upon the judgment Balwant Singh Vs The State, 1976 CLR (Delhi) 41 Vol.IV.

54. It is further contended by the learned defence counsel that PW- 12 has stated that Baldev Singh was not discharged after First Aid, whereas PW-10 has stated that Baldev Singh had not sustained injuries. It is also contended that according to the deposition of PW-20, the food which was found in the stomach of the deceased was having alcoholic smell.

55. It is further contended by the learned defence counsel that PW- 2 and 7 are also eye witnesses to the incident. Examination in chief of PW-2 was deferred but later on he died. Examination-in-chief of PW-7 was deferred for want of case property but later on he was not produced by the prosecution for further examination, hence their testimonies can not be looked into and can not be read in evidence in any manner. Similarly, PW-3 A. R. Mehto, Record Clerk from JPN hospital was also examined and his examination in chief was deferred but later on prosecution has not examined this witness further, hence his testimony can not be looked into and can not be read in evidence in any manner. In support of his contention, the learned defence counsel has relied upon 29 the judgment Gian Chand Vs State, 2007(2) JCC 1292, wherein it has been held that if the evidence of the material witness were not subjected to cross examination by the learned defence counsel, the said evidence can not be relied upon in any manner. Hence in view of the above, the testimonies of PW-2,3 and 7 can not be read in evidence in any manner.

56. The learned defence counsel has further contended that there are unexplained facts arised from the testimonies of the witnesses, hence it can not be said that accused have committed the offence charged and further requested that in view of the same, accused all be acquitted. In support of his contention, the learned defence counsel has relied upon the judgment Ashok Kumar Vs State (Govt. of NCT of Delhi), 2007 (1) JCC 273.

57. The learned defence counsel has also contended that the presence of PW-5 at the spot is doubtful, hence he can not be relied upon in any manner.

58. In view of the submissions of the learned defence counsels, PW-2,3 and 7 can not be read in evidence, hence the only eye witness, who has left for consideration is PW-5. He has stated that at the time of 30 incident, he was residing at 7880, Arakashan Road, Paharganj, New Delhi. Deceased Bhagwant Singh was his elder brother. He know all the accused persons present in the court. At the time of occurrence, they were living in their neighbourhood. On 27/10/1987 at about 8.45 pm, he was present in his house and was watching TV. He saw his father walking fastly and going out of the house and he also heard alarm of his brother Bhagwant Singh saying bachao-bachao. He also followed his father and went out of the house and saw accused persons ie. Jagdish @ Kalia, Nirmal Singh @ Goriya, Ram Sawroop, Fakir Chand, Durga Parsad, Hira Lal and Vijay, were dragging his brother towards Katra Ghasi Ram. Accused Kalia sat on the chest of his brother and gave a brick blow on the upper portion of nose touching forehead. Accused Nirmal and Hira Lal had caught hold of his brother from his arms and Ram Sawroop had caught hold of his brother from his leg and accused Vijay had thrown stones upon his brother. Accused Fakir Chand and Durga Dass went upstairs and threw a kacha wall on his brother Bhagwant Singh. Vijay also followed them and went upstairs and then they threw a cot on his brother. He and his father went towards his brother. None of the persons of their locality had dared to come there as 31 they were all afraid of accused persons as they are gundas of that area.

59. In the meantime, police also arrived there and his brother was removed to the hospital, where he was declared brought dead. He and his father also accompanied the police in taking Bhagwant Singh to the hospital.

60. On receipt of DD no. 21A, SI Durga Dutt alongwith constable Matu Ram went for enquiries at the spot and when he reached Qutab Road, near Tail Mill Road, constable Satbir Singh came to him and handed over to him the copy of DD no. 22A dated 27/10/1987. He discharged constable Satbir Singh and alongwith constable Matu Ram reached near Maharani Guest House and on enquiry, he came to know that a jhagra was taking place in Nai Basti, Ram Nagar. When he proceeded alongwith Ct.Matu Ram to the said place, he found SI Jagjit Singh alongwith constable Vijay Singh, Naresh Kumar and constable Harish Chand dispersing the crowd near katra Ghasi Ram.

61. At that place, he came to know that the injured persons had been removed to the hospital by the PCR van. He left constable Vijay, constable Harish Chand and constable Matu Ram at the said place to guard the spot and he alongwith SI Jagjit Singh, constable Naresh went 32 to JPN hospital.

62. PCR officials are PW-16 and 18. PW-16 has stated that when he reached at the spot, he found two sikh persons Baldev Singh and Bhagwant Singh in injured condition. Injured Baldev was bleeding from his head while blood was coming out from the mouth of Bhagwant Singh. They removed both the injured to JPN Hospital. Bhagwant Singh was declared brought dead. Baldev Singh was admitted in the hospital. On the other hand, PW-12 has stated that he reached at the spot and found huge number of public persons collected there. They dispersed them and found a person lying on the ground in injured condition bleeding profusely. He was a sikh gentleman. He put him in the PCR van and got him admitted in the Irwin hospital. He did not see any other injured person at the spot nor he removed anyone else to the hospital.

63. He has been cross examined by the learned APP but even then he has not supported the case of the prosecution and again told that he took only one person to the hospital, who was declared brought dead.

64. On the other hand, in the cross examination, PW-16 has denied the suggestion that Baldev Singh was not found by them at the spot in an injured condition or that they did not remove him to the hospital. 33

65. PW-18, who reached at the spot, has stated that all the injured persons i.e. who were two in number were removed to hospital by the PCR. He also went to the hospital. Injured Bhagwant Singh was declared brought dead and injured Baldev Singh was discharged after first aid. He also examined witnesses Deputy Singh, Jagjit Singh and HC Ranbir Singh of PCR in the hospital.

66. In the cross examination, PW-5 has stated that he was at a distance of 80-100 sq. yards. He tried to save his brother from the clutches of the accused persons as they were dragging his brother towards Katra Ghasiram. He has further stated that his father received a stone injury on his head in the process. He has further stated that police reached at the spot within 10-15 minutes. Thereafter, PCR van also reached there. Police did not enquire from him anything at that time because he had left for the hospital with his injured brother in the PCR van. At that time, his brother was bleeding profusely.

67. PW-5 has denied the suggestion that he had not witnessed the occurrence as stated by him in his examination in chief. He has also denied the suggestion that he had not accompanied or taken his brother and father to the hospital in the PCR van.

68. In the examination in chief, the witness has given the details of incident, which could not have been possible for him if he had not seen the incident. He has also told about the injuries, which were sustained by his father on his forehead. The details and the manner in which accused persons caused injuries to his brother also corroborated with postmortem report proved by PW-20. It has been stated by PW-5 that accused Kalia sat on the chest of his brother and gave a brick blow on the upper portion of nose touching forehead. As per PW-20, multiple abrasions with superfacial lacerations in its middle in 4 X 2 cm area on the middle of forehead above the bridge of the nose were found and similarly, lacerated wound 4.5 X 4 cm in the bridge of the nose and area around exposing the underneath nasal bone which has fractured in several pieces with surrounding abrasions of 6 X 5 cm were found. Cause of death was due to cranio-cerebral damage mainly as a result of blunt force impact on head and nose region. All the injuries were ante mortem, recent and could be caused by blunt object or surface.

69. PW-5 has further stated that accused all dragged his brother towards Katra Ghasiram. This fact has also been corroborated with the postmortem report wherein it is mentioned that abrasion 2 X 1 cm on the 35 outer back part of lower part of right arm and multiple abrasions in 4 X 1 cm in the back and outer part of right elbow and graze abrasion 6 X 2 cm, vertical on the back in the upper outer scapular region were found.

70. PW-5 has further stated that accused Faqir Chand and Durga Dass went upstairs and threw a kacha wall on his brother Bhagwant Singh. Accused Vijay also went upstairs and they threw a cot on his brother. This fact has further been corroborated with the postmortem report wherein it is mentioned that Abrasion 15 X 3 cm, transverse on the upper front part of right side chest above the level of nipple with oblique markings were also found. It has not been suggested to the witness that deceased Bhagwant Singh and his father Baldev Singh sustained injuries due to some other reasons.

71. It is proved that accused Bhagwant Singh and Baldev Singh sustained injuries and if the accused persons had not caused such injured then no other cause has been brought on record as to how they sustained injuries. It is also proved that Bhagwant Singh was found bleeding profusely lying on the ground in Katra Ghasiram, from where he was removed to JPN hospital by the PCR.

72. PW-18 has stated that he took into possession the blood from 36 the spot vide memo Ex.PW-1/A, blood stained earth control vide memo Ex.PW-1/B, two bricks and piece of china clay having blood stains vide memo Ex.PW-1/C and one cot vide memo Ex.PW-1/D. PW-17 has also corroborated with PW-18 regarding the investigation done by PW-18 at the spot. He has also deposed that all the documents are in the handwriting of PW-18 and bears his signatures.

73. PW-6 is ASI Raghubir Singh, who on 27/10/87, was called by SI Jagjit Singh at the spot at Gali Katra Ghasi Ram, Nai Basti, Ram Nagar, Nabi Karim and at the instance of IO, he took the photographs of the spot from different angles. Pieces of bricks, stones, broken cot and blood stains were found lying in the gali. He had also taken photographs of these articles. This witness has not been cross examined by the learned defence counsel for the accused persons in any manner.

74. In view of the above, the prosecution has been able to prove that the above articles were lying at the spot having blood stains. In such circumstances, it can not be said that no incident took place as deposed by PW-5. The manner in which, PW-5 has deposed the facts of the incident clearly shows that he was present at the spot and went to the hospital with his brother and father where his statement was 37 recorded by PW-18. Hence, the contention of the learned defence counsel for the accused persons regarding the fact that the presence of PW-5 is doubtful at the spot, is not tenable in any manner.

75. PW-16 and 18 have corroborated each other regarding the fact that from the spot injured Baldev Singh, who was bleeding from his head, while blood was coming out from the mouth of Bhagwant Singh, were removed to JPN hospital. Whereas, PW-12 has not corroborated with PW-16 and 18 and has stated that only Bhagwant Singh was removed to JPN hospital. He has been confronted with the statement but even then he has not supported the case of the prosecution. It is not known why he has deposed contrary to the facts on record and to the depositions of PW-16 and 18. Even from the rukka Ex. PW-18/A, it is clear that Baldev Singh was found present in the hospital and he was discharged after First Aid. It is also mentioned in the rukka that injured were removed by the PCR to JPN hospital.

76. The learned defence counsel has contended that according to DD no. 21A and 22A, which were recorded at 8.55 PM and 8.56 PM respectively, there was a quarrel at 7880, Aarkashan Road and some sikh gentlemen were quarreling near Maharani Hotel having swords in 38 their hands. These DDs were given to PW-1 SI Durga Dutt, who reached at the spot but had not found any such quarrel as mentioned in both DDs rather he came to know at the spot that the injured persons were already removed by PCR van to JPN hospital. He reached at the hospital, where SI Jagjit Singh obtained the MLC's of Baldev Singh and Bhagwant Singh. Baldev Singh had been discharged but Bhagwant Singh had been declared brought dead. In the hospital, statement of Baldev Singh was recorded. SI also recorded the statements of HC of PCR and Jagjit Singh and the son of Baldev Singh in the hospital and sent a rukka to the Police Station through constable Naresh Kumar for the registration of the case. Thereafter, they came back to the place of occurrence and further investigation was done.

77. In the cross examination, he has stated that in the DD given to him for enquiry, it was written that Sardars were fighting with swords at the spot. None from the accused persons was Sardar and none of them was found present at the spot. He did not make any investigation if any of them was sikh. Similarly, PW-18 has stated in the cross examination that he enquired about DD no. 22A to the effect that certain sikhs were quarreling duly armed with sword, from the staff of Maharani Hotel but 39 did not record statement of any of them. He also made enquiries from the inhabitants of the building adjoining Maharani Hotel about the said quarrel, but did not record their statements.

78. From the depositions and cross examinations of PW-1 and 18, it is clear that both the DDs were not having any substance as found in the investigation and it is not known as to why such information were given to the police and who informed about the facts as mentioned in both DDs because at the spot, when these police officials reached, they saw the injured Bhagwant Singh bleeding profusely from his mouth lying on the ground and another injured Baldev Singh bleeding from his forehead had sustained injuries in this incident. In these circumstances, both the DDs became irrelevant and were without any substance. It is not the defence of the accused persons that Baldev Singh, Bhagwant Singh, Deputy Singh and Jagjit Singh were attacked on the accused persons with the swords or they were quarreling with some persons. Neither such material has been placed on record nor suggested to any of the witness that when the PCR official reached at the spot and when the police official reached at the spot later on, swords were found lying at the spot or in the hands of some sikh gentlemen or in the hands of the 40 injured/complainant party by any of the police official.

79. In defence, accused persons have examined only DW-1 Bhim Rao, who has stated on 27/10/1987, he had come from Sadar Market with the article which he had purchased at about 8-8.15 PM. He got down from the rikshaw and he fell for nature of cause and near from the place, he heard some noise and turned back and only Sardar persons were visible. A scuffle was going on from the sardar. Billey was brought by sardar i.e. 5/6 in numbers and started giving beating. Meanwhile, 3-4 more persons i.e. balley etc. and further persons arms with sword and when they came there, those Sardarji's left him and ran from there. None of the accused persons were present there.

80. It has already been discussed above that no such incident took place as per DD no. 22A and no sword was found at the spot. Prior to the examination of this witness i.e. DW-1 before the court in year 2002 and at the earlier occasions, he had not informed any authority or police that he was witness to the incident and the accused persons were innocent. It has also not be explained as to who were Billey and Balley. None of the accused is named as Billey or Balley. From the deposition of DW-1, it is clear that what he wanted to say is that some sardars were 41 visible to him. One Billey was brought by sardar and they started beating him. Meanwhile, one Balley and 3-4 persons armed with swords came there and those sardars left Billey and ran from there. From the deposition of DW-1, it is clear that Balley and 3-4 persons armed with the swords and not those sardar persons, who were seen by him. DW-1 has not stated that the sardars who were seen by him were the member of injured/complainant party. DW-1 has also not stated that Billey and Balley were from the accused persons facing trial before the court. Rather he has stated that none of the accused persons was present at the spot. Accused persons have also taken the plea in their statements recorded under section 313 of Cr. P. C. that they were not present there but they have not disclosed and proved as to where they were present at the time of incident if they were not present at the spot and burden to prove this fact was upon the accused persons because they have taken the plea that they were not present at the spot at the time of incident. It has not been suggested so in the cross examination to PW-5 that accused persons were not present at the spot. It is suggested to PW-5 that accused persons had not caused any injury either to his brother or to his father, which he has denied. Both the suggestions have a lot of 42 difference in between. Absence of accused persons from the spot is something else and not causing injuries to the complainant party is something else.

81. In view of above, DW-1 can not be relied upon either about the quarrel, which was seen by him or about the fact that none of the accused person was present at the spot.

82. PW-5 has been confronted with his statement on some material points which are not in his statement but which he has deposed the same before the court. These are that accused Nirmal and Hira Lal had caught hold of the hands of his brother while accused Ram Saroop caught hold of the legs of his brother and accused Vijay had pelted stones on his brother. He has also been confronted with his statement regarding the fact that the mohalla people did not come forward out of the fear of the accused persons. He has also been confronted further that the accused persons escaped after seeing the police. PW-5 has also been confronted with his statement regarding the fact that Jagjit Singh had come to their house on that day for fixing the date of marriage of his sister.

83. After considering the above confrontation, in my opinion, even 43 then PW-5 can not be disbelieved in any manner and it can not be said that he has improved his statement before the court in respect of the manner in which injuries were caused to his brother by the accused persons. If the statement of the witness has not been recorded correctly by the police then witness can not be held liable for the same. His testimony can not be rejected and he can not be treated as unreliable for such confrontation. In support of this, I would like to rely upon Kapoor Singh Rana Vs State of Delhi, ILR (2005) II Delhi 961, wherein it has been held that it is important that all the material facts given by a witness during investigation should be recorded under section 161. But the statement under section 161 is obtained by the investigating officer on interrogation. Therefore, certain aspects may not find their place in a statement under section 161 Cr. P. C. In the present case the evidence of the mother of the victim, PW-1, says that she arrived at the spot immediately after the occurrence. She being the mother of the victim, the natural sequence of events on her arrival at the spot and on finding her daughter in distress will be an enquiry as to what had happened and as to who did it. The natural reaction of the mother would be first to ask as to what had happened and having got the answer to this question 44 would be to ask as to who has done it. Although, the immediate concern will be to get medical aid to the daughter, the mother's anxiety to know these details will be equally urgent. The statement under section 161 Cr. P. C. makes no mention as to any talk between the two.

84. It has been further held that it is clear that the statement has not been recorded in respect of the important fact of any talk with the daughter altogether. At the same time, it cannot be believed that the mother and the daughter did not talk about this detail at all. Perhaps the investigating officer felt assured with the statement of the victim herself and, therefore, did not require another witness to give these facts. Obviously, he did not put this question to the witness and, therefore, the statement under section 161 Cr. P. C. is lacking in these details. Such omissions as in the present case should not be taken as contradiction.

85. In view of the above, it is clear that the facts which have been confronted with PW-5 were not asked by the IO, while recorded his statement under section 161 of Cr. P. C. It was recorded in the hospital and at that time, brother of PW-5 was declared brought dead. PW-5 has given other details in his statement then it can not be said that he had not told other material facts to the IO with which he has been confronted. 45 In such circumstances, the confrontation is not material in any manner and it can not be said that it was after thought and was improvement made by the witness.

86. PW-18 has stated in the cross examination that the accused persons are so dreadful in the area that nobody dares to speak against them. PW-10 has resiled from his previous statement and has been cross examined by the learned APP but even then he has not supported the case of the prosecution but still some part of his examination can be relied upon which is admissible under section 6 of Indian Evidence Act. He has stated that on 27/10/1987, at about 8.45 pm, he heard voice of brick batting in gali Ram Nagar, Nai Basti and saw that Sardar Baldev Singh with some others was taking his injured son Bhagwant Singh towards Sanjeevan Nursing Home. He was in injured condition and was appearing as unconscious. He did not see injuries on the person of Baldev Singh as he was standing at a little distance. His deposition has two fold. First is that he heard the voice of brick batting in gali Ram Nagar, Nai Basti and second is that he saw Sardar Baldev Singh with some others was taking his injured son Bhagwant Singh towards Sanjeevan Nursing Home. He was in injured condition and was 46 appearing as unconscious. The time and date is material and both are the same as per the case of the prosecution. The time is 8.45 PM. This fact itself falsify the substance of DDs no. 21A and 22A which were recorded at 8.55 PM and 8.56 PM. PW-10 has not been cross examined by the learned defence counsel, hence his testimony went unrebutted and unshaken.

87. In the cross examination conducted by learned APP, PW-10 has admitted that many stones and bricks were lying in the gali. The injured Bhagwant Singh was taken in the police van from Sanjeevan Nursing Home. The fact that PW-10 heard the voice of brick batting in gali Ram Nagar, Nai Basti is also admissible in evidence and In support of this, I again rely upon the judgment Kapoor Singh Rana Vs State of Delhi, ILR (2005) II Delhi 961, wherein it has been held that suffice it to say that the statement is a part of the res gestae as codified in Section 6 of the Indian Evidence Act. It has come to be a rule of exception to the hearsay evidence. A fact or a statement of fact or opinion, which is so closely associated in time, place and circumstances with some act or event, which is in issue, that it can be said to form a part of the same transaction as the act or event in issue, is itself admissible in evidence. 47 The justification given for the reception of such evidence is that the light that it sheds upon the act or event in issue is such that in its absence, the transaction in question may not be fully or truly understood and may even appear to be meaningless, inexplicable or unintelligible. The testimony of the mother in respect of what the victim told her immediately on her arrival at the spot can, therefore, safely be read in evidence.

88. It has been further held that there is no suggestion of any kind raising any doubt on the truthfulness of PW-1. There is no reason why PW-1 would try to implicate the appellant and save the real culprit. We find her a truthful witness. We have no hesitation to accept her testimony.

89. It has been also held that it is a well settled principle of law that it is not the quantum of evidence that matters. If the evidence of the prosecution is sufficient to convince the court about the culpability of the accused he can be convicted even on the testimony of one witness. The rule of corroboration as it is commonly said, is a rule of prudence only, not a mandatory rule for acceptance of any evidence.

90. As per arguments of the learned defence counsel, some 48 contradictions have appeared in the depositions of the witnesses but they are not affecting the case of the prosecution in any manner to the extent that no such incident took place or the witnesses were not present at the spot and they did not hear or see the incident.

91. PW-1 has identified the case property i.e. charpai as Ex.P-1, two bricks as Ex.P-2 and Ex.P-3 and piece of china clay as Ex.P-4 before the court. The testimony of this witness went unrebutted and unshaken regarding the seizure of the articles from the spot vide memo Ex. PW-1/A and Ex. PW-1/B.

92. PW-10 has also corroborated and stated that he had seen the stones and bricks were lying in the gali. PW-6 had also taken the photographs of the spot from different angles. Pieces of bricks, stones, broken cot and blood stains were lying in the gali of which he also took photographs.

93. PW-17 has further corroborated that he alongwith Constable Vijay Kumar and Ct.Matu Ram were directed to remain present at the spot. IO came back at the spot after about 1 or 1½ hour and prepared site plan. One Charpai, brick bats, blood and earth control etc. were taken into possession. PW-18 has also corroborated the fact that he took 49 into possession the blood from the spot vide memo Ex.PW-1/A, blood stained earth control vide memo Ex.PW-1/B, two bricks and piece of china clay having blood stains vide memo Ex.PW-1/C and one cot vide memo Ex.PW-1/D. Except cot, the other articles were sealed separately with the seal of JSG. He handed over all the exhibits to SI Durga Dutt to deposit the same in the Malkhana.

94. PW-11 Ct.Ram Sarup has corroborated and stated that on 28/10/87, he was posted in Police Station Nabi Karim. On that day, he and Ct.Jai Pal had gone to JPN Hospital where IO completed the inquest proceedings. SHO also reached there and took all the papers of the inquest proceedings. They came to mortuary, JPN Hospital. After postmortem of the dead body, it was handed over to Baldev Singh, father of the deceased. SHO and IO went to the court. He remained at the mortuary. Doctor gave them two sealed parcels and wooden box containing viscera with sample seal, which they handed over to the IO, which he seized vide memo Ex.PW-11/A. So long as the pullandas remained in his custody, seals on them remained intact. Only suggestions have been given in the cross examination to the witness and he has denied all such suggestions.

95. PW-14 has stated that on 27/10/87, SI Jagjit Singh deposited one charpai and three sealed pullandas of this case, which he entered in the malkhana register at serial no.1073. On 28/10/87, again SI Jagjit Singh deposited one sealed wooden box alongwith two sealed envelopes and sample blood, which he entered in the register at serial no.1077. He also deposited the sample seals. On 30/10/87, SI Jagjit Singh also deposited one sealed pullanda duly sealed with the seal of CMO JPN Hospital, which he entered in the register at serial no.1081.

96. On 06/11/87, he sent all these pullandas to CFSL through Ct.Vijay Singh vide RC No.118/21. So long as the pullandas remained in his custody, the seal on them remained intact. After depositing the pullandas, Ct.Vijay Singh gave him a receipt. Copy of entries is Ex.PW- 14/A.

97. PW-4 has recorded the FIR no. 441/87 Ex. PW-4/A of case under section 147/148/149/302/323 of IPC. After registration of the case, he sent the special report to the illaqa Magistrate and the senior police officials through constable Sikandar Kumar and a copy of the FIR and rukka was handed over to constable Naresh Kumar for handing over the same to the IO. He has also recorded DD no. 25A dated 27/10/1987 for 51 registration of the case.

98. He also recorded DD no. 21A at 8.55 PM, and 22A at 8.56 PM which were got recorded by ASI Ram Kumar and ASI Tek Ram respectively from PCR. Copies of both the DDs are Ex. PW-4/B and Ex. PW-4/C. On the same day, he also recorded DD No.80B at about 8.46 pm, copy of which is Ex.PW-4/D. He has stated that the Roznamcha containing these DDs has been destroyed vide letter no.1554-57/NAR/C dated 17/02/1994 from the DCP.

99. PW-13 has also corroborated with PW-4 and has stated that on 27/10/1987, he was posted in PCR and on the information in the PCR, he got recorded DD No.22A, which has been destroyed vide order dated 27/02/1990.

100. PW-15 has stated that on 27/10/87, he was posted at Police Station Nabi Karim and on that day, Duty Officer handed over to him Special Report to be delivered to concerned Ilaka Metropolitan Magistrate and Senior Police Officers and he delivered the same to them on that very day.

101. PW-8 has prepared scaled site plan Ex.PW-8/A in his office on 03/08/88. The learned defence counsel has contended that in the Site 52 Plan, electric polls have been shown at the points E, F and G and it is not mentioned that whether the same were in working condition or not. PW-8 has not been cross examined by the learned defence counsel on this aspect nor the IO has been cross examined, hence the contention of the learned defence counsel is not tenable in any manner and even otherwise, it is not the defence of the accused persons that there was no light at the spot, hence PW-5 was not able to see the incident and the assailants.

102. Postmortem report of deceased Bhagwant Singh and MLC of injured Baldev Singh have been proved by PW-19 and 20. MLC of deceased Bhagwant Singh is Ex. PW-3/A and the postmortem is Ex. PW-20/A. According to the MLC Ex. PW-3/A, injured Bhagwant Singh was bleeding profusely from the nose and his nose was crushed. The presence of his father is corroborated with the deposition of PW-5 as name Baldev Singh i.e. father of Bhagwant Singh is mentioned in the MLC.

103. Opinion has been given by PW-20 regarding the cause of death in this case was due to cranio-cerebral damage mainly as a result of blunt force impact on head and nose region. All the injuries were ante 53 mortem, recent and could be caused by blunt object or surface.

104. Report of the CFSL has been placed on record. No official from the CFSL has been examined but the same can be read in evidence because the same is admissible in evidence under section 293 of Cr. P. C. According to the report, exhibit 1 i.e. dark brown stained wet cotton wool swab, exhibit 2 i.e. earth control, exhibit 3 i.e. two bricks having numerous dark brown stains, exhibit 4a and 4b i.e. dark brown stained gauze cloth piece and white gauze cloth piece, exhibit 5a, 5b, 5c and 5d i.e. one dirty pant, one T-shirt, one baniyan and one dirty cotton underwear having numerous dark brown stains and Parcel no. 6 i.e. one sealed wooden box alongwith one sealed envelope have been examined. Blood was detected on exhibit 1,3,4a, 5a,5b,5c and 5d. Blood stained cotton wool i.e. exhibit 1 was found having human blood of 'B' group. Blood stained gauze i.e. exhibit 4a was also found having human blood of 'B' group. Pant, T-Shirt, Baniyan and underwear i.e. exhibit 5a, 5b, 5c and 5d were also found having human blood of 'B' group.

105. As per record, Pant, T-shirt, Baniyan and underwear of deceased Bhagwant Singh were seized by the IO vide memo Ex. PW- 54 18/C and the same were containing human blood of 'B' group as per report of CFSL. Parcel no. 6 i.e. one sealed wooden box alongwith one sealed envelope was also examined and it was found negative to common poison. Blood was taken as sample from the spot with the help of cotton wool swab and was seized vide memo Ex. PW-1/A. It was found containing human blood of 'B' group. From this, it is clear and proved that Bhagwant Singh was removed from the spot in injured condition and he was bleeding and his blood fell down on the ground of Katra Ghasi Ram. Two bricks which were seized vide memo Ex. PW- 1/C were also containing human blood and blood stained gauze cloth was also containing human blood of 'B' group. Blood of deceased Bhagwant Singh was also taken as sample in the hospital. The same was sealed in an envelope and was seized vide memo Ex. PW-11/A by the IO. From the above seizure memo and report of CFSL, the prosecution has been able to prove the fact that the sample blood which was taken with cotton wool swab from Katra Ghasiram, sample blood in gauze cloth taken by the doctor in the hospital of deceased Bhagwant Singh and the clothes which deceased was wearing at the time of incident, were containing the human blood of 'B' group. Two bricks 55 which were seized in this case were also having human blood.

106. The learned defence counsel has contended that PW-5 has not seen the incident as he has admitted in his cross examination that Katra Ghasiram is not visible from his house. According to scaled site plan Ex. PW-8/A, position of house no. 7880, has not been shown. However, at point B,C and D the position of Baldev Singh, Deputy Singh and Jagjit Singh have been shown and from there, entrance of Katra Ghasiram is visible at point A. The dispute started and from there, Bhagwant Singh was dragged by the accused persons towards Katra Ghasi Ram. PW-5 has denied the suggestion that he had not seen the occurrence as stated by him. Similarly, PW-18 has stated in the cross examination that from the house no. 7880, Katra Ghasi Ram is not visible due to density of population and the houses having sufficient high construction in between. He has further stated that the entrance of the gali is visible from house no. 7880. The entrance of the gali from Katra Ghasiram is at a distance of 70 yards. It is not believable that when Bhagwant Singh was being dragged by the accused persons towards Katra Ghasiram, Baldev Singh, Jagjit Singh and Deputy Singh had not chased them towards Katra Ghasiram to save Bhagwant Singh from the clutches of 56 the accused persons.

107. From the depositions of the witness, it is already proved that Bhagwant Singh was removed from Katra Ghasiram in PCR and the Baldev Singh and Deputy Singh accompanied them, which shows the presence of Baldev Singh and Deputy Singh in Katra Ghasiram near the body of deceased Bhagwant Singh. It has also been corroborated by PW-10 that on 27/10/1987 at about 8.45 PM, he heard the voice of brick batting and saw Sardar Baldev Singh with some others was taking his injured son Bhagwant Singh towards Sanjeevan Nursing Home.

108. The learned defence counsel has further contended that as per deposition of PW-20, on Internal Examination, stomach contained cream colour semi digested food with questionable alcholic smell. PW-5 has stated that they had taken dinner before the incident but had not consumed the liquor. But the fact that Bhagwant Singh had consumed the liquor or not is not relevant in the present case in any manner.

109. The learned defence counsel has contended that the owner of the house has not been examined from whose roof the kacha wall was thrown by the accused persons on the body of Bhagwant Singh. In the cross examination, PW-18 has denied the suggestion that he had not 57 recorded the statement of any Chaman Lal. In my opinion, if Chaman Lal has not been examined by the prosecution or has not been cited as a witness then he could have been called by the accused persons in his defence to prove their contentions but it has not been done so, hence this contention of the learned defence counsel is also not tenable in any manner.

110. PW-18 has stated that on 28/10/87, he arrested accused Fakir Chand and Durga Prasad. Their personal search were conducted vide memos Ex.PW-18/C and Ex.PW-18/D and on 29/10/87, he arrested accused Hira Lal, (now dead). On 31/10/87, he arrested accused Jagdish. Accused Ram Saroop was arrested on 02/11/87. Accused Nirmal Singh was arrested on 23/11/87. Accused Vijay was arrested on 27/11/87. This witness has not been cross examined by the learned defence counsel that the accused persons were not arrested in this case on the dates as deposed by him. It is also not suggested that accused persons have been falsely arrested in this case.

111. In view of the above discussions, as all the witnesses have corroborated each other and their testimonies inspire confidence and went unshaken. Nothing has been brought on record to disbelieve the 58 testimonies of the witnesses examined by the prosecution, hence the contentions of the learned defence counsel are not helpful to the accused persons and are not tenable in any manner. The judgments relied upon by the learned defence counsel in support of his contentions are not applicable to the facts and circumstances of the present case.

112. The prosecution has been able to prove beyond reasonable doubts from the depositions of PW-5 that on 27/10/1987 at about 8.45 PM, his brother Bhagwant Singh raised alarm of bachao-bachao and he followed his father who went fastly outside of the house and saw accused persons ie. Jagdish @ Kalia, Nirmal Singh @ Goriya, Ram Sawroop, Fakir Chand, Durga Parsad, Hira Lal and Vijay, were dragging his brother towards Katra Ghasi Ram. Accused Kalia sat on the chest of his brother and gave a brick blow on the upper portion of nose touching forehead. Accused Nirmal and Hira Lal had caught hold of his brother from his arms and Ram Sawroop had caught hold of his brother from his leg and accused Vijay had thrown stones upon his brother. Accused Fakir Chand and Durga Dass went upstairs and threw a kacha wall on his brother Bhagwant Singh. Vijay also followed them and went upstairs and then they threw a cot on his brother.

113. The prosecution has also been able to prove beyond reasonable doubts from the deposition of PW-10 that on 27/10/1987 at about 8.45 PM, he heard the voice of brick batting and saw sardar Baldev Singh with some other persons was taking his injured son Bhagwant Singh towards Sanjeevan Nursing Home.

114. The prosecution has also been able to prove beyond reasonable doubts from the depositions of PW-5,16 and 18 that Bhagwant Singh and Baldev Singh were removed in PCR to JPN hospital where Bhagwant Singh was declared brought dead and first aid was given to Baldev Singh.

115. The prosecution has also been able to prove beyond reasonable doubts from the deposition of PW-18 that on the statement of Baldev Singh, rukka was prepared by him and the same was handed over to constable Naresh Kumar, for registration of the case and PW-4 recorded the FIR under section 147/148/149/302/323 of IPC and special report of the FIR was sent to the learned concerned Metropolitan Magistrate and senior officials through PW-15.

116. The prosecution has been further able to prove beyond reasonable doubts from the depositions of PW-1,6,8,11,17 and 18 that 60 some articles were seized from the spot during the investigation. Site plan and scaled site plan were prepared. Clothes of the deceased were seized. Viscera with two sealed envelopes were also seized. These were deposited with PW-14. Thereafter, sealed parcels were sent to CFSL and report of the examination was obtained. As per report, blood of deceased was found on the clothes, cotton wool swab, gauze cloth. Human blood was also found on two bricks.

117. From the depositions of PW-19 and 20, the prosecution has been able to prove beyond reasonable doubts the MLC of deceased and postmortem report. The cause of death death was due to cranio- cerebral damage mainly as a result of blunt force impact on head and nose region. All the injuries were ante mortem, recent and could be caused by blunt object or surface. All the injuries on the body of deceased Bhagwant Singh were found in the same manner in which these were caused to him by the accused persons with intent to kill him, as deposed by PW-5.

118. From the deposition of PW-18, the prosecution has also been able to prove that the accused persons were arrested on different dates in this case.

119. From the depositions of the witnesses, who have been corroborated each other, the prosecution has been able to prove that PW-5, who was present at the spot and had seen the manner in which the accused persons caused injuries to his brother Bhagwant Singh with intent to kill him and he has named the accused persons and also deposed that accused persons were residing in the same area, hence their identity is not in dispute. Accused all have not been able to prove the fact that they were not present at the spot. The burden to prove of which was upon the accused persons that they have been falsely implicated in this case, but they have not been able to discharge the burden. The manner and the nature of injuries sustained by deceased Bhagwant Singh shows that it was not an act of one person and the number of injuries shows that all the accused had caused such injuries to the deceased by forming unlawful assembly to commit an offence and in furtherance of the common object of such assembly, used force of violence and dragged Bhagwant Singh from the entry of gali of Katra Ghasiram towards Katra Ghasiram and in Katra Ghasiram caused injuries to him with intent to kill him with bricks and by throwing stones and kacha wall with cot from the roof of a house, which were deadly 62 weapon and were likely to cause death and thereby committed murder of Bhagwant Singh in furtherance of the common object of the unlawful assembly by rioting and has been able to complete the chain of evidence against all the accused persons.

120. The prosecution has not been able to prove offence under section 323 read with section 149 of IPC against the accused persons because the testimony of PW-2 has not been read in evidence.

121. In view of above, as the prosecution has not been able to prove offence punishable under section 323 read with section 149 of IPC in any manner, hence accused all are acquitted for offence punishable under section 323 read with section 149 of IPC.

122. The prosecution has been able to prove beyond reasonable doubts offence punishable under section 147, 148 and 302 of IPC read with section 149 of IPC against all the accused persons namely Fakir Chand, Jagdish, Ram Swaroop, Nirmal Singh, Vijay and Durga Parsad. Hence, they are held guilty and convicted for the same. ANNOUNCED IN THE OPEN COURT ON 24.07.2007.

(V. K.GOYAL) ADDITIONAL SESSION JUDGE, DELHI.

24.07.2007.

Present :- APP for the State.

All the six accused present on bail with Sh. Animesh Pandit proxy counsel for counsel Sh. Jitender Sethi.

Accused Hira Lal is expired.

Vide judgment announced of even date on separate sheets, accused all are acquitted for offence punishable under section 323 read with section 149 of IPC.

The prosecution has been able to prove beyond reasonable doubts offence punishable under section 147, 148 and 302 of IPC read with section 149 of IPC against all the accused persons namely Fakir Chand, Jagdish, Ram Swaroop, Nirmal Singh, Vijay and Durga Parsad. Hence, they are held guilty and convicted for the same. Accused all be taken into custody and remanded to JC.

Adjourned for arguments on sentence on 26.07.2007.

(V. K.GOYAL) ASJ/DELHI.

24.07.2007.

IN THE COURT OF SH V.K. GOYAL, ADDL. SESSIONS JUDGE: DELHI. SESSION CASE NO. 23/06 FIR NO. 441/87

PS NABI KARIM.

U/S 147/148/149/302 OF IPC.

STATE VERSUS

1. FAKIR CHAND @ FAKIRA, S/O.GANESHI LAL, R/O.HOUSE NO.7907, NAI BASTI, NABI KARIM, NEW DELHI.

2. JAGDISH @ KALIA, S/O.HIRA LAL, R/O.HOUSE NO.7898, KATRA GHASI RAM, NAI BASTI, NABI KARIM, NEW DELHI.

3. RAM SAWROOP, S/O.BABU LAL, R/O.HOUSE NO.7896, KATRA GHASI RAM, NAI BASTI, NABI KARIM, NEW DELHI.

4. NIRMAL SINGH @ GORIYA, S/O. HIRA LAL, R/O.HOUSE NO.7898, KATRA GHASI RAM, NAI BASTI, NABI KARIM, NEW DELHI.

5. VIJAY, S/O.BODH RAJ, 65 R/O.HOUSE NO.7900, KATRA GHASI RAM, NAI BASTI, NABI KARIM, NEW DELHI.

6. DURGA PRASAD, S/O.MANGAT RAM, R/O.HOUSE NO.7898, KATRA GHASI RAM, NAI BASTI, NABI KARIM, NEW DELHI.

ORDER ON SENTENCE:-

Present :- APP for the State.

Convicts all produced from J.C. with counsel, Sh.Jitender Sethi. Heard on sentence.

It is contended by the learned defence counsel that convict Fakir Chand is aged about 56 years. He has faced trial since 1987. He is having wife and seven children, out of which three are girls and four are boys. It is further contended that convict Fakir Chand is the sole bread earner of his family. He is not a previous convict and is having clean antecedents.

It is contended by the learned defence counsel that at the time of committal of offence, convict Vijay was aged about 16 years. He has faced trial for 20 years. He is having old and aged parents. It is further contended that father of the convict is handicap and is paralytic and is dependent upon the convict. He is not a previous convict and is having clean antecedents.

It is contended by the learned defence counsel that convict Durga Prasad is aged about 62 years. He has faced trial for 20 years. It is 66 further contended that convict is handicap and he is limping from his left leg being paralytic. He is having wife and two children, who are dependent upon him. He is not a previous convict and is having clean antecedents.

It is contended by the learned defence counsel that convict Ram Swaroop is aged about 55 years. He has faced trial for 20 years. He is having wife and five daughters, who are dependent upon him. Two of his daughters are of marriageable age. He is the sole bread earner of his family. He is not a previous convict and is having clean antecedents.

It is contended by the learned defence counsel that convict Jagdish is aged about 42 years. He has faced trial for 20 years. It is further contended that at the time of offence, he was 20 years of age. He is not a previous convict and is having clean antecedents.

It is contended by the learned defence counsel that convict Nirmal Singh is aged about 45 years. He has faced trial for 20 years. He is having wife and two children aged about 6 and 7 years. He is not a previous convict and is having clean antecedents.

It is further contended by learned defence counsel that the offence does not fall under the category of rarest of rare case and prays for a lenient view.

On the other hand, learned APP has contended that convicts all committed murder of the deceased Bhagwant Singh brutally, who sustained 14 injuries on his body and died at the spot and requested that maximum punishment be given to the convicts.

After considering the submissions of the learned APP, facts and circumstances, age, family circumstances, antecedents etc. of the convicts as submitted by the learned defence counsel, sentence of 2 years RI is 67 imposed on each convict with fine of Rs.5,000/- each for offence punishable u/s.147 of IPC. In default of payment of fine to further undergo RI for 6 months each.

Sentence of 3 years RI is imposed on each convict with fine of Rs.5,000/- each for offence punishable u/s.148 of IPC. In default of payment of fine to further undergo RI for 6 months each.

For offence punishable under section 302 of IPC read with section 149 of IPC, imprisonment for life is imposed on convicts all with a fine of Rs.25,000/- each. In case of default, convicts to undergo further three years RI each.

Fine not deposited by the convicts. All the sentences shall run concurrently. Benefit of section 428 of Cr.P.C. be given to the convicts. Convicts are remanded to serve the sentence. File be consigned to record room.

ANNOUNCED IN THE OPEN COURT ON 26.07.2007.

(V. K.GOYAL) ADDITIONAL SESSION JUDGE, DELHI.

26.07.2007.

Present :- APP for the State.

Convicts all produced from J.C. with counsel, Sh.Jitender Sethi. Heard on sentence.

Vide order on sentence announced of even date on separate sheets, sentence of 2 years RI is imposed on each convict with fine of Rs.5,000/- each for offence punishable u/s.147 of IPC. In default of payment of fine to further undergo RI for 6 months each.

Sentence of 3 years RI is imposed on each convict with fine of Rs.5,000/- each for offence punishable u/s.148 of IPC. In default of payment of fine to further undergo RI for 6 months each.

For offence punishable under section 302 of IPC read with section 149 of IPC, imprisonment for life is imposed on convicts all with a fine of Rs.25,000/- each. In case of default, convicts to undergo further three years RI each.

Fine not deposited by the convicts. All the sentences shall run concurrently. Benefit of section 428 of Cr.P.C. be given to the convicts. Convicts are remanded to serve the sentence. File be consigned to record room.

(V. K.GOYAL) ADDITIONAL SESSION JUDGE/DELHI.

26/07/2007

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Shyam Sunder & Raj Kumar vs State (Delhi Admn.) 1996 Jcc 35. on 26 July, 2007