Delhi District Court
State vs . (1) Anang Pal S/O. Vijay Pal on 16 February, 2015
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI
Unique ID No. 02402R0867472008
Sessions Case No. 02/13
Date of Institution: 02.06.03
Date of transfer to this court: 09.01.13
Date on which reserved for orders:17.01.15
Date of delivery of order: 09.02.15
State v/s. (1) Anang Pal S/o. Vijay Pal
R/o. 3/23, Nahar Road,
Gokul Puri, Delhi.
(2) Kailash S/o. Vijay Pal
R/o. 3/23, Nahar Road,
Gokul Puri, Delhi.
(3) Satish S/o. Vijay Pal
R/o. 3/23, Nahar Road,
Gokul Puri, Delhi.
(4) Mulak Raj S/o. Vijay Pal
R/o. 3/23, Nahar Road,
Gokul Puri, Delhi.
FIR No. 126/03, PS. Gokul Puri Page 1 of 245 St. Vs. Anang Pal etc.
(5) Smt. Jayawati W/o. Vijay Pal
R/o. 3/23, Nahar Road,
Gokul Puri, Delhi.
(6) Ms. Kuman D/o. Vijay Pal
R/o. 3/23, Nahar Road,
Gokul Puri, Delhi.
(7) Udai Raj S/o. Bharta Singh
Gali No. 3/24, Village Gokul Pur,
Delhi94.
(8) Bal Raj S/o. Bharat Singh
Gali No. 3/24, Village Gokul Pur,
Delhi94.
(9) Ajab Singh S/o. Bharat Singh
Gali No. 3/24, Village Gokul Pur,
Delhi94.
(10) Vijay Pal S/o. Harkesh
R/o. 3/23, Nahar Road,
Gokul Puri, Delhi.
(11) Smt. Rajesh W/o. Ajab Singh
Gali No. 3/24, Village Gokul Pur,
Delhi94.
FIR No. 126/03, PS. Gokul Puri Page 2 of 245 St. Vs. Anang Pal etc.
FIR No. 126/03
PS. Gokul Puri
U/s. 147/148/149/307/302 & 3 (1) (x) and 3 (2) (v) of SC/ST Act
JUDGMENT:
1. An information was received at PS Gokal Puri which was recorded vide DD No. 2A on 15/04/03 at about 07.45 am that a quarrel was going on at 2/22, Gokal Pur gaon. On receiving the information and copy of the DD, ASI Tara Dutt and Inspector Sumer Singh along with other staff went to the spot. On the spot in gali no. 3, Gokal Puri village they found blood and lathis and broken pieces of glass, which were used in the commission of offence. The injured had already been removed to GTB hospital by the PCR leaving ASI Tarra Dutt to guard the spot. Inspector Sumer Singh went to GTB hospital where he obtained MLC number 996 and A1276 of Dhanpal and Rajender respectively, who had been declared brought dead. Complainant Ravinder, who was also an injured of the incident, was present at the hospital and was declared fit to give statement. On the basis of statement given by Ravinder, FIR No. 126/03 was registered FIR No. 126/03, PS. Gokul Puri Page 3 of 245 St. Vs. Anang Pal etc. u/s. 147/ 148/149/307/302 IPC.
2. The accused persons were arrested during the investigation. As per the charge sheet two gupties used in commission of offence were got recovered pursuant to disclosures made by accused Kailash and Anang Pal on 20.04.03. On 02/05/03 statement of Surender brother of Ravinder was recorded whereafter section 3(x) of The Prevention of Atrocities to Schedule Caste & Schedule Tribes Act (hereinafter refered to as SC/ ST Act) was added and further investigation was marked to ACP B.L. Meena. After the investigation conducted by ACP B.L.Meena section 3 (2)(v) of SC/ ST Act was added. All the accused except Smt. Rajesh were arrested and charge sheet was filed. Accused Smt. Rajesh was arrested later on and supplementary charge sheet qua her was filed thereafter.
3. On 06.08.04, charge was framed against 10 accused persons namely Anangpal, Kailash, Satish, Mulakraj all sons of Vijay Pal, Jaiwati W/o Vijay Pal, Malti D/o Vijay Pal, Vijay Pal , Udai Raj, Balraj and Ajab Singh all sons of Bharat Singh. The charge was FIR No. 126/03, PS. Gokul Puri Page 4 of 245 St. Vs. Anang Pal etc. framed u/s 147/148 of IPC, 302 r/w 149 IPC, 307 r/w 149 IPC, 3 (1)
(x) of SC/ ST Act and 3 (2) (v) of SC/ ST Act. All the accused pleaded not guilty and claimed trial. A similar charge was framed against accused Smt. Rajesh after her arrest.
4. Prosecution to prove its case examined 33 witnesses and 32 witnesses were examined by accused persons in their defence.
5. PW1 Ravinder Kumar is the complainant. Naming the accused persons he said that alias of Malti is Kuman, Anang Pal is known as Titu, Satish as Bhola, Kailash as Tekan and Mulakraj as Tatan. He deposed that on 14.04.03 his father had gone to the wedding of one Tiakam @ Kalu at Mata Wali Gali, Johri Pur, near Gokul Pur. Accused Kailash @ Tekan insulted his father and caught hold of him by his neck. He pointed a country made revolver on the head of his father and threatened him saying "Neech Kameen Dhed Chamar tum bahut samaj sudharak bante ho, tu bahut sar par chad gaya hai." (This portion of his evidence was confronted with his FIR No. 126/03, PS. Gokul Puri Page 5 of 245 St. Vs. Anang Pal etc. statement Ex PW1/A, as it was not found written there). His father came back and narrated the entire incident to them and told them that since Surender (brother of complainant) was going to get married on 27.04.03; the gujjars might try to create problem, therefore, a police complaint should be lodged. His father alongwith his elder brothers Rajender and Surender and neighbour Chhattar went to the PS at about 11 pm to lodge complaint. The duty officer went to the room of SHO and after coming back said that no one from the family had died and only a threat has been given. They were asked to come back at 8 am next day. His father asked to meet SHO but the duty officer did not allow.
6. He deposed that on 15.04.03 when he was going to buy bread and was near the corner of the gali accused Kailash came and said "neech kameen dhed chamar tum bahut samaj sudharak bante ho tu bahut sar par chad gaya hai, kal tumhara baap bach gaya tha." Kailash threatening him took out a countrymade pistol from his pocket and pointed at the neck of complainant, however, he was interrupted by Surender, who came and pushed the hand of Kailash FIR No. 126/03, PS. Gokul Puri Page 6 of 245 St. Vs. Anang Pal etc. because of which the gun misfired. (the portion " neech Kammen Dhed Chamar" was confronted with EX PW1/A, however in the statement the witness had said : "kailash ne mujhe bhaddi gali di") He deposed that Vijay Pal, Satish, Teetu, Mulakraj and Km. Kumun (Name of Jaiwati is missing) came at the spot. Sons of Bharta Gujjar from the neighboring gali namely Udai Raj, Balraj, Ajab Singh @ Ajabu and Smt. Rajesh also came at the spot. Accused Anang Pal @ Titu had a gupti and other accused had sticks and soda bottles in their hands. These persons started hitting them with sticks and empty soda bottles and when they shouted for help, his father, elder brother and some other persons came to the spot for their help. He deposed that Vijay Pal, Balraj and Ajab Singh caught hold of his father. Jaiwati caught hold of his brother. Vijay Pal shouted "neech kameen dhed chamar ka kaam tamam kar do." ( confronted with Ex PW1/A where it was written : " Vijay Pal ne buland awaz mein kaha aaj inka kam tamam kar do). Anang Pal @ Titu stabbed gupti on the left side chest of his father. Accused Kailash also brought a gupti from his house and stabbed on the left side of his FIR No. 126/03, PS. Gokul Puri Page 7 of 245 St. Vs. Anang Pal etc. brother. Satish hit his brother Rajender on left hand. Udai Raj hit his father with a stick on his face. Kuman and Rajesh also hit his father with a stick. Vijay Pal hit his father with a hockey stick, which stick got broken into two parts one remained in Vijay Pal's hand and the other fell down on the ground. (the fact of Vijay Pal having caused injury with hockey was confronted with Ex. PW1/A, where it was not mentioned at all). His father and brother who had started bleeding fell down on the ground. In the struggle gupti of Anang Pal got stabbed in the stomach of Vijay Pal and accused Kailash also sustained injuries. Smt. Rajesh hit him on the head with a stick and Surender was hit by Kuman with a stick. Chhattar Singh removed his kurta and placed it over his father. PCR Van came at the spot. All the accused persons ran away from the spot and Jeet and Kailash both sons of Attar Singh came to the spot in red and white cars and took away the accused persons. The police took the injured persons to GTB hospital, where his father and his brother were declared dead. The police interrogated him and recorded his statement which is Ex.PW1/A. Thereafter, at the spot FIR No. 126/03, PS. Gokul Puri Page 8 of 245 St. Vs. Anang Pal etc. police took sample soil with blood and blood. Soda and Pepsi bottles were taken into possession, so were the broken glasses. Broken hockey stick was also taken into possession. Seizure memos Ex.PW1/B to H were prepared in this regard. He identified his blue shirt, which was seized as Ex.P1. The broken pieces of glass as Ex.P2. Broken piece of hockey stick as Ex.P3 another piece of glass as Ex.P4. He had identified the dead body of his brother vide statement Ex.PW1/I. Examination in chief of the witness was deferred.
7. The witness was examined further on 18.01.05 after three months from the previous date 02/11/2004. He deposed that he belonged to scheduled caste being of Chamar caste. He improved his statement dated 15.04.03 and added that Satish had hit the broken bottle on the left hand of his brother (the broken bottle having not been mentioned on earlier date). Mulak Raj and Jaiwati had caught hold of Rajender (adding the name of Mulakraj). The witness further deposed that on 15.04.03 Jaiwati and FIR No. 126/03, PS. Gokul Puri Page 9 of 245 St. Vs. Anang Pal etc. Kuman were arrested vide memo Ex.PW1/J & K. On 20.04.03, Udai Raj, Balraj, Ajab Singh, Anang Pal, Satish and Kailash were arrested vide memos Ex.PW1/L to R respectively (arrest memo of Balraj has been mentioned twice as 1/M and also 1/N). He deposed that on 20.04.03 he had joined the investigation with Inspector Veer Sigh and accused Anang Pal, Kailash, Satish, Balraj and Ajab Singh had identified the place of occurrence. He deposed that accused persons made admissions regarding commission of offence (Disclosure statements), which were recorded. The admission of Anang Pal is Ex.PW1/S; that of Kailash is Ex.PW1/T, of Satish is Ex.PW1/U and of Udai Raj is Ex.PW1/V. The pointing out memos regarding the identification of place of incident, were exhibited as Ex.PW1/X1 to PW1/X6. The personal search memo of aforesaid six accused persons, were also prepared in his presence which are Ex.PW1/Y1 to Ex.PW1/Y6. He stated that on 20.04.03 he and his brother were treated at hospital and statement of his brother was recorded first and thereafter, his statement was recorded and that he had disclosed to the police that the accused had attacked them due to caste rivalry (the date of 20/04/2003 appears to be a typographical error). Police did FIR No. 126/03, PS. Gokul Puri Page 10 of 245 St. Vs. Anang Pal etc. not record his statement where he had alleged that accused had used words neech kameen dhed chamar. He deposed that his community had protested outside the police station and in this regard FIR No. 127/03 was registered.
8. He deposed that after some days ACP B.L. Meena came to his house and conducted inquiry and had taken SC Certificates of PW1 and his family members and also the ration card of the family. The photocopy of the ration card is Ex. PW 1/Z. The Original SC Certificate of Kalpana is Ex PW1/Z1; of Dhanpal Sagar is Ex PW1/Z2; of Rajender Kumar is EX PW1/Z3; of Ravinder Kumar is Ex PW1/Z4 and of Surender as Ex PW1/Z5. He deposed that on 20.04.03 accused Kailash and Anangpal produced gupties in presence of police which were measured and their sketches were prepared. The sketches are Ex. PW 1/AA and PW 1/BB respectively. The seizure memos of both the guptis are exhibit PW1/CC and PW 1/DD. The witness deposed that when his father had bought land in Gokal Puri in 1996 Vijay Pal, Satish, Mulakraj, Jaiwati, Udai Raj, Balraj etc. used FIR No. 126/03, PS. Gokul Puri Page 11 of 245 St. Vs. Anang Pal etc. to say that if his father was permitted to construct the house in front of their house, their status would be down graded. He deposed that on 14/04/97 they had celebrated Ambedkar Jayanti. On that day Vijay Pal, Kailash and other accused said that they would not allow the celebration and quarreled with them. The police did not lodge their complaint in this regard. On 13/04/03 when his brother Surender was getting engaged, the accused persons said that even Chamars were getting good relations. The accused persons used to abuse them making casteist remarks. His father had made a complaint to Samta Sainik Dal on 14/04/03. He identified the guptis as Ex. P5 and P6.
9. The cross examination of the witness was conducted on 24 dates running in 89 pages. The main points of his cross examination on different dates and relevant issues is as under:
10. On the incident of 14.04.03 witness stated on different dates in his crossexamination as under:
He said that he did not see any written complaint with his FIR No. 126/03, PS. Gokul Puri Page 12 of 245 St. Vs. Anang Pal etc. father regarding the incident of 14.04.03, thus contradicting his statement in chief examination and denied that the incident of 14/04/03 was imaginary. He said that his father, Rajender, Surender and Chattar Singh went to PS on 14/04/03 around 11.00 pm and came back around 12.15 of night. He said that he came to know about the quarrel of 14.04.03 from his father and neighbour Chattar Singh in the night of 14/04/03 and also that his father told him that Kailash had threatened him with life using a katta. The fact however, was confronted with his statement Ex. PW1/A where it was not recorded. He denied the suggestion that his father was under the influence of liquor on 14/04/03. He admitted that he had only heard about the incident which took place in the marriage of Tikam. He denied that he along with his father, brothers Rajender and Surender, Suraj, Ravi and Chhattar had gone to Mata Wali gali, Johripur around 10.00 pm in the night of 14/04/03 to teach a lesson to Kailash and on not finding him there had waited for him till 11.00 pm. He also denied the suggestion that they were seen in such situation by Ajeet S/o Attar Singh. (The witness examined on the fact, however, is Kalu@ Teekam) He said that he did not remember if he, any of his family FIR No. 126/03, PS. Gokul Puri Page 13 of 245 St. Vs. Anang Pal etc. member, relative and friend had seen Anang Pal and his other family members between 9 pm on 14.04.03 and 7.30 am on 15.04.03. He said that on 14.04.03 Chhattar Singh had come to their residence alongwith his father from Johri Pur and that no person was sent between 10 to 11 pm on that day to call Chhattar Singh. He denied that he had improved the fact regarding Kailash having shown kutta to his father on 14.04.03. He deposed that on 14.04.03 his father, brothers and Chhattar Singh had gone to the PS and Chhattar Singh came to his house from the marriage at Johri Pur. His father returned from the PS around 12.15 mid night.
11. On the incident of 15.04.03 the witness stated on different dates in his crossexamination as under:
He said that Vijay Pal, Balraj and Ajab Singh had caught hold of his father. Vijay Pal caught him from behind and Balraj and Ajab Singh from sides but he could not tell who was on which side. He denied the suggestion that they had started the quarrel with Kailash and while they were beating him Udai Raj, Balraj and FIR No. 126/03, PS. Gokul Puri Page 14 of 245 St. Vs. Anang Pal etc. Ajab Singh had come to mediate because of which their names were also written in the FIR. Vijay Pal, Anangpal, Satish , Mulakraj, Jaiwati and Kuman arrived at the spot after his father arrived there along with his brother ( which is contrary to his examination in chief where all the accused are shown as having arrived before). After the quarrel started Chattar singh also came there but Udai Raj, Balraj and Ajab Singh and also Ajab Singh's wife Rajesh came to the spot prior to Chattar Singh. He denied that till the arrival of Chattar Singh only abuses were being hurled (indicating that incident had started before Chhatar Singh came). He denied the suggestion that his father and brother had come out at about 06.15 am to kill Kailash and he had assaulted Kailash. He deposed that he woke up on 15/04/03 at 05.30 am and left his house at about 07.30 am. Accused Kailash met him at the corner of the gali and placed the katta on his head. Kailash had come from his back. He said that Surender reached at the spot as he was seeing the incident from the door of their house, however, denied that Surender raised an alarm because of which his family FIR No. 126/03, PS. Gokul Puri Page 15 of 245 St. Vs. Anang Pal etc. members also came there. Saying that he could not tell the names of person who beat him and his brother Surender he clarified that it was a four years old matter. He denied that he along with his family had assaulted Kailash in gali no. 24 who was then helped by Udai Raj and his family members and on the shouting of his father 50 persons of his community had collected. He also denied that on hearing the noise accused Vijay Pal came at the spot and he was assaulted by him (witness himself) with a knife. He denied that Vijay Pal and Kailash were taken to hospital by the public persons, because of which a riot came up between the two communities. He also denied that he and Surender had run away from the spot. The witness stated that Kailash was carrying gupti along with katta. Gupti was in his right hand but he could not say in which hand he was carrying the katta. He said that accused Rajesh gave a lathi blow on his head, while others gave him fist blows. He said that he could not tell in which hand accused Vijay Pal was carrying hockey and also stated that the fact of hockey was mentioned in his statement (which, however, was not found mentioned). He denied FIR No. 126/03, PS. Gokul Puri Page 16 of 245 St. Vs. Anang Pal etc. that on 15/04/03 around 05.30 am they all assembled with deadly weapons to kill Kailash, who met them at 07.05 am while going towards gali no. 24. He also denied that at 07.10 am he along with his father, Rajender, Surender, Pinky @ Kalpna, Dharmo @ Brahmo, Lajja, Suraj, Ravi and Chattar had assaulted Kailash and caused injuries in his head, hand and chest with knife dagger and hockey. He denied that due to this attack Kailash took shelter in the room of tenant of Shyam Lal and had shut the door from inside and that they all had made efforts to break open the door due to which Ajab Singh and his family gathered at the spot and saved Kailash. He denied that Vijay Pal was informed by someone about the assault on Kailash and on seeing blood from the head of Kailash, he had asked Kailash as to what had happened and Kailash had replied that he was beaten by them (witness and others with him). He also denied that on hearing this Vijay Pal seeing the gathering at the corner of gali no. 23 in front of shop of Bishan went to the crowd to get the information and was caught by Surender, Brahmo and Pinki. He denied that Dhanpal and FIR No. 126/03, PS. Gokul Puri Page 17 of 245 St. Vs. Anang Pal etc. Rajender had instigated him to kill Vijay Pal and he had stabbed chhuri in the abdomen of Vijay Pal. He denied that public persons attacked them and thereafter, he along with Surender, Dharmo and Pinki fled from the spot. He denied that Vijay Pal and Kailash were taken to the hospital by the public persons or that Kailash had informed the police about the incident from his mobile. He said that first he had come out of the house followed by Surender, thereafter his father and brother Rajender and other accused persons came at the spot. He said that he was not aware how many injuries were suffered by Dhanpal or Rajender but stated that they suffered injuries at the hands of several persons. He again answered that Dhanpal suffered injuries on the left side of chest, face and on entire body and Rajender suffered injury on left side of chest, left hand and on other parts of the body. The chest injuries were suffered by both from gupti. Dhanpal suffered other injuries from lathis and hockey while Rajender suffered them from pepsi soda bottles and lathis. He said that when Dhapal received injuries Suraj, Lajja, Kamal, Ravi and Chander were not present.
Chhattar was present but no one from his family was present. He FIR No. 126/03, PS. Gokul Puri Page 18 of 245 St. Vs. Anang Pal etc. said that Tika Ram was also not present when Dhanpal received injuries. He stated that when he reached at the corner of shop of Bishan none of the accused was present on the way in front of corner of shop of Bishan Singh. He said that he did not know the length, width and thickness of the weapon, which entered the stomach of Vijay Pal, Rajender and his father. He said that derogatory remarks used against him, his brother and father on 15.04.03 were spoken in presence of Chhattar Singh. He said Ajab Sigh, Balraj Udai Raj and Smt. Rajesh reached the spot after accused Vijay Pal had come there. Vijay Pal had assaulted his father with hockey but could not tell number and places of injuries caused. He said that he was not aware who was present in the vehicle in which accused Anang Pal ran away and also did not know if accused Vijay Pal and Kailash were in the same vehicle or not. He said that he did not remember if any incident had happened on 15.04.03 in which accused Kailash received life threatening injury and said that he did not know if Kailash had received injury in the incident in which he was involved. Denying FIR No. 126/03, PS. Gokul Puri Page 19 of 245 St. Vs. Anang Pal etc. that he gave churi blow to Vijay Pal he said that the same was given by Anang Pal. The chhuri and the gupti were made of iron. He said that Vijay Pal had caught hold of his father from backside but he could not tell whether he was holding him by hand or his wrist as the situation was tensed. His father and brother received injuries prior to Vijay Pal and his father received injury prior to his brother. He said that when he came face to face with accused Anang Pal on 15.04.03, at that time all the accused, his father and his two brothers were present. Accused Kailash was present prior to coming of Anang Pal. Anang Pal came alongwith Vijay Pal, Mulak Raj, Satish, Jaiwati, Kuman and thereafter, Balraj, Udai Raj, Ajab Singh and Rajesh came. He said that the call to police was made by his sister inlaw. He denied that accused Smt. Rajesh was not present at the spot or that she did not cause any injury to him. He said that gupti did not have its cap when it was got recovered by accused persons and that no cover of gupti was got recovered in his presence. The two gupties were at a distance of some foot. He said that both the accused were present at the FIR No. 126/03, PS. Gokul Puri Page 20 of 245 St. Vs. Anang Pal etc. time of recovery of gupties but could not tell if they pointed at the place of recovery together or one after the other. He denied that his brother had hit Kailash with a brick. He could not tell if the accused Kailash ran away from the spot with or without kutta. He said that he did not remember seeing Kailash going towards his house after the incident of firing, however, he saw him coming out with gupti. He said that he was not aware if family members of accused Kailash were called at the spot by someone and he was not aware who caused injury on the head of Kailash.
12. On the incident dated 14.04.1997 the witness stated on different dates in his crossexamination as under:
He said that the incident of 14.04.97 took place around 03.00 am when complainant side was celebrating Ambedkar Jayanti they were prevented by the accused persons present in the court. He said that on that day he along with his father and accused Kailash were arrested but denied that only accused Kailash (and none of the other accused) was present in that incident. A FIR No. 126/03, PS. Gokul Puri Page 21 of 245 St. Vs. Anang Pal etc. suggestion was given to the witness that on 14.04.97 during the celebration of Baba Sahib Ambedkar Jayanti the speaker gave provocative speeches to divide the community on the caste basis.
He admitted that his father was also arrested in this incident in the said incident u/s 93/97 (of DP Act) . He admitted that his deceased brother Rajender Singh was an active member of Samta Sainik Dal. Admitting that he remained in lockup on 14/04/97, along with Kailash, he stated that he did not make any complaint regarding castiest remarks in this regard.
13. On investigation aspect the witness stated on different dates in his crossexamination as under:
He said that on 20/04/03, he was called by the police around the evening time and the police had come to his house along with accused Kailash and Anangpal to search the gupties. He further deposed that he did not know how many police persons were accompanying the accused and stated further that Inspector Bir Singh and SI Kailash were with them. He said that the police FIR No. 126/03, PS. Gokul Puri Page 22 of 245 St. Vs. Anang Pal etc. had prepared the sketch of the gupti at the place from where they were recovered and that he had signed the papers. He said that it was not dark when they reached the spot and when he returned home. He denied the suggestion that the guptis were recovered from his own house and in fact they were chhuris and not guptis. He denied that he had handed over the guptis to the police at the PS. Though he stated that the accused Udai Raj, Balraj, Satish, Ajab Singh, Kailash, Anang Pal made a confession before him, he further said that the he did not see the confession being recorded and it was brought before him written on which he put his signature. He categorically stated that he did not know who wrote the confession statement as they were not written in his presence but stated that they were recorded at the place of occurrence. He confirmed that statement of Surender was recorded first and thereafter his statement was recorded. Inspector Sumer Singh had come to the hospital where they were admitted. He said that he could not tell the name of police officers who recorded his statements; however, some of his statements were recorded by FIR No. 126/03, PS. Gokul Puri Page 23 of 245 St. Vs. Anang Pal etc. Inspector Sumer Singh. He had signed all his statements. He did not remember how many police officials had come at the spot and also did not remember the time when they reached the hospital. In reply to the question if he had asked the police not to record FIR on statement of Surender, the witness replied that police had recorded statement of Surender first. The police officials told him that they should not say anything against accused related to caste as it would make their job difficult. He said that he could not tell the name of police officer, who did not let the FIR to be registered on true facts but said that Sumer Singh was present there.
14. Suggestions were given to the witness about a different cause of dispute and false implication on that account:
FIR No. 126/03, PS. Gokul Puri Page 24 of 245 St. Vs. Anang Pal etc. He said that he was not aware if there was any factory of S.K. Gupta for making plastic dana in front of house of Udai Raj, who lived in gali no. 24. However, he denied that his father was against the running of that factory and that the accused persons were on the side of S.K. Gupta because of which his father had a grudge against accused.
15. On Samta Sainik Dal and atrocities on account of caste, the witness stated on different dates in his cross examination as under:
He denied the suggestion that case under the provisions of SC/ST Act was made at the instance of ACP B.L. Meena and the complaints were also prepared at his instance. He denied that since Gokul Pur village branch of Samta Sainik Dal had refused to prepare false record of their complaint, so the complaints were made to Samta Sainik Dal Laxmi Garden, Loni, Ghaziabad. A suggestion was given to the witness that the complaint was registered at the instance and advice of Rajeshwar Singh, who FIR No. 126/03, PS. Gokul Puri Page 25 of 245 St. Vs. Anang Pal etc. belongs to scheduled caste and that the FIR was registered under political pressure.
The witness said that there was an office of Samta Sainik Dal (SSD) in Gokal Pur and his brother Rajender was a member of it. He had been writing to Samta Sainik Dal about the atrocities against the SCs in the area. He lodged the complaint to Samta Sainik Dal at Loni Ghazibad. He said that there was no office of Samta Sainik Dal at his residence. He admitted that he did not lodge any complaint against any one else except the accused persons and that he did not know how many complaints he lodged in all. He denied that he was propagating castiest hatred. He stated that he could not tell on which date his brother joined Samta Sainik Dal. He deposed that he was not aware if any entry was made in any register related to the complaints given to Samta Sainik Dal. He said that he did not know if he or his family members had made any complaint against accused to Samta Sainik Dal between 15.04.03 and 09.05.03 but denied that the complaints dt. 20.04.97, 29.04.97, 10.12.97, 06.02.98, 06.08.98 and 19.04.99 FIR No. 126/03, PS. Gokul Puri Page 26 of 245 St. Vs. Anang Pal etc. were made to Samta Sainik Dal after 09.05.03 and that they were ante dated. On several questions regarding how the accused knew about the caste of complainant, witness stated that in 1996 when his father was constructing his house the accused persons had stated that 'Chamar Chure yaha makan nahi bana sakte' and they were as such aware of their caste.
The witness denied the suggestion that apart from Vijay Pal and Bharat Singh there was no Gujjar family in the locality and volunteered that there was a family of Kailash and Jeet both sons of Attar Singh. He stated that he was not aware if accused persons interfered in the marriage of his sister and brother but admitted that he had not seen them in the family functions. He stated that he was not aware if the members of the family of accused had ever harassed the members of his caste living in the colony. He said that he could not tell if members of his community used to call the family of accused Anangpal in the functions. He also could not say if due respect was given to the woman of his caste by the accused persons. Regarding the incident of 13.04.03 i.e engagement of PW FIR No. 126/03, PS. Gokul Puri Page 27 of 245 St. Vs. Anang Pal etc. Surender, the witness stated that he had not lodged any report and did not remember whether the complaint made to Inspector Sumer Singh or Inspector Veer Singh was written or oral. He denied the suggestion that this fact was not mentioned in the complaints given to the police officers. He stated that he was not aware if the accused persons had visited their house at the time of death of his brother Rajender's daughter. He said that he could not tell name of any person in whose presence Anang Pal uttered castiest remarks or names of any independent person in whose presence celebration of Ambedkar Jayanti was prevented. He said that between 1998 to 2003 threats were given to them not to celebrate Ambedkar Jayanati but he does not remember if the threats were given publicly or in private.
16. Confrontation other than the ones specifically mentioned above: His statement that Jeet and Kailash came in red or white Car and took the accused away was confronted with his statement Ex.PW1/A, where it was not recorded. His statement FIR No. 126/03, PS. Gokul Puri Page 28 of 245 St. Vs. Anang Pal etc. that Kuman was having a lathi was confronted with his statement Ex.PW1/A where the words were not specifically written.
Additionally the relevant parts of the crossexamination are: He admitted that FIR No. 157/03 pertains to the same incident as FIR No. 126/03. He deposed that his statement was recorded prior to recording of statement of Surender and that statement of Surender was also recorded in his presence in the hospital. He denied that name of Satish was falsely mentioned in the FIR. He said that while going to the hospital in PCR van he had disclosed the names of assailants to the PCR official and he told that leg and fist blows were given to him by accused Anang Pal but he does not know if they recorded it in writing. He denied that he got false case lodged against the accused persons as they were the only known persons to him and the other persons, who committed the offence were not known to him. He said that he did not tell the names of assailants to the doctor as the doctor did not ask it and said that he did not recollect if the doctor had asked as to who had caused injuries to his brother and father. In his crossexamination conducted by Sh. Bharat Bhushan Dingra, Advocate, he said that FIR No. 126/03, PS. Gokul Puri Page 29 of 245 St. Vs. Anang Pal etc. he did not remember if Ambedkar Jayanti used to be celebrated with full celebration or if it was celebrated in his village.
17. PW 2 Dr. S. K. Verma proved the postmortem reports of the two deceased, which are Ex PW2/ A of deceased Rajender and Ex PW2/B of deceased Dhanpal. In his cross examination he stated that injury no 3 to 5 in Ex PW 2/A and 2 to 5 in Ex PW2/B were simple in nature; about the former he replied that they were blunt also. The injuries have been discussed in detail later in the judgment.
18. PW 3 Dr T. Gupta proved the four MLCs Ex PW3/A of Surender; Ex PW3/B of Ravinder; Ex PW3/C of DhanPal and Ex PW3/D of Rajender. The doctors concerned who prepared the MLCs had left the hospital. In his cross examination he said that the injuries in Ex PW3/A & B were possible by fall. About PW3/C&D he said that as per medico legal rules injuries of brought dead persons may or may not be mentioned in the MLC. The injuries suffered by Ravinder and Surender are simple in FIR No. 126/03, PS. Gokul Puri Page 30 of 245 St. Vs. Anang Pal etc. nature.
19. PW 4 HC Surender is the duty officer. He deposed that he had recorded the FIR on receiving the rukka sent by Inspector Sumer Singh through Ct Ved Prakash. The FIR is Ex PW4/A. He proved the endorsement made in rukka by him as EX PW4/B. He also proved DD no 6 A, which was recorded by him in his own handwriting. The DD is Qayami DD of FIR. After showing the original of FIR and DD he tendered the copies in evidence. Copy of DD no 6 A is EX PW4/C. DD no 7 A was proved by him in similar manner and the same is Ex PW4/D. The DD is about sending of copy of FIR to Magistrate at his residence and to the Additional DCP. The witness was not cross examined at all. The DDs and FIR thus stand admitted.
20. It was argued by the accused persons that there is no reason why the FIR was not sent to the MM in the court when the incident is of morning. Since there was no suggestion in the cross examination of witness concerned on the issue, which could have FIR No. 126/03, PS. Gokul Puri Page 31 of 245 St. Vs. Anang Pal etc. brought on record the answer, the issue having been raised at the stage of final argument, Ld. Special PP argued that the day was a holiday on account of Mahavir Jayanti and showed his diary. The record of DD 7 A corroborates the argument as it is written in the DD itself that the FIR was sent to the residence of the magistrate and not to the court, which would have been because of aforesaid reason of the day being a holiday.
21. PW 5 ASI Tara Dutt proved DD no 2 A; the DD of information regarding the incident received at PS from PCR through telephone. It is of 9:45 AM. It is stated that on receiving this DD, he went to the spot. The DD is Ex PW5/A. He also deposed that he had gone with draftsman and others on 20/04/2003 regarding the scaled site plan.
22. PW 6 Smt CJL Bangar proved the record of SDM Seelam Pur in which names of Ravinder, Rajender and Surender were mentioned at serial no. 824/911 dated 23/06/1997, 1209/138 dated 09/12/1998 and 1208/138 dated 09/12/1998. The photocopy of the FIR No. 126/03, PS. Gokul Puri Page 32 of 245 St. Vs. Anang Pal etc. papers relevant entries were retained and are Ex PW6/A & B. This witness was also not cross examined by the accused persons. The objections taken to the caste of complainant side at the stage of arguments thus do not stand anywhere.
23. PW7 Surender is the second eye witness of the incident. He is also brother of complainant & deceased Rajender and son of deceased Dhanpal. In his examination inchief, he first proved his scheduled caste certificate which is Ex.PW7/A. (The record, however, reveals that Ex PW7/A has been put on the statement of this witness recorded under section 161 Cr.P.C on 15/04/2003. A copy of statement under section 161 Cr.P.C is also Ex PW7/ DX. Ex.PW7/DX alone shall be read in evidence for the purpose of confrontation as pointed in cross examination of the witnesses since this document could not have been exhibited in the examination in chief of the witness). He deposed that his father had gone to Mata Wali Gali, Johri Pur to attend a marriage and he returned at about 9.45 pm and told that in the marriage accused Kailash caught hold of him by collar and pointed a kutta on his FIR No. 126/03, PS. Gokul Puri Page 33 of 245 St. Vs. Anang Pal etc. neck and also remarked " tum neech chamar chure sar par chadh gaye ho apne aap ko samaj sudharak samajhte ho, tum hamari gali me aakar bas gaye ho, hamara jeena durlabh ho gaya hai". (The portion was confronted with Ex PW 7/ DX where the specific caste related words were not mentioned). He deposed that Kailash also extended threat to kill his father but Chhattar Singh separated them. He said that his father told him that since his marriage was fixed for 27.04.03, they had to do everything peacefully and they were Govt. employees and educated persons while accused were Gujjars and it was work of Gujjars to make disputes but they should lodge a report about the incident with the police. He alongwith his father, brother Rajender and Chhattar Singh went to the PS at about 11 pm. They met duty officer and narrated the incident to him asking him to lodge the report. The duty officer went to the room of SHO and told them after coming back that no one in the family was killed and so the report could not be lodged. He told them to go back and come next morning. On their asking loudly, SHO replied from his room telling them to go back and FIR No. 126/03, PS. Gokul Puri Page 34 of 245 St. Vs. Anang Pal etc. come next morning.
24. On 15.04.03 at about 7.30 am Ravinder was going to purchase bread. Accused Kailash was going behind him. He from the door of his residence saw that accused was remarking "neech kamin dhed chamar chure kal tumhara baap bach gaya tha lakin aaj tere pure parivar ko khatam kar denge, tum apne app ko bahut samaj sudharak samajhte ho". (The statement has been confronted with Ex PW7/DX where no caste related words are mentioned). He deposed further that accused Kailash took out a kutta and put the same on head of Ravinder, which he removed after running towards Ravinder because of which the bullet got fired in the air. Thereafter, accused Vijay Pal, Anang Pal, Satish, Mulakraj, Kuman and Jaiwati came at the spot. In support of these accused, Udai Raj, Balraj and Ajab Singh also came alongwith Smt. Rajesh. Accused Aang Pal was having a gupti, Vijay Pal was having a hockey and other accused persons were having lathis and empty bottles of cold drinks. All the accused persons attacked him and FIR No. 126/03, PS. Gokul Puri Page 35 of 245 St. Vs. Anang Pal etc. his brother Ravinder with lathis and empty bottles and hearing their shouts, his father Dhanpal and brother Rajender as also Chhattar Singh came at the spot. Accused Vijay Pal, Balraj and Ajab Singh caught hold of his brother Rajender. Vijay Pal shouted " in chure chamaro ka kaam tamam kar do ye bahut sar par chadh gaye hai aaj inme se kisi ko bhi nahi chhodenge". (The caste related allegations are missing from Ex PW7/DA as well as Ex PW7/B. Ex PW7/B is another statement of Surender, which shall be discussed hereunder"). Accused Anang Pal stabbed the left side of chest of his father. Accused Kailash after hearing the voice of his father brought gupti from his house and stabbed on the left side of chest of his brother Rajender. When accused Anang Pal was trying to give second blow to his father, the gupti instead of hitting of his father, hit accused Vijay Pal. Accused Satish attacked Rajender with a broken bottle of cold drink and this bottle hit the left arm of Rajender. Accused Udai Raj gave blow of lathi on the face of FIR No. 126/03, PS. Gokul Puri Page 36 of 245 St. Vs. Anang Pal etc. his father. Vijay Pal also gave blow of hockey on the face of his father. Smt. Kuman gave a blow of lathi on his head. Smt. Rajesh gave a blow of lathi on the head of Ravinder. Accused Udai Raj and Jaiwati gave lathi blows to his father, as a result of which his father fell down on the ground. All the accused persons gave blows of chappal, shoes, lathi, leg blows on his father after he had fallen on the ground.
25. He deposed that his statement and the statement of his brother were recorded in the hospital as well as PS and that his statement was recorded first and of Ravinder was recorded later. He proved his statement recorded in hospital allegedly recorded before the statement of Ravinder as Ex.PW7/B. He said that SHO did not record FIR on his statement as he himself was involved (?) and words related to atrocities (under SC/ST Act) were written in his statement. In the evening persons of his community assembled outside the PS to protest why FIR was not recorded on his statement though it contained the word of atrocities. The copy of FIR No. 126/03, PS. Gokul Puri Page 37 of 245 St. Vs. Anang Pal etc. FIR no 127/2003 was not filed on record in support of the contention that the protest was on account of non mentioning of caste related words. He proved the handing over memo of dead bodies as Ex.PW7/C and Ex.PW1/Z.
26. He said that after coming to know about addition of section 3 of atrocities act and transfer of case to ACP B.L.Meena, he gave 6 copies of letters pertaining to the complaint against the accused persons regarding the caste remarks. (No such documents, however, were tendered in the evidence of this witness). He deposed that in 1996 when his father came to the village and wanted to construct the house at 3/23, the families of Vijay Pal, Bharta Singh and Attar Singh had objected saying " in chamaro ke basne se hamara jeena durlabh ho jayega, hume roj subah in chamaro ki shakal dekhni padegi jisse hamara din kharab ho jayega'.
27. The witness was cross examined on 31 dates in evidence FIR No. 126/03, PS. Gokul Puri Page 38 of 245 St. Vs. Anang Pal etc. running in 159 pages. The main points of his evidence on different issues is as follows:
On the incident of 14.04.03 witness stated on different dates in his crossexamination as under:
He deposed that on 14.04.03 he alongwith his deceased father and brother Ravinder and neighbours went to PS to give complaint against Kailash. He deposed that his father went to the marriage on 14.04.03 alone and he came back after attending the marriage alone. He admitted that Chhattar Singh was coaccused in FIR No. 157/03 and that his father told him that Chhattar Singh had intervened in the matter. He deposed that they had gone to get the FIR registered at about 11 pm but could not tell the time when Chhattar Singh came to their house. They reached PS at about 11.20 pm to 11.30 pm and came back at about 12.15 am. He said that they did not make any complaint at 100 number or to any police authority regarding nonregistration of FIR. (His version recorded in the court regarding the incident of 14.04.03 was confronted with his statement Ex.PW7/DX because of difference in FIR No. 126/03, PS. Gokul Puri Page 39 of 245 St. Vs. Anang Pal etc. words). Similarly his evidence that "he (Kailash) extended threat to kill him and in the marriage Chhattar Singh was present and he separated us"; as also " my father had also told that my marriage is fixed for 27.04.03 we have to do whatever we want to do peacefully and we are Govt. employees and educated persons and the accused persons are Gujjars and their work is only to make disputes and so we should lodge a report about the incident of the marriage of Tikam @ Kalu to the police", were also confronted with Ex.PW7/DA. He said that he had made complaint to the DCP and the MM that the incident dt. 14.04.97 was given under D.P Act and not under SC/ST Act. His evidence that he had stated to the police in his statement that " thereafter he along with his father, brother Rajender and Chhattar Singh neighbours went to the police station at about 11 pm. There they met Duty officer and narrated the incident to him to lodge the report but he went to the room of the SHO and came back and told them that no one in the family has been killed so that report can be lodged. He told them to go back and come in the next morning at about 8 am. On this they told loudly to the duty officer to allow them to meet SHO. SHO FIR No. 126/03, PS. Gokul Puri Page 40 of 245 St. Vs. Anang Pal etc. remarked from his room that go back and come in the next morning. On this they came back to their residence" was also confronted with Ex.PW7/DX.
28. On the incident of 15.04.03 witness stated on different dates in his crossexamination as under:
He said that Kailash had passed through him when he was standing outside his house and Ravinder was at a distance of 10 feet. Kailash did not utter any wrongful words to him. His father was caught by accused Vijay Pal, Balraj and Ajab Singh and Rajender by accused Mulak Raj and Jaiwati while he and Ravinder were trying to save the life of his father and brother. His father was the first one to receive the injury. He denied that all four i.e he, Dhanpal, Ravinder and Rajender had come to the spot to kill Kailash and all were having chhuries. He denied that his father received the injuries with the chhuri being carried by Ravinder and Rajender got the injuries with the chhuri carried by him. He denied that Ravinder gave a chhuri blow to Vijay Pal and FIR No. 126/03, PS. Gokul Puri Page 41 of 245 St. Vs. Anang Pal etc. thereafter, he alongwith Ravinder ran away from the spot after assaulting Vijay Pal and Kailash and so both of them did not receive any injury (which is contrary to facts as the witness has suffered injury on his head). He said that dandas and lathis were brought by accused persons, and were lying at the spot and were being supplied by Kailash to them but he did not know how many danda and lathis had he seen. He deposed that accused Kuman gave him a lathi blow and accused Rajesh gave lathi blow on the head of Ravinder. Accused Satish gave blow by broken bottle to Ravinder. Anang Pal and Kailash had also given fist blow to him and Ravinder. He denied that all four of them had ran after Kailash and given him Chhuri blow in front of house of Bharta and then Balraj, Udai Raj and Ajab Singh came out of their house to stop them and since they saved Kailash so they were falsely implicated in this case. He denied that they alongwih Ravi Kant, Suraj Prakash, Lajja Devi and Chhattar Singh, who were present in their house at about 7 am on 15.04.03, planned an attack on the accused persons. He deposed that two minutes after the FIR No. 126/03, PS. Gokul Puri Page 42 of 245 St. Vs. Anang Pal etc. firing Vijay Pal, Satish, Anang Pal, Jaiwati and Kuman (name of Mulak Raj not mentioned) reached at the spot and three minutes thereafter, Udai Raj, Balraj, Ajab Singh and Rajesh came. He deposed that kutta remained in the possession of Kailash and he and Ravinder had not tried to snatch the same. His father and Rajender came at the spot after the arrival of accused persons but he did not know if any other member of his family came at the spot. He did not know when Chhattar Singh came at the spot. He said that accused Kailash had left the spot between the beginning of the incident and its completion and entire incident lasted for about 2025 minutes. Admitting that he did not say to the IO as to what weapon was carried by accused Kuman, he also said that Kuman gave lathi blow on his body and at that time he was surrounded by the accused persons.
29. In the crossexamination conducted by accused Anang Pal the witness said that he i.e Anang Pal stabbed his father with gupti twice in an interval of 1015 seconds and accused was in one FIR No. 126/03, PS. Gokul Puri Page 43 of 245 St. Vs. Anang Pal etc. position while giving the two blows. He deposed that accused, who had caught hold of his father made him free after the accused had given the second blow. He said that the second blow was also given towards the chest and nobody tried to intervene, the accused was having gupti throughout the incident. He stated that no blood came from the injuries caused on his body, which were caused prior to the gupti blow given to his father. About the beginning of the incident he said that he had cried after suffering the injuries, hearing which his father and brother Rajender came at the spot. He deposed that he was given first injury on his foot by accused Vijay Pal and the last on his back by Kailash. He deposed that accused Vijay Pal was holding his father by both the shoulders from the back side and his abdomen was touching the back of his father. He deposed that when second blow was given to his father, his father had tried to separate himself from accused Vijay Pal but he could not tell the distance travelled by his father. At that time his father was held by accused Balraj and Ajab Singh from left and right side respectively and their body was not touching the body of his father. At that time his brother Rajender was held by accused FIR No. 126/03, PS. Gokul Puri Page 44 of 245 St. Vs. Anang Pal etc. Mulak Raj and Jaiwati and he was caught by accused Satish but he did not know if Chhattar Singh and Ravinder were also caught by someone. He deposed that accused Ajab Singh and Balraj released his father after accused Vijay Pal received the injury. He deposed that he saw Vijay Pal coming out of his house after about 23 minutes of the firing of bullet (by Kailash) and his father and Rajender came out within 5 minutes of the firing. He deposed that accused Kailash, Mulakraj, Kuman, Jaiwati and Satish were coming behind Vijay Pal and they were remarking 'chamar churo ko maro' but none of them abused his family members, who were inside the house not even while they passed their house. He said that at the time of first blow given to his father accused was in slight bent position and at the time of second blow he was in bent position. In the intervening period of first and second blow the accused who was giving blow had shouted 'sahi se pakdo'. He said that he was on the right side of Vijay Pal when the blow was given to him. He said that Anang Pal did not give injury with sharp edged weapon to him, Ravinder and Chhattar and that FIR No. 126/03, PS. Gokul Puri Page 45 of 245 St. Vs. Anang Pal etc. he only gave fist blow to him. He said that he could not tell the length etc. of the two weapons and could not even tell the extent to which it pierced the body of Dhanpal and Rajender. He said that he had told the police that Jeet Singh had taken away accused, who gave weapon blow to his father. He said that only accused Satish was having empty bottles, which were two in number and he gave bottle blow to Rajender in front of shop of Bishan Singh on the upper portion of his arm. He said that he could not save Rajender as he was caught hold of by one of the accused for 510 minutes. He said that the ladies were having dandas which were of small size and the lathies were big in size. Accused Mulak Raj held Rajender by his arm and head while Jaiwati held his second arm and the accused said ' theek se pakdo' once. He said that they did not snatch the dandas or lathis from the lady accused and the other accused but they threw the danda on the ground when they caught hold of respective deceased (erroneously written as accused). He deposed that he was not aware of when how and where accused Kailash received injury, which was read as against Ex.PW7/DX where the fact of Kailash having received the injuries was FIR No. 126/03, PS. Gokul Puri Page 46 of 245 St. Vs. Anang Pal etc. mentioned. He said that he did not tell Ravinder that when Anang Pal was giving second blow to his father then instead of hitting his father it hit Vijay Pal. He claimed having said so in his statement Ex.PW7/B but was confronted as no such thing was found mentioned and merely ' isi jhagde wa kashamkash me titu ki gupti Vijay Pal ke pat me lag gayi' was mentioned. He deposed that first of all Vijay Pal had given him a hockey blow at 7.30 am. He said that Ajeet @ Jeet and Kailash did not come to the spot with any weapon but denied that Ajeet did not come to the spot at all. Udai Raj gave injuries to his father with a lathi. He denied that no family member of Vijay Pal was present when Ravinder stabbed Vijay Pal and volunteered that Vijay Pal was stabbed by Anang Pal. He denied that his brother Ravinder and Rajender had gone to GTB Hospital on a motorcycle and while going to the hospital motor cycle fell down due to which they sustained injuries. He denied the suggestion that the incident took place outside the shop of Bishan which is adjacent to their house admitting that Bishan runs a grocery shop in which bread and cold drinks were sold. He FIR No. 126/03, PS. Gokul Puri Page 47 of 245 St. Vs. Anang Pal etc. deposed that the quarrel started at the corner of street and it continued up to the shop of Bishan. He said that apart from three shops of Bishan there were 45 other shops. There was a flour mill and one doctor clinic nearby. He said that shop of Bishan opens before 6 am sometime and it is open almost daily. At the time of incident the shutter of Bishan's shop was half down. He denied that on 1504.13 at about 7.15 am he along with his father Dhanpal and brothers Ravinder and Rajender caught accused Kailash and assaulted him causing injury on his head, whereafter Kailash ran towards his house and Vijay Pal came out to rescue Kailash. He also denied that Kailash told Vijay Pal that he was beaten and so Vijay Pal came and told them not to quarrel or that they were having knives with them and they attacked Vijay Pal with knives or that Vijay Pal was stabbed by Ravinder in his stomach, who was caught by Pinki and Dharmo. He denied that hearing the noise Villagers came to help Vijay Pal, who intervened and saved Vijay Pal and Kailash and he and his brother Ravider ran away from the spot and while they were running away villagers gave them brick and bottle blows which caused them injuries and that at that time FIR No. 126/03, PS. Gokul Puri Page 48 of 245 St. Vs. Anang Pal etc. Vijay Pal was lying injured on the ground. He denied that he had gone to GTB hospital with his brother Rajender and stated that Rajender was dead and he was taken to hospital. He deposed that his father fell down with his back towards the ground. He said that the second injury sustained during the incident was a gupti blow given by accused Anang Pal to Vijay Pal, who was intending to injure Dhanpal but the same hit Vijay Pal and the third injury was sustained (should be caused) by Kailash. Accused Vijay Pal was the fourth person who come at the spot fifth was Anang Pal and thereafter, all came together and after that Udai Raj, Ajab Singh, Balraj and Smt. Rajesh came to the spot.
30. His evidence that " he had stated to the police in his statement that "he hear(d) and saw that accused Kailash was remarking ' Neech Kamin Dhed Chamar Chude Kal tumhara baap bach gaya tha lekin aaj tere pure parivar ko khatam kar denge. Tum apne app ko bahut samaj sudharak samajhte ho" was confronted with Ex.PW7/DX. His evidence that he had stated to FIR No. 126/03, PS. Gokul Puri Page 49 of 245 St. Vs. Anang Pal etc. the police in his statement that "and at that time he was standing on the door of his residence which is on the left side" was also confronted with Ex.PW7/DX, where it was written that he came out on hearing the noise. His evidence that he had also stated to the police in his statement that Chhattar Singh also came to the spot and that accused Vijay Pal shouted loudly that "in chude chamaron ka kaam tamam kar do ye bahut sar par chadh gaye hain aaj inme se kisi ko bhi nahi chhodenge and that when Anang Pal was trying to give a second blow with the gupti to his father it instead of hitting his father, hit Vijay Pal" was also confronted with Ex.PW7/DX. His evidence that "He had stated to the police in his statement that " accused Udai Raj and Smt. Jaiwati gave lathi blows to his father and as a result of which his father fell down on the ground and that all the accused persons gave blows of Chappal, shoes, lathi, leg blows on his father after he had fallen down on the ground also confronted with Ex.PW7/DX. His statement that he had stated to the police in his statement that thereafter accused Vijay Pal remarked "In chamaron ka kaam tamam ho gaya hai"
FIR No. 126/03, PS. Gokul Puri Page 50 of 245 St. Vs. Anang Pal etc. and that Jeet & Kailash both S/o. Attar Singh who were also present at the spot during the incident and were providing arms and asla to the accused persons and that Kailash S/o. Attar Singh had took away accused Kailash and Vijay Pal alongwith Asla in his red colour Maruti 800 Car was also confronted with Ex.PW7/DX as well as EX PW7/ DB. His statement that he had stated to the police that"Jitne bhi chude chamar bache hain inko bhi khatam kar denge" and that these accused persons were taken away by the Jeet S/o. Kailash again said Jeet S/o. Attar Singh was also confronted with Ex.PW7/DX. His evidence that he had stated to the police that on 15.04.03 when his father and brother namely Rajender fell down on the ground and were bleeding, Chattar Singh put his Kurta on my father and that when Satish was attacking Ravinder with broken bottle Chattar Singh caught hold of accused Satish and in this way the life of Ravinder was saved was also confronted with Ex.PW7/DX. His evidence that he had stated to the police that Jeet and Kailash both S/o. Attar Singh who were also present at the spot during the incident were providing arms and asla to the FIR No. 126/03, PS. Gokul Puri Page 51 of 245 St. Vs. Anang Pal etc. accused persons or that all the accused persons used to spit in front of their house and used to remark "Sale Chamar Chure Yahan Aakar Bas Gaye" was also confronted with Ex.PW7/B. Admitting that crate of empty bottle was kept outside the shop of Bishan, he stated that he could not say if Bishan used to sell cold drinks. He denied that due to quarrel public persons collided with empty crate due to which the empty bottles fell down and were broken and these broken pieces were seized by the police. There was a reference to complaint of PW7 filed by him before LD. ACMM alleging fault in investigation. The document is brought by accused in crossexamination and is Ex.PW7/DA. There is nothing else stated about the complaint.
31. On the incident dated 14.04.97 witness stated on different dates in his crossexamination as under:
He deposed that in 1997 when they were celebrating Ambedkar Jayanti then the families of Viijay Pal, Attar Singh and Bharta Singh had objected to the celebration and had remarked 'ye FIR No. 126/03, PS. Gokul Puri Page 52 of 245 St. Vs. Anang Pal etc. chamar bahar se aakar yaha par Ambedkar Jayanti manayenge'. A kalandra u/s. 92/93 D.P. Act was prepared and police arrested accused Kailash and his father and his brother had pressed the caste issue. He admitted that on 14.04.97 a quarrel took place in the village in which his father and Ravinder were taken into custody by local police for creating nuisance in the locality, however, denied that apart from this there were other incidents of quarrel between his family and villagers also.
32. On investigation aspect, witness stated on different dates in his crossexamination as under:
He deposed that on 20.04.03 he and Ravinder went to PS. Ravinder remained in the PS while he came back. It was not dark when Ravinder came back to the house. From 5.30 to 10.30 pm all his family members except Ravinder were present in the house. Inspector Veer Singh had visited their house after 4 pm and had taken him and Ravinder to PS. In his presence no police official visited their house from 5.30 pm to 10.30 pm. He deposed that his FIR No. 126/03, PS. Gokul Puri Page 53 of 245 St. Vs. Anang Pal etc. statement was recorded in GTB hospital at about 8.15 8.30 am prior to the statement of Ravinder. He stated that police had correctly recorded his statement on 15.04.03 and 10.05.03. He deposed that his statement Ex.PW7/DX was recorded at about 10.15 am in the PS but he could not tell the name of police official, who recorded this statement. He denied that Ex.PW7/B, his statement allegedly recorded in hospital was written by him and not by any police officer or that the same was given to the police on 02.05.03. He admitted that Ex.PW7/B was not signed by any police official and it was undated. He denied that the guptis were recovered from his residence. He stated that FIR No. 126/03 and 157/03 pertain to the same incident. He deposed that his brother and father were taken in separate PCR Van from the spot and two PCR Vans came to the spot in his presence.
His statement was recorded by the police at 8.45 am in the hospital and at 10 am in the PS. When his statement was recorded Ravinder was in the separate room and about 810 police officers were present. He also deposed that he did not see the FIR No. 126/03, PS. Gokul Puri Page 54 of 245 St. Vs. Anang Pal etc. recording of statement of Ravinder during their departure from hospital to their house and from the house to the PS. He deposed that Ravinder informed him that his statement was also recorded by the police in the hospital (He can not, therefore, claim that his statement was recorded first). He said that his first statement was recorded in the hospital for the purpose of FIR on which he had put the date but he did not know if IO had put his signatures on his this statement. He admitted that FIR was not registered on his statement. He denied that Ex.PW7/B was introduced before subsequent investigating officer and there was a consultation with lawyer to get caste related words incorporated. He said that Ex.PW7/B was recorded in hospital on 15.04.03 at about 8.30 am and Ex.PW7/DX at 10.30AM.
33. On Samta Sainik Dal, witness stated on different dates in his crossexamination as under:
He deposed that his family is attached to Samta Sainik Dal since 15 years and that Samta Sainik Dal had an office in FIR No. 126/03, PS. Gokul Puri Page 55 of 245 St. Vs. Anang Pal etc. Village Gokul Pur but they had not made any complaints in this office. Complaints to Samta Sainik Dal were written on behalf of his mother also but he did not know, who wrote these complaints. He denied that these complaints were ante dated and were prepared falsely in support of this case. He said that from January, 1999 till January, 2003, the families of accused persons used to pass derogatory/casteist remarks but he did not remember if he or his father had made any complaint to any govt. or nongovernmental organization including Samta Sainik Dal. He denied that the complaint to Samta Sainik Dal were manipulated or created after incident.
In many questions put regarding how the knowledge of caste was acquired by accused witness denied all the suggestions including the one regarding the knowledge having been acquired after going through the contents of FIR No. 126/03. His statement that accused Vijay Pal used to spit in front of their house and remark 'sale chamar chure yahan aakar bas gaye hai as also 'in chamaro ke basne se hamara jeena durlabh ho jayega hume roj FIR No. 126/03, PS. Gokul Puri Page 56 of 245 St. Vs. Anang Pal etc. subah in chamaro ki shakal dekhni padegi jisse hamara din kharab ho jayega' were confronted with Ex.PW7/B. He said that he was not aware whether accused Kailash or his family had received the Invitation Card of marriage of Tikam Singh. He was not aware if in the radius of 50 meters surrounding his house, the majority of the houses were occupied by members of his caste, however, admitted that there were only 45 houses of Gujjars in that radius. He denied that Tikam Singh belonged to his caste. He said that in their gali there is only one house of member of his caste i.e of Suraj Prakash.
34. Confrontation: Apart from the ones mentioned above there are some other confrontations in the evidence of the witness. His evidence that he had stated to the police in his statement that in the year 1996 when his father came to the village Gokalpur and wanted to construct the house at 3/23 the families of Vijay Pal, Bharat Singh & Attar Singh had not allowed them because they used to say " In chamaron ke basne se hamara jeena durlabh ho FIR No. 126/03, PS. Gokul Puri Page 57 of 245 St. Vs. Anang Pal etc. jayega. Hame roj subah in chamaron ki shakal dekhni padegi, jisse din kharab ho jayega' and that in the year 1997 when the Ambedkar Jayanti was celebrated these three families of Vijay Pal, Attar Singh and Bharat Singh objected to the celebration and remarked " Yeh chamar bahar se aakar yahan par Ambedkar Jayanti manayenge" and they had quarreled with them were also confronted with Ex.PW7/DX. His statement that Vijay Pal was having hockey with which he attacked his father on face was confronted with his statement Ex.PW7/DX. His evidence that he had stated to the police in his statement that accused Vijay Pal stated that "aaj in chamar chudo ko jaan se maar do" was also confronted with Ex.PW7/DX. These words were missing from Ex PW7/B as well. His evidence that he had stated to the police that accused Vijay Pal had given hockey blow to Dhanpal was also confronted with Ex.PW7/B. His evidence that he had stated to the police that accused Vijay Pal shouted loudly that " in chude chamaron ka kaam tamam kar do, yeh bahut sar par chad gaye hai, aaj inme se kisi ko bhi nahi chodenge" was also confronted with FIR No. 126/03, PS. Gokul Puri Page 58 of 245 St. Vs. Anang Pal etc. Ex.PW7/B.
35. Other important points of cross examination: He said that he was not aware how many family members were there in the family of Vijay Pal but he knew the name of family members who were accused. He denied that due to enmity with family of Vijay Pal he implicated the members of his family after ascertaining their names. He said that he was not aware if distance between street no.3 and St. Stephen hospital is 20 km and that the distance could be covered in 45 minutes. He said that he had shown his injury caused on the back caused by Vijay Pal with a hockey to the doctor.
36. PW8 Tuli Ram deposed that he was running a grocery shop at the time of incident and deceased Dhanpal used to tell him that accused persons called him Chamar (which is hearsay evidence). He also told him that they were going to celebrate Ambedkar Jayanti on 14.04.03. He says that on enquiry conducted by ACP he had told that Anangpal, Tekan and Vijay Pal were FIR No. 126/03, PS. Gokul Puri Page 59 of 245 St. Vs. Anang Pal etc. involved in the incident though he did not remember the names of the others. He was crossexamined by Ld. Spl. PP wherein he admitted the suggestions given by Prosecutor regarding dominance of Gujjar Community. He was also reminded of names of accused Satish, Udai Raj, Balraj and Ajab Singh. He stated that he forgot some facts as the matter was 7 years old. In his crossexamination by the accused persons he admitted that he did not see the incident. (In view of this admission his evidence is not helping prosecution in any manner on the incident of murder). He also admitted that none of the accused persons misbehaved with any person or any lady belonging to the low caste and none of them created any obstruction in the marriage functions belonging to lower caste, in his presence. He stated that a complaint was lodged against Gujjar community for passing castiest remarks which was decided three years back (prior to 04.01.10 date of deposition) and the complainant in the said case was his sister. He stated that all the accused present in the court were accused in the said case but could not tell the number of the case or the FIR. His statement was not FIR No. 126/03, PS. Gokul Puri Page 60 of 245 St. Vs. Anang Pal etc. recorded in the said case. His sister, who was the complainant or any other witness of that case has not being examined. Prosecution has not done the last, which it could do i.e. filing of FIR of the said in the court. The testimony of this witness on the fact is not believable. About the present case he said that he got the information at 10 am, thereafter, he went to the spot and remained there for 24 minutes. About Vijay Pal he admitted that he never committed any crime in his presence. He knew that accused Vijay Pal was gujjar but did not remember who told him this exactly. He denied the suggestion that his wife and other ladies had tried to burn the family of Vijay Pal at 9 am on 15.04.03 nor did he try to kill them in PS Gokul Pur at 10 am that day. He said that he did not want to level any allegation against Vijay Pal pertaining to the incident of 1988 in which some persons of Gujjar community had passed castiest remarks against them or regarding the incident dt. 15.04.03 as he was not present there. Admitting that he did not make any written complaint to the police regarding commission of atrocities, he volunteered that he made FIR No. 126/03, PS. Gokul Puri Page 61 of 245 St. Vs. Anang Pal etc. the complaint after the present incident. No such complaint was tendered in his evidence. This witness thus says that there was one incident related to caste of which no document is on record, and he was not a witness of said case. He gave a clean chit to accused Vijay Pal in said case and generally to all the accused persons saying that none of them harassed any girl of SC community nor they caused any interference in their marriages in his presence. This witness does not help prosecution case in any manner.
37. PW9 Chhattar Singh is another eye witness of the incident. He was examined by the court on 29.05.09. On that date he deposed that on 14.04.03 he had gone to Johri Pur in marriage of Kalu, where accused Kailash had caught hold of Dhanpal's neck and had put kutta on his head and had abused Dhanpal saying "Sale Neech Chamar tujhe aaj me afsar banaunga". (This part of his statement was confronted with his statement u/s 161 Cr.P.C Ex.PW9/DA where it was not so recorded). He deposed that at 11 pm he went to PS alongwith Dhanpal, Rajender and Surender, where the duty officer told them to come next day after coming FIR No. 126/03, PS. Gokul Puri Page 62 of 245 St. Vs. Anang Pal etc. from the room of SHO. He stated that this part of his statement was not recorded by the IO as he said that it was not required. He deposed that on 15.04.03 at about 7.15 am all the family members of Vijay Pal collected and brought gupti. Vijay Pal said in loud voice " in dhed chamaro ka kaam tamam kar do". He deposed that accused Vijay Pal had caught hold of Dhanpal and Anang Pal gave a gupti blow on left side of Dhanpal when accused Kailash brought a gupti and gave a blow on left side of Rajender. When Dhanpal fell down Anang Pal gave gupti blow to Vijay Pal. Satish gave a blow with a broken bottle to Rajender and thereafter, he ran after Ravinder. He caught Satish from back side and saved Ravinder. Without naming anyone he deposed that they also gave blows with lathis and dandas to Rajender, Surender, Ravinder and Dhanpal. The witness was tendered for crossexamination after his evidence concluded on 29.05.09. On 22.07.09 the crossexamination by the counsel of Udai Raj, Balraj and Ajab Singh was closed and on behalf of other accused persons it was deferred.
FIR No. 126/03, PS. Gokul Puri Page 63 of 245 St. Vs. Anang Pal etc.
38. An application u/s. 311 Cr.P.C was filed by Ld. Special Public Prosecutor stating that the witness had given him an application saying that he not being familiar with the atmosphere of the court could not give the complete version in his evidence. The facts related to moving of the application are discussed in detail later in the judgment. The witness in his subsequent evidence deposed against accused Udai Raj, Vijay Pal, Balraj, Ajab Singh, Mulakraj and Jaiwati in addition to the other accused. He deposed that Dhanpal was caught by Balraj, Ajab Singh and Vijay Pal as against his first statement where he said that Dhanpal was caught only by Vijay Pal. In his second testimony he said that Vijay Pal gave gupti blow to Dhanpal, who fell down after sustaining injury on his left side. Thus, contradicting his earlier version regarding Anang Pal having given the gupti blow. This, however, may appear to be a typographical error since in the second line he said that second gupti blow given by Anang Pal inflicted injury on Vijay Pal. He added that Mulak Raj and Jaiwati had caught Rajender while Tekan @ Kailash gave gupti blow when in fact earlier no FIR No. 126/03, PS. Gokul Puri Page 64 of 245 St. Vs. Anang Pal etc. such thing was said by him. His further addition in his subsequent statement was that Smt. Rajesh gave lathi blow to Ravinder and Kuman gave lathi blow to Surender and they also gave several lathi blows to Ravinder, Surender and Dhanpal. He deposed that the accused ran away in two vehicles driven by Kailash and Jeet and also said that all accused used to call them " neech chamar & dhed"
and used to object the celebration of Ambedkar Jayanti. The witness was again crossexamined by Ld. Spl. PP, wherein his entire version u/s. 161 Cr.P.C was put to him.
39. In his first crossexamination on 10.09.09 he deposed that his both statements made in the court were correct. The witness stated that he was not read over any of his statements and was not told anything by Spl. PP. His application u/s. 311 Cr.P.C dt. 30.07.09 on the basis of which his subsequent evidence was recorded was shown to him and he said that he did not know the contents of application nor did he know who moved the application. He said that he had moved several applications regarding the threats given to him but could not show the FIR No. 126/03, PS. Gokul Puri Page 65 of 245 St. Vs. Anang Pal etc. applications. On being specifically asked if he had moved any application in last four months in the case, the witness replied that he moved application regarding the threats given to him. He said that he did not know the contents of annexure P1 (his application addressed to Spl. PP) and Ex.PW9/DX (the application under section 311 Cr.P.C filed on his behalf). He said that he used to sign the application and documents after getting the contents of same read over to him. About annexure P1 of Ex.PW9/DX, he said that it might have been written that Satish used to threaten him. So despite several questions put the witness did not say that he filed any application stating that his evidence be recorded again as he was not comfortable and had threat at the time of giving the evidence earlier. Though the witness became wiser on subsequent date, the fact was conspicuously missing from his first cross examination after the application.
40. His cross examination on specific issues on various dates is as follows:
FIR No. 126/03, PS. Gokul Puri Page 66 of 245 St. Vs. Anang Pal etc.
41. On the incident dt. 14.04.03, the witness stated on different dates in his crossexamination as under:
In his crossexamination dt. 27.08.09 the witness stated that he did not tell police that "the younger son of Dhanpal namely Surender approached me on the preceding night and informed me that Kailash s/o.Vijay Pal, who is residing opposite the house of Dhanpal met Dhanpal in the marriage of Kalu and caught hold him from his collar and also threatened. He further told me that they are apprehending that these persons can do something. I advised Surender to report this matter to the police and Surender left my house in the night", which was confronted with Ex.PW9/DA where it was found, recorded. He said that on 14.04.03 he came back to his house around 11.30 to 12 of mid night and in his presence Suraj, Lajja and Ravi were not in the house of Dhanpal. On another date he deposed that he had left the house of Dhanpal at about 11.30 pm to 12 of night for going to the PS. The statement of witness given in his evidence; " on FIR No. 126/03, PS. Gokul Puri Page 67 of 245 St. Vs. Anang Pal etc. 14.04.03 at 11 pm I went to the police for lodging the report alongith Dhanpal, Rajender and Surender. We narrated the facts to the duty office at PS Gokul Puri. Then duty officer went to the room of SHO and he narrated the facts to the SHO. Then SHO told us from inside his room that no one had died and also directed us to come to the PS on next morning", was confronted with Ex.PW9/DA where it was not so recorded.
42. On the incident dated. 15.04.03, the witness stated on different dates in his crossexamination as under:
He clarified that Kailash S/o. Attar Singh had taken Vijay Pal and Kailash @ Tekan to hospital in the Car and not Jeet. He said that he did not depose in the court that all the family members of Vijay Pal collected at the spot at 7.30 am and brought gupti. In his cross dated 17.11.09 the witness stated that the person who caused injury to Dhanpal with sharp edged weapon had thrown it away after attacking Dhanpal and he gave fist blows to Surender and Ravinder. His version that Vijay Pal uttered ' in dhed FIR No. 126/03, PS. Gokul Puri Page 68 of 245 St. Vs. Anang Pal etc. chamaro ka kaam tamam kar do' and that he had caught hold of Dhanpal and that Vijay Pal gave hockey blow to Dhanpal and that Mulakraj caught hold of some persons and Jaiwati caught hold of some persons and that Anang Pal gave gupti blow to someone and that Kailash gave gupti blow to someone, Satish attacked someone with a broken bottle were also confronted with his statement Ex.PW9/DZ ( his subsequent statement under section 161 Cr.P.C). On 16.11.09 witness stated that when he reached the spot, Dhanpal, Ravinder and Surender were in injured condition clarifying that they sustained injuries within 57 minutes after his arrival. After the court observed that he was avoiding the question, the witness did not answer the specific question whether Dhanpal, Surender, Ravinder and Rajender were having injuries on their person when he reached at the spot and said 'pakad rakha tha'. On 24.11.09 he said that when he reached at the spot on 15.04.03 he did not see any injury on the persons of Dhanpal, Rajender, Surender and Ravinder. He said that he could not tell specifically how many lathi blows were given to Rajender and Surender by the male FIR No. 126/03, PS. Gokul Puri Page 69 of 245 St. Vs. Anang Pal etc. members, however, 23 lathi blows were given to Dhanpal and none to Ravinder. In his crossexamination dt. 18.12.09 he deposed that no male person gave lathi blows to Surender and that he was given lathi blows by the females. He deposed that on 15.04.03 he saw the time at 6.30 am when he left to bring the milk.
He came back at 7 am and after 20 minutes he heard the noise of crying and also heard the firing. He said that he had told the fact regarding hearing of firing to the police but denied that he deposed the fact in the court on 01.12.09 at the instance of Spl. PP, Ravinder and Surender. He said that he did not know what a kutta was (which creares a doubt regarding his evidence of 14/04/2003). He denied that Dhanpal and Rajender were given injuries by villagers as they had caused injuries to Vijay Pal and Kailash. He also denied that first Rajender, Ravinder and Surender had given head injury to Kailash and when Vijay Pal came to save his son he was stabbed with knife by Rajender, Surender and Ravinder.
He clarified that he did not say in the court that Vijay Pal gave gupti blow to Dhanpal and volunteered that Anang Pal had FIR No. 126/03, PS. Gokul Puri Page 70 of 245 St. Vs. Anang Pal etc. given the gupti blow. He deposed that Kailash had given gupti blow to Rajender and later on stated that Kailash referred by him was son of Attar Singh.
He denied that Vijay Pal was caught by Dhanpal and his sons, Surender, Dharmo and Pinki caught him and Ravinder gave him a knife blow. He volunteered that none from the family of Dhanpal was present at the time of incident and only he was present. He denied that he alongwith Suraj and his wife Lajja had come at the spot with lathi, danda and hockey and had assaulted Vijay Pal and Kailash. He denied that Kailash was assaulted with a hockey by him and Dhanpal had also tried to assault Kailash with a knife. Admitting that public persons had gathered, he denied that they intervened or that Kailash hid himself in the room of tenant Shyam Lal. He denied that he and others had tried to break open the door shouting " hum tumhe jinda nahi chhodenge". He denied that Kailash left the room when other villagers also arrived or that those villagers started quarreling with them or that they i.e accused of FIR No. 157/03 also quarreled with accused Vijay Pal who came near the shop of Bishan on hearing about assault on his son and FIR No. 126/03, PS. Gokul Puri Page 71 of 245 St. Vs. Anang Pal etc. that Ravinder caused injury in the stomach of Vijay Pal. He denied that Vijay Pal fell down and on hearing his cries villagers assembled in front of shop of Bishan, seeing whom, all except Dhanpal and Rajender from their side, left the spot or that Village people assaulted Dhanpal and Rajender. He admitted that Kailash S/o Attar Singh took injured Vijay Pal and Kailash @ Tikam from the spot. He said that he made phone call to PCR at 7.30 am and 5 7 minutes later PCR arrived. He said that he told the PCR that two persons were murdered. He admitted that he did not sustain any injury in the incident and that his clothes were also not blood stained. He admitted that he was not under anybody's pressure on 29.05.09 when he gave the statement in the court. He said that after his statement in the court he had made a complaint to the court by moving an application, which was signed by him. He deposed that he had not enquired from the court about the fate of the application nor he pursued the same. He admitted that in his statements dt. 29.05.09 and 22.07.09 he did not level any allegations against Udai Raj, Ajab Singh and Balraj.
In the crossexamination by accused Anang Pal he FIR No. 126/03, PS. Gokul Puri Page 72 of 245 St. Vs. Anang Pal etc. deposed that on 14.04.03 he left for attending marriage of Kalu at 8 pm and Kailash @ Tikam was the only gujjar seen by him in the marriage. There was only one food arrangement and the quarrel between Dhanpal and Kailash took place at about 9 pm. He deposed that when Vijay Pal reached at the spot he was present there alongwith Surender. He saw Titu and Tikam having gupties. He said that the persons who were giving fist blows to Dhanpal and Rajender were not having sharp edged weapons at that time.
43. On the incident dated. 14.04.97, the witness stated on different dates in his crossexamination as under:
Referring to the incident of 14.04.97 he said that in his presence accused were arrested. The witness did not reply specifically to some questions: Was any complaint given in PS in his presence, what he had to say on no complaint was filed in PS by any person residing in Gokul Pur village against him (Anang Pal) or his family prior to the present case. There was no complaint in FIR No. 126/03, PS. Gokul Puri Page 73 of 245 St. Vs. Anang Pal etc. the record of PS Gokul Puri. Insisting in every reply 'mere samne band huai thai' who, when, what not clarified. He stated that the quarrel had taken place on 13.04.97, however, he could not tell the time, not even whether it was before sunset or after sunset. At one point he admitted that on 14.04.97 no quarrel had taken place regarding Ambedkar Jayanti.
44. On investigation aspect, the witness stated on different dates in his crossexamination as under:
He denied that his brother Veer Singh, whom he had earlier admitted to be influential in Congress Party, had used his political pressure for not getting the case registered against the complainant party.
45. On alleged motive for false implication, the witness stated on different dates in his crossexamination as under:
He denied any knowledge about complaint given by Ravinder and Ravi against S.K.Gupta, tenant of Ajab Singh. He FIR No. 126/03, PS. Gokul Puri Page 74 of 245 St. Vs. Anang Pal etc. denied that due to aforesaid dispute, Kailash was attacked by the complainant side. He said that he was not aware if the main cause of dispute between the parties was pollution emitted by the factories of S.K.Gupta and Diwans.
46. On Samta Sainik Dal, the witness stated on different dates in his crossexamination as under:
He said that he did not make any complaint regarding abuses and beatings given to him as he was Dalit, however, volunteered that accused were doing so. The witness admitted that in his presence accused Anang Pal or any member of his family did not interfere in the marriage function of lower community residing in Gokul Pur village and that none of them misbehaved with him. He stated that a complaint was given to Samta Sainik Dal regarding the incident of night of 13.04.97 but no complaint to police or other authorities was made. Admitting that there was an office of Samta Sainik Dal in Gokul Pur at a distance of 5 minute walk from his house, he stated that he did not file his complaint in Gokul Pur village but filed the same in Loni Office. FIR No. 126/03, PS. Gokul Puri Page 75 of 245 St. Vs. Anang Pal etc. He stated that this application was filed by his brother Veer Singh. In one line he said that family of Attar Singh was social one and their behaviour towards the public was good. He deposed that Rambir District President of Samta Saini Dal was of Village Ganoli, District, Ghaziabad but stated that he was not aware if the complaint to Samta Sainik Dal were forged by him.
Having given vague answers to questions regarding visits of the two communities in the marriages, he admitted that in the marriage of Kalu dt. 14.04.03 many persons of Gujjar Community were present and (persons of two communities) had taken the meal together. Having said on one date that he had not invited the persons of Gujjar community in marriage the witness deposed on subsequent date that he did not bring the details of Kanyadan as the names of persons of Gujjar community were mentioned in it. He never noticed Anang Pal or his family member misbehaving with any woman. One statement Mark PW9/DY was read over to the witness, who denied having made any such statement to the police. He stated that on 29.05.09 he gave the correct statement FIR No. 126/03, PS. Gokul Puri Page 76 of 245 St. Vs. Anang Pal etc. without any pressure of Spl. PP or anyone else. He admitted that Fagna, Mamchand, Depchand, Yadram, Tuliram and Kripal Singh were all Jatavs of SC Community. He said that he informed 100 number from the house of Dhanpal at about 7.30 am that two murders have been committed.
47. PW10 Tika Ram deposed that on 13.04.03 in his presence accused persons had commented on the engagement of Surender " ab to dhed chamaro ko bhi achchhe riste aane lage". In 1997 they quarreled with the family of Dhanpal regarding Ambedkar Jayanti. The witness was crossexamined on certain aspects by Ld. Spl. PP. His version regarding comment on the engagement was confronted with his statement Ex.PW10/DA. He admitted that he was not present at the time of incident of 1997 and 15.04.03. So, his evidence is not admissible for either incident.
48. PW11 Dev Sagar deposed that he had received a complaint from the family of Dhanpal about the atrocities FIR No. 126/03, PS. Gokul Puri Page 77 of 245 St. Vs. Anang Pal etc. committed by gujjar community upon the SC community and about problems caused by them in the marriage functions of SC people. On 13.04.97 he was invited by Dhanpal for Ambedkar Jayanti, where Vijay Pal, Anang Pal stated that they would not allow the people of chamar community to celebrate Ambedkar Jayanti. Police had reached there; however, he left for Rani Jhansi Road. On 13.04.03 in his presence, those people passed comment 'ab chamaro ke bhi itne achchhe riste hone lage'. The witness having named Vijay Pal and Anang Pal identified Kailash and Mulakraj only in the court.
49. PW12 Fagna said that Vijay Pal and sons of Bharta used to say to Dhanpal ' Chamatte teri vardi utar denge' and call them 'Chure Chamar'. He deposed that once when his daughter went to toilet people of gujjar community threw hot water upon her. The evidence of this witness is connected with testimony of DW 16 Kishan and shall be discussed along with the said evidence later in the judgment. The witness said that he could identify Vijay Pal and sons of Bharta, however, the witness was not asked to FIR No. 126/03, PS. Gokul Puri Page 78 of 245 St. Vs. Anang Pal etc. identify the accused persons by the Spl. PP, who only got the names of accused persons disclosed in crossexamination. In his crossexamination he admitted that his son Khajan Singh used to park his Tata Sumo in the house of Udai Raj, Balraj and Ajab Singh. He admitted that he did not tell police that accused used to tell Dhanpal that they will get his uniform removed (which part of his evidence thus was an improvement.)
50. PW13 Rambir Singh deposed that he had received a written complaint from Dhanpal and Rajender regarding the people of Gujjar Community, Anang Pal, Vijay Pal, Udai Raj and others. He said that in his presence on 13.04.97 the accused and their relatives did not allow Dhanpal and Rajender etc. to celebrate the Ambedkar Jayanti. On 13.04.03 Anang Pal commented ' chamar Chudo ke bhi achchhe rishte aane lage' and once Anang Pal had remarked to him ' Chamar Chure kitne achche kapde pahanane lage'. In his cross he admitted that he was district president of Samta Sainik Dal of Ghaziabad district. He admitted that Dhanpal FIR No. 126/03, PS. Gokul Puri Page 79 of 245 St. Vs. Anang Pal etc. and he belonged to the same village Ghanoli. He deposed that Rajender and Dhanpal gave him a complaint on 13.04.03 around 5 pm regarding the disturbance caused in the engagement ceremony of Surender. He stated that said complaint was not signed by Rajender or Dhanpal but added that the same was written by Rajender in his presence. On the next date of hearing (his evidence having been adjourned for the production of the document) in his further crossexamination after tendering the document in evidence, which is Ex.PW13/DB, he said that he did not know, who wrote this application as the same was not written in his presence. He admitted that there was no specific allegation in name of Anang Pal nor incident of 13.04.97 mentioned in it (Ex PW13/DA), however, denied that the document was fabricated. He said that he had given an application to ACP B.L.Meena on 26.05.03 which document is Ex.PW13/DC. He stated that he did not celebrate Ambedkar Jayanti in his village but had celebrated the same on 13.04.97 in village Gokul Pur. He remained in the village from 9 am to 9.30 am on 13.04.97. He admitted that in his presence his parents and grand parents were not misbehaved with by Gujjar FIR No. 126/03, PS. Gokul Puri Page 80 of 245 St. Vs. Anang Pal etc. Community.
51. PW14 Mamchand has deposed about the incident of 13.04.97 but as was told to him by his children. His statement that since 1996 when family of Dhanpal shifted to Gokul Pur village they were harassed by accused persons, who called them 'chure chamar' was confronted with his statement U/s. 161 Cr.P.C Ex.PW/14DA.
52. PW15 SI Mukesh Kumar, draftsman had prepared the scaled site plan on 25.05.03 on the basis of measurement taken by him on 20.05.03. The document is Ex.PW15/A.
53. PW16 Dr. Nitin Verma proved the MLC of Dhanpal Sagar Ex.PW3/C and also Ex.PW16/B having his signatures at point B.
54. PW17 SI Surjeet Singh deposed that on 27.05.03 he alongwith ACP B.L.Meena and ASI Faizal Ali had gone to village Gokul Pur, where statements of witnesses were recorded. On FIR No. 126/03, PS. Gokul Puri Page 81 of 245 St. Vs. Anang Pal etc. 11.06.03 and 17.06.03 he alongwith ASI Faizal Ali tried to serach accused Rajesh, who could not be found. He said in his cross examination that on 11.06.03 he went to house of parents of Smt. Rajesh, however, did not record statement of any public person because no one disclosed their names and addresses. On 17.06.03 he visited PS Dadri and with a Ct. of that PS he again went to the house of Smt. Rajesh.
55. PW18 ACP Sumer Singh deposed that on 15.04.03 he got the information at about 7.40 am regarding a quarrel at 3/23, Nehar Road, Gokul Pur Village. He alongwith SI Kailash, SI Ajeet, Ct. Ved Prakash reached at the spot, where he came to know that injured were already removed to the hospital. Leaving SI Ajeet Malik, ASI Tara Dutt and Ct. Veer Singh to safeguard the spot, he alongwith SI Kailash Singh and Ct. Ved Prakash went to GTB hospital, where he came to know that Dhanpal and Rajender had expired. He met Ravinder and Surender there, who had also sustained injury in the quarrel. He collected the MLC of all the four persons and since Ravinder was declared fit for statement, he FIR No. 126/03, PS. Gokul Puri Page 82 of 245 St. Vs. Anang Pal etc. recorded his statement Ex.PW1/A. He made an endorsement on the statement, (Ex.PW4/B) and sent the same through Ct. Ved Prakash for registration of FIR. Thereafter, he got the spot photographed by Crime team. He collected blood control earth, blood, broken pieces of pepsi bottle, one broken hockey stick having blood stains on it, which were seized by him vide memos Ex.PW1/B to G. He also proved memos Ex.PW7/E and Ex.PW1/H regarding the seizure of blood stained shirts of Surender and Ravinder.
He deposed that on 15.04.03 one information was received from St. Stephen hospital regarding injured Vijay Pal. SI Amul Tyagi(who went to St. Stepehens Hospital) produced shirt and baniyan of Vijay Pal before him, which were seized by him vide memo Ex.PW18/A. He prepared the site plan Ex.PW7/D1 at the instance of Ravinder. He recorded supplementary statement of Ravinder, statement of Surender, Chhattar Singh, Chaman Lal, Ravi Kant, Ct. Babu Ram, Ct. Ved Prakash and ASI Tara Dutt as also SI Amul Tyagi amongst others. He proved the inquest papers Ex.PW7/DB and DC and request letter for postmortem FIR No. 126/03, PS. Gokul Puri Page 83 of 245 St. Vs. Anang Pal etc. Ex.PW18/B. He arrested accused Kuman and Jaiwati on 15.04.03 vide memos Ex.PW1/J and K and their personal search was conducted vide memo Ex.PW18/D and E. Both the accused pointed the place of occurrence Ex.PW18/F & G. PW29 has deposed that she conducted the personal search of Kuman and Jaiwati on 15.04.03 on the direction of Inspector Sumer Singh Yadav and identified the memos.
PW 18 further deposed that on 25.04.03 he joined his duties after coming back from Allahabad. In between, when he was not on duty, Surender had filed an application alleging use of castiest remarks in which the opinion from prosecution branch was taken and section 3 of SC/ST Act was added.
On 01.05.03 he came to know that accused Vijay Pal was discharged from St. Stephens hospital and he alongwith SI Sanjeev Kumar and Ct. Kalu went there. Accused Vijay Pal made a disclosure Ex.PW18/H whereafter he was arrested vide memo Ex.PW18/I and his personal search was conducted vide memo Ex.PW18/J. The accused was taken to the spot where he pointed FIR No. 126/03, PS. Gokul Puri Page 84 of 245 St. Vs. Anang Pal etc. to the place of incident, memo regarding which is Ex.PW1/K. Thereafter, the investigation was handed over to ACP B.L.Meena. The witness identified white shirt of Surender and blue shirt of Ravinder, which are Ex.P1 & P2. The earth control as Ex.P3, broken hockey stick as Ex.P4, plastic dibbi containing blood as Ex.P5, blood sample in cotton as Ex.P6, shirt and baniyan of Vijay Pal as Ex.P7, broken piece of glass as Ex.P8 and broken bottle of pepsi as Ex.P9.
In his crossexamination he stated that he had gone to the hospital at 8.50 am and came back to the PS at 5 pm. He was not in the PS from 9.30 to 10 am and Ravinder and Surender did not meet him in the PS at 10 am. He stated that he recorded the statement of Chhattar Singh around 12 12.15 pm and also of Ravi Kant and Chaman Lal around 12.40 pm. He stated that on 14.04.03 deceased Dhanpal did not visit the PS, his family members came but they did not meet him. He said that he had not recorded statement of Surender and had not recorded statement of either Ravinder or Surender in the PS on 15.04.03. He recorded statement of Surender on 15.04.03 at the spot and he (Surender) did not give any FIR No. 126/03, PS. Gokul Puri Page 85 of 245 St. Vs. Anang Pal etc. written complaint. He stated that the written complaint of Surender was found lying in the file when he resumed duty on 25.04.03 (being on leave from 15.04.03 till 25.04.03). He stated that he knew the caste of Surender and Ravinder on 15.04.03, however, on that day they did not make any allegation of castiest remark. He did not get to know the names of PCR officials and that he did not know if only deceased Dhanpal was taken to hospital in PCR van. He deposed that when he reached the spot first there was no crowd, however, when he came back there at about 10.30 am, the public had gathered and he recorded the statement of Ravi Kant and Chaman Lal, who were part of the crowd and also that Ravinder, Surender and Chhattar Singh were present at that time. He deposed that he accompanied by Ravinder & Surender went to the house of Kailash to search him and found Jaiwati and Kuman there and remained in the house for 15 minutes. He had deposed that he had left the spot at 2.30 pm, however, admitted that time of arrest of Kuman and Jaiwati is mentioned as 4.10 pm and 4.05 pm in their respective arrest memos. Admitting FIR No. 126/03, PS. Gokul Puri Page 86 of 245 St. Vs. Anang Pal etc. that record of PCR should be filed alongwith chargesheet, he deposed that he did not try to collect the record and could not say if the call at 100 number was made by Kailash. He deposed that he had put the MLC of accused Vijay Pal and Kailash on the record of this case, however, subsequently on registration of other case on 30.04.03, the MLCs were placed in that file.
56. PW19 Dr. T Gupta (who is also examined as PW3) proved the MLCs of Surender, Ravinder and Rajender. He identified the signatures of Dr. Prashant Mann on the three MLCs and stated that the three documents Ex.PW3/A, B and D had his handwriting as well as signatures.
57. PW20 Inspector Veer Singh Tyagi deposed that on 15.04.03 Inspector Sumer Singh, SHO Gokul Puri had to go to (Hon'ble) Allahabad High Court and so he was directed to take charge as SHO Gokul Puri till the return of Inspector Sumer Singh. At about 8.10 pm accused Mulak Raj was arrested by him on secret information vide memo Ex.PW20/B and was searched vide memo FIR No. 126/03, PS. Gokul Puri Page 87 of 245 St. Vs. Anang Pal etc. Ex.PW20/A. He made the disclosure Ex.PW20/C and pointed out the place of occurrence vide memo Ex.PW20/D. He proved the statements of Ravinder and Surender regarding the identification of dead bodies which are Ex.PW20/E and Ex.PW7/C. He prepared the autopsy request of the two deceased vide applications Ex.PW7/DD and DE. The dead bodies were handed over to the family members vide memos Ex.PW20/E and Ex.PW7/C. On 20.04.03 accused Anang Pal, Kailash, Satish, Udai Raj, Balraj and Ajab Singh came in the PS, at that time complainant Ravinder was present in the PS. He interrogated all the six accused persons and arrested them vide memos Ex.PW1/H to P. Their personal search was conducted vide memo Ex.PW1/Y1 to Y6 and the disclosure statement of Udai Raj, Satish, Anang Pal and Kailash Ex.PW1/V, U, S,T respectively were recorded. The accused persons led the police party to the pulia of Gokul Pur drain where accused Kailash got recovered one gupti behind the temple. The sketch of which was prepared and is Ex.PW1/BB, which was seized vide memo Ex.PW1/CC. Thereafter, Anang Pal got recovered another gupti, sketch of which is Ex.PW1/AA, which was seized vide memo FIR No. 126/03, PS. Gokul Puri Page 88 of 245 St. Vs. Anang Pal etc. Ex.PW1/DD. He prepared the site plan of the places of recovery, which is Ex.PW20/1 and the pointing out of memo regarding non recovery of lathi, which is Ex.PW20/D. Thereafter, he proved the pointing out memo of the place of incident by each accused.
In his crossexamination he stated that he did not notice any blood on the clothes of Mulak Raj as also on his hands and feet (Accused Mulak Raj was arrested o 15.04.03 at 8.10 pm). He deposed that place of recovery of Gupti (at the instance of Kailash, who was taken out of PS and had led the police party to temple), is at a distance of 1 km from the PS. He deposed that the place of recovery is an inhabited area open place accessible to all. He admitted that he had seen the place of incident prior to taking accused Kailash there, who pointed the place of incident. He denied that the Dharna which was led outside the PS on 15.04.03 had influenced the investigation. He deposed that he had not filled the FSL form nor had he sent the weapons to FSL. He stated that till the time the investigation was with him no statement regarding provisions of SC/ST Act was given by Ravinder or Surender nor FIR No. 126/03, PS. Gokul Puri Page 89 of 245 St. Vs. Anang Pal etc. they made any allegations regarding the provisions. He denied that he had gone to the house of Ravinder to inform him about the complaint given by accused Anang Pal or that he took alongwith him the weapon, which were then planted upon the accused persons. He deposed that he did not go to the house of complainant but only to the place of incident and recovery. The two weapons were at a distance of 5 feet from each other. The gupti was dirty and had hard surface, so the finger prints could not be taken from it. He denied that when the disclosure came before him he knew that the incident started because grievous injuries were given to Kailash. He denied that PCR form was intentionally not produced before the court to suppress the material fact.
58. PW21 Ct. Kalu Ram had gone to St. Stephens hospital alongwith SI Sanjeev Kumar and Inspector Sumer Singh on 01.05.03. He has deposed that accused Vijay Pal was found outside the surgery ward of hospital. Inspector Sumer Singh made enquiries from accused Vijay Pal. Vijay Pal made disclosure Ex.PW18/H and was arrested vide memo Ex.PW18/I. He was taken FIR No. 126/03, PS. Gokul Puri Page 90 of 245 St. Vs. Anang Pal etc. to the place of occurrence, where the pointing out memo Ex.PW18/K was prepared.
59. PW22 SI Joginder Singh has deposed that he took 6 pullandas from PS Gokul Puri on 05.06.03 vide RC No. 33/21 and obtained receipt on the RC which he returned to MHC(M) of PS. Gokul Puri. On 31.05.03 Surender Kumar gave 6 photocopies of applications of different dates to ACP which were seized by ACP vide memo Ex.PW22/A. In his cross he said that no written order was given to him for taking the pullandas to FSL Malviya Nagar. He did not sign the register no.19. He had not made any entries regarding handing over of pullandas at FSL but he made an entry at the entrance of the building of FSL. He said that he had not seen the applications which were handed over to the ACP. No verification was made regarding applications in his presence.
60. PW23 Ct. Sanjeev had delivered the copy of FIR to joint CP and Ilaqa MM. He deposed that Ld. MM was not available in his house and so he delivered the envelope to the servant but he did FIR No. 126/03, PS. Gokul Puri Page 91 of 245 St. Vs. Anang Pal etc. not tell this fact to the IO. He said that day was Tuesday but he did not know if it was holiday or working day. He said that he had left the PS after 6 pm. In his crossexamination he admitted tat he did not take signatures of Ld. MM after delivering the envelop at his residence (the law, however, does not enjoin any such condition). He said that he had delivered the copy to the servant of Ld. MM as Ld. MM was not at present. Having said that he did not recollect the exact address on envelop, he clarified that the address was of residence and not of court. He denied that he had left the PS at 6 pm. It was argued that the statement of this witness was at variance from his statement u/s. 161 Cr.P.C, however, he was not confronted at the relevant point of time and therefore, nothing adverse can be read against his statement at this stage.
61. PW24 ASI Malkhan Singh deposed that on 14.04.97 a kalandara was prepared regarding a scuffle between Ravinder, Kailash and Dhanpal. He deposed that Dhanpal had consumed liquor in much quantity and Kailash had also taken liquor. He tried FIR No. 126/03, PS. Gokul Puri Page 92 of 245 St. Vs. Anang Pal etc. to pacify them but could not and so arrested them under section 92/93/97 DP Act. He prepared the kalandara and produced them in the court.
62. PW25 HC Padam Singh had taken the photographs of the spot being photographer with Crime Branch. He proved the 9 negatives as Ex.PW25/A1 to A9 and photographs as Ex.PW25/B1 to B9.
63. PW26 SI Amit Kumar deposed that on 07.09.10 he received the information regarding surrender of accused Smt. Rajesh in FIR No. 126/03. He appeared in the court and arrested the accused vide memo Ex.PW26/B. Her personal search was proved as Ex.PW26/A and disclosure statement as Ex.PW26/C. PW27 W/Ct. Balesh had taken accused Rajesh to the place of incident alongwith ACP. PW28 SI Arun Kumar had accompanied them. PW30 W/Ct. Urmila was with SI Amit on 07.09.10. She had conducted personal search of accused Rajesh and has deposed about the proceedings. PW31 ACP Ramesh Chander had FIR No. 126/03, PS. Gokul Puri Page 93 of 245 St. Vs. Anang Pal etc. accompanied DCP, SI Amit Kumar and others to the place on incident and house of Smt. Rajesh on 08.09.10. He also filed the supplementary challan qua accused Rajesh. PW32 SI Fazal Ali Khan was involved in the search of accused Rajesh after she had absconded and he has deposed about the visits at her house and parental house. PW33 had executed the process u/s. 82/83 Cr.P.C against accused Smt. Rajesh and has proved the fact and the documents.
64. PW34 is ACP B.L.Meena, who took up the investigation on 09.05.03 after addition of provisions under SC/ST Act. He has deposed that apart from recording the supplementary statements of witnesses, he collected the MLC of Ravinder and Surender and postmortem report of Dhanpal Sagar and Rajender Sagar. He deposed that he got prepared the scaled site plan which is already Ex.PW15/A. He obtained the copies of complaints which were filed by members of SC/ST community with NGO named Samta Sainik Dal and seized the same vide memo Ex.PW1/Z. The copies of the complaints were exhibited PW34/A collectively. He deposed FIR No. 126/03, PS. Gokul Puri Page 94 of 245 St. Vs. Anang Pal etc. that as per his investigation the motive of murders was dispute between gujjar and SC/ST community. He obtained the record of earlier proceedings of disputes between two families dt. 14.04.97. He sent the pullandas to FSL for examination; got the investigation qua Smt. Rajesh concluded and filed the chargesheet. He said that he found that Bhagwati D/o. Fagna was teased by accused party in case FIR No. 308/06 u/s. 354/506/323 IPC (which was found contrary to the record as name of none of the accused persons was found mentioned on the FIR tendered in his cross examination and the year was also incorrect). He also proved the documents regarding his investigation i.e Ex.PW34/2. He stated that he interrogated accused Kailash and Anang Pal. One document Mark X34 was shown to the witness who said that he was not aware if the same was filed with him. The chargesheet was found not signed by DCP as was deposed by the witness. He deposed that he did not try to make any effort to find out which police official made interpolation at point A and B on Mark X 34 and volunteered that he never saw the document on the file. He said that he did not obtain the opinion on the weapon of offence from the doctor who FIR No. 126/03, PS. Gokul Puri Page 95 of 245 St. Vs. Anang Pal etc. conducted postmortem as the doctor concerned was on long leave and the opinion from FSL could not be taken because the pullandas were not received back from FSL. He said that a person had gone to the doctor alongwith weapon of offence to take his opinion; however, since the doctor was on long leave, therefore, the application was not placed on record. He said that he did not see if the gupti was sealed or not when it was taken to the hospital. He denied the suggestion that he intentionally did not obtain the opinion on weapon of offence since the same were planted and were in fact not the weapon of offence. Two documents Mark X34/B and C were shown to the witness, who stated that he was not aware if any such document was prepared. He said that Ex.PW34/A was not a forged document and further stated that the original must be with the addressee. He admitted that the documents (Ex.PW34/A complaints to SSD) were of a date after he took up the investigation, however, denied that the complainant wrote them under his influence. He admitted that Ex.PW34/A did not have the address of head office of Samta Sainik Dal i.e Ambedkar Bhawan, Jhansi Road, Paharganj, New Delhi. He stated FIR No. 126/03, PS. Gokul Puri Page 96 of 245 St. Vs. Anang Pal etc. that he had interrogated the accused persons when he came to obtain their judicial custody and he recorded this fact in case diary, however, admitted that he did not give any application, seeking permission to interrogate the accused, to any judicial officer or jail officer.(which falsifies his statement regarding interrogation; as no accused in judicial custody can ever be interrogated without written permission of court or the police officers in jail). He said that he did not remember if he sent the clothes of Vijay Pal to FSL. He stated that Ex.PW1/DX was given to him by Ravinder on 22.05.03 and he had come to know about registration of case against Ravinder. After seeing the record, the witness admitted that no complaint was given by deceased Dhanpal Sagar and Rajender Sagar to Samta Sainik Dal.
65. He stated that he could not tell the relation between accused Krishan Kumar of FIR No. 308/88 and the accused persons (he having stated in his chief examination that the FIR was against the accused persons and in his cross examination that the accused of the said case were relatives of accused of this case), however, FIR No. 126/03, PS. Gokul Puri Page 97 of 245 St. Vs. Anang Pal etc. denied that the said FIR was a personal case against Krishan Kumar and had nothing to do with the caste enmity. He also denied that Krishan Kumar is not resident of same village as the accused. Regarding Ex.PW7/B he deposed that he could not say if the same is written by police or by a private person and the stage when the document was given to him, nor even if the same was on file when the file was handed over to him. He said that he had recorded statement of many witnesses apart from the witnesses from the community of complainant. (no such statement was found on record). He deposed that he did not know if the rukka or statement of Surender recorded on 15.04.03 had any allegation of SC/ST Act. The witness was shown kalandara u/s. 97 DP Act after reading which he admitted that names of Udai Raj, Balraj, Ajab Singh and Rajesh were not in the document. He admitted that in FIR No. 308/88 Ajab Singh, Balraj, Udai Raj and Smt. Rajesh were not shown as accused. ( infact none of the ccuaed of this case are mentioned as the accused in that case). The witness stated that he did not come to know about the injuries suffered by accused FIR No. 126/03, PS. Gokul Puri Page 98 of 245 St. Vs. Anang Pal etc. Kailash during investigation and stated that it was wrong that he was hiding the fact, however, after seeing the FIR he admitted that the fact regarding suffering of injury by Kailash was mentioned in FIR. He volunteered that he found during investigation that accused themselves caused injury to accused Kailash and then again said that he did not come to know which accused had caused him injury. On specific question he stated that he could not tell as to who had told him that Kailash was caused injury by accused persons. He said that PWs Ravinder, Surender and Chhattar had told him that Kailash suffered injury from the lathies used by other accused. Admitting that he was told about the injuries suffered by accused Kailash and recording of the same in case diary he also admitted that he did not mention this fact in documents filed on record. He deposed that he interrogated accused Anang Pal in the court on 14.05.03, however, he did not take any permission from concerned Magistrate for interrogation. After seeing the statement of witness Suraj he admitted that witness stated that clothes of Vijay Pal and Kailash were blood stained and they left in the FIR No. 126/03, PS. Gokul Puri Page 99 of 245 St. Vs. Anang Pal etc. vehicle of Kailash. He admitted that in FIR No. 306/88 and DD No. 32A dt. 04.03.06 no family member of accused Anang Pal was named as an accused. He denied that though words Ambedkar Jayanti were not written in DD No. 76B PS Gokul Pur regarding the incident of 13.04.97, he intentionally chose the words in his evidence.
66. Statements of accused were recorded. Ajab Singh in his statement pleaded ignorance about the incident stating that he was not present at the spot and also stating that he never said anything to any of the complainants nor he made any castiest remark to any member of SC/ST community. He stated that the witnesses have deposed against him as they are interested witnesses and they have deposed at the instance of police. He was at his house and not at the spot. Similar is the statement of Balraj, who also deposed that he was not present at the spot and never made any castiest remarks. He stated that he had gone to distribute the milk and did not see the incident. Smt. Rajesh in her statement pleaded ignorance about the incident. She stated that she was not present at the spot nor she FIR No. 126/03, PS. Gokul Puri Page 100 of 245 St. Vs. Anang Pal etc. caused any injury to anyone. She never passed any castiest remarks against any of the complainants. She said that she was present in her house with her husband and children and has been falsely implicated. Udai Raj in his statement denied the incriminating evidence stating that he was not present at the spot and he never made any derogatory comment against any person of SC/ST community. He stated that he had gone to distribute the milk near Loni Boarder, U.P and came back at about 8.30 am. Smt. Jaiwati also denied the incriminating evidence. She said that Vijay Pal was stabbed by Ravinder. She admitted that Kailash S/o. Attar Singh had taken injured accused Vijay Pal and accused Kailash to hospital. She stated that the witnesses have deposed against her as they are interested ones. Her son was beaten mercilessly by the complainant side. Thereafter, her husband, who went to bring a Car was stabbed by Ravinder. Public had attacked the culprits. Similar is the statement of Kuman @ Malti. She stated that she had gone to see her mother in the Police Station and was falsely implicated by the police in collusion with the complainant. Accused Mulak Raj denying the incriminating evidence said that he FIR No. 126/03, PS. Gokul Puri Page 101 of 245 St. Vs. Anang Pal etc. was not present at the spot. He stated that he had gone to the PS with Ajeet at about 10 pm to lodge FIR. He was sent to the room of SHO, where Advocate Rajeshwar Singh was present. He told the police that he was informed by Sonu at Bheem Bhuswale ki Dukan that Kailash and Vijay Pal were beaten by the members of complainant side. The SHO told him that he knows that incident but due to pressure of higher police officers, he cannot register his FIR. Chaudhary Prem Singh had called him thrice. Rajeshwar Singh, Advocate told him that he will influence the court and even the courts will not help him. He was taken to a room, where his sisters Malti and Pratima, mother Jaiwati, Sister inlaw Babita and nephew Shivam were present. Next day at around 6.30 am SI Amul Tyagi took him and made him sign some written and some blank papers. On the same lines Kailash has denied all the incriminating evidence alleging that complainant side was responsible for the incident. He stated that he was not taken out of PS from 19.04.03 till 21.04.03. He said that in 1997 Ravinder and Dhanpal had beaten him. The police had asked him to compromise, however, on his refusal, he alongwith Dhanpal and FIR No. 126/03, PS. Gokul Puri Page 102 of 245 St. Vs. Anang Pal etc. Ravinder were put in the lockup and all were fined. Accused Satish in his SA stated that he was not present at the spot and denied the entire incriminating evidence. He said that he was sitting in his shop in Balmiki Mohalla Gali No. 19 around the time of incident. He was told by Mukesh S/o . Lala Ram that there was a threat to his life; and so he went to his relative's house at Ashok Nagar. Accused Anang Pal has also denied entire incriminating evidence. He stated that on 15.04.3 he had gone to Hanuman Mandir alongwith Subhash Chand Kaushik at about 6.30 am, where he had met Hori Lal resident of Johri Pur. From the temple they had started at 7.30 am and had reached Gokul Pur at around 8 am. Subhash and Hori Lal went to their house and he went to house of Ramu Halwai of Ganga Vihar. At about 8.30 am he went to Daya Ram, where Daya Ram told him and his father and brother were injured by Dhanpal and others and his cousin had taken them to hospital. At about 5 pm he went to PS Gokul Pur to get the FIR registered regarding the injuries to his brother, who had made call at 100 number but there was a crowd outside the PS. He feeling afraid went to his ancestral village Bhoop Khedi. On 19.04.03 he FIR No. 126/03, PS. Gokul Puri Page 103 of 245 St. Vs. Anang Pal etc. came to know through his Mama that Kailash had gone to get the FIR registered. He also went to PS Gokul Puri at about 6 pm. His brother Satish also came there. He saw Kailash was sitting there. On the asking of police they told that they were brothers of Kailash, whereafter, they were made to sit in the PS. On 20.04.03 at 8 pm SI Kailash Chand got some documents signed by his brother and similarly his and Satish's signatures were obtained. On 21.04.03 he made an oral complaint to the Magistrate, who asked him to give a complaint in writing, which was given by him. Vijay Pal in his statement denied the incriminating evidence. He said that Anang Pal is not Teetu and he does not know any Kuman. He stated that he was a victim of political conspiracy in which the police including ACP B.L.Meena, who is also an ST and the other persons of SC Community connived against him.
67. 32 defence witnesses were examined in this matter by the accused persons.
68. DW1 Rajender Kumar deposed that he used to purchase FIR No. 126/03, PS. Gokul Puri Page 104 of 245 St. Vs. Anang Pal etc. milk from Ajab Singh, Udai Raj, Balraj and Smt. Rajesh. On 15.04.03 at about 7.05 am Ajab Singh and Smt. Rajesh were taking out the milk, delivery of which was given to accused Udai Raj in his presence. He said that he had waited for 2025 minutes to take the milk and left the house after taking the milk. He stated that he was a person of SC Community and had visiting terms with the accused persons. He said that they attended marriage ceremonies etc. in each others family and had no disputes. In his cross examination the witness provided his I Card Ex.PW1/PA. He said that he had changed his address now, however, still lives in Gali No. 23. He said that after receiving the summons he had gone to Ajab Singh to ask about the same. He had friendly relations with accused and used to visit them almost daily. After 14.04.03 he went to the house of accused on 16.04.03 and found the house locked. One Batto of the village told him after seeing the summons that it might be related to the accused persons. Ld. Spl. PP pointing out towards two persons namely Mahipal Singh and Hukam Singh asked the witness if he knew them, however, witness stated that he knew Chhattar Singh only. There is nothing on record about FIR No. 126/03, PS. Gokul Puri Page 105 of 245 St. Vs. Anang Pal etc. Mahipal and Hukam Singh otherwise as they were not prosecution witnesses.
69. DW2 Rakesh Kumar S/o Chander Bhan deposed that he had studied with Udai Raj in ITI in 1991. He belonged to SC Community. He produced his caste certificate Ex.DW2/A. He said that they attended the marriages in each other's family and showed some photographs where the accused persons and members of his family were standing with each other. He deposed that on 15.07.03 he saw Udai Raj, who was taking milk while he was going for a morning walk, around 7.157.30 am. The date was clarified by the witness as 15.04.03. He produced his identity card in his cross examination Ex.DW2/PA. He said that he was not told by anybody about what is to be said in the court . In his crossexamination the witness said that he had seen Udai Raj on 15.04.03 at 7.15 am - 7.30 am near Loni Boarder, which is at a distance of 1 km from Udai Raj's house.
70. DW3 Rakesh Kumar S/o. Banke Lal deposed that on FIR No. 126/03, PS. Gokul Puri Page 106 of 245 St. Vs. Anang Pal etc. 15.04.03 at about 7.15 am he had met accused Kailash on the crossing of gali no. 24, where he talked to him about the committee being run by Kailash. He deposed that he suddenly saw Dhanpal and 67 persons and 23 women attacking accused Kailash, seeing which he ran away. The witness on leading questions put to him said that gali no. 24 being referred by him is of Village Gokul Pur and he belongs to Jatav Caste. In his crossexamination, he said that his elder sister Kiran Devi was married in Gokul Pur Village. He clarified on being asked specifically by Ld. Spl. PP that he was getting Rs. 1,500/ when he was learning the work ( bandaging wounds etc.), with which he started the committee. He said that he had enquired from process server and thereafter, from PS about the case and finally from Kailash whom he met in the court. His evidence is not belieable. Hos conduct is not of a prudent man, as he left the spot even did not inform Kailash's family leave aside helping Kailash in any manner.
71. DW4 Ramesh deposed that he and accused Balraj were in the business (sale/purchase) of milk for 20 years. On 15.04.03 FIR No. 126/03, PS. Gokul Puri Page 107 of 245 St. Vs. Anang Pal etc. Balraj had come to deliver milk on his dairy at about 7.15 - 7.30 am and remained there till 8.158.30 am, whereafter he left with the mixed milk as per routine. He said that he had met Balraj on 14.04.03 and thereafter, on 15.04.03. He maintained kachcha record of his business dealings with Balraj. He used to buy 4045 kg cow milk from Balraj. He said that he has deposed about 15.04.03 since Balraj did not come to deliver milk on 16.04.03 due to which he had gone to his house and had found it locked and police around the place.
72. DW5 Mukesh S/o. Lala Ram deposed that on 15.04.03 at about 7.15 am he was present in his house. He heard noise from outside and came out, where he saw 10 persons were beating Kailash. Kailash locked himself inside the room of Shyam Lal's tenant. Those persons included Dhanpal. They also knocked at the door but public forced them to leave and they left. Thereafter, he called Kailash and told him that the persons had gone. Kailash was bleeding from his head. Thereafter, he took his bicycle and went to purchase kulchas. He saw that there was a crowd in front of FIR No. 126/03, PS. Gokul Puri Page 108 of 245 St. Vs. Anang Pal etc. Bishan's shop. On asking public persons he was told that Kailash's father was stabbed by Ravinder. He went to the shop of Satish and told him that Vijay Pal and Kailash were being beaten and there was a threat to his life also. The witness produced his Adhar Card and Election I Card in crossexamination, which documents were exhibited as Ex.DW5/PA and PB. He said that he had not written any complaint to any authority, police or court nor had he asked any police official to make him a witness in the case. He said that after receiving the summons he had made enquiries from Kailash, who told him to tell the truth in the court.
73. DW6 Ashok deposed that accused Kailash and Satish have a grocery shop in his area. On 15.04.03 he had gone to their shop at 6.30 am. Satish was sitting in his shop. In the evening he came to know that Satish has been falsely implicated in this case. He deposed that he belonged to Balmiki Caste. In his cross examination he said that he was on leave from his work on the grounds of illness from 5th August, 2014. He filed his identity card Ex.DW6/PA. He said that he was asked by Satish if he could FIR No. 126/03, PS. Gokul Puri Page 109 of 245 St. Vs. Anang Pal etc. depose about his relations in the court, to which he had agreed. Admitting the behaviour of individual is not same with all the persons, he volunteered that behaviour of accused persons was good with him and the persons of balmiki samaj.
74. DW7 Tikam Singh deposed that his marriage was scheduled for 14.04.03. In his marriage Dhanpal, who was under
the influence of liquor was quarreling with accused Kailash and Kailash had asked him not to abuse him as he was intoxicated. Around 10 pm Dhanpal came with his three sons Chhattar Singh and 3 more persons and they had hockeys and dandas in their hands. They asked about Kailash. On being told that he has left they tried to search him but could not meet him. He deposed that he had informed Kailash in jail that these persons had come to search him and wanted to kill him. In his crossexamination he said that he saw the incident from the stage and was not informed about it by anyone.
75. DW8 Subhash Kaushik deposed that he alongwith FIR No. 126/03, PS. Gokul Puri Page 110 of 245 St. Vs. Anang Pal etc. Chaudhary Fire Ram and accused Anang Pal had gone to Jamna Bazar Hanuman Mandir on 15.04.03 at about 6.30 am and came back at about 8 am. Anang Pal had gone to Halwai. The witness was not crossexamined on the facts deposed by him though he was questioned about how he came to know what he had to depose.
76. DW9 Ghanshyam deposed that on 15.04.03 at about 7:15 am he was going for his work and came out on hearing the noise where he saw Dhanpal, Rajender, Ravinder, Surender, Chhattar, Ravi, Suraj and three more persons had caused injury on the head of Kailash. He went to the house of Kailash and informed his father. Sister of Kailash came out. He told her where the incident was taking place and left for his work. He deposed that he was taken to PS, where enquiry was conducted from him and he was made to sit in the PS for two days and one night. He deposed that he had told the facts as he has deposed in the court to the police in presence of Rajeshwar Singh Spl. PP, however, admitted that he did not give any written complaint against the police for not recording his version nor against he having been kept in illegal custody. He FIR No. 126/03, PS. Gokul Puri Page 111 of 245 St. Vs. Anang Pal etc. said that he came to know that Kailash was in JC in double murder case on the day when he came to give the evidence.
77. DW10 Babloo deposed that accused persons never passed any castiest remarks against him and that he was a person of Jatav Caste. The witness was not questioned about his caste in the crossexamination. DW11 Rajesh Kumar has also given similar evidence. His crossexamination was regarding his brother, who was working with the defence counsel.
78. DW12 Kailash Singh that on 15.04.03 he had started from his house for his shop at 7.20 am and saw a crowd in the corner of gali no. 3/23. He started watching from a distance of 10 feet as to what was happening. He saw Dhanpal, Ravinder, Surender, Dharmo Ravi, Chhattar, Rajender, Pinki Suraj and Lajja were having dandas, hockeys, sticks, lathies, chaku and churi in their hands and they were abusing public persons. After 23 minutes his Fufa Vijay Pal came at the spot and told them that they should not quarrel. Dhanpal Surender, Ravinder and Rajender FIR No. 126/03, PS. Gokul Puri Page 112 of 245 St. Vs. Anang Pal etc. attacked his fufa with knives and chhuries. The public persons tried to save his fufa. Surender came from back and caught neck of his fufa, Dharmo caught his left hand and pinki caught his right hand. Suraj, Lajja, Ravi and Chhattar Singh were shouting 'maro maro'. They told Ravinder 'Vijay Pal ko jaan se mar do'. Dhanpal and Rajender stated 'Vijay Pal ko khatam kar do'. Ravinder stabbed Vijay Pal in his stomach with a chhuri. Public persons attacked Surender and Ravinder with dandas. Surender, Ravinder, Dharmo and Pinki left for their house. Suraj, Lajja, Ravi and Chhattar also attacked them with danda, lathi and hockey. Injury was caused on the hand of Chhattar whereafter he also left for the house of Dhanpal. The witness says that he tried to save his fufa. Dhanpal and Rajender had chaku and chhuri in their hands and they were coming to attack Vijay Pal. Public tried to save Vijay Pal and those persons with an intent to save Vijay Pal caused injuries to Dhanpal and Rajender. He caught the hand of his fufa and took him to his home, where he saw accused Kailash sitting on charpai in injured condition. He informed Jaiwati and Malti about the incident. Accused Kailash told him that he was caused injury by the nine FIR No. 126/03, PS. Gokul Puri Page 113 of 245 St. Vs. Anang Pal etc. persons named above. He brought the Car in which he took his fufa and cousin to St. Stephen hospital. They started from the house at 7.29 am. On the way Kailash called the police at 100 number. Kailash was discharged but Vijay Pal was admitted in hospital. The doctors took the shirt and baniyan of his fufa. He had gone to PS. Gokul Puri, where he saw Spl. PP Rajeshwar going and coming to the SHO room. Around 6 pm a crowd gathered outside the PS and damaged his Car, which was seized by the police. At 9 pm, he again asked the police to register FIR but was asked to give complaint in writing later on. He gave the complaint in writing, however, around 9.45 pm duty officer told him that he did not have time and he should come the next date. The police had not registered his complaint on the next day also, which was registered on 30.04.03.
In his crossexamination he said that Dhanpal had come at the spot first and Vijay Pal came while he was watching the incident from a distance of 10 feet. He deposed that at 7.30 am he was taking his fufa Vijay Pal and Kailash to the hospital. He denied that he was at the spot from 7.20 am to 7.50 am and FIR No. 126/03, PS. Gokul Puri Page 114 of 245 St. Vs. Anang Pal etc. volunteered that at 7.50 am he had reached Tirath Ram hospital. It was suggested to the witness that he was aware about the quarrel of 14.04.03 and that he alongwith his fufa had planned the incident on 14.04.03 night pursuant whereto he was present in Gali No. 3/23 about 7.30 am, which, however, is not the pleaded case of prosecution. Denying the suggestion that he took Vijay Pal and Kailash to St. Stephen Hospital to save them from PS, the witness volunteered that Kailash himself had called 100 number from his mobile. He said that he gave a complaint at PS, however, no receipt was given to him, but he did not file any complaint in the court. He deposed that his car was not seized because it was used for carrying the accused persons but because of the dharna outside the PS.
79. DW13 Sonu deposed that on 25.04.03 about 7.30 am, he started from his house for his plot. When he reached at the corner of the gali, he saw a cherry colour car of his Tau Attar Singh and when the car came near him he saw Kailash S/o. Vijay Pal and Vijay Pal were sitting in the Car. Kailash was bleeding from his FIR No. 126/03, PS. Gokul Puri Page 115 of 245 St. Vs. Anang Pal etc. head and Vijay Pal from his stomach. He went to their house, where he met Malti, Pratima and his Bua who told him that Vijay Pal and Kailash were injured by Dhanpal and 89 persons. She told him to go to the shop of Satish, where Mulakraj had gone fearing that they may also be injured. He went there and found Mulakraj alongwith 34 persons, whom he took to Noorpur at his Mama's house. All the suggestions given to the witness against his deposition were denied by him.
80. DW14 Ramu deposed that on 15.04.03 Anang Pal had come to his house around 8 am to give the money of committee and had left around 8.30 am. He said that his house was at a distance of 1520 minutes from Gokul Pur. He volunteered that Anang Pal had come to give him money for committee as he had picked the committee (committee udhai thi). He was given Rs.30,000/40,000/ . He volunteered that Anang Pal also gave him Rs.2,000/ for a Bhandara as he was a halwai. He stated that there was no written document regarding the committee. FIR No. 126/03, PS. Gokul Puri Page 116 of 245 St. Vs. Anang Pal etc.
81. DW 15 Pratima is daughter of accused Vijay Pal. She deposed that on 15.04.03 at about 7.15 am one boy came at their door and said Dhanpal, Rajender, Surender, Ravinder, Ravi, Suraj, Lajja, Chhattar, Dharmo and Pinki were beating his son Kailash hearing which her father, who was in toilet came out and asked from her where the phone of Kailash was. They searched the phone but could not find the same. After this her father went out and one minute later her brother Kailash came to the house with a bleeding head. On being asked he told that he was beaten by aforesaid 10 persons. She came out of the house and went to the house of Subhash to make call, however, no one picked the call and she came back home. After some time she saw her father was coming to the house being brought by Kailash, her Mama's son. On being asked he told that Ravinder had stabbed him while he was caught by Dharmo, Pinki, Surender and others had beaten him with lathi & danda. Kailash her mama's son brought the Car and they all left about 7.29 am. Later on Sonu the other son of her Mama came and on her asking he went to the shop of Bheem, where Mulakraj had gone to take Bhus. She further deposed that at FIR No. 126/03, PS. Gokul Puri Page 117 of 245 St. Vs. Anang Pal etc. about 9 am many women had gathered outside their house and were shouting that the women in the house be burnt alive. Around 10.25 am two police men came and on being told that they were being threatened by the women, they took them to PS. Around 10.30 am, she her mother, her sister and sister inlaw with her 6 months old son went to PS sitting in PCR. She asked the police to register the FIR, which was not recorded. Around 10 pm one lady police came and asked her mother and sister to sign some blank papers. On refusal they were threatened and thumb impression of her mother and signatures of sister Malti were obtained on some papers, who were then put in lockup and she, her Bhabi and her son were discharged. In her crossexamination she admitted that she was not told name of any public person who had caused injury to Dhanpal and Rajender. She denied that police had come to their house to arrest Malti and Jaiwati. The witness stated that she had made a call at 100 number around 7.20 am but clarified in cross that she could not talk to anybody as no one picked her call despite calling twice.
FIR No. 126/03, PS. Gokul Puri Page 118 of 245 St. Vs. Anang Pal etc.
82. DW16 Subhash Chand said that on 15.04.03 at 7.35 am he was coming after the morning walk and he saw Surender, Rajender and Ravinder coming on a bike. Rajender suffered injuries on his left hand due to fall.
83. DW17 Hari Kishan deposed that he was an SC and Mulakraj had attended his marriage and he had attended the marriage of Mulakraj's sister. In his cross he stated that Gujjar community was not in majority but SCs were in majority in the area.
84. DW18 Hori Lal deposed that on 15.04.03 he had gone to Hanuman temple, Jamuna Bazar, where he met Anang Pal, Subash and Phire Ram at 7.30 am. After coming back Anang Pal went to the shop of Ramu Halwai.
85. DW19 Dal Chand Yadav said that on 15.04.03 Mulakraj had come to his shop to buy bhusha and was there till 7.15 am and remained there till 8 am. He left the shop when a boy came to call FIR No. 126/03, PS. Gokul Puri Page 119 of 245 St. Vs. Anang Pal etc. him. In his cross he specifically said that no body asked him to depose in the manner and that he was telling the truth as per whatever happened in his presence.
86. DW20 Daya Ram deposed that on 15.04.03 around 8.30 am Anang Pal came to his dairy. He had told Anang Pal w ho came to his shop that the persons who came to his dairy were saying that Vijay Pal and his son have been injured. He said that since he can read Hindi therefore, he came to know that he has to depose about the incident related to Anang Pal.
87. DW21 Ajeet Singh deposed that Satish and Kailash used to run a shop in his Gali No. 19, Balmiki Mohalla and he was in visiting terms with them.
88. DW22 Phire Ram deposed that on 15.04.03 around 6.30 am, he alongwith Subhash and Anang Pal went to Hanuman Temple, Jamuna Bazar around 7 am, where they met Hori Lal of Johri Pur. They left the place around 7.30 am on their bikes and FIR No. 126/03, PS. Gokul Puri Page 120 of 245 St. Vs. Anang Pal etc. reached near Ganga Vihar around 8 am. From there Anang Pal went to Ramu Halwai for some work and they went to their houses. When he turned towards lane, he saw crowd and Rakesh told him that Dhanpal's son Ravinder and Surender had beaten Kailash. He came to his house, his brother Kailash took his fufa and cousin to St. Stephens hospital. Around 7.45 pm he went to the PS to meet his brother as his brother and his Car were brought to the PS by the police. He saw Spl. PP Rajeshwar Singh at the PS,. On 01.05.03 he went to St. Stephens hospital around 5.15 pm and completed the formalities of discharge. On the main gate of St. Stephens hospital he met with Dheeraj who had some conversation with Vijay Pal. Ct. Kalu Ram told him that he was going by his scooter and will met them at Maujpur Red Light. They waited at red light and after arrival of Kalu Ram, he left all the three persons, ie. Two police officials and Vijay Pal at PS. He filed some documents related to marriage ceremonies in the area including photographs etc. to dispute the allegations of caste rivalry.
89. DW23 Dheeraj Singh deposed that he had met FIR No. 126/03, PS. Gokul Puri Page 121 of 245 St. Vs. Anang Pal etc. Vijay Pal on 01.05.03 near St. Stephens hospital. Phire Ram and two Constables were with him. After some time one Ct. went with them and the other one went on his scooter.
90. DW24 Krishan deposed that he was acquitted in the case of year 1988 regarding eve teasing. He also deposed that he used to attend the marriages of SC/ST community. No suggestion was given to the accused that he misbehaved with the girl of SC/ST community.
91. DW25 Mehboob Singh deposed that he had seen Anang Pal going with Phire Ram and Subhash Kaushik on 15.04.03 around 6.30 am. Around 9 am, he came at the spot and heard that Vijay Pal and his son Kailash have been murdered. Then he went to Jhandewalan. He received the summons of this case 34 days back.
92. DW27 Ajab Singh deposed that no Ambedkar Jayanti FIR No. 126/03, PS. Gokul Puri Page 122 of 245 St. Vs. Anang Pal etc. has been celebrated in his village till date. He also stated that there was no dispute between the accused persons and SC community. DW28 Beg Ram Singh also deposed on the same lines. DW29 also said that there was no dispute of Gujjar Community and Harijan Community.
93. DW30 Kailash Prakash, DW31 Ananag Pal and DW32 Vijay Pal are the accused, who have deposed as witnesses in their defence after taking permission u/s.315 Cr.P.C.The main points of their testimony is that on 14.04.03 Dhanpal was under the influence of Alcohol at the marriage of Tikam Singh and he had beaten Kailash. The version of 15.04.03 as given by these witnesses is that Kailash was talking to Rakesh on the crossing of Gali No.24 at about 7 am when Dhanpal, Rajender, Surender and Ravinder came there. Dhanpal and Surender had knives in their hands and Rajender and Ravinder had chhuri. Dharmo and Pinki had dandas in their hands. Suraj and his son Ravi were armed with lathies and Lajja had danda.They all had started beating Kailash, who saved himself by running into the room of tenant Shyam Lal. Vijay Pal had come to FIR No. 126/03, PS. Gokul Puri Page 123 of 245 St. Vs. Anang Pal etc. the spot on getting the information about attack on Kailash and he was also attacked by aforesaid persons. Ravinder had stabbed Vijay Pal while he was caught by Suraj, Ravi, Lajja and Chhattar. They had gone to St. Stephens hospital in the vehicle of Kailash S/o. Attar Singh. Kailash had called at 100 number from his mobile phone 9818114347. They have termed the prosecution case false and fabricated.
94. Arguments were heard.
95. The main stress of defence was that no injury whatsoever was caused by the named accused to the deceased and the injured. They were injured by the village people who had gathered at the spot in support of the accused persons. All the accused persons except Vijay Pal and Kailash have taken the plea of alibi having led evidence in support of their respective absence from the place of incident. It was argued that the accused were injured by the complainant side in two different incidents; where after they were killed by angry villagers. It was also argued that there was no caste FIR No. 126/03, PS. Gokul Puri Page 124 of 245 St. Vs. Anang Pal etc. angle, whatsoever.
96. Incident of 14.04.03. It was argued by Ld. Spl. PP that the incident of 15.04.03 was in continuation of the incident of 14.04.03 and in this regard it was pleaded that a presumption was to be drawn u/s. 8 (b) of SC/ST Act. About the incident of 14.04.03 the prosecution case is that deceased Dhanpal alongwith PW9 Chhattar Singh had visited the marriage of one Tikam @ Kalu at Johri Pur, Mata Wali Gali, where accused Kailash quarreled with him and threatened him. The second part of the incident is that the deceased Dhanpal alongwith deceased Rajender, PW9 Chhattar Singh and PW7 Surender had gone to the Police Station for registration of FIR, which was not registered and thus due to act of dereliction of duty on part of police the preventable incident of 15.04.03 occurred. The witnesses of this incident are PW1 Ravinder, PW7 Surender, PW9 Chhatar Singh, PW18 Inspector Sumer Singh and DW7 Tikam @ Kalu. PW1 deposed that on 14.04.03 his father had gone to attend the wedding of FIR No. 126/03, PS. Gokul Puri Page 125 of 245 St. Vs. Anang Pal etc. Tikam @ Kalu where accused Kailash had insulted his father having caught hold of him by his neck and had pointed a country made revolver on the head of his father. He had also threatened his father saying " neech kameen dhed chamar tum bahut samaj sudharak bante ho tu bahut sar par chad gaya hai". This fact was told to him by his father and that he only heard about the incident. Similar is the evidence of PW7, who categorically said that his father had come back from the marriage at 9.45 pm and then told them about the incident. The evidence of both these witnesses qua this incident is hearsay. They have deposed what they were told by their father, which they accepted as correct, they themselves having not seen the incident. Statement of PW1 is that his father told him that Kailash had threatened him with life using a kutta, which was confronted with his statement Ex.PW1/A, where it was not so recorded. PW7 in his crossexamination stated that his father went to the marriage alone and he came back alone. PW1 Ravinder, however, said in his crossexamination that PW 9 Chhattar Singh had also come to his house from the marriage at FIR No. 126/03, PS. Gokul Puri Page 126 of 245 St. Vs. Anang Pal etc. Johri Pur. After which his father, brothers and Chhatar Singh had gone to PS. The witnesses thus are not corroborating each other on material aspect i.e when Chhattar Singh came to the house of complainant. Whether he came alongwith Dhanpal or alone? This fact is relevant because the presence of Chhatar Singh at the time of the incident is disputed. The above evidence coupled with the evidence of PW9 who deposed that he had come back to his house on 14.04.03 between 11.30 pm to 12 mid night and on the next date of crossexamination stated that he had left the house of Dhanpal about 11.30 pm to 12 pm, makes the claims doubtful. The three witnesses therefore, are giving different version about when if at all Chhattar Singh came to the house of complainant on the night of 14.04.03 from the marriage of Kalu at Johri Pur.
97. The eye witnesses of the incident of incident of 14/04/2003 are PW9 Chhattar Singh and DW7 Tika Ram. PW9 has deposed in his evidence recorded on 29.05.09 that he had gone to Johri Pur in marriage of Kalu on 14.04.03, where accused Kailash had caught hold of Dhanpal's neck and had put kutta on his head. He had FIR No. 126/03, PS. Gokul Puri Page 127 of 245 St. Vs. Anang Pal etc. abused Dhanpal using castiest remarks. This part of his statement was, however, confronted with his statement u/s. 161 Cr.P.C Ex.PW9/DA(which is also exhibited as Ex.PW9/Y, the two documents which are copy of each other, recorded on 15.04.03 itself). The contents of this document are relevant to assess the testimony of PW9, which are accordingly reproduced as under:
'...Kal rat ko Dhanpal Sagar ka chhota ladka Surender mere pass aya jisne batlaya ki Dhanpal ke saamne rahne wale Vijay Pal je ladke Kailash ne Dhanpal ka Kalu ki shadi me gireban pakad liya aur beijjati ki aur dhamkiya di aur use andesha hai ki we log kuchh wardat kar sakte hai jo maine Surender ko iska report police me karne ko kaha, jo Surender rat ko chala gaya' and thereafter he goes on with the incident of 15.04.03. There is one confronted statement of this witness recorded on 10.05.03. In this statement he modified his version and stated that on 14.04.03 in the marriage of Tikam of Johri Pur, Kailash around 9 pm had caught collar of Dhanpal and had put kutta and had insulted him. He and 9 others had mediated in the incident. In Ex PW 9/DZ he further stated that FIR No. 126/03, PS. Gokul Puri Page 128 of 245 St. Vs. Anang Pal etc. Dhanpal Sagar and his sons had gone to get a complaint registered but the police refused to register the complaint. There are thus, three versions of the witness. One given before the court where he is pleading to be the eye witness of both the incidents i.e of incident at the marriage as also the incident at the police station; second, his confronted portion of his statement Ex.PW9/DA, which part of his statement was read over to him in the crossexamination, where he does not speak of his presence at the time of incident or at police station. In Ex.PW9/DA he says that PW Surender came to his house and informed him about the incident and that he advised him (Surender) to get the FIR registered in the morning. As per Ex.PW9/DA this person was neither present in the incident of marriage nor in the PS. As per Ex.PW9/DZ his other statement under section 161 Cr.P.C dated 10/05/2003, the witness claims to be present in the incident of marriage but about the incident of PS he says that Dhanpal Sagar and his sons had gone to PS. Gokul Puri thus speaking of his presence only in the marriage.
The first statement Ex. PW9/A was recorded on the date FIR No. 126/03, PS. Gokul Puri Page 129 of 245 St. Vs. Anang Pal etc. of incident and second Ex. PW9/Z almost a month later by ACP B.L.Meena against whom allegations of personal bias have come up. The evidence of this witness so far as his presence on 14.04.03 is concerned appears to be manipulated with an intention to create an eye witness of the incident of 14.04.03, since the two witnesses PW1 & PW7 had already given statements that they were not present in the marriage. The Hon'ble Supreme Court in its judgment in 2011 (2) ACJ 076 (SC) differentiated normal discrepancies and the contradictions. It was held that : " In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about truthfulness of the witness and other witnesses also make material improvements while deposing in the court, such evidence cannot be safe to rely upon".
This witness as shall be discussed later has been FIR No. 126/03, PS. Gokul Puri Page 130 of 245 St. Vs. Anang Pal etc. concluded to be a not wholly reliable and not wholly unreliable witness.
In view of above discussion and the judgment of Hon'ble Supreme Court the evidence of this witness vis a vis both the incidents of 14.04.03 (the incident of marriage and Police Station) is to be discarded completely.
That leaves us with the evidence of DW7 and PW18. DW7 has deposed that he saw from the stage that the deceased Dhanpal was quarreling with accused Kailash. He has further deposed that in his marriage Dhanpal was under the influence of liquor and was quarreling with Kailash and Kailash had asked him not to abuse him as he was intoxicated. The witness was the bridegroom and has admitted that he saw the incident from the stage, having not explained the distance from the place of quarrel as also the content of the quarrel. His evidence thus can only establish that some dispute took place in his marriage between Dhanpal and Kailash; who out of the two was responsible for the same and what had actually happened cannot be considered as proved. PW18 said in his evidence that some relatives of Dhanapl Sagar had come to the FIR No. 126/03, PS. Gokul Puri Page 131 of 245 St. Vs. Anang Pal etc. PS in the night of 14.04.03, which again shows that some dispute had taken place in the marriage. The quarrel having taken place stands proved but who was responsible and what had happened is not proved so far as the incident of 14.04.03 is concerned. This incident can be considered as a motive for the quarrel of 15/04/2003 but not for caste allegations as those facts have not been proved.
98. The second aspect of incident dated 14/04/2003 is four persons having gone to PS for registration of FIR. PW1 did not go to the PS and his evidence is on the basis of information provided to him by his father and brother. Two of the persons, who went to PS are dead. The two relevant witnesses, who went to the PS are PW7 Surender Singh and PW9 Chhattar Singh. PW7 has deposed that the duty officer had told them that no one had died and so there was no need to register the FIR. PW 9's statement, however, was confronted with his statement recorded by police Ex.PW9/DA and Ex.PW9/DZ, as discussed hereinabove, where it was recorded that Surender had come to his house and had told him FIR No. 126/03, PS. Gokul Puri Page 132 of 245 St. Vs. Anang Pal etc. about the incident and he had told him that they will go for registration of FIR next day. The presence of Chhattar Singh with Surender and others at the PS therefore, is disputed.
99. The fact, however, is that a suggestion was given to Inspector Sumer Singh by the accused themselves regarding the visit of Dhanpal at PS and he admitted that relatives of Dhanpal and not Dhanpal had come to the PS. The proved fact, therefore, is that some persons from the complainant side had gone to the PS on the night of 14.04.03, however, who were they is not clearly established since presence of Dhanpal and Chhattar Singh is disputed in view of statement of Inspector Sumer Singh and Chhattar Singh himself respectively. Presence of Surender is proved by his own evidence corroborated by Inspector Sumer Singh's version, who stated that relatives of Dhanpal had come to the PS on 14.04.03. In view of above, it stands proved that some incident had taken place in the marriage of Tikam @ Kalu at Johri Pur, Mata Wali Gali in the night of 14.04.03. It is also proved that the quarrel was between Dhanpal and Kailash. What was the FIR No. 126/03, PS. Gokul Puri Page 133 of 245 St. Vs. Anang Pal etc. quarrel? Whether or not caste related remarks were made and who was responsible for the quarrel has not been proved.
Though this incident can be accepted as the motive behind the incident of 15.04.03 it cannot be related to SC/ST Act as it has not been proved that quarrel between Dhanpal and Kailash was on account of caste rivalry or caste related words were uttered in the quarrel.
100. Incident of 15.04.03 The prosecution case as per Ex.PW1/A, the rukka is that on 15.04.03 around 7.30 am, Ravinder Kumar Sagar was going to take bread. When he reached near the corner of the lane, accused Kailash abused him and said ' tum log apne aap ko samaj sudharak mante ho kal rat ko tumhara baap bach gaya lakin aaj hum tumhe jinda nahi chhodenge.' He took out a kutta and put it on the head of Kailash. In between his brother Surender came and pushed the hand due to which the gun misfired and Kailash was saved. Around this time, Vijay Pal, Titoo, Satish, Mulakraj, Kuman and Jaiwati came and in their support Udai Raj, FIR No. 126/03, PS. Gokul Puri Page 134 of 245 St. Vs. Anang Pal etc. Balraj, Ajab Singh and Smt. Rajesh also came. Titoo had a gupti in his hand and others had lathi, hockey and empty bottles of pepsi. They started beating them with lathi, hockey and bottles. His father Dhanpal and brother Rajender alongwith some other persons came to help them. Vijay Pal, Balraj and Ajbu caught his father and Mulakraj and Jaiwati caught his brother. Vijay Pal shouted 'inka kaam tamam kar do' and Titoo stabbed in the chest of his father. In between Kailash also brought a gupti from his house with which he caused injury to his brother. Explaining the injuries caused to accused persons rukka continued that complainant's father and brother fell down and in the quarrel the gupti of Titoo hit Vijay Pal in his stomach and Kailash also suffered some injury and injury on head of Surender was caused by Smt Rajesh and on his head by Km Kuman.
101. In the court PW1deposed on similar lines except a few changes. About the words stated by Kailash he deposed that Kailash had uttered 'neech kamin dhed chamar tum bahut samaj FIR No. 126/03, PS. Gokul Puri Page 135 of 245 St. Vs. Anang Pal etc. sudharak bante ho to bahut sar par chad gaya hai, kal tumhara baap bach gaya the...' The witness thus added the casteist words to the sentence as was written in Ex.PW1/A. About the main incident he deposed that Vijay Pal, Balraj and Ajab Singh had caught his father, however, about his brother Rajender he said that Jaiwati had caught him. His version that Vijay Pal shouted 'neech kamin dhed chamar ka kaam tamam kar do' was again an improvement from what was written in Ex.PW1/A. Vijay Pal hit his father with a hockey stick which stick got broken into two parts with one remaining in Vijay Pal's hand and other having fallen down on the ground, was again an improvement. He explained that his father and brother had fallen down and in the struggle gupti of Anang Pal got stabbed in the chest of Vijay Pal. The examination inchief of the witness was deferred and on the next date which was after two months, he added that Mulak Raj and Jaiwati had caught hold of Rajender, which was not said by him on the date of first evidence.
PW7, Surender's version of the incident is that on FIR No. 126/03, PS. Gokul Puri Page 136 of 245 St. Vs. Anang Pal etc. 15.04.03 at about 7.30 am Ravinder was going to purchase bread. Accused Kailash was going behind him. He saw from the door of his residence that accused was remarking ' neech kamin dhed chamar chude kal tumahara baap bach gaya tha lakin aaj tere pure pariwar ko khatam kar denge, tum apne aap ko bahut samaj sudharak samajhte ho'. He said that Kailash had put the kutta on the head of Ravinder which he (Surender) pushed and the gun misfired. About the main incident, he deposed that accused Anang Pal had a gupti, Vijay Pal had a hockey and others had lathis and empty bottles of cold drink. Accused Vijay Pal, Balraj and Ajab Singh had caught his brother Rajender. Vijay Pal shouted 'in chude chamaro ko kaam tamam kar do', which is an improvement from Ex.PW7/B (the statement on basis of which provisions of SC/ST Act were added). In the said statement the witness stated that Vijay Pal shouted 'inka kaam tamam kar do'. The fact that Kuman gave lathi blow on the head of his father was an improvement from Ex.PW7/B as the seat of injury was not mentioned in the document and it was generally written that Kuman and Rajesh gave lathi blow FIR No. 126/03, PS. Gokul Puri Page 137 of 245 St. Vs. Anang Pal etc. to his father and brother Rajender. About Smt. Rajesh in his evidence in court he stated that she had caused head injury to Ravinder, which was not so stated in his statement to the police. He deposed more clearly that when accused Anang Pal was trying to give second blow to his father the gupti instead of hitting his father, hit Vijay Pal, which however, is an improvement from his statement Ex.PW7/DX and B as having not been written specifically in this form. The witness made several other improvements including the fact that Kailash (son of Attar Singh) took accused Kaialsh and Vijay Pal with Asla in his car. Jeet and Kailash, who were present at the spot were providing arms and asla to the accused persons. Vijay Pal said ' jitne bhi chude chamar hai unka kaam tamam ho gaya hai'. Remaining accused persons after the incident said ' Jitne bhi chude chamar bache hai inko bhi khatam kar denge'. All the aforesaid three statements are not been written in Ex.PW7/DX & B. The witness made certain modifications in his examination inchief recorded subsequently on 10.07.07 and added that accused persons used to spit in front of FIR No. 126/03, PS. Gokul Puri Page 138 of 245 St. Vs. Anang Pal etc. their house and used to remark 'Saale chude chamar yaha aakar bas gaye hai'.
The version of PW9 about the incident as recorded in his statement u/s 161 Cr.P.C Ex.PW9/DA is reproduced to understand the confrontations made in cross on various dates. He had stated that all the accused persons were quarreling with Dhanpal, Rajender, Surender and Ravinder. Vijay Pal, Balraj and Ajbu caught Dhanpal and Mulak Raj and Jaiwati caught Rajender. Vijay Pal shouted 'in sabhi ka kaam tamam kar do'. Titu caused injury in the chest of Dhanpal. In between Kailash also brought a gupti and caused injury on the chest of Rajender. He said that Vijay Pal's daughter and Ajbu's wife were attacking Dhanpal and Rajender. Titu was constantly stabbing with gupti, stabbed Vijay Pal also. This witness came to the court and deposed about the incident twice. He was examined as PW9 on 29.05.09 and crossexamined on 27.08.09. In his first evidence his version of the incident was that on 15.04.03 at about 7.30 am all the family members of Vijay Pal had collected and brought gupti. Vijay Pal said in loud voice FIR No. 126/03, PS. Gokul Puri Page 139 of 245 St. Vs. Anang Pal etc. 'in dhed chamaro ka kaam tamam kar do', which fact was confronted with his statement Ex.PW9/DA, where it was not found recorded (confrontation in crossexamination dt. 19.09.09). He said that accused Vijay Pal caught hold of Dhanpal and Anang Pal gave gupti blow on the left side of Dhanpal. Kailash brought a gupti and gave gupti blow on the left side of Rajender. When Dhanpal fell down accused Anang Pal gave gupti blow to accused Vijay Pal. He specifically said that accused Satish gave a blow with broken bottle to Rajender and then he ran after Ravinder. He caught hold of Satish and saved Ravinder. The witness thus, did not say anything about accused Ajab Singh, Balraj, Udai Raj, Smt. Rajesh, Smt. Jaiwati, Kuman and Mulakraj specifically though he said that all were present and were quarreling. He says that in the evening they had gone to PS for getting lodged a report under SC/ST Act. No permission was taken by Ld. Spl. PP to cross examine the witness though he had not supported the prosecution case on some aspects, and the witness was tendered for cross examination. Thereafter, he appeared for crossexamination on FIR No. 126/03, PS. Gokul Puri Page 140 of 245 St. Vs. Anang Pal etc. 22.07.09 and on 27.08.09 yet no permission was taken by the court even for crossexamining him as should have been. He admitted in his cross conducted on aforesaid date that his statement was recorded on 15.04.03 but stated that he did not remember the time of statement. In between an application for reexamination of Chhattar Singh u/s. 311 Cr.P.C was moved by Ld Spl PP, which was allowed by the court. The manner of moving the application gave rise to the plea of defence that Spl PP was in fact biased and was prosecuting the case of complainant and not the State as should have been. Allegations were made that he was instrumental in getting the FIR registered; his relations with the complainant side and he having remained the counsel for the complainant privately as well as in the connected case against them. Several questions were put to the witness in his crossexamination to show that he in fact he had not moved the application but the application was moved by Ld. Spl. PP after obtaining his signatures on annexure Ex P1. The witness could not tell the contents of his application under section 311 Cr.P.C.Ex.PW9/DX, however, stated that this application might be regarding the threatening given to him. He FIR No. 126/03, PS. Gokul Puri Page 141 of 245 St. Vs. Anang Pal etc. also said that he used to sign application and documents and categorically said that annexure P1 to PW9/DX ( his application to Ld. Spl. Prosecutor for getting recorded his evidence again), might be regarding the threatening(s) given to him by Satish. In his entire crossexamination on that day he could not tell if he moved any application for rerecording of his evidence; only to become wiser on subsequent date when he stated that this application was regarding rerecording of his evidence. Section 311 Cr.P.C says that a witness can be summoned for his evidence if his evidence appears to be necessary for the just decision of the case. The law, however, does not provide for entire statement of a witness to be re recorded at his convenience only on the ground that he was not comfortable in the formal atmosphere of the court, which fact has also been disputed by accused, who filed a certified copy of evidence of this witness recorded in another court prior to the evidence recorded in this matter indicating that the plea of non familiarity with the court atmosphere was factually incorrect. The manner in which this witness deposed after resummoning under 311 Cr.P.C clearly indicates that his evidence was a tutored one. He FIR No. 126/03, PS. Gokul Puri Page 142 of 245 St. Vs. Anang Pal etc. changed his version materially and drastically, added the names of Balraj, Ajab Singh, Jaiwati, Mulakraj & Smt. Rajesh. There is an observation of the court that witness was not speaking audibly despite warnings from the court. Ld. Spl. PP crossexamined him on certain points, however. There is no explanation for why he was not cross examined by Ld Spl PP after his first testimony.
102. Coming to the crossexamination of PW1 and PW7, the other two witnesses of the incident. PW1 Ravinder in his cross examination stated that Vijay Pal had caught his father from behind and Balraj and Ajab Singh from the sides. A suggestion was given to this witness that they had started quarrel with Kailash and when they were beating him Udai Raj, Balraj and Ajab Singh had come to mediate. The suggestion was given by the counsel for accused Balraj, Udai Raj and Ajab Singh in the crossexamination conducted on 18.10.05. These three accused persons thus are admitting their presence at the spot and are saying that they had come to the spot but not with a motive of quarrel. They in fact came to the spot to mediate. This suggestion takes away the effect FIR No. 126/03, PS. Gokul Puri Page 143 of 245 St. Vs. Anang Pal etc. of plea of alibi raised by these accused persons in their defence evidence through different witnesses, which plea is otherwise not admissible as discussed later in the judgment. This suggestion was repeated in the crossexamination dt. 22.11.05, where in addition to the names of Udai Raj, Balraj and Ajab Singh, name of Rajesh was also added as the ones who intervened to pacify the quarrel between Kailash and Ravinder, which took place at 6.15 am. The accused persons thus are admitting the presence of Udai Raj, Balraj and Ajab Singh at the place of incident.
PW1 in the crossexamination said that " after the quarrel started my father and my brother Rajender came to save me and my brother from Kailash, thereafter, the family of Vijay Pal also came and joined the quarrel. He said later in the evidence of this date itself that Vijay Pal, Anang Pal, Satish, Mulakraj, Kuman and Jaiwati had arrived at the spot after his father had arrived. Further later in the crossexamination on the same date he said initially Kailash had put pistol, thereafter, family of Vijay Pal had come and after that family of Bharta Gujjar had come. The FIR No. 126/03, PS. Gokul Puri Page 144 of 245 St. Vs. Anang Pal etc. witness thus seems a little confused on out of the complainant side and the accused side, who came at the spot first and the sequence. The time of incident which allegedly happened with Kailash is given differently in the suggestions to the witness. In the cross examination conducted by Sh. S.K.Baliyan Adv the time given is 6.15 am, however, in the later crossexamination by other counsel the time given is 7.05/7.10 am. All these suggestions were denied by the witness in totality. The witness stated that Ajab Singh, Balraj, Udai Raj and Rajesh had come to the spot after accused Vijay Pal had come there. He denied that he had given Chhuri blow to Kailash. The statement of this witness that Kuman was having lathi was confronted with statement Ex.PW1/A and so was his statement regarding Jeet & Kailash having taken away accused persons in red and white Car. A suggestion was given to the witness which he denied that his brother Surender had hit Kailash with a brick. The witness thus has by and large stood by his examination inchief apart from the small aspect on which of the accused persons came at the spot first with minor variance here and there.
FIR No. 126/03, PS. Gokul Puri Page 145 of 245 St. Vs. Anang Pal etc. Similarly PW7 in his lengthy crossexamination consisting of 139 pages has remained firm on the facts that Anang Pal and Kailash had guptis in their hands. Anang Pal had stabbed Dhan Pal and Kailash had stabbed Rajender. He has remained firm on that Kailash had first gone to his house and then had come back with a gupti. He has explained the injury of Vijay Pal specifically having deposed that Vijay Pal had caught hold of his father from back side, which is the prosecution case since beginning. He stated that when accused Anang Pal stabbed Dhanpal, he fell down, which fact has also remained so in the prosecution case throughout. Explaining the kashmakash in the complaint Ex.PW1/A, Ex.PW7/X and Ex.PW7/B, he said that when Anang Pal was giving second blow to his father then instead of hitting his father it hit Vijay Pal. The fact was explained by him more than once in his evidence, he having said categorically at one point that Anang Pal had stabbed his father twice in an interval of 1015 seconds while standing in one position. He said that the accused who had caught hold of his father freed him after the second blow. The second FIR No. 126/03, PS. Gokul Puri Page 146 of 245 St. Vs. Anang Pal etc. blow was also given towards the chest. When the second blow was given his father tried to separate himself from accused and later he said that accused Ajab Singh and Balraj who were holding his father released him due to which accused Vijay Pal received the injury. His specific version that when Anang Pal was giving second blow to his father, then instead of hitting his father, it hit Vijay Pal was confronted with Ex.PW7/B, where it was not specifically written but it was written that ' Jhagde wa kashamkash me Titu ki gupti Vijay Pal ke pet me lag gayi'.
103. About the crossexamination of Chhattar Singh, it is observed hereinabove that he has changed his version several times in the evidence. However, unlike his evidence pertaining to the incident of 14/04/2003, which is completely unreliable; his evidence for the incident dated 15/04/2003 is not completely unreliable. His presence at the spot was not denied by the accused also. Though they claim that he had run away from the spot, it is their case through various suggestions given to the witnesses that he was at the spot and had caused injury to Kailash and Vijay Pal. FIR No. 126/03, PS. Gokul Puri Page 147 of 245 St. Vs. Anang Pal etc. His presence till end is proved by the fact that deceased Dhanpal was covered by a kurta, which was seized by the doctor in hospital and it had blood of DhanPal. The kurta, it is claimed was of Chhatar Singh. If the presence of this person is admitted at the spot and he is not completely hostile or opposed to the prosecution case qua the incident of 15/04/2003, his testimony cannot be discarded completely. In fact it can be used to corroborate and contradict the testimony of other witnesses. ( reliance placed on Inder Singh & Anr. Vs. The State (Delhi Administration), (1978) 4 SCC 161 at page 162 where the Hon'ble Supreme Court held that Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. Hon'ble Supreme Court in 2012 (2) RCR(Criminal)231, Sampath Kumar Vs Inspector of Police Krishangiri referring to Vadivelu Thevar Vs. State of Madras AIR 1957SC614 spoke of three category of witnesses: those that are wholly reliable, those that are wholly unreliable and who are neither wholly reliable nor wholly unreliable. In the case of the first category the courts have FIR No. 126/03, PS. Gokul Puri Page 148 of 245 St. Vs. Anang Pal etc. no difficulty in coming to the conclusion either way. It can convict or acquit the accused on the deposition of single witness if it is found to be fully reliable. In the second category also there is no difficulty in arriving at an appropriate conclusion for there is no question of placing any reliance upon a deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial. The Hon'ble Supreme Court thus held that the testimony of a witness, who is not wholly reliable or wholly unreliable, can be relied if it is corroborated on material aspects or it corroborates the testimony of others.
PW9 is the witness of third category but has given a consistent statement on material aspects, which is corroborated by the evidence of other public witnesses and the evidence of witnesses of investigation and medical examination.
Having said so, the evidence of this witness is being FIR No. 126/03, PS. Gokul Puri Page 149 of 245 St. Vs. Anang Pal etc. scrutinized closely. In his first statement given to the court, the witness stated that all the family members of Vijay Pal had collected and brought gupti. He is thus indicating that family members of Vijay Pal had collected at the spot not naming each individual and again they had brought gupti not naming each one of them individually. The prosecution case to the effect that Vijay Pal and his family members were at the spot and some of them had gupti thus stands supported by the evidence of this witness. Who had guptis got clarified in the next part of his evidence when he said that Vijay Pal caught Dhanpal and Anang Pal gave gupti blow on left side of Dhanpal, thus the fact as deposed by PW1 & PW7 that Anang Pal had gupti and Vijay Pal had caught Dhanpal while Anang Pal gave him gupti blow also stands corroborated by the evidence of this witness. He goes further and says that Kailash brought a gupti and stabbed Rajender. The prosecution case that Kailash had gone to his house and had brought a gupti from there and that he stabbed Rajender stands supported. He further said that when Dhanpal fell down Anang Pal gave gupti blow to Vijay Pal. The prosecution case that Vijay Pal was holding Dhanpal, who fell FIR No. 126/03, PS. Gokul Puri Page 150 of 245 St. Vs. Anang Pal etc. down after receiving the stab wound and the second blow hit Vijay Pal, thus stood confirmed by the evidence of this witness. The prosecution case deposed by PW1 & PW 7 that accused Satish had inflicted injury in the arm of Rajender with a broken glass bottle and had thereafter, tried to cause injury with the same to Ravinder, which was prevented by this witness also stood corroborated by this witness. The witness therefore, supported the prosecution case visavis involvement of accused Vijay Pal, Anang Pal, Kailash and Satish completely and corroborated the evidence of PW1 & PW7. He however, did not say anything against the other accused persons. The confrontations in his evidence were mainly on the second part of his evidence deposed by him after the application u/s. 311 Cr.P.C was allowed and are therefore, not being considered in detail since that part of evidence has also not been accepted in support of prosecution case.
104. A combined reading of the testimony of three witnesses shows that presence of family members of Vijay Pal has been clearly deposed by the all the three witnesses. The presence of FIR No. 126/03, PS. Gokul Puri Page 151 of 245 St. Vs. Anang Pal etc. Udai Raj, Balraj, Ajab Singh and Rajesh has been indirectly admitted by the accused when they gave suggestions to the witnesses that they had come to the spot to save accused Kailash.
105. The accused persons have been charged under section 147/148/149 of IPC. Ld. Counsel for accused Balraj, Udai Raj, Ajab Singh and Smt. Rajesh argued that allegations of unlawful assembly are not substantiated by the evidence. He argued that to invoke the provisions of section 149 IPC the accused persons should have come to the spot together with a common object, however, in the instant matter the accused persons did not come to the spot at the same time and the prosecution has not been able to establish common object at all.
Ld. Counsel for accused has also relied upon the judgment of Hon'ble Supreme Court in 2011 STPL (LE 45034 SC Kuldeep Yadav & Ors. Vs. State of Bihar where the Hon'ble Supreme Court held that no avert act had been attributed to any other accused persons except A1 towards the murder of 'S'. FIR No. 126/03, PS. Gokul Puri Page 152 of 245 St. Vs. Anang Pal etc. Sessions judge on analysis held that no case u/s. 307/149 IPC against all the 11 accused persons made out for causing murderous assault and hurt. At least 4 of the accused persons were armed with gun but no gun shot injury was inflicted against any of the aforesaid prosecution witnesses. In view of the fact that common object was not known to anybody it is not safe to convict the accused persons u/s. 149 IPC".
106. Ld. Spl. PP to counter the argument stated that accused persons had common object and they had connived with each other on 14.04.03 itself pursuant whereto all of them assembled at the spot and had caused the death. On the evidence aspect he said that the evidence regarding the common object has to be inferred from the circumstances. In support of his contention Ld. Spl. PP has relied upon the judgment in Mohinder Singh & Ors. Vs. State of Punjab 2006 (II) JCC 638 (SC), wherein the Hon'ble Supreme Court had held that there is a distinction between common object and common intention. The common object need not require prior FIR No. 126/03, PS. Gokul Puri Page 153 of 245 St. Vs. Anang Pal etc. concern and the common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of crime at the spot itself, there need not be prior meeting of the mind. It would be enough that the members of the assembly had common object and they acted to achieve it.... At the same time one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a common object which was shared by that person. It was held that common object has to be gathered from the facts and circumstances.
In the cited judgment more than five persons had gone to the spot together. Two of them were carrying 12 bore guns and one of them had opened fire immediately on reaching the spot. Several injuries were caused to the complainant side. Nine persons had received 31 injuries which led the court to believe that the unlawful assembly had the common object of causing injuries to the victims. Per contra in K. M. Ravi & Others Vs State of Karnataka (2009) 16SC337, it was observed that mere presence or association with FIR No. 126/03, PS. Gokul Puri Page 154 of 245 St. Vs. Anang Pal etc. other members alone does not per se be sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act.
In Kuldeep Yadav & ors VS State of Bihar (2011) 5 SCC 324it was held that it is not the intention of the legislature in enacting section 149 to render every member of unlawful assembly liable for punishment for every offence committed by one or more of its members. In order to attract section149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly and it must be in the knowledge of other members as one likely to be committed in prosecution of the common object.
107. Coming to the facts of present case the quarrel between Kailash and Dhanpal on 14/04/2003 has been accepted as the evidence of motive behind the incident dated 15/04/2003. Ld. Spl. FIR No. 126/03, PS. Gokul Puri Page 155 of 245 St. Vs. Anang Pal etc. PP argued that since the two incidents have been found connected, therefore, the prior meeting of mind can be imported. No such presumption, however, can be raised unless there is evidence to suggest so. There is absolutely no evidence on record to suggest that the two families had met on the night of 14/04/2003 or morning of 15/04/2003. It is also not the prosecution case that the 11 accused came to the spot together and threatened PW Ravinder or Surender. It is not deposed by any witness that the accused families were watching the incident from somewhere and they came to the spot immediately after accused Kailash fired. In fact PW 7 in his cross examination admitted that while Vijay Pal and his family were rushing to the place of incident they did not stop at the house of complainant, which fell on way. They did not attack the family members of the complainant after entering their house. They did not even pass any castiest remarks against the family members while they were passing the house. In fact accused Kailash also did not say anything to him when he was passing from the front of their house in the beginning ( Surender has claimed that he was standing at his gate). The accused persons ran to the FIR No. 126/03, PS. Gokul Puri Page 156 of 245 St. Vs. Anang Pal etc. place of incident, where an incident not known to them till then, was taking place.
What was the common object if at all? There is a contradiction on whether Rajender & Dhanpal came at the spot first or accused persons barring Kailash arrived earlier. If the common object was to kill or cause injury to the deceased or any of his family members then the right place to do so was to have attacked the house of deceased, where his family members except Ravinder & Surender were present and the house fell on way.
Then the witnesses admit that the accused persons came to the spot separately. PW Ravinder had given contradictory statements on who came first. Atleast at two places he said that his father and brother Rajender came before the accused persons came at the spot. Some of the accused have taken a specific plea that they came to intervene in the quarrel. There are allegations of attack from both the sides. And it is admitted that some kind of quarrel had started before the accused persons reached at the spot. Under the given circumstances it cannot be said that the FIR No. 126/03, PS. Gokul Puri Page 157 of 245 St. Vs. Anang Pal etc. accused persons shared a common object of causing murder or injuries to the complainant side. It appears to be a case of sudden quarrel, in so far as all the accused except Kailash are concerned; the accused persons having come to the spot separately not knowing what had happened on 14/04/2003 or at the spot before they arrived.
108. In view of above discussion and judgment of Hon'ble Supreme Court in Kuldip Yadav (supra) since it is not proved that the accused persons had assembled at the spot with a premeditated mind having a common object, the role of each individual in the incident shall be looked into as per the evidence.
The individual roles, as proved by duly corroborated evidence of all the three witnesses, are of Vijay Pal, Anang Pal, Kailash and Satish.
109. Role of accused Kailash: The role of accused Kailash is clearly depicted in the evidence of the prosecution witnesses. FIR No. 126/03, PS. Gokul Puri Page 158 of 245 St. Vs. Anang Pal etc. From the time of registration of FIR, the prosecution case has remained that Kailash had started the incident by putting a kutta on the head of Ravinder, who was saved by Surender. This incident triggered the later violence as the other accused persons and the victims came at the spot hearing the alarm/noise of the quarrel. The accused took a plea that the kutta or the fired bullet was not recovered during the investigation. Admittedly, the kutta used by Kailash is not the weapon of offence in the causing of injury to any of the accused persons. It though an important piece of evidence was not an essential piece of evidence for the prosecution case, not being the weapon of actual offence. Nonrecovery of kutta can be termed as an irregularity in investigation, which irregularities in any case are several in the instant case. The same, however, cannot be accepted as a ground for acquittal of the accused in view of the overwhelming evidence that has come on record otherwise. The witnesses have deposed that after the incident of firing both the sides had come at the spot. There are some variances in the testimony of witnesses regarding the sequence of arrival, nevertheless the arrival of the accused persons as well as FIR No. 126/03, PS. Gokul Puri Page 159 of 245 St. Vs. Anang Pal etc. complainant side is clearly stated in the evidence of PW1 & PW7. The absence of this part from the evidence of PW9 is explainable as he claims that he had reached at the spot later on and has explained that he came when the accused persons had already starting beating Dhanpal etc. PW1 categorically stated in his evidence that accused Kailash brought a gupti from his house and stabbed on the left side of his brother. In his crossexamination he said that he did not see Kailash going towards his house but he had seen him coming back with gupti. PW7 Surender deposed that accused Kailash after hearing the voice of his father brought gupti from his house and stabbed on the left side of chest of his brother. PW9 in his short testimony of 29.05.09 said that Kailash brought a gupti and gave a blow on the left side of Rajender. All the three witnesses are thus corroborating each other on the relevant fact of Kailash having gone and brought the gupti. He was not at the spot with the gupti from beginning. The witnesses if they wanted to depose falsely could have said that Kailash had come with the gupti at the beginning itself, however, their version had been that he had initially come with a kutta and after the quarrel started he went and FIR No. 126/03, PS. Gokul Puri Page 160 of 245 St. Vs. Anang Pal etc. brought a gupti, which he used to kill deceased Rajender. The witnesses have deviated a little in so far as injuries caused to Kailash are concerned. In the complaint Ex PW1/A and Ex.PW7/B, it was said that Kailash had suffered some injuries in the incident, which the witnesses tried to deny in their respective cross examination. The law, however is, it is the grievous or serious injury suffered by the accused in an incident, which is to be explained and not every injury. Accused Kailash admittedly had not suffered grievous injury and therefore, the nonexplanation of the same is not a serious issue. [reliance placed on Lakshmi Singh & ors VState of Bihar (1976) 4 SCC 394].
110. A plea was taken that accused Kailash was injured first by the complainant side and he had saved himself after hiding in the house of tenant of Shyam Lal. This tenant has not been examined in defence evidence. There is nothing on record to show that there was any such house of Shyam Lal where a tenant used to reside except for the evidence of the accused persons and DW FIR No. 126/03, PS. Gokul Puri Page 161 of 245 St. Vs. Anang Pal etc. Mukesh. DW Mukesh says that he saw this happening, however, his testimony is not reliable since his name never came in the cross examination of witnesses. Further he claims to be the witness of incident and resident of the area, however, could not name any attacker except Dhanpal though he says that they were ten in number. His evidence does not inspire confidence.
111. Different timing of alleged incident with Kailash has been given by different accused persons in the cross examinations. While the counsel for accused Balraj etc through the suggestions said that this incident took place at 6:15 AM; the counsel for other witnesses claimed that it was at 7:05 or 7:15 AM. The accused persons thus tried to adjust the time to suit their defence as against the prosecution case. Timing being a very important aspect in this case such a shift in the defence of accused persons renders their defence unreliable.
112. One set of accused persons pleaded that they tried to intervene while accused Vijay Pal said that he came to the spot FIR No. 126/03, PS. Gokul Puri Page 162 of 245 St. Vs. Anang Pal etc. only after his son was injured. None, however has explained how the deceased and the injured got the injuries. From the time of injuries caused to Kailash (which was allegedly intervened by Ajab Singh, Balraj, Udai Raj and Rajesh) till the time of injuries caused to Vijay Pal, at least one of the accused would have noticed, who was causing injury to Dhanpal etc. Silence of accused persons on this material aspect renders the defence being raised by them unbelievable.
113. Role of Anang Pal & Vijay Pal: PW1, 7 & 9 stated in their evidence that accused Vijay Pal had caught the deceased Dhan Pal from back and Anang Pal had stabbed him. While Anangpal was giving second blow to the deceased it hit Vijay Pal. The word Kashmakash used in Ex.PW1/A was explained in several manners. It was argued that accused Vijay Pal was a tall man while deceased Dhanpal was a short man. After the first injury when the second one was advanced towards him, the same hit Vijay Pal. It is also stated that Dhanpal had fallen down after the first injury and the FIR No. 126/03, PS. Gokul Puri Page 163 of 245 St. Vs. Anang Pal etc. other version is that he had tried to save himself by moving himself and so the second blow hit Vijay Pal. It is an admitted fact that there was a state of utter chaos, where the quarrel was going on in presence of several persons; a combined presence of 21 persons has been pleaded by either side with 11 accused of this case and 10 persons of complainant side claimed by the accused persons. Under these circumstances it cannot be expected that the witnesses would have seen exactly how the injury got inflicted upon Vijay Pal, however, the three explanations given by them are believable. They are constantly saying that Vijay Pal had held deceased from behind and he got injured by second stab injury given by Anang Pal. It was possible because of difference in height, movement of Dhanpal and falling down of Dhanpal equally. They said in the FIR that gupti of AnangPal had hit Vijay Pal in the kashmakash of quarrel and that VijayPal held deceased from behind. This part of evidence and explanation of Kashmakash as given by prosecution witnesses is believable and acceptable explanation for injury suffered by Vijay Pal in the incident and is in consonance of medical and FSL evidence also as discussed later in the judgment. FIR No. 126/03, PS. Gokul Puri Page 164 of 245 St. Vs. Anang Pal etc. The plea of the accused Vijay Pal that he came at the spot after seeing his injured son is not believable for the reasons given in case of Kailash hereinabove.
114. The accused persons have relied upon judgment in Mohinder Singh & Ors. Vs. State of Punjab 1995 Cr.L.J 344; Deo Narain Vs. State of U.P 1973 Cr.L.J 677 (V79C206); State of Punjab Vs. Ajaib Singh 1995 Cr. L.J 2456; Puran Singh & Ors. Vs. State of Punjab 1975 Cr.L.J 1479; Brij Nandan Rai & Ors. Vs. State of Bihar CRIMES X 1991 (3) 360; Abdul Kadir & Ors. Vs. State of Asam 1985 Cr.L.J 1898 and The State of U.P. Vs. Ram Niranjan Singh AIR 1971 SC 1432.
In all the above matters the Hon'ble Courts considered the plea of the respective applicant u/s. 97 of IPC i.e of private defence. It was held that a person need not have actually received an injury to exercise the right of private defence. Laying down the principle of aggressor, it was held that the person who is the bigger FIR No. 126/03, PS. Gokul Puri Page 165 of 245 St. Vs. Anang Pal etc. victim may not always be right. It was held that if the prosecution did not come out with the true version of the nature and origin of occurrence, they could not blame the court for rejection of their entire version.
The accused of the present case have not taken the plea of private defence at all. It is nowhere stated, suggested or pleaded that it was due to injuries caused to accused Kailash or Vijay Pal or in apprehension of the injuries likely to be caused that the remaining accused person, gave fatal blows to the two deceased. In fact the accused persons have not even named any person, who according to them caused fatal injuries to the two deceased. It is unbelievable that some persons, who are not even known to the accused exercised right of private defence on behalf of the accused persons. The judgments do not help accused as they have not named the persons, who as per them acted in the private defence of the accused persons, moreso when the incident is of village and the persons present were villagers. This right would have been available to those persons, if accused had come out clear on who FIR No. 126/03, PS. Gokul Puri Page 166 of 245 St. Vs. Anang Pal etc. these persons were. In 2013 (3) JCC 1591, Gangappa Ningappa Ogar Khod Vs. State of Karnataka, the Hon'ble Supreme Court held that where the defence had completely denied the occurrence, having stated that it took place in a different manner and at a different place (SC No. 71/1993) no reliance could be placed on the alleged injuries suffered by them in so far as the trial of said case (SC no. 84/1993) was concerned. It was held that since the court had disbelieved the prosecution case in SC No. 71/1993 the alleged injuries suffered by the accused were of no help to them in the other case.
115. Claiming the defence of the non explanation of injuries of accused persons Ld Counsel has relied upon the judgment in Laxmi Singh Vs. State of Bihar AIR 1976 SC 2263 wherein it was held that the omission on part of prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in FIR No. 126/03, PS. Gokul Puri Page 167 of 245 St. Vs. Anang Pal etc. probabilities with that of prosecution. There may be cases where non explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously not apply to cases where the injuries sustained by the accused are minor or superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy that it far outweighs the effect of the omission on part of prosecution to explain injuries.
In this case, however, the prosecution has successfully explained the injuries caused to Vijay Pal by ocular and scientific evidence. So far as injuries of Kailash are concerned they are not the nature of injuries, which required specific explanation.
116. Plea of identity of Anang Pal : Anang Pal first tried to dispute his presence by claiming that his name was not Titu. In the FIR Dhanpal has been shown to have been stabbed by Titu. The witnesses, however, maintained that Anang Pal was Titu and it was he who caused the stab injury. It is an admitted fact that the two FIR No. 126/03, PS. Gokul Puri Page 168 of 245 St. Vs. Anang Pal etc. families were not in talking terms. PW1 has admitted that he did not know the names of all the member of family of Vijay Pal. He has identified Titu as Anang Pal in investigation as well as evidence in court. Similarly PW7 and PW9 have also identified accused Anang Pal as the person who stabbed Dhanpal. Relevant fact is that the accused persons brought on record two statements of Chaman Lal and Ravi Kant allegedly recorded during the investigation. ACP B.L.Meena accepted that these statements were recorded during investigation. Both the statements have been recorded on 15.04.03 i.e the date of incident. In the statement of Chaman Lal name of accused Anang Pal appears alongwith the name of other accused. In the statement of Ravikant, it is written that Anang Pal @ Titu was present alongwith other persons and later it says that Kailash and Titu had gupties in their hands. The accused brought these documents and tendered them in their evidence in support of their claim that nothing was stated specifically by these witnesses and so they were not shown as prosecution witnesses. They as such are relying upon these documents. The statement of both these witnesses, however, goes FIR No. 126/03, PS. Gokul Puri Page 169 of 245 St. Vs. Anang Pal etc. against the accused persons as it clearly stands established that apart from the complainant and witnesses other person also knew Anang Pal as Titu and that Anang Pal was present at the time of incident.
Accused Anang Pal pleaded that he was not present at the spot and had gone to Yamuna Bazar, Hanuman Temple. His plea is not believable and is dealt with later under the head 'plea of alibi' The witnesses have tried to improve their version qua Vijay Pal when they said that he caused injury by hockey, which broke into two pieces, which is not believed being an improvement.
117. Role of accused Satish The three witnesses have corroborated each other on the role of accused Satish. PW1 said in his first evidence that Satish had hit his brother Rajender on left hand, though he did not mention the weapon used by him. On the next date of his evidence, he made an improvement and said that Satish had used a bottle to cause the injury. Even if the FIR No. 126/03, PS. Gokul Puri Page 170 of 245 St. Vs. Anang Pal etc. improvement part made on the subsequent date is ignored, the fact that accused Satish had caused injury on the left hand of Rajender was clearly deposed. PW7 deposed that accused Satish had attacked Rajender with a broken bottle of cold drink and his bottle had hit left arm of Rajender. PW9 in his first evidence stated that Satish gave a blow with a broken bottle to Rajender. The three witnesses thus have clearly stated that Satish had caused injury to deceased Rajender. Two witnesses are saying that the injury was on left hand and two have categorically said that he used broken bottle to cause the injury. Not much crossexamination of the witnesses, was conducted on this fact and there is not much written in the written arguments filed by accused Satish refuting the allegations. The only line that he had mentioned is that PW7 Surender in his evidence dt.16.10.08 stated that bottle was unbroken. This, however, is not a nature of contradiction, which could render the facts as deposed by three witnesses unbelievable as it merely create a dispute on whether the bottle was broken or broke during the injury and used further. It was argued on behalf of accused Satish that as per postmortem report the entry of injury on the left arm of FIR No. 126/03, PS. Gokul Puri Page 171 of 245 St. Vs. Anang Pal etc. Rajender was 3.3 X .5 cm and the exit was 2x.3 cm and total length of the track was 8.5 cm, however, such an injury is not possible by a bottle. Dr. S.K.Verma, who had conducted the postmortem on the dead body of deceased Rajender was examined as PW2. He tendered his postmortem report in evidence. The witness was crossexamined by accused Udai Raj, Balraj and Ajab Singh. He was not crossexamined by accused Satish or any of the remaining accused persons. In the crossexamination by aforesaid accused persons he said that injury no.2 was (the injury on hand) simple injury. No such suggestion was given by the accused to the doctor at relevant point of time. He was not even asked whether this injury was possible by a broken bottle or not. The wound is an incised stab entry wound and prima facie does not seem impossible by a broken bottle. It wasn't exhibited how the injury was not possible by a broken bottle.
118. Coming to the roles of other accused persons (other than above four) in the incident: apart from aforesaid four accused persons, name of none other appeared with specific role in the first FIR No. 126/03, PS. Gokul Puri Page 172 of 245 St. Vs. Anang Pal etc. statement of PW 9. Though he said that the other accused persons (without naming who?) were present and had caused injuries to the deceased persons and injured persons at the spot. The accused persons whose names were not given by the witness, were not got identified by him in his examination in chief either. The versions of PW1 & PW7 qua Kuman, Rajesh, Jaiwati, Mulaakraj, Ajab Singh, Balraj and Udai Raj, have not been corroborated by PW9 in his accepted part of evidence. PW9 has been held to be a not fully reliable and not fully unreliable witness. PW1 & PW7 however, are interested witnesses. The testimony of PW1 & PW7 cannot be discarded on the ground of them being interested witnesses (Reliance place on Karnail Singh Vs. State of M.P. (1995) 5 SCC
518); the fact, however, remains that in view of the evidence reproduced hereinabove their testimony appears to be somewhat exaggerated. PW 7 having been confronted on almost 60 % of his deposition. Their version, therefore, requires independent corroboration either from oral evidence of another witness (as has been with aforesaid four accused) or medical/scientific evidence. FIR No. 126/03, PS. Gokul Puri Page 173 of 245 St. Vs. Anang Pal etc. Role of remaining accused persons shall be discussed in abovesaid light PW1 in his first
119. Role of accused Jaiwati & Mulakraj.
deposition before the court stated that accused Jaiwati had caught hold of his brother. PW7 stated that accused Kailash after hearing the voice of his father brought gupti from his house and stabbed on the left side of chest of his brother. Before that he said that accused Jaiwati and Mulakraj caught hold of his brother Rajender. PW9 in his first statement says that Kailash brought a gupti and stabbed Rajender but did not say anything about Jaiwati having caught hold of Rajender. The three witnesses therefore, are not corroborating each other on by whom deceased Rajender was caught, in so far as their (of Ravinder & Chhatar Singh) first statements recorded in the court, are concerned (Second being improvements having been recorded after a gap of time). While Ravinder said that Rajender was caught by Jaiwati only, Surender said that he was caught by Jaiwati and Malakraj and Chhattar Singh did not say that Rajender FIR No. 126/03, PS. Gokul Puri Page 174 of 245 St. Vs. Anang Pal etc. was caught by anybody. PW7 has not said anything against him apart from above. PW9 is silent on Mulakraj completely in his first statement. In view of above, while Mulakraj gets a clear benefit as two of the witnesses did not name him as the person who caught Rajender; Jaiwati also gets the benefit since unlike in the case of Vijay Pal, the three witnesses did not say categorically that she had held accused Rajender. The evidence of PW7 is otherwise not indicating clearly that Jaiwati and Mulakraj were holding Rajender at the time when Kailash stabbed him. PW1 in his first evidence apart from alleging that Jaiwati had caught hold of his brother did not make any other allegation against her. PW9 has not stated anything specifically against her. However, PW7 in his evidence said that apart from having caught deceased Rajender, Jaiwati had given lathi blow to his father as a result of which his father had fallen down, which was not stated by any other witness. Considering the fact that the two deceased were stabbed in a very short time, it seems difficult to believe that this accused would have first caught Rajender and then would have come to beat Dhanpal with lathi. If, Dhanpal fell down due to hitting of Jaiwati, then she FIR No. 126/03, PS. Gokul Puri Page 175 of 245 St. Vs. Anang Pal etc. would not have got an opportunity to hold Rajender as the witnesses have explained that first injury was caused to Dhanpal, second to Rajender and third to Vijay Pal. Dhanpal had fallen down after the first injury. There was some distance between the two deceased. The different versions of witnesses; and exaggerated statement made by PW 7 creates a doubt in respect of clear role of accused Jaiwati in the incident and she gets benefit of doubt having arisen on account of the different versions regarding his role.
120. Role of accused Kuman, Rajesh and Udai Raj. PW1 said that accused Kuman and Rajesh had hit his father with a stick. PW7 Surender said that Kuman gave lathi blow on his(Surender's) head and Rajesh had given lathi blow on the head of Ravinder. PW Ravinder also said so. The two witnesses thus are corroborating each other and have specifically said that the injuries were caused to them on their heads by the two accused persons. There is one injury mentioned on the parietal region of Surender and similar FIR No. 126/03, PS. Gokul Puri Page 176 of 245 St. Vs. Anang Pal etc. lacerated wound on the head of Ravinder in their respective MLCs (reproduced later in the judgment). The evidence of the two witnesses therefore, stands corroborated by medical evidence. The individual role of two named accused is of having caused simple injury to the two injured.
Regarding accused Udairaj PW1 said that he had hit his father with a stick on his face. PW7 also said that Udai Raj gave lathi blows on the face of his father. Postmortem report of deceased Dhanpal Ex.PW2/B says that injury at injury no.5 was found on the right ear of the dead body. There isn't much cross examination of the witnesses on the specific roles. The injury corroborates the evidence of PW1 & PW7 regarding the deceased having been hit on his face with the stick by accused Udai Raj. The injury has been opined to be simple.
121. Role of Balraj and Ajab Singh: PW1 and PW7 have categorically stated that accused Ajab Singh and Balraj alongwith Vijay Pal had caught deceased Dhanpal while Anang Pal stabbed FIR No. 126/03, PS. Gokul Puri Page 177 of 245 St. Vs. Anang Pal etc. him. PW9 in his first statement did not support the version and named Vijay Pal as the only person, who had caught deceased Dhanpal. The version of these witnesses qua Malti and Rajesh is corroborated by medical evidence MLCs and their version against Udai Raj is supported by PM report. The version of these two witnesses against Kailash, Anang Pal and Vijay Pal is fully supported by PW9, medical evidence as well as scientific evidence. However, when the evidence of these two witnesses is considered qua Ajab Singh and Balraj, it is found that there is absolutely no corroboration: oral, medical or scientific. In this context evidence of PW9 Chhattar Singh recorded on 23.05.09 becomes important. The witness said categorically that Vijay Pal had caught Dhanpal while Anang Pal stabbed him. This was his first evidence in the court. Considering the state of mind of this witness; his conduct as mentioned in the evidence recorded on various date and his age, a benefit could be given to him that he might have missed some specific incidents deposed by PW1 & PW7, which are duly corroborated by medical evidence. However, when his evidence qua Anang Pal and Vijay Pal is considered, he FIR No. 126/03, PS. Gokul Puri Page 178 of 245 St. Vs. Anang Pal etc. has given a clear testimony that Vijay Pal had caught and Anang Pal had stabbed Dhanpal, which fact has been scientifically established. If the witness had seen this part of incident, he could not have missed Ajab Singh and Balraj, if they had also caught Dhanpal as deposed by PW1 & PW7. As stated above the evidence of PW1 & 7 needed independent corroboration on material points; they being interested witnesses and having exaggerated their versions over and over again. No such independent corroboration, however, is coming against the two named accused persons. The allegations qua Ajab Singh and Balraj are thus not specifically proved. There role is otherwise doubtful in view of evidence of witnesses that they were also giving lathi and danda blows, which again is not believable as they cannot be presumed to be doing several acts at the same time. At one point PW 7 said that the accused persons brought lathi dandas, which they left on the ground and the same were supplied to them Kailash s/o Attar Singh. Such fact found no corroboration absolutely from any other witness. The witnesses have tried to improve their version qua Vijay Pal when they said that he caused injury by FIR No. 126/03, PS. Gokul Puri Page 179 of 245 St. Vs. Anang Pal etc. hockey, which broke into two pieces, which is not believed being an improvement. Some one, however, had given the hockey blow as blood was found on it. The witnesses could not give clear evidence on this. A benefit, therefore, goes to these accused, the witnesses having failed to give clear evidence on their role.
122. Ld. Spl. PP stressed the common intention and relied upon the judgment of Hon'ble Delhi High Court in 2013 (4) JCC 2655, Naresh @ Koki Vs. State of Delhi. In the said judgments the Hon'ble Supreme Court referring to the common intention u/s. 34 IPC held that where all the accused persons were known to the witnesses and their presence and participation in the crime, their coming together and leaving the spot together was deposed by the prosecution witnesses and there was only some variance regarding the role assigned to the accused persons, the element of common intention could be safely presumed.
123. The counsel for accused, however, relied upon Hon'ble FIR No. 126/03, PS. Gokul Puri Page 180 of 245 St. Vs. Anang Pal etc. Supreme Court in 1999 III AD (Cr.) S.C. 561 titled Ramashish Yadav & Ors. Vs. State of Bihar, wherein the Hon'ble Supreme Court held that coming to the question of applicability of Section 34 for the murder of Tapeshwar, we find from the evidence of three eye witnesses that while Ram Pravesh Yadav and Ramanand Yadav caught hold of Tapeshwar, accused Samunder Yadav and Sheo Layak Yadav came with gandasa and gave blows on the head of Tapeshwar as a result of which Tapeshwar died. Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of FIR No. 126/03, PS. Gokul Puri Page 181 of 245 St. Vs. Anang Pal etc. minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre arrangement or premediated concert. This being the requirement of law for applicability of Section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold to Tapeshwar. Thereafter Samundar Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav. Consequently, accused Ram Pravesh Yadav and Rtamanand Yadav cannot be held guilty of the charge under Section 302/34 IPC.
The fact of the matter is that the judgments relied by parties show that such issues are to be decided on the facts. The accused did not come to the spot together. The prosecution hasn't proved any premeditation; it can not be deduced from the FIR No. 126/03, PS. Gokul Puri Page 182 of 245 St. Vs. Anang Pal etc. circumstances of the case also. Section 34, therefore, cannot be read against all the accused in a blanket manner, however, the same can be safely presumed against accused Vijay Pal, whose role in facilitating the murder and utterances are clearly proved. The plea of provocation, however, has not been pleaded.
124. Plea of Alibi: All the accused persons except Kailash and Vijay Pal have taken the plea of alibi. Anang Pal said that he was not present at the spot and had gone to Yamuna Bazar, Hanuman Temple.
In support of his contention he examined witnesses also. Though the plea of Alibi was taken by accused Anang Pal from the beginning none of the prosecution witnesses was given any suggestion that he was at the temple alongwith three persons and had gone to meet Ramu Halwai thereafter. The defence of the accused appears to be an afterthought. In fact the witnesses of accused have themselves not given a corroborative evidence. Accused himself said in his SA that he went with DW Subhash FIR No. 126/03, PS. Gokul Puri Page 183 of 245 St. Vs. Anang Pal etc. Kaushik and they met HoriLal in the temple. As per DW8 - DW Firrey Ram, who has also claimed to be with them, was also with the accused persons; but his name is missing from the SA of accused. The plea of alibi is not believable it having not been raised as per law. Proper suggestions were not given to the PWs during the prosecution evidence. So far as plea of other accused persons is concerned, the same also appears to be an after thought; the plea raised by accused Udai Raj, Balraj, Ajab Singh and Rajesh is not believable in view of the suggestions put by them to the prosecution witnesses admitting there presence though for a different reason.
On the plea of alibi of the accused persons, Hon'ble Supreme Court in 2011 (1) CC Cases (SC) 312, Sher Singh and Anr. Vs. State of Haryana, the Hon'ble Supreme Court held that the defence (plea of alibi) of the accused was an afterthought as there was no suggestion to the prosecution witnesses (on the facts pertaining to their plea of alibi).
The judgment has directly applicability on the facts of the case. FIR No. 126/03, PS. Gokul Puri Page 184 of 245 St. Vs. Anang Pal etc. Plea of alibi of all the accused is rejected.
125. Medical and FSL report: Postmortem report of deceased Rajender was proved by PW2 Dr. S.K. Gupta. The report is Ex. PW 2/A, and has not been challenged in cross examination. It says that the deceased was brought dead at 08.15 am. His shirt had three cut marks, one in the left side and two on the sleeves, corresponding to injuries and baniyan had a cut mark of the left side.
Antemortem injuries mentioned in the postmortem report are as under:
1. A Horizontally placed incised stab wound elliptical in shape, placed 6 cm to the left up mid line, 5.7 cm from lower border of left clavicle and 5.5 cm above centre of left nipple in the fourth intercostal space going backwards, downwards and medially, cutting the skin intercostal FIR No. 126/03, PS. Gokul Puri Page 185 of 245 St. Vs. Anang Pal etc. muscles, pleura and left atrium. The size of the wound was 1 x .3 x4 cm at chest and at atrium it made a nick of size 0.6 x 0.2 cm. Blood was present in the track.
2. Incised stab entry wound elliptical in shape of size 3.3 X 0.5 placed in front of left upper arm 28 cm above the Styloid process of the left wrist going upwards, backwards and medically coming out from middle one third of left upper arm 12.5 cm above the centre of elbow joint and 24 cm below the left shoulder tip by making an exit wound of size 2 x 0.3 cm. Total length of the track was 8.5 cm. Blood was seeing throughout the track.
3. A reddish oval abrasion of size 1 x 0.8 cm placed on right patella 1 cm to the right of its centre.
4. A reddish abrasion of size 0.5 x 0.4 cm placed on the right forearm back on upper one third 7 cms below the tip of Decranan.
5. A reddish abrasion of size 2 x .8 cm placed on the right side lower back 7 cm from mid line and 14 cm above medial gluteal fold.
FIR No. 126/03, PS. Gokul Puri Page 186 of 245 St. Vs. Anang Pal etc. Postmortem report of deceased Dhanpal Sagar was also proved by PW2 Dr. S.K. Gupta. The report is Ex. PW 2/B and has not been challenged in cross examination. It says that the deceased was brought dead at 08.15 am. Cut marks were found corresponding to the injury on the shirt and the baniyan.
Antemortem injuries mentioned are :
1. Incised stab wound elliptical in shape of size 1.4 x 3.5 cm placed in left side front of chest in 7th intercostal space 5 m to the left of mid line, 13 cms below the lower border of clavical and 4.5 cm below and medial to centre of the nipple directed upwards , medially and backwards, cutting the skin, intercostal muscles, left lung peri cardiom and the pulmonary trunk at its origin.
2. A reddish contusion oval in shape of size 4 x 1.8 cm placed over left shoulder 1 cm medial to its tip.
3. A reddish contusion 2 X 1.5 cm placed on left upper arm in lower one third posteriorly 6.5 cm above the tip of elbow.
4. A reddish abrasion of size 2 X 0.5 cm placed on the back FIR No. 126/03, PS. Gokul Puri Page 187 of 245 St. Vs. Anang Pal etc. of right elbow 4 cm above the tip.
5. Red contusion over right ear lobe of size 2 X 2 cm.
The witness in his cross examination stated that injury no. 3 to 5 in Ex. PW 2/A; and 2 to 5 in Ex. PW 2/B were simple in nature.
126. MLCs: All the four MLCs of Ravinder, Surender, Rajender and Dhanpal have been proved by PW3 Dr. T. Gupta. MLC of Surender Ex. PW 3/A speaks of one laceration 4 x 4 cm on parietal region. The MLC of Ravinder Ex. PW 3/B says that there was a lacerated wound 4 x 1 cm bloody cutting on the left parietal region. In the other two MLCs, the injured were declared brought dead. In his cross examination Dr. Gupta admitted that the injuries mentioned in Ex. PW 3/A and B were possible by fall. He also said that the injuries of brought dead persons may or may be mentioned on their MLCs.
127. The injuries mentioned on the dead body of deceased are in corroboration of ocular evidence of PW1, PW7 & PW9. All FIR No. 126/03, PS. Gokul Puri Page 188 of 245 St. Vs. Anang Pal etc. the witnesses have said that deceased Dhanpal was stabbed once by Anang Pal. The stab injury has been found at the same place as mentioned by the witnesses. PW1 and PW7 have said that accused Udai Raj had hit deceased Dhanpal on his face with a stick. PM report says that there was red contusion over right ear lobe of size 2 X 2 cm. The injury responses to the ocular evidence of being hit by a stick on face. PW1, PW7 & PW9 said that Rajender was stabbed by Kailash. Incised stab wound was found on the left chest of Rajender. The witnesses deposed that accused Satish hit deceased Rajender with a bottle on his hand. An incised wound has been found on left hand of deceased Rajender. The accused have tried to challenge the left hand injury, however, have not been able to, the issue having been discussed hereinabove. The stab injuries of both the deceased also corroborate the oral evidence of the witnesses.
128. Coming to the MLCs of PW1 & PW7, both have said that Kuman and Rajesh had attacked Ravinder and Surender on their head with sticks/lathis. The MLCs of both the witnesses FIR No. 126/03, PS. Gokul Puri Page 189 of 245 St. Vs. Anang Pal etc. Surender and Ravinder Ex.PW3/A and Ex.PW3/B respectively corroborate the evidence of witnesses on this aspect. The medical evidence thus is corroborating the ocular evidence in totality.
129. FSL Report: The FSL report which is admissible u/s 293 Cr.P.C. is on record. The report says that blood was detected on Ex.1. cotton wool swab, Ex.2 shirt of injured, Ex.5. broken piece of hockey, Ex.7 earth control and blood, Ex.8 sky blue shirt of injured, Ex.9a and Ex.9b having seal of SSH i.e St. Stephens hospital, shirt and baniyan (of accused Vijay Pal), Ex.10A pant of Dhanpal Sagar, Ex.10b kurta which had covered Dhanpal Sagar's body, Ex.10d baniyan of Dhanpal Sagar and other articles. The group of blood found on Ex.9a and Ex.9b matched with the blood on Dhanpal's clothes including the Kurta Ex.10b, which had covered his body.
130. Much was argued on planting of blood on the shirt of accused Vijay Pal; it having been concluded in FSL report that his FIR No. 126/03, PS. Gokul Puri Page 190 of 245 St. Vs. Anang Pal etc. clothes had blood of Dhanpal. The accused had moved application to send his blood stained shirt for DNA testing, which application was dismissed by this court and also by Hon'ble High Court. The accused persons stressed the argument at final stage. The argument being that if accused Vijay Pal was stabbed, his blood should have been found on his shirt. However, though blood of deceased has been found; his own blood has not been found on his shirt. It was argued that there was some tempering with the exhibit i.e his shirt.
131. There are some important facts related to issue. The shirt and baniyan of accused Vijay Pal were seized by the doctor of St. Stephens hospital where he got admitted after the incident. They were sealed at the hospital at the date of incident itself. The deceased was not in St. Stephens Hospital, his dead body having been taken to GTB hospital. The sealed shirt of accused Vijay Pal was handed over to SI Amul Tyagi on 15.04.03, which fact has not been disputed by the accused. The duly sealed shirt and baniyan were sent to FSL. FSL report says that these two clothes i.e Ex.9a FIR No. 126/03, PS. Gokul Puri Page 191 of 245 St. Vs. Anang Pal etc. and 9b were received at the laboratory and were having seal of SSH i.e the seal of St. Stephens Hospital. The possibility of tempering at the end of IO in view of facts is ruled out.
The FSL report says that blood of group B was found on shirt Ex.9a and 'no reaction' is written in the column against Ex.9b. ' B' has been found to be the blood group of Dhanpal, which has been found on his clothes; gauge containing his blood and the kurta which covered his body. No explanation has come from the accused as to how the blood of Dhanpal was found on his shirt. The Hon'ble Supreme Court in Krishna Alias Krishnan vs State Of Karnataka on 12 January, 2000: 2001 CriLJ 2696, ILR 2000 KAR 4845, 2001 (1) Kar LJ 24 held that " once the prosecution establishes the presence of blood on the clothes of the accused which tallies with the blood group of the deceased the law enjoins upon the accused to explain how blood of that group was found on his garments and in the absence of any such explanation which is not forthcoming in this case, the irresistible conclusion is that the presence of blood belonging to the same group as that of FIR No. 126/03, PS. Gokul Puri Page 192 of 245 St. Vs. Anang Pal etc. the deceased heavily incriminates the accused".
The presence of Dhanpal's blood on the shirt of accused Vijay Pal corroborates the prosecution case proved by testimony of PW1, PW7 and PW9 that accused Vijay Pal had caught deceased Dhanpal from back, which could have resulted in Dhanpal's blood having splashed on Vijay Pal's shirt when Dhanpal was stabbed.
132. The accused is claiming that there is some defect in the prosecution case as his own blood on his shirt and baniyan is absent, the blood definitely would have oozed from his stab wound. The answer lies in FSL report itself. The report says that no reaction was found on the baniyan of accused Vijay Pal though same was also stained with blood. The apparent reason being the baniyan must have had blood of Dhanpal as it was on the shirt, however, when the blood oozed from Vijay Pal' s injury due to stabbing of same gupti with which deceased Dhanpal was stabbed, the blood of two groups i.e 'B' of Dhanpal and 'O' of Vijay Pal (as claimed by him in his application) got mixed. Due to mixing of blood of two groups the result on baniyan was 'no reaction'. Shirt FIR No. 126/03, PS. Gokul Puri Page 193 of 245 St. Vs. Anang Pal etc. being the outerwear would have got more blood of Dhanpal, which might not have got completely mixed with the blood of Vijay Pal and so Dhanpal's blood was clearly found on the shirt.
In view of above it clearly stands proved that the blood of deceased Dhanpal was found on the shirt of accused Vijay pal, for which he gives no explanation. In so far blood of his own group is concerned the same could not be found having got mixed with the blood of the deceased.
133. Investigation: In this case both prosecution and the deceased are pleading bias against the investigaton officers. While grievance of accused is generally against entire investigation; it is specific against ACP B.L Meena. The prosecution says that the initial IO was biased.
134. A big lacunae in the prosecution case is that the prosecution is lost on the basic fact as to on which and whose FIR No. 126/03, PS. Gokul Puri Page 194 of 245 St. Vs. Anang Pal etc. statement the FIR was registered. IO Inspector Sumer Singh categorically stated that he had recorded the statement of Ravinder. Prosecution is not denying that the statement of Ravinder was recorded at the hospital. But they are claiming that the statement of Surender was also recorded. The bias of prosecution and complainant comes out clear on having claimed it to be so. It also comes out clear in the cross examination of PW Surender. The matter was being investigated by a senior officer, who was the SHO of the PS. It cannot be believed, howsoever, irresponsible this person was, he would not have known the importance of rukka and would have allowed statement of two persons be recorded for the purpose. The plea of prosecution is patently false. PW Surender in his cross examination says that he was in a different room and statement of Ravinder was not recorded in his presence. His version that his statement was recorded first seems false as when he did not see when and where the statement of Ravinder was recorded, he actually did not know whose statement in fact was recorded first. Rukka prepared by Inspector Sumer Singh is on the complaint of PW1 Ravinder Singh. Inspector Sumer Singh FIR No. 126/03, PS. Gokul Puri Page 195 of 245 St. Vs. Anang Pal etc. stated that he had recorded statement of Ravinder in the hospital. He also stated that he did not record any statement of Surender Singh in the hospital. The chargesheet also says that statement of Ravinder was recorded on which FIR was registered. Complainant himself stated in his evidence that police conducted enquiry from him and recorded his statement, which is Ex.PW1/A, however, later in his evidence he said that the statement of his brother was recorded first and that he had disclosed that accused had attacked them due to caste rivalry, which fact has been found to be incorrect hereinabove. PW7 also stated that his statement was recorded first and that of Ravinder was recorded later, however, the police chose to register the FIR on the statement of Ravinder. In his cross examination, however, he stated that statement of Ravinder was not recorded in his presence, which has been discussed above. The statement of this witness, which he alleged was recorded by the police was exhibited Ex.PW7/B. A strange thing however is that none of the police officers involved with the investigation says that when and how this statement was recorded and when and how it came on the file. No one is in the position to tell in whose FIR No. 126/03, PS. Gokul Puri Page 196 of 245 St. Vs. Anang Pal etc. handwriting this statement is and it admittedly does not contain the signatures of any police officer. A comparison of the document with Ex.PW1/A (rukka) showed that it was not in the handwriting of the person, who wrote Ex.PW1/A. The handwriting does not tally with the handwritings on seizure memos on record. None of the witnesses could even after comparison tell that whose handwriting, if of any police officer involved with the investigation of case, was this. The relevant part of testimony of PW18 is that when he was not on duty Surender had filed an application alleging use of castiest remark on which the opinion from prosecution branch was taken (evidence dt. 03.09.10), which would mean that the complaint was given after 15th. However, PW20 does nt say that he received any such complaint. Nowhere in his evidence PW18 identified or spoke about Ex.PW7/B. In his cross examination he stated that he had recorded the statement of Ravinder in hospital and of Surender at the spot (his statement under section 161 Cr.P.C.). He also stated that written application of Surender was lying in the file when he resumed his duties on 25.04.03 and in between the investigation was conducted by FIR No. 126/03, PS. Gokul Puri Page 197 of 245 St. Vs. Anang Pal etc. Inspector Beer Singh. He saw the documents and admitted that there was no receipt remark on this application. PW20 Inspector Beer Singh, who was the IO from 15.04.03 till 25.04.03in the absence of Inspector Sumer Singh did not speak anything about Ex.PW7/B in his evidence. He did not say that statement of Surender was recorded or any written statement of Surender was provided to him. He in his crossexamination stated that till the time the investigation was with him no statement regarding provisions of SC/ST Act was given by Surender or Ravinder to him nor did they make any allegation under the provisions of SC/ST Act till that time. Thus two out of the three IOs said that no allegation regarding the atrocities on account of the victims being of SC community were made till the investigation was with Inspector Beer Singh i.e till 25/04/2003. PW Beer Singh clearly said that Ex.PW7/B was not given in his presence. He categorically stated in his crossexamination that Ex.PW7/B was not written by him and that it did not have any signatures of any police official or date mentioned on it. He stated that he did not receive this document during the period when investigation was FIR No. 126/03, PS. Gokul Puri Page 198 of 245 St. Vs. Anang Pal etc. with him. Similarly ACP B.L.Meena says that this document was on record when he got the file. When and how Ex.PW7/B came on record remains a mystery, however, silence of police officials on this document negates the claim of complainant that there was any statement of Surender recorded by the police prior to the recording of statement of Ravinder. It however, raises a question on the conduct of police, who claim that they found a document on record which was not written by any of them nor received by any of them yet accepted the same. The reason could be a change of IO in between for some days but the error is a serious one. It is a relevant fact that apart from the facts of caste related allegations, the content of both the documents are same. The facts of incident dated 15/04/2003, therefore, do not become doubtful on account of this document.
135. It was argued that recovery at the instance of accused Anang Pal and Dhanpal is doubtful. Reference was made to contradictions in evidence of PW1 & PW20. The two witnesses did not give similar version on where the two met on 20.04.09 FIR No. 126/03, PS. Gokul Puri Page 199 of 245 St. Vs. Anang Pal etc. before the recovery was made. It was also argued that the recovery was made from a public place and was not reliable (reliance placed on Abdul Sattar Vs. Union Territory Chandigarh, 1986 Crl.L.J.1072 where the Hon'ble Supreme Court had held that the recovery of wearing apparels of the deceased after more than three weeks of the occurrence from a public place could not be read as recovery).
The accused persons also relied upon judgment of Hon'ble Supreme Court in 2012 Cr.L.J 616, Shiv Lal & Anr. Vs. state of Chattisgarh, where it was held that material contradictions in statements of prosecution witnesses, serious doubts regarding recovery of weapon of offence, failure to send copy of FIR to Magistrate had combined effect of making the prosecution case doubtful. Two witnesses PW1 & PW20 deposed in the court after many years of incident. PW1 deposed in the court after three years; and PW20 after almost 10 years. Some variations in their evidence were bound to be there. Another objection has been regarding the weapons of offence having not been sent for opinion FIR No. 126/03, PS. Gokul Puri Page 200 of 245 St. Vs. Anang Pal etc. to the doctor. PW34 Additional DCP B.L.Meena said that he had sent the weapons for opinion of the doctor, however, concerned doctor was on long leave and so the opinion could not be obtained. The witness could not tell the duration of leave of the doctor.
136. Even if the defence of accused that the weapons were not recovered at the instance of the two accused persons and that the opinion was intentionally not obtained, is accepted and it is also accepted that IO had been negligent; the fact remains that in view of overwhelming evidence ocular as well as scientific, these lacuna cannot be accepted as ground for acquittal of the accused. In this regard, I place my reliance on Karnail Singh Vs. State of M.P (Supra), where it was held that " in case of defective investigation it would not be proper to acquit the accused, if the same is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring IO".
137. Accused argued that the MLC of the two deceased have FIR No. 126/03, PS. Gokul Puri Page 201 of 245 St. Vs. Anang Pal etc. different PCR numbers. In this regard they tried to connect the fact of their defence deposed by DW16 Subhash Chand. The defence of the accused is that deceased Rajender was not injured at the spot. It was argued that deceased Rajender alongwith PW1 and PW7 was going on a motorcycle, which had fallen on way, where they suffered injuries. DW16 has deposed to this effect. An attempt was made to connect the injuries of Ravinder and Surender with this hypothesis by giving suggestions to PW 3, Dr. T.Gupta that the injuries suffered by these two persons were possible by fall. The relevant fact, however, is that such a suggestion is conspicuously missing from the crossexamination of PW2, who has proved the postmortem report of deceased Rajender. The injuries on the body of Rajender have been opined to be incised stab wounds and are corresponding to the oral testimony of prosecution witnesses. There is nothing on record to suggest that such injuries were possible by fall from motorcycle. Otherwise there is evidence on record that two PCR Vans and not one had come on the spot. PW7 and witnesses of investigation have deposed so categorically. In view of above, testimony of DW FIR No. 126/03, PS. Gokul Puri Page 202 of 245 St. Vs. Anang Pal etc. 16 as well as defence of accused appears to be fall. It was argued that the incident had taken place in several parts, first Kailash was injured then Vijay Pal was stabbed and it is after the two of them had left that Injuries were caused to Dhanpal and Rajender by the villagers. In support of their contention,the acused persons relied upon their own MLCS No. DW30/B and DW32/B (Kailash and Vijay Pal) in which the accused persons are shown admitted in St. Stephens Hospital at 7.58 am. It was argued that since the accused persons had left earlier and the deceased persons were admitted in hospital some 15 minutes later, it can be inferred that the accused persons had left the spot prior. There is no denying that different timings are mentioned in the document. The fact of the matter is that the timings at all the three places i.e PCR (DD No.2A dt.15.04.03) where the time of call is shown as 7.45 am; St. Stephens Hospital, where the time of arrival of accused persons is shown as 7.58 am and GTB Hospital, where time of arrival of deceased is shown as 8.15 am, are not noted by the same clock. The argument that the accused had reached St. Stephens Hospital, which is far away and would have taken more time, was addressed FIR No. 126/03, PS. Gokul Puri Page 203 of 245 St. Vs. Anang Pal etc. by Ld. Spl. PP, who stated that the accused ran away from the spot after the incident concluded while the complainant side waited for the PCR at the spot. The proceedings of PCR took some time, which explains the difference of time if the admission of the two parties. It was also argued that the conduct of the accused in having run away to St. Stephens Hospital, which was far away from the spot and having not gone to GTB hospital, which was nearer, in fact shown that they were trying to escape from being caught. It was argued that the evidence does not show as to who had collected the MLC. The fact is not of much relevance when the doctor concerned has proved the MLC in the court and no manipulation in the document was alleged by the defence in his crossexamination. Accused Anang Pal argued that his clothes were not seized and sent to FSL intentionally. On one hand the accused are claiming that the IO planted blood of deceased on the clothes of accused Vijay Pal, how difficult it would have been for them to have planted the same on the clothes of accused Anang Pal, if they wanted to do so. The fact of the matter is that accused was arrested five days after the incident and there was no FIR No. 126/03, PS. Gokul Puri Page 204 of 245 St. Vs. Anang Pal etc. likelihood of his clothes being found with blood unless of course he claims that he had kept his blood stained clothes safely for seizure by the IO. It was argued that word gupti in Ex.PW1/A is added later on at two places. The document read in continuation shows that three lines later it is written in complaint that "Titu ki gupti Vijay Pal ke pet me lag gayi" and in the beginning it is written that Titu had brought gupti in his hand. There is no manipulation apparent as such.
138. The case is motivated: The accused persons have tried to take plea that there were some disputes other than the one being claimed by prosecution, which were the cause of the quarrel and it was on account of these disputes that the present incident happened. In support of their defence the accused persons gave suggestions to the witnesses. It was put to PW1 that there was a factory of making of plastic dana of some S.K.Gupta in front of house of Udai Raj and that the accused persons supported said S.K.Gupta while the complainant side were against the factory, FIR No. 126/03, PS. Gokul Puri Page 205 of 245 St. Vs. Anang Pal etc. because of which the complainant side was against the accused persons. Neither S.K.Gupta ; nor any independent witness was examined to show that there was any such dispute. In fact the accused persons did not say in their SA or in their own evidence u/s. 315 Cr.P.C that the incident occurred because they used to support S.K.Gupta. Similar suggestion was given to PW9 who pleaded ignorance about any complaint having been given by Ravinder or Ravi against S.K.Gupta tenant of Ajab Singh. Ironically the fact of complaint having been given was not put to Ravinder himself. PW9 had categorically denied that there was a dispute on account of pollution being emitted by the factories of S.K.Gupta and Diwan.
139. The accused have been charged u/s. 3 (x) of SC/ST Act. To prove the charge the prosecution was required to prove that the complainant side was a member of schedule caste or tribe; the accused was not an SC or ST; the accused was aware of the caste of the complainant and the accused spoke the insulting caste related words in public.
FIR No. 126/03, PS. Gokul Puri Page 206 of 245 St. Vs. Anang Pal etc.
140. To prove the first ingredient the prosecution has relied upon the caste certificate of complainants, which are Ex.PW1/Z1 to Ex.PW1/Z5. The accused have pleaded that the caste certificates were forged. Apart from proving the caste certificate of complainant and his family members including the deceased, in original; the entry of the names of three of the family members of complainant i.e. PW1 Ravinder, PW7 Surender and deceased Rajender was also proved from the record maintained by the SDM concerned and the original record was produced in the court. The entries have been proved by the Govt. official PW6 Smt. CLL Banger. This witness was not cross examined by the accused persons. There is no discrepancy in the evidence of PW6, which could render the entries as unbelievable. The first aspect of the section that the complainant side being of SC community (chamar caste) thus stands proved.
141. The second fact that needed to be proved was that accused were not of SC community, which fact in any case has FIR No. 126/03, PS. Gokul Puri Page 207 of 245 St. Vs. Anang Pal etc. been admitted by the accused persons, who admitted that they were of gujjar community.
142. Accused persons have taken a plea that they were not aware of the caste of the accused persons. In support of their contention, the witnesses were crossexamined at length and were asked about the work that they were doing. They were specifically asked if they had displayed their caste outside their house or they had communicated this to any of the victim. They were also asked if any of the accused persons had studied or worked with them, which could have enabled them to acquire knowledge about the caste of the complainant side. The fact of the matter, however, is that the complainant and accused are resident of same village and for a long time. Complainants have claimed that they used to celebrate Ambedkar Jayanti and that caste factor was very prevalent in their village. In fact indirect admission of caste of the deceased and his family came with suggestion like, the complainant side having made an attempt to divide society by giving provocative speeches on 14.04.97 (crossexamination of FIR No. 126/03, PS. Gokul Puri Page 208 of 245 St. Vs. Anang Pal etc. Ravinder). There being dispute in Gujjar and Jatav community and complainant having enmity on this account (Cross examination of Chhattar Singh). The castes of either side thus stand established by the evidence.
143. Ld. Spl. PP pleaded that there were several incidents of atrocities on Scheduled Castes and Scheduled Tribes. It has been argued by the prosecution that the complainants belonged to SC/ST community and the accused persons had a feeling of hatred towards them. This feeling of hatred in them was reflected in various acts and offences done and committed by the accused persons. The prosecution has relied upon various incidents varying from 1997 till the date of incident in support of its contention.
144. The evidence that has come on record about some incidents of atrocities committed upon the SC community which happened over the period of time, is as follows:
FIR No. 126/03, PS. Gokul Puri Page 209 of 245 St. Vs. Anang Pal etc.
145. Incident of 13.04.97 14.04.97. One of the most stressed incident was the incident of 1314.04.97. It was alleged by the prosecution witnesses that in the intervening night of 13 14.04.97 when the members of SC community were planning to celebrate the birth anniversary of Baba Rao Ambedkar Saheb, the accused persons interfered saying that they will not allow such celebrations in the village and a quarrel had taken place in this regard in which a kalandara was also prepared under the Delhi Police Act. The relevant witnesses in this regard are PW1, PW7, PW9, PW10, PW11, PW13 and PW14. The documentary evidence of the fact was produced in the evidence of PW33; though it was shown to PW24 ASI Malkhan Singh, the writer of the document, but was not exhibited in his evidence. The document anyway is not disputed by either party.
While PW1 stated in his evidence that on 14.04.97 when they were celebrating Ambedkar Jayanti, Vijay Pal, Kailash and other accused had said that they would not allow the celebration; PW7 deposed that when they were celebrating Ambedkar Jayanti FIR No. 126/03, PS. Gokul Puri Page 210 of 245 St. Vs. Anang Pal etc. the families of Vijay Pal, Attar Singh and Bharta Singh had objected to the celebration and had remarked "ye chamar bahar se akar yaha par Ambedkar jayanti manayege". He also deposed that a Kalandara u/s. 92/97 DP Act was prepared and police had arrested accused Kailash and his father. He added further "and his brother had pressed the caste issue". The Kalandara u/s. 76 B was proved in the evidence of PW34 as Ex PW34/DY. PW9 did not say anything about this incident in his examination in chief recorded on two dates.
PW10 Tika Ram deposed that in 1997 they (accused persons) quarreled with the family of Dhanpal regarding Ambedkar Jayanti, however, admitted in his crossexamination that he was not present at the time of incident of 1997. His evidence thus is hearsay. He has not even deposed as to who had informed him or how did he come to know about the incident.
PW11 Dev Sagar deposed that on 13.04.97 he was invited by Dhanpal for Ambedkar Jayanti where Vijay Pal, Anang Pal and his family members stated that they would not allow the FIR No. 126/03, PS. Gokul Puri Page 211 of 245 St. Vs. Anang Pal etc. people of Chamar Community to celebrate Ambedkar Jayanti. Having named Vijay Pal and Anang Pal in his examination in chief, the witness identified Kailash and Mulakraj in the court. He is thus confused on who had in fact opposed the celebration. If the incident took place he should have known the persons. The names appear to have been told to him by someone.
PW13 Rambir Singh deposed that in his presence the accused and their relatives did not allow Dhanpal and Rajender to celebrate the Ambedkar Jayanti. He deposed that he had received complaint written by Dhanpal and Rajender against the people of Gujjar Community: Anang Pal, Vijay Pal, Udai Raj and others. In his crossexamination he admitted that he was district president of Samta Sainik Dal of Ghaziabad District. He and Dhanpal both belonged to same village Ghanoli. He produced a complaint, which he said was written by Rajender, only to admit afterwards that the same was not written by him. He also admitted that there was no allegation in name of Anang Pal nor incident of 13.04.97 was mentioned in it. He stated that he did not celebrate Ambedkar Jayanti in his village but celebrated the same in Village Gokul Pur FIR No. 126/03, PS. Gokul Puri Page 212 of 245 St. Vs. Anang Pal etc. and he was present in the village from 9 am to 9.30 AM on 13.04.97. The incident is of 3 am 13.04.9714.04.97.
PW14 Mam Chand was informed about the incident of 13.04.97 by his children and he himself had not witnessed the same, his evidence is reported evidence which he had not seen.
146. Apart from the oral evidence of aforesaid public witnesses, the official witness of the fact was PW24 SI Malkhan Singh, who deposed that a kalandara was prepared regarding a scuffle between Ravinder, Kailash and Dhanpal. He deposed that Dhanpal had consumed liquor in much quantity and Kailash had also taken liquor. He had tried to pacify them but having failed he arrested them u/s. 92/93/97 DP Act and produced them in the court. DD No. 76B recorded in this regard was shown to the witness, who deposed that the same was recorded by him on 14.04.97 at 3.05 am. This document, however, was not exhibited in the evidence of this witness though the same was shown to him and admitted by him and was available on record. However, later FIR No. 126/03, PS. Gokul Puri Page 213 of 245 St. Vs. Anang Pal etc. on the document was shown to PW34 in his crossexamination and he admitted that it was the document prepared at the time of quarrel of 13/14.04.97. There is thus oral evidence of seven public witnesses and one official witness duly supported by documentary evidence on the incident of 13/14.04.97. Out of seven named witnesses, PW10 and PW14 had not witnessed the incident. PW 10, has admitted in his crossexamination and PW2, has said that he was told by his children about the incident. There evidence, therefore has to be excluded. That leaves us with five witnesses of incident. PW11 Dev Sagar deposed that Vijay Pal, Anang Pal and his family members had interfered in the celebration; however, he could not identify either Vijay Pal or Anang Pal in the court. His evidence, therefore, cannot be accepted: either against Vijay Pal or Anang Pal, they having not been identified; nor against accused Kailash and Vijay Pal, who were not named by him. He otherwise has not deposed specifically that the quarrel in which Kalandara u/s. 76B was prepared had taken place in his presence.
147. PW13 has come out to be an unreliable witness. He FIR No. 126/03, PS. Gokul Puri Page 214 of 245 St. Vs. Anang Pal etc. deposed in the court that in his presence on 13.04.97 the accused persons and their relatives did not allow Dhanpal and Rajender from celebrating the Ambedkar Jayanti and in crossexamination stated that he was in the village on 13.04.97 from 9 am to 9.30 am. The celebration of Ambedkar Jayanti had started in the night of 13.04.97, which thus could not have been prevented at 99.30 am on 13.04.97. This witness otherwise has deposed falsely regarding the documentary evidence produced by him, which shall be discussed later in the evidence. It is settled law that if a piece of evidence is such that there is no prima facie assurance of its credibility, it would be most dangerous to act upon it. The evidence of aforesaid two witnesses comes under this category and is being ignored for the stated reasons.
148. That leaves us with three witnesses, PW1, PW7 and PW9. PW1 himself was arrested on 1314.04.97. PW9 has not said anything in his examination inchief about the incident and PW7 has supported the version of his brother PW1. With five out of seven witnesses having not been able to corroborate the FIR No. 126/03, PS. Gokul Puri Page 215 of 245 St. Vs. Anang Pal etc. evidence of PW1 & PW7, the documentary evidence and the evidence of official witnesses become important. PW24 deposed that he had gone to the spot on receiving the information of a quarrel. Deceased Dhanpal had consumed liquor in much quantity and Kailash had also taken liquor. The witness thus said that though both deceased and accused had consumed liquor, it was Dhanpal, who had taken it in larger quantity. PW 24 is a prosecution witness and is official witness. He deposed that he had tried to pacify them, however, having failed he arrested them u/s. 92/93/97 of DP Act. The witness did not say in his evidence that any celebration on account of Ambedkar Jayanti was going on or that he was told by the complainant or his father or brother that accused Kailash had prevented the celebration of Ambedkar Jayanti. The presence of other accused persons at the spot, as has been alleged by the other witnesses, is not substantiated by this document at all. DD No. 76B Ex.PW34/DY categorically says that lot of persons had gathered at the spot, where Dhanpal, Ravinder and Kailash were quarreling and abusing each other and since they did not listen to the police officers, they were arrested. FIR No. 126/03, PS. Gokul Puri Page 216 of 245 St. Vs. Anang Pal etc. The document is pretty clear that there was a crowd but it does not say that anyone was trying to interfere with Ambedkar Jayanti. It also mentions name of three persons i.e deceased Dhanpal, Complainant Ravinder and accused Kailash and none else.
149. It is settled law that when a document in relation to a transaction, incident or fact is available, oral evidence in respect of the said transaction, incident or fact has to read conjointly with documentary evidence. The combined reading shows that there was an incident of quarrel as deposed. In view of suggestions given by the accused persons it is also proved that Ambedkar Jayanti was being celebrated. The oral evidence of official witness, however, is that it was the deceased, who was heavily drunk. The prosecution can not do away with the evidence of this witness as he is its own witness. The document shows that both the parties had quarreled. Accused persons claim that provocative speeches were being given in celebration.
150. It stands proved that some quarrel had taken place FIR No. 126/03, PS. Gokul Puri Page 217 of 245 St. Vs. Anang Pal etc. between Kailash, Ravinder and Dhanpal, however, it is not proved that the same was on account of disturbance caused in celebration of Ambedkar Jayanti by the accused persons. Name of all the accused, except Kailash, is conspicuously missing from the document. In view of above, there being discrepancies in the ocular evidence of examined witnesses and the same not being in complete corroboration of the documentary evidence on the fact of accused being responsible for the incident, cannot be accepted as an incident of atrocities on SC community. This evidence thus, can be accepted as a preexisting motive/enmity for the incident of 15.04.03 but not as an evidence of caste rivalry between the two communities.
151. The second incident is a case wherein one Kishan Lal, who has been examined as a defence witness was tried for teasing the girl of a scheduled caste. Kishan Lal has been examined as DW24. He deposed that he was prosecuted in a case of eve teasing in the year 1988. No suggestion was given to the witness that he had in fact misbehaved with the girl or that he had not been acquitted by the court. It appears to be an independent case having FIR No. 126/03, PS. Gokul Puri Page 218 of 245 St. Vs. Anang Pal etc. happened almost 15 years prior to the present case with no direct connection. A copy of the FIR being 306/88 was tendered in the evidence of PW34 and is Ex.PW34/XY. The allegations are that the complainant Nirmala had gone to ease herself where accused Kishan threw water on her and thereafter, hit her with a brick. He caught her arm. A quarrel ensued, which was joined by Ram Prasad, Prakash and Durga Gujjar. Apparently, none of the accused of this case was named in the said FIR, either in the main incident or in the subsequent part of quarrel. PW34 ACP B.L.Meena said in his evidence that Kishan was related to accused Anang Pal etc., however there is nothing on record to suggest that the two are relatives. PW 34 himself could not tell the relation. He in fact went on to say that the accused persons were the accused in the said case also, which is factually incorrect. In fact the evidence of PW 34 shows that he made several statements, which were factually incorrect against the record and based on his personal opinions, and thus his evidence became a ground of defence that part of investigation conducted by him was utterly biased and unfair. The other relevant evidence on this incident is of father of FIR No. 126/03, PS. Gokul Puri Page 219 of 245 St. Vs. Anang Pal etc. girl, who was examined as PW12 Fagna. This witness admitted in his crossexamination that his son used to park his Tata Sumo in the house of Udai Raj, Balraj and Ajab Singh thus, indicating cordial relations between these three accused and his own son. Regarding his evidence on the incident of his daughter, as stated above the accused stands acquitted as per his evidence, which fact remained unchallenged in the crossexamination. If the accused of the said case has been acquitted by a court, the said incident cannot be accepted by this court against the said person. The accused tried to take benefit of this evidence by claiming that they were falsely implicated due to enmity of Chhatar Singh, who is of same community and had developed a disliking for Gujjars after this incident. Additionally one incident of 1988 having taken place between different set of persons cannot be considered as a case of caste rivalry for the purposes of this case when none of the accused of this case were related in any manner in the said occurrence and the witness of the incident himself has accepted that he has cordial relation atleast with the family of Udai Raj (corresponding to four accused).
FIR No. 126/03, PS. Gokul Puri Page 220 of 245 St. Vs. Anang Pal etc.
152. Third incident is of 13.04.03. It is alleged that on this date, engagement of PW Surender was scheduled and the accused persons had passed castiest remarks saying 'chude chamaro ke bhi achchhe rishte aane lage'. The witnesses examined on this are PW1,PW7 andPW11. The evidence of these witnesses, however, is not corroborative on what was said exactly by whom. Pw 1 says all the accused uttered these words, which is not believable.
153. The prosecution to prove the utterances had to prove that the same were made in full public view. The statement of some persons, who are related to the witnesses in one or the other form was not sufficient to accept the fact of utterances. It was supposed to have come from independent persons, who had nothing to do with the complainant. The prosecution could have claimed that the loyalties of the villagers were divided, however, ACP B. L. Meena in his cross examination said that he had made inquiries from independent persons. Why there statement qua the allegations of casteist utterances during the incidents of 14/04/2003 and FIR No. 126/03, PS. Gokul Puri Page 221 of 245 St. Vs. Anang Pal etc. 15/04/2003 were not obtained and filed. PW 9 said in his cross that many persons in the marriage had intervened in the incident between Dhanpal and Kailash on 14/04/2003. who were they? Similarly accused have filed two documents accepted by the IO to be the statements of two witnesses of incident recorded during incident. They could be the witness of insulting utterances, if any, made by the accused persons. For the purposes of section 3 (x) of SC/ST act such statements were essential and their absence makes the prosecution case on this aspect doubtful.
154. Allegations under SC/ST Act. Several documents have been filed on behalf of the prosecution by the complainant and witnesses including the IO of the case ACP B.L.Meena in proof of its case of atrocities on account of the complainant being of SC community. The witnesses were crossexamined in length on these allegations. Some portions of their crossexamination are as under. PW1 in his examination in chief deposed that his father had made a complaint to Samta Sainik Dal (SSD) regarding the abuses given FIR No. 126/03, PS. Gokul Puri Page 222 of 245 St. Vs. Anang Pal etc. to them on 14.04.03. No such document, however, was placed on record. He admitted in his crossexamination that there was an office of SSD in Gokul Pur and his brother Rajender was a member of it. In later crossexamination he stated he did not know when Rajender joined SSD. He stated that he had been writing to SSD about the atrocities on the Schedule Caste community in the area but the complaints were lodged with SSD Loni, Ghazibad. He said that he was not aware if his family members had made complaints against accused to SSD between 15.04.03 and 09.05.03. PW7 in his crossexamination stated that his family was connected with Samta Sainik Dal for 15 years and SSD had an office in village Gokul Pur but they did not make any complaint to that office. He said that his mother had also given the complaint to SSD but he did not know who wrote those complaints. PW9 Chhattar Singh admitted that he had not made any complaint regarding abuses and beatings given to him for being Dalit. He admitted that in his presence accused Anang Pal or any member of his family did not interfere in the marriage functions of SC community and also that he never saw Anang Pal or his family FIR No. 126/03, PS. Gokul Puri Page 223 of 245 St. Vs. Anang Pal etc. members misbehaving with any woman. This witness also admitted that there was an office of SSD in Gokul Pur at a distance of 5 minute walk from his house, however, he filed a complaint in Loni office and not Gokul Pur. A clarification came later in his crossexamination when he admitted that Rambir the District President of SSD Loni was of village Ghanoli (same village as of the witness). Rambir Singh has been examined as PW13, who admitted being district President SSD Ghaziabad and also that deceased Dhanpal belonged to his village Ghanoli. The witness in his crossexamination stated that a complaint was written by Rajender in his presence regarding the incident of 13.04.03 and was directed to produce the documents. He tendered the document on the next date which is Ex.PW13/DB, however, on this date he said that he was not aware who wrote this application as the same was not written in his presence, thus contradicting his version completely. He also produced one application written to ACP B.L.Meena on 26.05.03 (after the taking over of investigation by him), which is Ex.PW13/DC. The material and controversial witness on the facts is PW34, ACP B.L.Meena, who had taken FIR No. 126/03, PS. Gokul Puri Page 224 of 245 St. Vs. Anang Pal etc. over the investigation on 09.05.03 after the provisions of SC/ST Act were added. He said that he had seized the complaints filed by the members of SC/ST community with NGO SSD vide memo Ex.PW1/Z. The copies of these complaints are collectively Ex.PW34/A. These documents however, are admittedly of date after taking over of the investigation by him, which fact is admitted by him in his crossexamination. A specific question was put to this witness that no complaint was given to SSD by deceased Dhanpal Sagar and Rajender Sagar, which was admitted by him after seeing the record. The stress of accused persons being that all these complaints were fabricated and since Dhanpal Sagar and Rajender Sagar had died, their signatures could not be obtained and hence there were no complaints filed by them. He admitted in his crossexamination that he had met one Rambir of SSD, who told him that he was from Gokul Pur branch but did not produce any document. The question was asked with reference to the efforts, if any, made by him in verifying the authenticity of the documents. The witness stated that he was not aware if there was any incident of eve teasing by any member of Gujjar community FIR No. 126/03, PS. Gokul Puri Page 225 of 245 St. Vs. Anang Pal etc. against any woman of SC community except the case of Kishan. (the accused of which case stand acquitted).
Another document on record related to the allegations of atrocities are Ex.PW13/DB, which was tendered in the evidence of PW13 Rambir. This document is written by one Jai Bheem, the original of the document is not on record. The witness had stated that this document was written by Rajender in his presence however, he admitted in his crossexamination that he did not know who wrote this paper as the same was not written in his presence. This is a photocopy of the document. Neither the original has been placed on record nor the person who wrote it, has been brought as a witness. Ex.PW13/DC was written on 26.05.03 i.e after the incident and therefore, has to be discarded as there is a possibility of it being motivated. Ex.PW34/A are three letters written by one Deep Chand, one Rambir Singh and one Dev Sagar. All the three documents were written after the date of incident and so it will be safe not to rely on these documents for the purposes of this case, there being possibility of the documents being prepared intentionally and as an afterthought. Five more complaints were FIR No. 126/03, PS. Gokul Puri Page 226 of 245 St. Vs. Anang Pal etc. tendered by PW 34 allegedly written by Surender Kumar on 10.12.97, Kalapana Devi on 29.04.97, Birma Devi on 20.04.97 and Ravinder Kumar on 06.02.98. The documents were marked Mark A to D. Neither the originals of these documents were produced nor there is any explanation why some of the writers of these documents, who were examined as witnesses in this case did not tender them in evidence. So far as the incident of 15/04 2003 is concerned existence of PW7/B is highly doubtful. Ex PW1/A does not speak of any caste related words used by the accused. Two of the IOs Say that till atleast 25/04/2003; no allegation of caste atrocities was pressed.
155. In view of above the prosecution though it proved that the complainant is of SC community and the accused are Gujjars; they have not been able to establish that the incident of 1314.04.1997 or 14.04.2003 or 15.04.2003 was on account of caste rivalry. This fact is otherwise doubtful as several witnesses from the defence side have deposed that the accused had cordial relations with them. In fact prosecution witnesses admitted that the relations of accused FIR No. 126/03, PS. Gokul Puri Page 227 of 245 St. Vs. Anang Pal etc. were cordial with them. One witness said that his son used to park his car in the house of accused persons; another said that he never saw any of the accused teasing girls of SC community or creating nuisance in their marriages. In fact the two communities visited each others is proved by the incident of 14/04/2003. The witnesses of prosecution have categorically said that Tikam did not belong to their caste. He and Kailash both were invited in the marriage where all were having food together. The defence witnesses have been discarded on several facts as being not reliable their evidence being contrary to record, however, when it comes to the caste issue, it is seen that the witnesses of the community of the complainant have been vocal in saying that there were no caste related disputes in the village. These persons had no obligation to have deposed in favour of the accused and were in fact expected to be with the complainant. It cannot be accepted that the accused would have had objection to the living of complainant's family in the village because of their caste when in fact there were many others of the same caste with whom they were living cordially. It is in this scenario that the evidence of these witnesses of SC community is FIR No. 126/03, PS. Gokul Puri Page 228 of 245 St. Vs. Anang Pal etc. accepted in favour of the accused. Moreover, as held above not a single document filed by the complainant in support of their claim of atrocities has been found to be reliable. Most of them being of a date later than the evidence. The allegation of forging of the documents is also probable in view of the fact that though there was an office of SSD near the house of complainant; the witnesses chose to give their complaints to another office at a far away place, which is presided by a person from same village as the deceased. No original of documents prior to the date of incident was produced. No document written by the deceased victims of atrocities was found, which also creates a doubt about some of the documents being antedated. It appears that the complainant and the witnesses in their desperate effort to give a caste colour to the dispute created evidence; forged documents; twisted facts and interfered with the investigation. The entire allegations related to caste angle are discarded with above finding.
156. The prosecution has succeeded to prove that presence of 11 accused persons on 15/04/2003 at the place of the incident. It FIR No. 126/03, PS. Gokul Puri Page 229 of 245 St. Vs. Anang Pal etc. has proved that accused Kailash had a motive to commit the offence, which was in continuation of the incident of 14/04/2003. It, however, could not prove that the incident of 14/04/2003 or 13 14/04/1997 were anyway related to the caste of the complainant. It could not prove that there was any connection between the incident of eve teasing by one person (who is acquitted) and the main incident of this case. Having failed to connect the incident of 14/04/2003 with caste, the prosecution fails to get the benefit of section 8 (b) of SC/ST Act. The prosecution failed to prove that the accused persons had uttered castiest remarks at the time of incident dated 15/04/2003. Such allegations are clearly missing from Ex. PW1/A and Ex PW7/DX. Two of the IOs have categorically deposed that till 20/04/2003 the complainant did not press the caste issue. The existence of Ex. PW7/B in the police file is suspicious in view of testimony of the witnesses. No independent witness has deposed about such facts. The entire evidence of prosecution in so far as it relates to the SC/ST Act is discarded being doubtful. It appears to be a case of enmity existing between two families, who are of different caste and have had disputes since FIR No. 126/03, PS. Gokul Puri Page 230 of 245 St. Vs. Anang Pal etc. 1997. The accused are acquitted for charges under section 3 (1)
(x) of SC/ ST Act read with section 149 of IPC.
157. It is held that the gathering of 11 persons at the spot was not an unlawful assembly since the accused persons did not come to the spot together and it is not proved that there was any common object, whatsoever. In fact the plea of some of the accused is that they had come to intervene in the dispute, which had already started between Kailash on one side and Ravinder and Surender on the other side. The element of common object is completely missing and, therefore, all the accused are acquitted under section 147/ 148 and 149 IPC.
158. It is held that the murdered deceased were not murdered due to the reason of them being of schedule caste but it appears to be a quarrel on account of enmity between two families. The accused persons cannot be convicted under section 3 (2) (v) of the SC/ ST Act.
FIR No. 126/03, PS. Gokul Puri Page 231 of 245 St. Vs. Anang Pal etc.
159. Accused Kailash is convicted under section 302 IPC for having caused the murder of deceased Rajender as duly proved.
160. Accused Anangpal and Vijay Pal are also convicted under section 302/34 IPC for having caused the murder of deceased Dhan Pal as per the proved case of prosecution.
161. Accused Satish is convicted under section 324 IPC for having caused sharp simple injury to deceased Rajender on his hand.
162. Accused Smt Rajesh and Km. Kuman are convicted under section 323 IPC for having caused simple injury to PW Ravinder and Surender on their heads.
163. Accused Udai Raj is convicted under section 323 IPC for having caused injury to the deceased Dhanpal o his face, which was simple blunt.
FIR No. 126/03, PS. Gokul Puri Page 232 of 245 St. Vs. Anang Pal etc.
164. Accused Mulakraj, Ajab Singh, Balraj and Jaiwati are acquitted as the prosecution failed to prove its pleaded case against them.
Announced in the open
court on 09.02.15 (ANURADHA SHUKLA BHARDWAJ)
ASJ02, (EAST) KKD COURTS/DELHI
FIR No. 126/03, PS. Gokul Puri Page 233 of 245 St. Vs. Anang Pal etc.
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI Unique ID No. 02402R0867472008 Sessions Case No. 02/13 State v/s. (1) Anang Pal S/o. Vijay Pal R/o. 3/23, Nahar Road, Gokul Puri, Delhi.
(2) Kailash S/o. Vijay Pal R/o. 3/23, Nahar Road, Gokul Puri, Delhi.
(3) Satish S/o. Vijay Pal R/o. 3/23, Nahar Road, Gokul Puri, Delhi.
(4) Ms. Kuman D/o. Vijay Pal R/o. 3/23, Nahar Road, Gokul Puri, Delhi.
(5) Udai Raj S/o. Bharta Singh Gali No. 3/24, Village Gokul Pur, Delhi94.
(6) Vijay Pal S/o. Harkesh R/o. 3/23, Nahar Road, FIR No. 126/03, PS. Gokul Puri Page 234 of 245 St. Vs. Anang Pal etc. Gokul Puri, Delhi.
(7) Smt. Rajesh W/o. Ajab Singh Gali No. 3/24, Village Gokul Pur, Delhi94.
FIR No. 126/03 PS. Gokul Puri U/s. 323/324/302/34 IPC ORDER ON SENTENCE: Pr: Sh. Rajeshwar Singh, Ld. Spl.PP for the State.
Convicts Vijay Pal, Kailash and Anang Pal produced from JC. Convicts Udai Raj, Smt. Rajesh, Satish & Kuman in person. Sh. J.P.Bansal, Ld. Counsel for convicts Satish, Kuman and Kailash.
Sh. R.K.Kochar, Ld. Counsel for convicts Udai Raj and Smt. Rajesh.
ORDER ON SENTENCE:
1. The accused have been convicted by order/judgment of this FIR No. 126/03, PS. Gokul Puri Page 235 of 245 St. Vs. Anang Pal etc. court dt. 09.02.15.
2. Heard on point of sentence.
3. Applications have been filed on behalf of convict Udai Raj and convict Rajesh u/s. 360 of Cr.P.C r/w section 4 of Probation of Offenders Act seeking the release of both on probation.
4. It was argued by Ld. Counsel for accused Udai Raj and Smt. Rajesh that the offence for which they have been convicted is the mildest offence as per IPC, prescribing punishment of only one year and fine. He argued that though the convict have remained in custody, however, since convict Udai Raj is a Govt. Servant and sentencing to imprisonment will affect his job adversely. He prayed that the convict be released on probation. It was argued that convict Udai Raj is also having psychological disorder for which he was provided treatment during the trial also. Regarding convict Smt. Rajesh it was argued that she has three children of marriageable age and she suffered imprisonment of three months during the trial.
FIR No. 126/03, PS. Gokul Puri Page 236 of 245 St. Vs. Anang Pal etc.
5. Ld. Spl. PP argued that the convicts do not deserve any leniency. He argued that if convict Udai Raj is suffering with psychological disorder, he cannot be a Govt. Servant. He argued that both the convicts be awarded the maximum sentence.
6. In rebuttal Ld. Counsel for convict stated that the nature of disorder in Udai Raj has not been found such as would render him incapable for work. He is working as a Lab Attendant in Lok Nayak Hospital. The certificate issued by the hospital regarding his work as satisfactory has been filed. The medical documents of the convict have also been filed.
Ld. Counsel for the convicts relied upon the judgment of Hon'ble Supreme Court in AIR 1982 SC 783 (2), Om Prakash Vs. State of Madhya Pradesh, wherein the conviction of convict was u/s. 323 IPC, Hon'ble Court set aside the sentence and released the convict on probation holding that releasing them on probation would serve the ends of justice. He also relied upon AIR 1977 SC 1991, Hansa Vs. State of Punjab, wherein conviction was u/s. 325 IPC the sentence of imprisonment was set aside and the convict was released on probation. Similar benefits were given to convicts in AIR 1982 SC 784 (1), FIR No. 126/03, PS. Gokul Puri Page 237 of 245 St. Vs. Anang Pal etc. Roshanali Buranali Sayyed Vs. State of Gujrat.
7. Sh. J.P.Bansal, Ld. Counsel for accused Satish (convicted u/s.
324 IPC) and Km. Kuman (convicted u/s. 323 IPC) argued that both these convicts have suffered seven years of imprisonment and both be released on the period already undergone. Regarding the remaining three convicts i.e Kailash, Anang Pal and Vijay Pal he argued that they be awarded with minimum sentence prescribed under the law. Ld. Counsel for the convicts has argued that none of the convicts is a previous convict. It has further been contended that the offence does not fall within the ambit of rare cases and that a lenient view should be taken.
8. Ld. Spl. PP on the other hand has argued that maximum sentence be awarded to the three convicts as this case involves murder of two persons belonging to SC community. One of the deceased was 51 year old and was sole bread earner for his family while the second was young man of 28 years having wife and two minor children. Two women of the same family were widowed in the same incident. Two young boys, who were still college going i.e Ravinder and Surender suffered a lot. He argued that the convicts are from the privileged class of the society FIR No. 126/03, PS. Gokul Puri Page 238 of 245 St. Vs. Anang Pal etc. and they committed murder in day light with extreme indignation. Considering the totality involved they be awarded maximum sentence and highest compensation be awarded to complainant side. Ld. Spl. PP has relied upon the judgment of Hon'ble Supreme Court in Crl. (A) 910/08 dt. 06.02.15 titled Vikas Yadav Vs. State of U.P. The Hon'ble Supreme Court in the aforesaid matter held that the factors to be considered at the time of sentencing include nature of culpability, antecedents of accused, the factum of age, the potentiality of the convict to become a criminal in future, possibility of his reformation and to lead an acceptable life in the prevalent milieu. The propensity to become a social threat or nuisance and sometime lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of offence, the relationship between the parties and attractibility of the doctrine of bringing the convict to the value based social main stream [ (ref. 2013) 7 SCC 545 Gopal Singh VS. State of Uttrakhand].
In (1976) 4 SCC 190, Santa Singh Vs. The State of Punjab, it was held that the factors which have to be taken into account include nature of offence, circumstances extenuating or aggravating of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of FIR No. 126/03, PS. Gokul Puri Page 239 of 245 St. Vs. Anang Pal etc. the offender with reference to education home life society and social adjustment, emotional and mental condition of the offender, prospects of rehabilitation of the offender, possibility of return of the offender to a normal life in the community, possibility of treatment or training of the offender, possibility that the sentence may serve as a deterrent to crime by the offender or by the other and the current community need, if any, for such a deterrent in respect of particular type of offence.
9. As per the judgments of Hon'ble Supreme Court cited hereinabove, the consideration which the court has to keep in mind at the time of awarding sentence include the age of the offender. The offenders in the instant case are of different ages. Two of the accused, who have remained in JC were in 20s when they got involved in the offence and are 30+ as of now. Accused Vijay Pal is 60 +. Kumari Kuman got married during the pendency of the matter and Smt. Rajesh has old children. The age of the convicts is from 30 to 60+ as such. Accused Vijay Pal was a Govt. Servant when he got involved in the commission of offence. Accused Udai Raj is still a Govt. Servant. As per the evidence that has come on record, accused Kailash and Anang Pal were running a shop and doing the committee work. Accused Smt. Rajesh is into the business of FIR No. 126/03, PS. Gokul Puri Page 240 of 245 St. Vs. Anang Pal etc. sale & purchase of milk. All the accused were thus working when they got involved in the offence. The prosecution has not pleaded criminal involvement against any of the accused except for Kailash in DD No. 76 B dt. 1314.04.97. However in the said case the complainant himself was involved and it was a case of quarrel between the two. No other involvement of convicts has been pleaded by prosecution in any criminal offence. All the convicts have their family life. The convicts were living with their families. The prospects of rehabilitation is one of the criteria laid down by aforesaid judgments. In the long run battle of this case, all the accused persons have faced trial of 12 years almost and prosecution has not pleaded their involvement in any criminal offence during this period (Anang Pal & Kailash who are in JC throughout were also on interim bail but no allegation of violation of terms of bail came up against them). The social rehabilitation of all convicts on bail, therefore, has been achieved.
10. Considering the overall circumstances, the prosecution having neither claimed nor proved that accused persons are a threat to society as on date, the convicts are sentenced as under:
FIR No. 126/03, PS. Gokul Puri Page 241 of 245 St. Vs. Anang Pal etc.
11. Convict Udai Raj who is a Govt. Servant is released on a probation of 6 months on filling the probation bond worth Rs.10,000/. Further, in view of paras 423 & 424 of the judgment of Vikas Yadav (Supra) compensation proportionate to the paying capacity of the convict can be awarded by the court, which payment may vary depending upon the act of each accused. Convict Udai Raj who is a Govt. Servant and claims the benefit of Probation of Offenders Act, is directed to pay Rs. 20,000/ to the complainant as compensation.
12. Convict Smt. Rajesh, who has remained in JC for a period of three months is directed to be released being sentenced for the period already undergone u/s. 323 IPC and also to pay a fine of Rs.1,000/, in default of payment of fine to further undergo SI for one month.
13. Convict Satish is sentenced for a period of three years u/s. 324 IPC and also to pay a fine of Rs.1,000/, in default of payment of fine to further undergo SI for one month.
14. Convict Kuman is sentenced for the period of one year u/s. 323 IPC and also to pay a fine of Rs.1,000/, in default of payment of FIR No. 126/03, PS. Gokul Puri Page 242 of 245 St. Vs. Anang Pal etc. fine to further undergo SI for one month.
15. Coming to convicts Vijay Pal, Kailash and Anang Pal, The case does not appear to be a rarest of rare case. Though two persons were murdered in the incident, the prosecution has not been able to prove that there was any planning or premeditation on the part of convicts. It has been held that there was a quarrel of Kailash with Dhanpal on the previous night and with Ravinder in the morning of 15.04.03 which got aggravated and resulted into the death of two persons. I am of the opinion that the ends of justice would be subserved if convicts Vijay Pal, Anang Pal and Kailash are sentenced u/s. 302/34 IPC to Rigorous Imprisonment for life and also to pay a fine of Rs. 10,000/ each in default of payment of fine to further undergo SI for three months.
16. The prosecution has relied upon the judgment of Vikas Yadav (Supra) to stress that high compensation be awarded to the complainant. In the cited judgment Hon'ble Supreme Court held in para 424 clause (ii) that the court shall decide the quantum of compensation which the victims or the dependents would be entitled to and ascertain the paying capacity of defendants. The Court reiterated the issue of capacity of FIR No. 126/03, PS. Gokul Puri Page 243 of 245 St. Vs. Anang Pal etc. accused in clause (v). In clause (vi) it was stated that the court has to assign reason for the award of fine and compensation and that the power could not be exercised arbitrarily. The court emphasised in clause (vii) that fine or compensation which is either irrational or exorbitant could not be awarded. The prosecution has neither proved nor pleaded that the convicts are well off or have capacity to pay huge compensation, as being prayed for. Two of the convicts are in JC for last twelve years and convict Vijay Pal is about 62 years old and was a conductor in DTC. there seems as such no justification in directing the convicts to pay compensation to the victims. However, it cannot be ignored that two women of same family were widowed in this incident. Out of two, one was very young and had minor children. These two women need to be compensated for their loss that they will live with for the rest of their lives. The matter be accordingly put before the Members Secretary, DSLSA for necessary direction under Section 357A (2) of Cr. P.C.
17. The period of detention already undergone by the convicts during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC. FIR No. 126/03, PS. Gokul Puri Page 244 of 245 St. Vs. Anang Pal etc.
18. A copy of this order as well as of judgment be given to convicts free of cost. Copy be also sent to Jail Superintendent for information and necessary action. Copy of this order be also sent to Members Secretary, DSLSA for necessary compliance. Announced in the open court on 16.02.15 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI/16.02.15 FIR No. 126/03, PS. Gokul Puri Page 245 of 245 St. Vs. Anang Pal etc.