Delhi District Court
State vs . Daya Kishan & Ors. on 26 February, 2010
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IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(NORTH-WEST)-04, ROHINI : DELHI
(Sessions Case No. 71/08)
State Vs. Daya Kishan & Ors.
FIR No. : 214/02
U/s : 147/148/323/302/149/ IPC
P.S : Narela Indl. Area
State Vs. 1. Daya Kishan
S/o Sh. Umrao Singh
R/o H. No.712, Village Bankner,
Delhi.
2. Hari Kishan
S/o Sh. Umrao Singh
R/o H. No.712, Village Bankner,
Delhi.
3. Satish
S/o Sh. Hari Kishan
R/o H. No.712, Village Bankner,
Delhi.
4. Jitender @ Sonu
S/o Sh. Daya Kishan
R/o H. No.712, Village Bankner,
Delhi.
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5. Sona Devi
W/o Sh. Daya Kishan
R/o H. No.712, Village Bankner,
Delhi.
6. Leela Wati
W/o Sh. Hari Kishan
R/o H. No.712, Village Bankner,
Delhi.
7. Neha @ Rakesh
W/o Sh. Nishant
R/o BF, H Block,
H. No.66,Som Bazar,
Shalimar Bagh,
Delhi.
8. Manju
D/o Sh. Daya Kishan
R/o H. No.712, Village Bankner,
Delhi.
9. Pinky
D/o Sh. Daya Kishan
R/o H. No.712, Village Bankner,
Delhi.
Date of institution of case-26.08.2002
Date on which, judgment have been reserved-11.02.2010
Date of pronouncement of judgment-24.02.2010
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JUDGEMENT
In the present case on 18.5.2002, SI Narinder alongwith Ct. Jitender was coming back to PS Narela on motorcycle bearing No. DL 1 SJ 8410 after attending the DD No. 5A, when Ct. Prithvi met them at the gate of PS and handed over the DD No.12 A to SI Narinder Singh regarding the encroachment and quarrel taking place at 37/25, Bankner main stand and on receipt of the said DD, SI Narinder alongwith Ct. Jitender reached at the spot i.e. Bankner MCD park and made inquiries and came to know that quarrel had taken place between the families of Baljit and Daya Kishan and injured have already been removed to Babu Jagjiwan Ram Memorial hospital by the PCR. SI Narinder saw the blood scattered at the spot and he left Ct. Bal Kishan and Ct. Satbir at the spot after calling them from the PS and thereafter, he alongwith Ct. Jitender went to Babu Jagjiwan Ram Memorial hospital, Jahangir Puri and obtained the MLC No. 18079 of Baljit, who was declared brought dead. He also obtained the MLC's of Pinky, Prakashwati and Gyanwati. Thereafter, SI Narinder recorded the statement (Ex. PW-2/A) of injured Rajbala @ Pinky, wherein it was stated that on that day at about 10:00 A.M., she was sweeping the place meant for tying 4 buffaloes in front of the house and her father Baljit Singh was also standing there. She further stated that there was an MCD park in front of their house where 3-4 persons were installing iron benches and in the meanwhile her neighbourer Daya Kishan came to the park and started abusing the MCD employees and threw away the iron benches in the place meant for tying the buffaloes by them and her father objected to the same and also asked why he was trying to forcibly encroach upon the MCD park and on this Daya Kishan started abusing her father and stated that the place where he was tying the buffaloes belonged to him and he would see to it how he ties the buffaloes at that place. Thereafter, Baljit asked Daya Kishan not to abuse and Daya Kishan went towards his house saying that he would tell him as to whom the said place belongs. Complainant-Rajbala further stated that after about 10-15 minutes, Daya Kishan, his brother Hari Kishan, his two sons namely Jitender and Sanjeev, three daughters namely Neha, Manju and Pinky and Hari Kishan's son namely Satish and Daya Kishan's wife namely Sona and Hari Kishan's wife namely Leelawati came there. Daya Kishan was having an open knife in his hands, his sons Jitender and Sanjeev were having cricket bats, his daughters were having dandas and his wife and the 5 wife of Hari Kishan were having lathis in their hands and they started abusing and stated that 'Maro Salo Ko' and on this Hari Kishan caught hold of her father and Daya Kishan stabbed her father in the chest with the knife and when she tried to save him, Jitender and Sanjeev, sons of Daya Kishan started beating her with cricket bats and she raised alarm 'Bachao-bachao' and on hearing this, her parental aunt Prakashwati and her sister-in-law (Bhabhi) Gyanwati came there and tried to save them, but the daughters of Daya Kishan namely Neha, Manju and Pinky pulled down Gyanwati and started beating her with the dandas and the wives of Daya Kishan and Hari Kishan started beating her paternal aunt Prakashwati. In the meantime, PCR van came at the spot and on seeing it, accused persons fled away from the spot. Complainant- Rajbala @ Pinky also stated that the PCR van took her father to the hospital and she and her sister-in-law Gyanwati and parental aunt Prakashwati came back to their house and they were taken to the hospital later on by their neighbourer Sanjeev Kumar.
On the basis of the aforesaid statement (Ex. PW-2/A) of the complainant-Rajbala @ Pinky, SI Narinder prepared rukka (Ex. PW-12/B) and sent the same through Ct. Bal Kishan to the PS which resulted in the 6 registration of the present case vide FIR No. 214/02 at PS Narela Industrial Area and further investigation of this case was handed over to Insp. R.P. Meena, IO.
2. On completion of investigation, charge sheet was filed. After committal, arguments on the point of charge were heard and charges for committing offence u/s 147 IPC, u/s 148 IPC, u/s 302 r/w Section 149 IPC and u/s 323 r/w Section 149 IPC were framed against the accused persons by one of the Ld. Predecessor of this Court, to which the accused persons pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined 31 witnesses i.e PW-1 to PW- 31.
4. After recording of prosecution evidence, statements of accused u/s- 313 Cr. P. C were recorded, wherein all the incriminating evidence was put to the accused persons, which the accused persons denied as incorrect. They claimed to be innocent and stated that they have been falsely 7 implicated in this case. Accused persons also stated that they want to lead evidence in their defence, however in their defence, the accused persons have not led any evidence and on 11.11.2009, all the accused persons made the statement that they do not want to lead any evidence in their defence and they prayed that their DE may be closed and accordingly, the DE was closed.
5. I have heard arguments at length put forward by Ld. Special PP and Ld. Defence Counsels for the accused persons and have carefully gone through the very voluminous record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case. I have also carefully perused the the case law relied upon by the Ld. Special PP and Ld. Defence counsels, in support of their contentions.
6. In the instant case,it is the case of the prosecution that on 18.5.2002 at about 10:00 A.M, at main road near MCD park, village Bankner, Delhi within the jurisdiction of P.S: Narela Industrial Area, all the accused persons being the members of the unlawful assembly were armed 8 with the deadly weapons and made use of force and violence while committing rioting. It is also stated that in prosecution of the common object of the said unlawful assembly, the accused persons committed the murder of Baljit and also caused simple injuries on the persons Rajbala @ Pinky, Gyanwati and Prakashwati.
7. In order to prove its case on record, the prosecution has examined- 31 witnesses i.e. PW-1 to PW-31.
PW-1 Parmod Kumar deposed that on 18.5.2002 at about 4:30 P.M., he was called at village Bankner by the police, where he snapped 17 photographs from different angles as per directions of the IO/police and he has proved the said photographs as Ex. PW-1/A-1 to 1-17 and the negatives thereof as Ex. PW-1/B-1 to 1-17 and stated that the place was MCD park near the house in Bankner village.
PW-2 Raj Bala is the complainant/injured and the prosecution is mainly relying upon her testimony to prove its case on record. 9
PW-3 Gyanwati is one of the injured and the prosecution is also relying upon her testimony to prove its case on record.
PW-4 W/Ct. Sheela deposed that on 29.5.2002, she joined the investigation of this case with IO and went to village Bankner, where accused Manju and Pinky were found in the house of their Tau which was nearby to the house of Daya Kishan. She further deposed that accused Pinky and Manju were arrested in her presence vide arrest memos Ex. PW- 4/A and Ex. PW-4/B and their personal search were also taken vide memo Ex. PW-4/C and Ex. PW-4/D respectively. PW-4 deposed that both accused made their disclosure statements Ex. PW-4/E and Ex. PW-4/F and they also got recovered two dandas kept under the stairs from the house of Daya Kishan and the said dandas were sealed in separate pullandas with the seal of RP and were seized vide memos Ex. PW-4/G and Ex. PW-4/H and both accused were taken for their medical examination and were produced before the concerned court. PW-4 has identified the aforesaid dandas as Ex. P-1 and Ex. P-2.
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PW-5 Prakashwati is one of the injured and the prosecution is also relying upon her testimony to prove its case on record.
PW-6 Ramesh deposed that the incident pertained to five years back and at that time, he was working as Mali (Gardener) in MCD and was discharging his duties at Bankner and on that day at about 9:30 A.M., he alongwith Raj Singh, Om Prakash and Surat Singh had gone to MCD park, Banker at the directions of their SO Sukhpal Singh to install ten iron benches in the said park and they had placed those ten iron benches in that park and in the mean time, accused Daya Kishan came to them and inquired from them as to why they had placed those iron benches in the park and he asked them to remove the iron benches from the park and thereafter accused Daya Kishan started throwing iron benches by himself from the park and they apprehended quarrel. PW-6 further deposed that accused Daya Kishan had thrown 3-4 iron benches outside the park, then they went to their office and told the whole episode to their officer Sukhpal Singh, who asked them to reach at the park and also stated that he was also reaching there. Thereafter, they reached in the park on their duty. Further, in his cross 11 examination by the Ld. Addl. PP, this witness admitted that date of incident was 18.5.2002 He also admitted that on 18.5.2002, accused Daya Kishan had come to them in the park and started hurling abuses at them and stated that the land of park belonged to him and thereafter he threw the iron benches from the park. PW-6 further stated that he also came to know later on that accused Daya Kishan had murdered Baljeet Singh.
PW-7 Ct. Lalit deposed that on 5.7.2002, he obtained 5 sealed cloth parcels sealed with the seal of RP vide RC No.83/21 from MHC (M) HC Sriniwas for depositing the same at FSL, Hyderabad alongwith FSL form and deposited the same at FSL, Hyderabad and obtained the receipt and handed over the same to the MHC (M). PW-7 further deposed that on 18.5.2002, the DO of P.S had handed over him 5 copies of FIR of this case in separate envelopes to deliver each envelope containing the copy of FIR to Ld. MM as well as senior officers of the police and accordingly, he delivered the same at the residence of Ld. MM and other senior police officials on motorcycle DL1SJ-8410 and came back to the PS at 2:00 A.M and on 19.5.2002, while returning his motorcycle had gone out of order. 12
PW-8 Sunder Lal deposed that on 18.5.2002, he had gone to Narela with his father Sh. Dharam Singh for some private work by a scooter and at about 10:45 A.M, when they returned back to their house, he found a large crowd in front of his house and also found that his Tau Baljeet Singh was in injured condition and he immediately rushed to his Tau. He further deposed that blood was scattered there at the spot and his Tau Baljeet Singh was having blood on his clothes (khun se lathpath tha) and he inquired from his Tau and he told him that Daya Kishan had given a knife blow and Hari Kishan and Satish had caught hold of him and thereafter he and PCR personnel put his Tau Baljeet in PCR Van and proceeded towards Babu Jagjiwan Ram Memorial hospital and on the way to BJRM hospital, his Tau was crying that 'Daya Kishan did not act well by stabbing him by a knife'. PW-8 deposed that thereafter, his Tau started becoming unconscious and at about 11:35 A.M., doctors of the BJRM hospital checked his Tau Baljeet Singh and declared him dead and he remained at the hospital with the dead body of his Tau Baljeet Singh. He further deposed that his clothes got blood stained as he was holding his Tau Baljeet Singh in the PCR van while going to the hospital. PW-8 deposed that the dead body of his Tau 13 was deposited in the mortuary and thereafter he came back to his house on motorcycle of Mukesh and at about 7-7:30 P.M., he reached at home and on the way, he met Insp. R.P. Meena alongwith 2-3 police officials near MCD Park village Banker and they inquired from him about the blood on his clothes and he narrated the fact of removing of his Tau to BJRM hospital and they had asked him that they were to seize his blood stained clothes and also to record his statement. PW-8 further deposed that he took out his blood stained clothes and same were handed over to the police and same were taken into possession vide seizure memo Ex. PW-8/A. PW-8 identified his pant and shirt having some blood stains , which he had worn at the time of occurrence as Ex. P-3 and Ex. P-4. He also identified the Dhoti, Kurta and Khandwa worn by his Tau Baljeet at the time of occurrence as Ex. P-5, P-6 and P-7 respectively.
PW-9 Dr. B. N. Acharya deposed that on 19.5.2002, he conducted the postmortem on the body of Baljeet Singh and he has proved his detailed report in this regard as Ex. PW-9/A. He further deposed that on 24.5.2002, he gave opinion regarding weapon of offence i.e knife and 14 deposed that after examining the knife, he gave the opinion that injuries on the person of the deceased would have been caused by the said knife and he has proved his report in this regard as Ex. PW-9/C and he has proved the aforesaid knife as Ex. P-8 and its sketch as Ex. PW-9/B. PW-10 W/Ct. Phoolwati deposed that on 20.5.2002, she alongwith Insp. R.P. Meena, Ct. Ved Prakash and Ct. Vijender went to village Bankner and accused Leelawati as well as accused Satish were present there at their house and accused Daya Kishan was also with them who had pointed out towards accused Leelawati and Satish. Thereafter, Leelawati took them to the house of accused Daya Kishan and produced one danda after taking the same from one room and told them that she had caused injuries on the person of Prakashwati with the same danda and the said danda was taken in to possession vide seizure memo Ex. PW-10/D . PW-10 has proved the aforesaid danda as Ex. P-9 and deposed that accused Leelawati and Satish were arrested by the IO and she has proved the arrest memo and personal search memo in respect of accused Leelawati and her disclosure statement as Ex. PW-10/A, Ex. PW-10/B and Ex. PW-10/C 15 respectively.
PW-11 HC Ved Prakash deposed that on 20.5.2002, he accompanied Insp. Raghbir Prasad Meena, Ct. Bijender and W/Ct. Phoolwati to village Banker in the investigation of this case and IO had arrested two accused persons namely Satish and Leelawati and accused Daya Kishan was also with the police party and he had identified accused Satish and Leelawati. PW-11 has proved the personal search memo, arrest memo and disclosure statement of accused Leelawati as Ex. PW-10/A, Ex. PW-10/B and Ex. PW-10/C. He has also proved the personal search memo, arrest memo and disclosure statement of accused Satish as Ex. PW-11/A, Ex. PW-11/B and Ex. PW-11/C respectively.
PW-12 SI Narinder deposed that on 18.5.2002, on receipt of DD No.5A, he alongwith Ct. Jitender reached Panna Popsian, Narela, Delhi at 8:15 A.M on govt. motorcycle in connection with the investigation of some other case and when he was returning, Ct. Prithvi Singh (Delhi Home Guard) met him at the gate of P.S and handed over DD No.12 A to him and 16 he left for village Bankner with Ct. Jitender and at the spot, he came to know that a quarrel had taken place between family of Baljeet and Daya Kishan and he also noticed blood on the ground at the spot. He called Ct. Bal Kishan and Yashvir from P.S and left them at the spot to guard the same and reached BJRM hospital and collected the MLCs of Baljeet, Gyanwati, Prakashwati and Pinky. He further deposed that Baljeet had been declared brought dead and he recorded the statement of injured Pinky at hospital and thereafter he left Ct. Jitender at the hospital to guard the body of Baljeet and returned to the spot, where R.P. Meena, Addl. SHO was present. PW-12 deposed that he prepared the rukka and sent Ct. Bal Kishan to the PS for registration of FIR and after registration of the FIR, investigation was handed over to R.P. Meena and he assisted him. He further deposed that Insp. R. P. Meena lifted the earth control and collected blood stained earth and also lifted the blood and took the same into possession vide seizure memo Ex. PW-12/A. He has proved the statement of Raj Bala recorded by him as Ex. PW-2/A and the rukka as Ex. PW-12/B. He also deposed that accused Hari Kishan, Daya Kishan, Jatinder @ Sonu, Sanjeev @ Monu (juvenile), Rakesh @ Neha and Sona Devi were arrested in his presence 17 from the house of accused Hari Kishan and he has proved their arrest memos as Ex. P W-12/C1 to C5, their personal search memos as Ex PW- 12/D1 to D5 and their disclosure statements as Ex. PW-12/E1 to E5. PW-12 deposed that on the basis of disclosure statements of accused Rakesh @ Neha, Sona Devi, Jitender @ Sonu and Sanjeev, the dandas and bats were recovered which were also sealed with the seal of RP and seized vide memos Ex. PW-12/F, Ex. PW-12/G, Ex.PW-12/H and Ex. PW-12/I respectively. He further deposed that the spot of occurrence was got photographed on 18.05.2002 at about 5:30 P.M and photographs Ex. PW-1/A1 to A16 were correct description of the spot of occurrence. PW-12 has proved the aforesaid bat and dandas recovered from the respective accused persons as Ex. P-10 to P-12 respectively. He has further proved the aforesaid earth control, blood stained earth and blood sample as Ex. P-13 to P-15. PW-12 deposed that blood stained clothes of Sunder Lal were taken in to possession vide seizure memo Ex. PW-8/A and he has proved the said pant and shirt as Ex. P-4 and P-3 respectively.
PW-13 Ct. Bal Kishan deposed that on 18.5.2002, at about 10:30 18 A.M., he was present at P.S and DO sent him to the spot where SI Narinder met him and deputed him to preserve the spot and he left for the P.S. He further deposed that at about 3:50 P.M., SI Narinder returned to the spot from the hospital and Insp. R.P. Meena had also reached there and SI Narinder prepared the rukka and handed over the same to him for registration of the FIR and accordingly he left the spot for PS at about 4:10 P.M and handed over the rukka to DO HC Ajay Kamal, who recorded the FIR and handed over the copy of FIR and original rukka to him, which he took to the spot and handed over the same to Insp. R.P. Meena at about 5:00 P.M. PW-13 further deposed that accused Hari Kishan, Daya Kishan, Jitender @ Sonu, Sanjeev @ Monu (juvenile), Rakesh @ Neha and Sona Devi were arrested in his presence from the house of accused Hari Kishan and he has proved their arrest memos and personal search memos as Ex. PW-12/C1 to C5 and Ex. PW-12/D1 to D5 respectively. He also identified the bat, danda and lathi got recovered by accused-Jitender, Neha & Sona Devi as Ex. P-10 to Ex. P-12 respectively.
PW-14 Ct. Ravish Kumar deposed that on 24.5.2002, he was sent 19 by Insp. Meena to BJRM hospital with a sealed cloth parcel containing dagger having seals of RP and he handed over the said sealed cloth parcel to MS of BJRM hospital and after depositing the said parcel at hospital, he came back at P.S with RC and so long as the said parcel remained in his possession, it remained intact and was not tampered with .
PW-15 HC Ajay Kamal deposed that on 18.5.2002, he was posted as DO at PS Narela and on that day at 4:25 P.M, Ct. Bal Kishan came to him with original rukka sent by SI Narinder and on the basis of the same, he recorded the FIR bearing No. 214/02 and he has proved the carbon copy of FIR as Ex. PW-15/A and his endorsement on the rukka as Ex. PW-15/B. PW-16 SI Manohar Lal, Draftsman deposed that on 11.6.2002, on the instructions of Insp. R.P. Meena, he went to PS Narela Industrial Area and then with the IO, he went to the spot of occurrence i.e. village Bankner where at the instance of Raj Bala, he prepared rough notes of the place of occurrence and also took the measurements of the various locations and on the basis of rough notes and measurements, he prepared scaled site 20 plan on 12.6.2002 and he has proved the said site plan as Ex. PW-16/A. PW-17 Virender Kumar deposed that on 19.5.2002, he was called to the mortuary of BJRM hospital to identify the dead body of his father and he identified the dead body of his father namely Baljeet Singh and his statement was recorded by the IO and the same was Ex. PW-17/A. He further deposed that dead body was also identified by his brother and his statement to that effect was Ex. PW-17/B and after postmortem, the dead body was handed over to him and his brother vide receipt Ex. PW-17/C. PW-18 Dr. Anil Garg deposed that on 18.5.2002, one Baljeet s/o Sh. Jai Ram was brought at 11:35 A.M to the hospital by Sunder Lal (nephew) and HC Dharambir of PCR and he examined the said patient and declared him brought dead and he has proved the MLC in this regard as Ex. PW-18/A. He further deposed that on the same day, he also examined the patient namely Gyanwati w/o Sh. Nafe Singh and he has proved the MLC in this regard as Ex. PW-18/B. PW-18 further deposed that patient Prakashwati w/o Sh. Dharam Singh and Pinky d/o Baljeet Singh were 21 examined by Dr. Vivek Singh and he has proved the MLC in respect of the said patients as Ex. PW-18/C and Ex. PW-18/D respectively.
PW-19 W/HC Sarla deposed that on 18.05.2002, on requisition of the IO of the case, she had reached village Bankner near MCD Park at about 5.45 P.M or 6:00 P.M, where she met Insp. R.P. Meena, SI Narender and Ct. Balkishan and thereafter, she alongwith IO, SI Narender and Ct. Balkishan went to the house of Hari Kishan in search of accused persons, where accused Hari Kishan, Daya Kishan, Jitender, Sanjeev, Neha and Sona Devi were apprehended and IO made inquiries from the accused persons and all the accused persons were arrested. PW-19 further deposed that she conducted the personal search of accused Sona Devi and Neha vide personal search memo Ex. PW-12/D5 and Ex. PW-12/D4 and they were arrested vide memos Ex. PW-12/C4 and Ex. PW-12/C2 respectively. She has also proved the disclosure statement of accused Sona Devi as Ex. PW-12/E5. Thereafter, she, IO, SI Narender, Ct. Bal Kishan and above stated six accused persons came to the the house of Daya Kishan, where accused Neha got recovered one danda from the roof of the house, accused Sona Devi got recovered one 22 lathi from the outside of the room at the house of accused Daya Kishan, accused Jitender got recovered one cricket bat from beneath the palang, kept in a room and accused Sanjeev also got recovered one cricket bat from the corner of the room. PW-19 has proved the cricket bat recovered at the instance of accused Jitender, danda got recovered by accused Neha , lathi got recovered by accused Sona Devi as Ex. P-10, P-11 & P-12 and their recovery memos as Ex. PW-12/H, Ex. PW-12/F and Ex PW-12/G respectively. She further deposed that when from the house of accused Daya Kishan, they alongwith accused persons and case property were going towards MCD Park, one Pinky met them at the corner of the park and one person namely Sunder whose clothes were blood stained was also standing there and IO recorded the statement of Sunder and seized his clothes i.e pant and shirt.
PW-20 Sanjeev Kumar deposed that on 18.5.2002, he reached at his house at about 11:30 A.M or 11:45 A.M from his duty and came to know that a quarrel had taken place over the benches of MCD park in between Daya Kishan and deceased Baljeet Singh and being a neighbour, 23 he reached the house of Baljeet Singh at about 12 noon or 12:05 P.M and found Prakashwati, Gyanwati and Raj Bala in injured condition and he took them in his private maruti car no. DL 2 CN 9192 to the government hospital in Jahangir Puri and they were medically examined at hospital, where Sunder told him that Baljeet Singh has expired. Thereafter, he took Prakashwati and Gyanwati from the hospital to their houses.
PW-21 Ct. Satish Kumar deposed that on 21.5.2002, he alongwith Ct. Bijender and Insp. R. P. Meena were in investigation of this case and has gone to the bus stop at village Bankner at about 11:00 A.M and in the meantime, a secret informer informed the IO that accused Rahul was present at his house in village Bankner and can be apprehended and after receiving the said secret information, Insp. R.P. Meena requested 3-4 persons to join the raiding party but they refused and without losing any more time, they all went to the house of Rahul, who was found standing at the gate of his house and on seeing the police party, he ran away but was overpowered by them . He further deposed that Insp. R.P. Meena made inquiries from accused Rahul and he disclosed that on 18.05.2002, his 24 chacha Daya Kishan had given him a dagger type knife which was blood stained and instructed him to wash the knife and dispose it of (khurd purd kar do) and he took the above stated knife and went towards Lampur side where there was one pit of water and he washed the knife with mud and water and hid the knife under the bushes of Keekar and he pointed the place where the dagger was hidden. Thereafter accused took out the dagger which was hidden under the bushes of the tree and IO prepared its Khaka on white paper and on measurement, the total length of the knife/dagger, its blade and handle were found to be 10.8 inches, 7.3 inches and 3.5 inches respectively and its blade was of steel and handle was of brass. PW-21 deposed that the above stated knife/dagger was parceled into a cloth and was sealed with the seal of RP and was seized vide pointing out and seizure memo Ex. PW-21/A and he has also identified the said knife/dagger as Ex. P-8. In his cross examination by the Ld. Spl. PP, PW-21 admitted that the disclosure statement of accused Rahul was recorded at the place of his apprehension by the IO which was Ex. PW-21/2.
PW-22 Ct. Vijender Rana deposed that on 20.05.2002, he 25 accompanied Insp. R. P. Meena, Ct. Ved Prakash and W/Ct. Phoolwati to Village Bankner from PS Narela Industrial Area (NIA) and went to the house of accused Daya Kishan, where they did not find any accused present and then they all went to the house of accused Hari Kishan, where they found accused Leelawati and Satish, who were interrogated by the IO and were arrested vide arrest memos Ex. PW-10/B & Ex. PW-11B and their personal search were conducted vide memos Ex. PW-10/A & Ex. PW-11/A respectively. He has also proved the disclosure statement of accused Leelawati and Satish as Ex. PW-10/C & Ex. PW-11/C. PW-22 deposed that thereafter, accused Leelawati voluntarily led them to house of accused Daya Kishan in village Bankner and pointed out the room which was used for tying the cattle, from where she produced one danda and stated that she had used the said danda in the incident of this case and hit Rajbala, Gyanwati and Prakashwati and on its measurement, the danda was found to be of 3ft and it was parceled into cloth and the pullanda was sealed with the seal of RP and was taken into possession vide seizure memo Ex. PW-10/D and he has identified the said danda as Ex. P-16. PW-22 further deposed that on 21.05.2002, he was in the investigation of this case alongwith Insp. R. P. 26 Meena and Ct. Satish and all of them proceeded to the village Bankner from the PS NIA and when they reached at Bus Stand Village Bankner, they met the secret informer, who informed that accused Rahul wanted in this case was present in his house and can be apprehended and thereafter they reached at the house of accused Hari Kishan where they found accused Rahul standing at the gate of the house and he started running away after seeing them, but was overpowered and accused Rahul was interrogated and arrested and he made disclosure statement Ex. PW-21/2 and disclosed that accused Daya Kishan had handed over one blood stained knife to him on 18.05.2002 and he could point out the place where he had kept the said knife and get the same recovered. Thereafter, accused Rahul led them towards the bushes near the Kiker on the Lampur side from where he took out one knife from the bushes of Kiker and handed over the same to IO and the said knife was measured and was taken into possession vide seizure memo Ex. PW-21/A and he has identified the said knife as Ex. P-8 and its sketch as Ex. PW-22/A. PW-22 further deposed that on 29.05.2002, he was in the investigation of this case alongwith lady Ct. Sheela and Insp. R. P. Meena and visited the village Bankner at about 10:00 A.M and went to the 27 house of accused Daya Kishan where they did not find any accused in the house and thereafter, they went to the house of accused Hari Kishan where they found accused Manju and Pinky both daughters of accused Daya Kishan and accused Manju and Pinky were arrested and their personal search were conducted vide memos Ex. PW-4/D and Ex. PW-4/C respectively and they made disclosure statements vide Ex. PW-4/E and Ex. PW-4/F and disclosed that they can get the dandas recovered with which they have hit Raj Bala, Gyan Wati and Prakash Wati from their house and thereafter they got recovered the respective dandas which were parceled in two separate pullandas and sealed with the seal of RP and were taken into possession vide seizure memo Ex. PW-4/G and Ex. PW-4/H and he had identified the said dandas as Ex. P-1 and Ex. P-2.
PW-23 Prithvi Singh deposed that on 18.5.2002, DO had handed over to him DD No.12 A and had asked him to hand it over to SI Narinder and when he proceeded to hand over the said DD, SI Narinder met him at the gate of PS NIA and he handed over the said DD No.12 A to him. 28
PW-24 Sh. Anil Yadav, UDC, Delhi Admn. has proved the copy of the notification No. F.13/203/78-Home (G) dated 17.2.1979 issued by the then Under Sectary Home (General), Delhi Admn. Delhi, pertaining to knives as Ex. PW-24/A and he has also proved the copy of notification No. F.13/451/79- Home (G) dated 29.10.1980 issued by the then Dy. Sectary Home (General), Delhi Admn. Delhi, pertaining to knives as Ex. PW-24/B. PW-25 Ct. Praveen Kumar deposed that on 18.5.2002, he was working as DD writer and he had recorded DD No.15 B (Mark-Y) dated 18.5.2002 and the said record has been destroyed vide order no. 17372- 84/Gen. (Home)/NWD dated 27.3.2006 passed by ACP/PG-Veermati for and on behalf of DCP (North-West) district.
PW-26 Ct. Sunita deposed that on 18.5.2002, she was posted at police control room at 100 number and was on duty on channel no. 102 and on that day, a call was received about quarrel at main stand Bankner and she had recorded that information in the PCR form which have been 29 destroyed vide order no. 38644-47 PCR dated 03.12.2004 passed by ACP - PCR.
PW-27 HC Dharambir Singh deposed that on 18.5.2002, he was posted in PCR and on that day he was working as an Incharge in Commander-87 and on that day, at about 10:24 A.M., he received a call and in pursuance thereto, he reached village Bankner at MCD park, where at the spot, he found one injured Baljit to whom he removed to Babu Jagjiwan Ram Memorial hospital in a PCR van ( Commander-87 ) where doctor checked injured Baljit and declared him dead. He further deposed that one Sunder was with injured Baljit at the time when he took Baljit to the hospital.
PW-28 Insp. Mahipal Singh ( Retd. ) deposed that he joined as SHO, PS NIA, on 21/05/2002 and on 07/08/2002, he took up the investigation of this case as previous IO-Insp. R.P. Meena had proceeded on leave and on that day he attended the Juvenile Justice Board for the extension of J.C. remand of delinquent Jitender. He further deposed that on 30 08/08/2002, he recorded statements of HC Sri Niwas, Constable Lalit Kumar and one Satish of Village Bankner U/s. 161 Cr PC and on 14/08/2002, he recorded the supplementary statement of Ct. Lalit Kumar and after the completion of investigation, he filed the charge-sheet u/s 173 Cr P C in this case. Thereafter, he obtained the FSL result/report (Ex. PW- 28/A) and submitted the same in the court.
PW-29 HC Sri Niwas deposed that on 18.5.2002, he was posted at Police Station-Narela and was working as MHC (M) and on that day, Insp. R.P. Meena, IO of the case had deposited eight parcels sealed with the seal of RP in the Malkhana and he made respective entries to that effect at Sr. No. 828 at page no. 97 of Register No. 19 and personal search property of accused Sona and of accused Neha were also deposited and entered at Sr. No. 828 at page no. 100 and 101 of Register No. 19. He further deposed that on 20.5.2002, Insp. R.P. Meena had deposited one sealed cloth parcel with the seal of RP at Sr. No. 832 of Register No. 19 and on 21.5.2002, Insp. R.P. Meena had deposited one sealed cloth parcel with the seal of RP containing dagger vide respective entries at Sr. No.35 at page 105 of 31 Register No. 19 and on 29.05.2002, Insp. R.P. Meena had deposited two sealed cloth parcels with the seal of RP having parcel nos. 10 & 11, containing dandas vide entry at Sr. No.849 of Register No.-19, PW-29 deposed that on 24.5.2002, he had handed over sealed cloth parcel of dagger sealed with the seal of RP to Ct. Ravish for obtaining opinion from the doctor of Babu Jagjiwan Ram Memorial hospital vide RC No.56/21 dated 24.05.2002 and on 5.07.2002, he had handed over five sealed cloth parcels to Ct. Lalit for depositing the same at CFSL, Hyderabad vide RC No.83/21 vide respective entries to this effect in Column nos. 5 & 6 of entry no. 835 at page no. 105 of register no.19. He further deposed that on 15.02.2003, SI Jaipal brought five parcels alongwith results from the FSL, Hyderabad and he deposited the said parcels in the Malkhana and handed over the results to SI Prem Singh, Pervi Officer. He has proved the copy of RC No.56/21/2002 as Ex. PW-29/A and the copy of RC No. 83/21/2002 as Ex. PW-29/B and deposed that on 10.7.2002, Ct. Lalit handed over to him one carbon copy of RC No.83/21/2002 having receipt endorsement dated 08.07.2002 from CFSL, Hyderabad and photocopy of the same was Ex. PW-29/C. PW-29 has proved the photocopies of register no.19 32 containing entries of 18.05.2002, 20.5.2002 & 21.5.2002 as Ex. PW-29/D and Ex. PW-29/E (Colly.) He has further proved the photocopies of register no.19 containing entries of 29.05.2002, 05.07.2002 & 15.02.2003 as Ex. PW-29/F, Ex. PW-29/G and Ex. PW-29/H respectively. He has also proved the copy of endorsement of sending five sealed clothes parcels to CFSL and receipt of case property from CFSL alongwith opinion also on page no. 99 of register no.19 as Ex. PW-29/J and deposed that on 05.07.2002, he handed over the sealed parcel of dagger to Ct. Lalit alongwith other four sealed parcels for depositing the same in CFSL.
PW-30 Ct. Baljit Singh deposed that on 24.5.2002, he had gone to the Babu Jagjiwan Ram Memorial hospital on the instructions of IO from where he brought PM report of this case and sealed cloth parcel of dagger and opinion and sample seal and deposited the sealed cloth parcel of dagger and sample seal in the Malkhana and handed over the PM report and opinion of the doctor to the IO. He further deposed that sample seal was of MS BJRM hospital and so long as, seal cloth parcel and sample seal remained in his possession, the same remained intact with intact seals and 33 there was no tampering of any sort in any manner.
PW-31 ACP R.P. Meena deposed that on 18.5.2002, he was posted as Addl. SHO at PS Narela Industrial Area (NIA) and on that day, he left the PS at about 9- 9:15 A.M and went to the prosecution branch, Tis Hazari Courts, Delhi in connection with case FIR No.74/02 u/s 302 IPC, PS NIA and at about 11- 11:30 A.M., when he was present in the prosecution branch, he received an information regarding a quarrel at MCD park, village Bankner and accordingly after finishing his work in the prosecution branch, he went to PS NIA from where he took his IO kit bag and went to the spot i.e. MCD park, village Bankner. He further deposed that while he was in prosecution branch, he was informed that senior SI Narinder had already gone to the aforesaid spot and one person by the name of Baljit Singh was injured in the said quarrel and had been removed by the PCR to Babu Jagjiwan Ram Memorial hospital and that the said Baljit has died in hospital and other three injured were under treatment at Babu Jagjiwan Ram Memorial hospital. PW-31 further deposed that after he reached the spot i.e. MCD park, village Bankner, he met two constables namely Bal Kishan and 34 Yashbir there and inspected the spot and in the meantime, SI Narinder reached the spot from Babu Jagjiwan Ram Memorial hospital alongwith the statement of Raj Bala @ Pinky d/o deceased Baljit Singh and on the said statement of Raj Bala @ Pinky, endorsement was made by SI Narinder and he prepared a rukka which was sent through Ct. Bal Kishan to the P.S NIA for the registration of the case at about 4:10 P.M. He further deposed that he called a private photographer namely Pramod, who took the photographs of the spot from different angles on his instructions and after the photographs were taken, he inspected the spot and in the meantime, above named Raj Bala @ Pinky reached the spot and they inspected the spot at her instance. PW-31 deposed that he lifted blood stained soil, blood and earth control from the spot and the same were put in three separate containers and were sealed in three different cloth pullandas with the seal of RP and were taken into possession vide seizure memo Ex. PW-12/A. He prepared the site plan Ex. PW-31/A at the instance of Raj Bala @ Pinky and W/HC Sarla, who had been called from the P.S, reached the spot and thereafter, he alongwith SI Narinder, Ct. Bal Kishan and W/HC Sarla went to the house of accused Daya Kishan in search of accused persons but the house of accused Daya 35 Kishan was lying vacant and none met them there and after coming out of the house of accused Daya Kishan while he was going through the road, he met one secret informer, who informed him that accused named in the present case may be available and could be apprehended from the house of accused Hari Kishan and on that information, he alongwith SI Narinder, W/HC Sarla and Ct. Bal Kishan went to H.No. 712, Village Bankner of accused Hari Kishan where they found accused Daya Kishan, Hari Kishan, Jitender, Sanjeev, Sona Devi and Rakesh @ Neha and he interrogated the above named accused persons and recorded their disclosure statements which were Ex. PW-12/E2, Ex. PW-31/B, Ex. PW-12/E4, Ex. PW-12/E3, Ex. PW-12/E1 and Ex. PW-12/E5 respectively. He further deposed that above named accused were arrested vide arrest memo Ex. PW-12/C-3, Ex. PW-12/C-5, Ex. PW-12/C-4, Ex. PW-12/C-2 and Ex. PW-12/C-1 and their personal search were conducted vide memo Ex. PW-12/D-2, Ex. PW-12/D-1, Ex. PW-12/D-5., Ex. PW-12/D-4 and Ex. PW-12/D-3 respectively. He further deposed that accused Sanjeev was a juvenile and has been facing before the Juvenile Justice Board. He also deposed that after conducting the aforesaid proceedings, he alongwith all the six accused 36 persons, SI Narinder, W/HC Sarla and Ct. Bal Kishan left the house of accused Hari Kishan and proceeded to the house of accused Daya Kishan, where accused Sona Devi got recovered the Lathi from outside the house and the said Lathi was taken into possession vide memo Ex. PW-12/G and accused Rakesh @ Neha got recovered the danda from the roof of the said house and the aforesaid danda was also taken into possession vide memo Ex. PW-12/F. He also deposed that accused Jitender got recovered a cricket bat from under the bed (Palang) lying in the room of the aforesaid house and the said cricket bat was taken into possession vide memo Ex. PW-12/H and accused Sanjeev got recovered a cricket bat lying in the corner of the room of the said house and the aforesaid cricket bat was also taken into possession vide memo Ex. PW-12/I. PW-31 deposed that after conducting the aforesaid proceedings, he alongwith all the six accused persons, SI Narinder, W/HC Sarla and Ct. Bal Kishan and the case properties left the house of accused Daya Kishan and while they were proceeding to P.S Narela at the place of occurrence, which lies on the way, the complainant- Raj Bala met them and she identified all the six above named accused persons and he recorded the supplementary statement of the complainant- 37 Raj Bala in this regard and in the meantime, one person namely Sunder Lal, who took the deceased Baljit to the hospital, met them and his clothes were blood stained and on inquiry, he told that he took the injured-Baljit to Babu Jagjiwan Ram Memorial hospital and as the house of said Sunder Lal s/o Sh.Dharam Singh was nearby, they asked him to get the new clothes from his house and to hand over the blood stained clothes to them and accordingly, he handed over the blood stained clothes i.e. pant and shirt to him which were taken into possession vide memo Ex. PW-8/A and thereafter he , above named accused persons and police officials alongwith the case properties proceeded to PS Narela. PW-31 has identified the aforesaid bats got recovered by accused Sanjeev and Jitender, lathi got recovered by accused Sona Devi and danda got recovered by accused Rakesh @ Neha as Ex. P-17, Ex. P-10,Ex. P-12 and Ex. P-11 respectively and he has also proved the aforesaid shirt and pant of Sunder Lal as Ex. P-3 and Ex. P-4 respectively. He has further proved the earth control, blood stained soil and blood sample lifted from the place of occurrence as Ex. P-14, Ex. P-13 and Ex. P-15 respectively and deposed that photographs Ex. PW-1/A1 to A-17 depicts the exact position of the spot ie. the place of 38 occurrence on 18.5.2002.
PW-31 further deposed that on 19.5.2002, he went to Babu Jagjiwan Ram Memorial hospital at about 10-10:30 A.M where he met Vijay Singh and Virender Singh, both sons of deceased Baljit Singh and recorded their statements regarding the identification of dead body of deceased Baljit Singh vide Ex. PW-17/B and Ex. PW-17/A respectively and thereafter, he got the postmortem conducted on the dead body of deceased Baljit Singh after filling the application form Ex. PW-31/C and deposed that brief facts were Ex. PW-31/D and the death summary was Ex. PW-31/E and after postmortem, the dead body of deceased was handed over to the son of the deceased namely Vijay vide receipt Ex. PW-17/C. He further deposed that in the afternoon of 19.5.2002, he took out the accused Daya Kishan, Hari Kishan, Sona Devi, Rakesh @ Neha, Jitender and Sanjeev from P.S and produced them before the concerned Ld. MM and he obtained the PC remand of accused Daya Kishan till 20.05.2002 from the court of concerned Ld. MM as the recovery of weapon of offence was to be effected from him and remaining accused persons were remanded to JC by the concerned Ld. MM and juvenile accused persons were sent to Remand 39 Home by the Juvenile Justice Board. PW-31 deposed that on 20.5.2002, after taking out accused Daya Kishan from lockup, he alongwith Ct. Vijender, Ct. Ved Prakash and W/Ct. Phoolwati and the above named accused went to village Bankner to arrest the remaining accused persons and at village Banker, they reached the house of accused Daya Kishan but none was present there and thereafter, they went to the house of accused Hari Kishan where they found that accused Satish and Leelawati were present and accordingly, he interrogated the said accused persons and arrested accused Leelawati vide arrest memo Ex. PW-10/B and her personal search was conducted by W/Ct Phoolwati vide personal search memo Ex. PW-10/A and accused Satish was also arrested vide arrest memo Ex. PW-11/B and his personal search was conducted vide memo Ex. PW-11/A. He further deposed that thereafter, he interrogated accused Leelawati and Satish, who made their disclosure statements Ex. PW-10/C and Ex. PW-11/C and accused Leelawati led them to the house of accused Daya Kishan and got recovered the danda from the room meant for cattle in the said house and the same was taken into possession vide memo Ex. PW-10/D and he has identified the said danda as Ex. P-16.PW-31 further 40 deposed that on 21.5.2002, he alongwith Ct. Bijender and Ct. Satish went to village Bankner in search of remaining accused persons and at bus stand of village Bankner, a secret informer met him and informed that accused Rahul S/o Hari Kishan, who was wanted in this case, was present in the house of accused Hari Kishan and could be apprehended and on this information, they raided the house of accused Hari Kishan and when they reached in front of the house of accused Hari Kishan, one boy tried to escape from there and the said boy was apprehended by Ct. Satish and later on, he disclosed his name as Rahul and he interrogated the accused Rahul, who was arrested and he made disclosure statement Ex. PW-21/2 and disclosed that the knife which was used by his parental uncle (Chacha), accused Daya Kishan in the commission of offence was handed over to him by accused Daya Kishan to dispose of the same and it was thrown away by him near Kiker bushes near the pond (Johar) of village Bankner and thereafter, accused Rahul led them to Kiker tree near pond (Johar) of village Bankner at Lampur road and pointed out the said place and the aforesaid knife was taken out from the bushes near Kiker tree by the accused Rahul and handed over to him and he prepared the sketch of the said knife Ex. PW-22/A 41 and thereafter, the said knife was sealed with the seal of RP and was taken into possession vide memo Ex. PW-21/A and he has identified the said knife /dagger as Ex. P-8.
PW-31 deposed that on 24.5.2002, he sent the weapon of offence i.e. dagger from Malkhana, PS Narela to Autopsy Surgeon Dr. B.N. Acharya for opinion through Ct. Ravish Kumar vide RC No.56/21/02 and after opinion, the aforesaid weapon of offence alongwith PM report No.293 in respect of deceased Baljit and opinion regarding weapon of offence were brought back by Ct. Baljit. He further deposed that on 29.05.2002, he alongwith Ct. Vijender and W/Ct. Sheela left the PS at about 9:30 A.M for the investigation of the present case to village Bankner in search of remaining accused and on the way, a secret informer met and informed him that Manju and Pinky, both daughters of accused Daya Kishan, who were wanted in this case, were present at the house of accused Hari Kishan and accordingly they proceeded towards the house of accused Hari Kishan, where he found the accused Manju and Pinky present and he interrogated the said accused persons and arrested them vide arrest memo Ex. PW-4/B and Ex. PW-4/A and their personal search were conducted by W/Ct. Sheela 42 vide personal search memo Ex. PW-4/D and Ex. PW-4/C and accused Manju and Pinky made disclosure statement Ex. PW-4/E and Ex. PW-4/F and thereafter, both the accused Manju and Pinky led them to the house of accused Daya Kishan from where accused Manju got recovered the danda lying under the staircase in the said house and the same was taken into possession vide seizure memo Ex. PW-4/G and accused Pinky got recovered the danda lying near the room in the aforesaid house and the said danda was also taken into possession vide seizure memo Ex. PW-4/H and he has identified the aforesaid dandas as Ex. P-2 and P-1 respectively. PW-31 further deposed that on 11.06.2002, he called the Draftsman SI Manohar Lal for the purpose of preparation of scaled site plan and after he reached the PS, he took him to the spot, where at the instance of complainant Raj Bala, SI Manohar Lal took the measurements and made the rough notes at place of occurrence and he further deposed that on 5.7.2002, he sent the exhibits of this case to CFSL, Hyderabad through Ct. Lalit Kumar vide RC No.83/21/02 after filling the FSL form and thereafter, he collected the result of the MLC of the complainant Raj Bala, Prakashwati and Gyanwati from Babu Jagjiwan Ram Memorial hospital and also obtained the scaled site plan Ex.PW-16/A 43 of the spot of occurrence from SI Manohar Lal and on 12.8.2002, he went to the PCR office and obtained the copy of the PCR form and also recorded the statement of W/Ct. Sunita.
8. It has been submitted by Ld. Spl. PP that in view of the evidence adduced on record in particular the testimonies of the eye witnesses, the prosecution has been successful in proving on record the guilt of the accused persons beyond the reasonable doubt. It is further submitted that prosecution has been successful in proving on record that all the accused persons constituted an unlawful assembly and were armed with deadly weapons i.e knife , bats, lathi and dandas and in prosecution of the common object of the said unlawful assembly, accused Hari Kishan and Satish caught hold of Baljeet and accused Daya Kishan gave the knife blow on the chest of Baljeet which ultimately resulted in his death as was evident from the testimony of PW-2 Raj Bala. It is also stated that during the incident, PW-2 Raj Bala was given beatings by accused Jitender and Sanjeev, PW-3 Gyanwati was given beatings by Neha, Manju & Pinky and PW-5 Prakashwati was also given beatings by accused Leela and Sona Devi. Ld. 44 Spl. PP submitted that in view of the testimonies of PW-2 Raj Bala, PW-3 Gyanwai and PW-5 Prakashwati, it was clear that the accused persons in prosecution of the common object of the said unlawful assembly committed the murder of Baljit and also caused injuries on the persons Rajbala @ Pinky, Gyanwati and Prakashwati. It is further submitted that PW-8 Sunder Lal also stated that while deceased Baljeet was being taken to hospital in PCR Van by him and police officials, he stated that 'Daya Kishan did not act well by stabbing him by a knife and the said statement of Baljit amounts to his dying declaration and it further corroborates the case of the prosecution. Ld. Spl. PP also submits that in view of the evidence and material brought on record by the prosecution, the guilt of the accused persons have been proved beyond the reasonable doubts and he prayed that all the accused persons may be convicted of the charged offences.
In support of his contentions, Ld. Spl. PP has relied upon the case law cited as 2009 Vol. I AD ( Cr.) SC 175, 2009 Vol. I AD ( Cr.) SC 77,2009 Vol. I AD ( Cr.) SC 587, 2009 Vol. I AD ( Cr.) SC 295, 2009 Vol. I AD ( Cr.) SC 302, 2009 Vol. I AD ( Cr.) SC 263, 2008 Vol. V AD ( Cr.) SC 275, 2008 Vol. V AD ( Cr.) SC 327, 2008 Vol. IV AD ( Cr.) SC 477, 45 2008 Vol. IV AD ( Cr.) SC 373, 2008 Vol. IV AD ( Cr.) SC 757, 2008 Vol. IV AD ( Cr.) SC 669, 1998 Vol. II AD ( Cr.) SC 676, 2002 Vol. II AD (Cr.) SC 444, 2002 Vol. II AD ( Cr.) SC 165, 2002 Vol. III AD ( Cr.) SC 313, 1999 Vol. II AD ( Cr.) SC 325,2007 Vol. II AD ( Cr.) DHC 184,2002 Vol. I AD ( Cr.) SC 337, 2007 Vol. V AD ( Cr.) SC 665, 2007 Vol. I AD (Cr.) SC 412,2006 Vol. I AD ( Cr.) SC 109,2006 Vol. I AD ( Cr.) SC 661,2002 Vol. IV AD ( Cr.) SC 329,2001 Vol. I AD ( Cr.) SC 813,2003 Vol. III AD ( Cr.) SC 82, AIR 1985 SC 48,AIR 1981 SC 1390, AIR 1989 SC 236, AIR 1977 SCC( Cr.) 10, 1972 Cr. L.J 1177 (SC) , AIR 1983 SC 126, 2001 (I) AC ( Cr. ) SC 331, 2005 (3) AD ( Cr. ) SC,AIR 1988 SC 696, AIR 1989 SC 2249, AIR 1983 SC 753, AIR 1978 SC 1571,AIR 1956 SC 217, 1990 Cr. L.J 858, 1977 Cr. L.J 1676 ( 1681) HP, 1977 Crl.L.J (NOC) 80 ( Patna ), AIR 1997 SC 1023,AIR 2002 SC 918, 2006 Cr. L.J 3177 (Punjab & Haryana ) , 1997 Cr,. L.J 766 ( SC), AIR 1965 Madras 303, AIR 1962 SC 1788, AIR 2007 SC 1355,AIR 1988 SC 696, AIR 2000(III) AD (Cr.) SC 301, AIR 2000 (III) AC (Cr, ) SC 301, AIR 2000 (2) SCC 119, AIR 1976 SC 2499, AIR 1981 SC 1390, AIR 1978 SC 1571, 1998 I AD (Cr.)SC 62, 1998 II AD ( Cr.) SC 600, 2001 I AD ( Cr.) SC 426 and 2000 II 46 AD ( Cr.) SC 481.
On the other hand, it have been submitted by the ld. Defence counsels that the prosecution has miserably failed to prove the guilt of the accused persons beyond the reasonable doubts. It is submitted that the version of that incident as narrated by the alleged eye witnesses i.e PW-2 Raj Bala, PW-3 Gyanwati and PW-5 Prakashwati was not corroborated by the testimony of PW-27 HC Dharambir Singh, who was the first police official to reach the spot on receipt of PCR call and the said witness has specifically stated in his cross examination that he met accused Daya Kishan when he reached at the spot and at the spot, on the one side quarrel was going on and on the other side the accused Daya Kishan showed him certain documents, which nullifies the evidence of the alleged eye witness PW-2, who stated that on seeing the police, accused persons fled away from the spot. It is also stated that had the version given by the PW-2 been correct, there would have been no occasion for the PW-27 to state that accused Daya Kishan met him at the spot and also showed him certain documents. It is further stated that this witness i.e PW-27 also stated in his 47 cross- examination that after seeing the documents, he went through the crowd and tried to intervene in the matter and he saw the injured lying there, which implies that deceased Baljeet did not receive injury in the manner, as narrated by PW-2 Raj Bala.
It have been submitted by the ld. Defence counsels that it has been alleged on behalf of the prosecution that after stabbing the deceased Baljeet with knife, accused Daya Kishan handed over the knife to co- accused Rahul and asked him to dispose of the same and it is further alleged that the said accused Rahul took the knife and after cleaning the knife with mud and water, he hid the knife under the bushes of Keekar on the Lampur side and the said conduct attributed to accused Rahul was against the human conduct and behaviour as no prudent person will hide the knife at a place from where it could be easily got recovered by the police, when the said accused had all the opportunities to dispose of the said knife by throwing it in the pond or disposing it of in some other manner so that the said knife would not have been recoverable by the police under any circumstances. Ld. Defence counsel also submitted that in the present case, PW-26 Ct.Sunita has stated that on 18.05.2002, she received the 48 telephonic call from telephone no. 7283616 to the effect that there was stay on the land near main stand Khasra No. 37/25 Bankner and 'MCD Wale Jabardasti Kar Rahe Hain, Jabardast Jhagra' and the informer has told his name as Daya Kishan, which implies that the incident has not taken place in the manner as narrated by the prosecution witnesses. It is further submitted that from the material on record, it was clear that accused Daya Kishan and other accused persons were not involved in the incident and have been falsely implicated in this case. It is also submitted that the evidence brought on record by the prosecution is self contradictory and there were various loopholes in the testimonies of various prosecution witnesses, which entitles the accused persons to the benefit of doubt. Ld. Defence counsel submitted that there were material contradictions and discrepancies in the testimonies of various prosecution witnesses and these contradictions/ discrepancies were the fatal to the case of the prosecution. Ld. Defence counsel also submitted that the prosecution was mainly relying upon the testimonies of PW-2 Raj Bala, PW-3 Gyan Wati and PW-5 Prakash Wati, who were the relatives of the deceased and were highly interested witnesses and their testimonies in the absence of any independent 49 corroboration could not form the basis of the recording of the conviction against the accused persons. It has been further submitted by the ld. defence counsels that the case law relied upon by the Ld. Spl. PP was not applicable in the present case as the fact and circumstances of the present case were different from the fact and circumstances of the cases discussed therein. Ld. defence counsel also submitted that the prosecution has miserably failed to prove the guilt of the accused persons on record, beyond the reasonable doubts and they pray that the accused persons may be acquitted of the charged offences.
In support of their contentions, ld. Defence counsels have relied upon the case law cited as 1985 (2) Crimes 129, AIR 1957 SC 614, AIR 1941 Patna 362 , 1997 (4) Crimes 36 (SC) and 1996 (1) RCR 342.
In rebuttal, Ld. Spl. PP submitted that the testimony of PW-27 HC Dharambir Singh is not fatal to the case of the prosecution as the said witness has supported the case of the prosecution in examination-in-chief as well as re-examination done on behalf of the prosecution and he also explained that he has stated about meeting accused Daya Kishan at the 50 spot and showing of documents by him in his cross examination, in confusion. It is further submitted that in his re-examination, PW-27 has specifically stated that he simply reached the spot and removed the injured from the spot to the hospital and did nothing else at the spot and he also explained that additional facts were stated by him in his cross examination , in confusion. It is also submitted that testimony of PW-27 is not of any use to the defence in view of the direct evidence of PW-2 Raj Bala, who was cross examined at length by the ld. defence counsels, but the credibility of the said witness could not be shaken. It is submitted that as far as hiding of the weapon of offence by accused Rahul under the bushes of Keekar is concerned, the conduct of a person in such situation varies from individual to individual. It is further submitted that true and correct version of the incident have been given by the eye witness PW-2 Raj Bala and other material prosecution witness i.e PW-3 and PW-5 and the case of the prosecution has also been corroborated by PW-8 Sunder Lal. It is also submitted that the case law relied upon by the ld. Defence counsel was not applicable in the present case as the fact and circumstances of the cases discussed therein were different from the fact and circumstances of the 51 present case. It is further submitted that the evidence of a witness can not be discarded only on the ground that the said witness was related to the deceased, when the said witness is truthful and have given the correct version of the incident. It is also submitted that there were no material contradictions or discrepancies in the testimonies of various prosecution witnesses and Ld. Addl. PP again submitted that in view of the evidence and material brought on record, the prosecution have been successful in proving the guilt of the accused persons beyond the reasonable doubt and he again prayed that all the accused persons may be convicted of the charged offences.
9. In the present case, the accused persons have been charged for committing the offences punishable u/s- 147 IPC, u/s 148 IPC, u/s- 302 r/w with Section- 149 IPC and u/s- 323 r/w 149 IPC.
Section- 147 of the IPC provides the punishment for rioting and section- 146 of the IPC deals with 'rioting' and section -148 of the IPC deals with rioting armed with deadly weapon.
Section- 146 of the IPC reads as follows:
52
" Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting ".
Section-147 of the IPC provides that:
" Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".
Section-148 of the IPC deals with rioting armed with deadly weapons and it provides that :
" Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both ".
Section- 149 of the IPC provides that every member of unlawful assembly shall be guilty of the offence committed in prosecution of the 53 common object of the said assembly. It reads as under:
" If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence ".
In order to come within the purview of Section- 149 IPC, the following ingredients are required to be fulfilled:
(A) That there is an unlawful assembly.
(B) That a member of the assembly commits an offence.
(C) That the offence committed-
(i) is in prosecution of the common object of the
assembly, or
(ii) is such as members of the assembly knew to be
likely to be committed in prosecution of that
object.
(D) In such a case, every person who at the time of commission
of the offence, is a member of the same assembly, is guilty.
10. In the case titled as "Gunnana Pentayya @ Pentadu & Ors. 54 Vs. State of A.P." (cited as 2008 IV AD (Cr.) (S.C.) 477), while dealing with the applicability of Section- 149 IPC, the Hon'ble Supreme Court of India laid down that:
"A plea which was emphasized by the appellants relates to the question whether Section 149 IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section- 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to 55 be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section
141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly constructed as equivalent to ' in order to attain the common object".56
Further, in the case titled as- "Mohinder Singh and Others Vs. State of Punjab" (cited as 2006 I AD (Cr.) S.C. 661), it has been laid down by the Hon'ble Supreme Court of India that:
" The members of the unlawful assembly can be held liable under Section149 IPC, if it is shown that they knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. It is true that the common object does not require prior concert and a common meeting of mind before the attack. It can develop even on spot but the sharing of such an object by all the accused must be shown to be in existence at any time before the actual occurrence".
11. In the present case, the prosecution is mainly relying upon the testimony of PW-2 Raj Bala to prove its case on record.
PW-2 Raj Bala deposed that on 18.5.2003 at about 10:00 A.M., she was sweeping outside her house where they used to tie their cattle and her father was present by her side.She further deposed that there was one MCD park in front of her house and the MCD people, who were about 3-4 57 workers were keeping benches in the park and Daya Kishan, her neighbourer, came at the place where MCD employees were fixing benches in the park and started abusing those employees of MCD and thereafter he removed the benches and threw them to the side where she was sweeping outside her house. She also deposed that the distance from where the benches were removed and thrown was of about 10 steps and when her father objected to the throwing of benches, Daya Kishan abused her father saying that 'Sale Tujhe Dekhugan Ki To Kaise Us Jagah Par Bhains Bandtha Hai Kyoki who Jagah Bhi Meri Hai Park Bhi Mera Hai' and on this she objected to the abusing of her father by Daya Kishan and accused Daya Kishan went towards his house saying them to wait and he would see thereafter. PW-2 deposed that within 15 minutes, accused Daya Kishan came back, at the place where she was sweeping, alongwith his family members including Hari Kishan, Satish, Jatinder, Sanjeev, daughters of Daya Kishan namely Neha, Manju, Pinky and wife of Hari Kishan and Sona wife of Daya Kishan. She further deposed that accused Hari Kishan was the brother of accused Daya Kishan and Sanjeev and Jatinder were the sons of Daya Kishan and Satish was the son of Hari Kishan and all accused were 58 armed with weapons. Accused Daya Kishan was having an open knife in his hand, Jitender and Sanjeev were carrying cricket bats, Neha, Manju and Pinky were carrying dandas with them and Leela & Sona were carrying lathis with them and all accused started abusing her father and accused Daya Kishan made utterances 'Maro Salo Ko' and accused Satish and Hari Kishan both grabbed her father and Daya Kishan gave a knife blow in the chest of her father. PW-2 deposed that she tried to save her father but accused Jitender and Sanjeev hit her with cricket bats on her head and legs and other parts of the body including hand and she also received stitches. She raised alarm saying 'Bachao-Bachao' and on hearing the same, her relatives Gyanwati and Prakashwati who were her neighbourers also reached at the spot. She further deposed that Gyanwati was her Bhabhi and Prakashwati was her Chachi and both of them tried to save her from the accused but accused Neha, Manju and Pinky started beating Gyanwati by giving danda blows on her head and back and her Chachi Prakashwati was made to fall down on earth by accused Leela and Sona and accused Leela got hold the hair of Prakaswati and both of them gave lathi blows to Prakashwati all over the body. PW-2 deposed that PCR van reached the spot, upon which all the 59 accused ran away from there and accused Daya Kishan told his family members to leave the spot as work has been done. She further deposed that police officers removed her father to the hospital and thereafter they came back to their house as they were having injuries. PW-2 deposed that she was taken to the hospital by Sanjeev who was their neighbour and her statement was recorded at PS and the same was Ex. PW-2/A. She identified all the accused present in the court and stated that accused were arrested when her statement was recorded.
In her cross examination by Ld. Addl. PP, PW-3 admitted that at the time of the occurrence, no police person was present at the spot and police officer who first reached the spot did not make any inquiry from her and took away her father in the hospital as he was critically injured. She further admitted that after removing her father all the remaining injured were ladies and therefore fear was one of the reason for which they had gone inside the house. She also admitted that she was brought to the hospital at about 12:55 P.M in the noon and her statement was recorded in the hospital in the first instance and not at PS but subsequent statements were recorded in PS. Further, in her re-examination in terms of order dated 29.10.2007 60 passed by the ld. Predecessor of this court, PW-2 Ral Bala stated that she can identify the knife used by accused Daya Kishan for stabbing her father and she identified the knife Ex. P-8 to be the same that have been used by accused Daya Kishan.
The initial part of the testimony of PW-2 Raj Bala has been corroborated to a large extent by the testimony of PW-6 Ramesh, who deposed that the incident pertained to five years back and at that time, he was working as Mali (Gardener) in MCD and was discharging his duties at Bankner and on that day at about 9:30 A.M., he alongwith Raj Singh, Om Prakash and Surat Singh had gone to MCD park, Banker at the directions of their SO Sukhpal Singh to install ten iron benches in the said park and they had placed those ten iron benches in that park and in the mean time, accused Daya Kishan came to them and inquired from them as to why they had placed those iron benches in the park and he asked them to remove the iron benches from the park and thereafter accused Daya Kishan started throwing iron benches by himself from the park and they apprehended quarrel. PW-6 further deposed that accused Daya Kishan had thrown 3-4 iron benches outside the park, then they went to their office and told the whole episode to 61 their officer Sukhpal Singh.
12. The case of the prosecution has also been supported by PW-3 Gyanwati and PW-5 Prakashwati.
PW-3 Gyanwati deposed that on 18.5.2002 at about 10:00 A.M, she was present in her house which was opposite to the park and Baljeet Singh was uncle of her husband and his house is near her house and Raj Bala was daughter of Baljeet Singh. She further deposed that she heard the noise when she was inside the house and that noise was coming from outside her house and she came outside the house after hearing the noise of 'Bachao- Bachao' and saw two people near Baljeet and the quarrel was going on near the park just outside the gate of her house and she saw accused Daya Kishan was having a knife and the knife was blood stained and Baljeet was on the ground. She also deposed that she knew accused Daya Kishan as he was her neighbour and she did not see the specific part of body where Baljeet sustained injury but Baljeet was bleeding. PW-3 deposed that Hari Kishan and his son were also standing near Baljeet and she saw accused Sanjay and another son of Daya Kishan were beating Raj Bala. She further deposed that 62 Prakashwati, wife of brother of Baljeet, also came simultaneously alongwith her and she was also given beatings by wife of Daya Kishan and Hari Kishan and she was hit on her head by a danda by three daughters of Daya Kishan and Prakashwati was also given beatings with dandas.
PW-5 Prakashwati deposed that Raj Bala was her niece and the name of father of Rajbala was Baljeet and on 18.5.2002 at about 10-10:30 A.M., she was present in her house and at that time she heard the cries of Raj Bala 'Bachao-Bachao' and she came outside her house at the gate and saw that Baljeet was lying injured in the park and was bleeding from his chest and at that time, she saw that accused Daya Kishan standing near to Baljeet with a knife in his hand and Raj Bala was also standing near the park. She further deposed that she saw that two sons of Daya Kishan were giving beating to Raj Bala with cricket bats and accused Satish and Hari Kishan were also standing near to the body of Baljeet in the park and she came forward to save Raj Bala at that point of time. Gyanwati also came outside her house to save Raj Bala and accused Manju, Neha and Pinky who were the daughters of accused Daya Kishan grappled with Gyanwati and hit her with dandas and accused Leelawati and Sonawati grappled with her and 63 she was also beaten by dandas by falling her on the ground with her hair. PW-5 deposed that at that time, one police jeep also arrived at the spot and accused Daya Kishan gave his knife to Babloo and fled from the spot and all other accused also ran away from the spot and Baljeet was removed to the hospital at Jahangir Puri by the police jeep. PW-5 identified Jitender as he was present at the time of beating Raj Bala and she also identified Neha, Manju, Pinky, Hari Kishan, Satish, Daya Kishan, Sonawati and Leelawati and stated that she could not identify the knife which was in the hand of accused Daya Kishan as it was full of blood.
13. In the present case, ld. defence counsels have mainly relied upon the testimony of PW-27 HC Dharambir Singh and they submitted that in view of the testimony of PW-27, the entire evidence of PW-2 Raj Bala gets nullified and contradicted as PW-27 specifically stated in his cross examination that he met accused Daya Kishan when he reached at the spot, and at the spot on the one side quarrel was going on and on the other side accused Daya Kishan showed him certain documents. Ld. defence counsels also submitted that PW-27 also stated in his cross examination that after 64 seeing the documents, he went through the crowd and tried to intervene in the matter and he saw the injured lying there and the said deposition of PW-27 implies that deceased Baljeet did not receive injury in the manner as narrated by the PW-2 Raj Bala and as such no such incident as narrated by her ever took place at the spot.
On the other hand, it has been submitted by the Ld. Addl. PP that the testimony of PW-27 HC Dharambir Singh is not fatal to the case of the prosecution as the said witness has supported the case of the prosecution, in examination in chief as well as re-examination done on behalf of the prosecution and PW-27 also explained that he has stated about meeting accused Daya Kishan at the spot and showing of documents by him in his cross examination, in confusion. It is further submitted that in his re- examination, PW-27 has specifically stated that he simply reached the spot and removed the injured from the spot to the hospital and did nothing else at the spot and he also explained that additional facts were stated by him in his cross examination , in confusion. Ld. Special PP also submitted that in view of the said explaination given by the PW-27 and in view of the direct evidence of PW-2 Raj Bala, the testimony of PW-27 is not of any use to 65 the defence in the present case.
In the instant case, in order to appreciate the testimony of PW-27 HC Dharambir Singh, it will be appropriate to reproduce the relevant portions of his testimony.
In his examination in chief, PW-27 HC Dharambir Singh deposed that on 18.5.2002, he was posted in PCR and on that day he was working as an Incharge in Commander-87 and on that day, at about 10:24 A.M., he received a call and in pursuance thereto, he reached village Bankner at MCD park, where at the spot, he found one injured Baljit to whom he removed to Babu Jagjiwan Ram Memorial hospital in a PCR van (Commander-87 ) where doctor checked injured Baljit and declared him dead. He further deposed that one Sunder was with injured Baljit at the time when he took Baljit to the hospital.
In his cross examination by the ld. defence counsel, PW-27 HC Dharambir Singh stated that he met accused Daya Kishan when he reached at the spot and at the spot, on the one side quarrel was going on and on the other side, accused Daya Kishan showed him certain documents and many public persons had gathered at the spot . He further stated that quarrel was 66 taking place at a distance of about 10-15 yards from the place where accused Daya Kishan was showing him the documents and after seeing the documents, he went through the crowd and tried to intervene in the matter and then he saw injured lying there. He also stated that he could not see the said documents properly as in the meantime there was noise coming from the side where quarrel was taking place and he went towards that side. PW-27 further admitted that departmental inquiry was initiated against him and he volunteered to state that said departmental inquiry was initiated regarding the time of his arrival and departure from the spot. He also stated that he was not aware whether the said departmental inquiry was also on account of the fact that the quarrel continued and injured received injuries despite his presence at the spot. PW-27 also stated that he and driver of the PCR Van HC Raj Singh were suspended from the services, but he do not know the reason for which he was suspended and stated that he cannot say whether he was suspended due to the reason that the quarrel took place and injured received injuries in his presence at the spot. He also admitted that the driver HC Raj Singh was also placed under suspension alongwith him.
In his re-examination by the Ld. Special PP, this witness i.e 67 PW-27 admitted that after reaching at the spot at about 10:45 A.M., he immediately took the injured with him and proceeded to the hospital at 10:51 A.M and 11:47 A.M, he reached in BJRM hospital where he handed over the injured to duty constable. PW-27 further admitted that after reaching at the spot on that day he did not do anything else except removing the injured to the hospital. PW-27 also stated that after reaching the spot, it took him 5-7 minutes to reach the place where injured Baljit was lying, to lift the Baljit and to remove him to the hospital. He further stated that he told about meeting accused Daya Kishan at the spot, in confusion, in his cross examination by the Ld. defence counsel. PW-27 also stated that he do not remember fully and he might have told the fact about showing of documents by accused Daya Kishan at the time when he reached the spot and also about quarrel being going on in confusion in cross examination by the Ld. defence counsel.
In his cross examination after his re-examination, PW-27 denied the suggestion that he told the time 10:45 A.M., 10:51 A.M and 11:47 AM by looking at the document. He further stated that he handed over the documents back to accused Daya Kishan when he went towards the injured 68 through crowd and it took about 30 seconds to reach the injured after handed over the documents to accused Daya Kishan. He further stated that the vehicle in photograph Ex. PW-2/DE was a PCR van, however its number was not visible to him in the photograph and voluntarily stated that all the PCR vans are of same type and he also stated that he can not say whether the place in the photographs was the spot i.e. MCD park, village Bankner and he denied the suggestion that he was deliberately not identifying the place in the aforesaid photographs.
In view of the above, it is clear that PW-27 HC Dharambir Singh has made inconsistent and contradictory statements in his examination-in- chief and re-examination done by the Ld. Special PP as well as in his cross examination done by the Ld. defence counsels. It is pertinent to note here that in his examination in chief, PW-27 HC Dharambir Singh has not stated anything about his meeting with accused Daya Kishan at the spot and showing of documents to him by the accused Daya Kishan on the day of the incident which fact have been stated for the first time by him in his cross examination by the ld. defence counsel. Thereafter, in his re-examination by the Ld. Spl. PP, this witness i.e PW-27 HC Dharambir Singh again retracted 69 from the said statement and deposed that he told about meeting with accused Daya Kishan at the spot, in confusion, in his cross examination by the ld. defence counsel. He further stated that he do not remember fully and he might have told the fact about showing of documents by accused Daya Kishan at the time when he reached the spot and also about quarrel being going on, in confusion, in cross examination by the Ld. Defence counsel. In addition to this, in his re-examination by the Ld. Special PP, PW-27 also admitted that after reaching at the spot on that day he did not do anything else except removing the injured to the hospital. Thereafter, in his cross examination after re-examination, PW-27 again stated that he handed over the documents back to accused Daya Kishan when he went towards the injured through crowd . In these circumstances, it is clear that the testimony of PW-27 HC Dharambir Singh is inconsistent and lacks credibility as he has continuously changed his stand in his examination in chief, cross examination by the ld. defence counsel, re-examination by the Ld. Special PP and again in his cross examination, after re-examination. In these circumstances,PW-27 HC Dharambir Singh is not a reliable or trustworthy witness and in my considered opinion, it will not be safe to rely upon his 70 testimony in the fact and circumstances of the present case.
14. In the present case, accused persons have been charged for committing the offence punishable u/s-148 of IPC, which deals with rioting armed with deadly weapons and in order to attract the applicability of section- 148 IPC, there must be use of force or violence by an unlawful assembly or any member thereof armed with deadly weapon or with anything which used as a weapon of offence is likely to cause death. In addition to this, there must be at least five persons constituting the said unlawful assembly and the offence must have been committed in prosecution of the common object of the said assembly. In the instant case, it is clear from the testimony of PW-2 Raj Bala that all the accused persons being more than five in number, constituted an unlawful assembly and were armed with weapons as was evident from the testimony of PW-2, who specifically stated that accused Daya Kishan was having open knife in his hand, Jitender and Sanjeev were carrying cricket bats, Neha, Manju and Pinky were carrying dandas and Leela & Sona were carrying lathis with them and all of them started abusing her father and on exhortion of accused 71 Daya Kishan, murder of her father Baljeet Singh was committed and she alongwith PW-3 Gyanwati and PW-5 Prakashwati were given beatings by the accused persons. In these circumstances, it is clear that on the day of the incident, accused persons constituting an unlawful assembly and were armed with deadly weapons and in prosecution of the common object of the said unlawful assembly accused persons used force or violence and committed rioting which resulted in the death of Baljeet Singh and injuries on the persons of Raj Bala , Prakashwati and Gyanwati and thus all the accused persons have rendered themselves liable for the offence punishable u/s- 148 of the IPC.
15. In the instant case, the accused persons have also charged for committing the offence punishable u/s- 302 r/w section 149 IPC and u/s- 323 r/w section 149 IPC.
Section-149 of the IPC provides that every member of unlawful assembly shall be guilty of the offence committed in prosecution of the common object and in order to attract the applicability of Section- 149 IPC, there must be an unlawful assembly and a member thereof commits an 72 offence and the offence so committed is, in prosecution of the common object of the said assembly or is such as members of the assembly knew to be likely to be committed in prosecution of that object and in such a case, every person, who at the time of commission of the offence is a member of the unlawful assembly, is guilty of the offence committed in prosecution of the common object of the said assembly.
In the present case, accused persons were admittedly more than five in number and constituted an unlawful assembly as has been discussed above and from the material on record, it is clear that common object of the said unlawful assembly was to take forcible possession of the MCD park under any circumstances and all the accused persons, being the members of unlawful assembly, were armed with weapons as is evident from the testimony of PW-2 Raj Bala. It has come on record that at the time of the incident, accused Daya Kishan was having knife in his hand, accused Jitender and Sanjeev were carrying cricket bats, accused-Neha, Manju and Pinky were carrying dandas and accused Leela & Sona were carrying lathis with them. Further, PW-2 Raj Bala also deposed that accused persons started abusing her father and on the exhortion of the accused Daya Kishan, 73 accused- Satish and Hari Kishan grabbed her father and accused-Daya Kishan gave a knife blow in the chest of her father, which ultimately resulted in his death. PW-2 further deposed that she tried to save her father, but accused Jitender and Sanjeev hit her with cricket bats on her head and legs and other parts of the body and when she raised alarm, her relatives Gyanwati and Prakashwati, who were her neighbourers also, reached at the spot and accused Neha, Manju and Pinky started beating Gyanwati by giving danda blows on her head and back and her Chachi Prakashwati was made to fall down on earth by accused Leela and Sona and accused Leela caught hold of the hair of Prakaswati and both of them gave lathi blows to Prakashwati all over the body.
In view of the above testimony of PW-2 Raj Bala, the prosecution has been successful in bringing home the guilt against the accused persons. Further, the testimony of PW-2 Raj Bala have been corroborated to a large extent by the testimonies of PW-3 Gyanwati and PW-5 Prakashwati. PW-3 Gyanwati deposed that on hearing the noise of 'Bachao-Bachao', she came outside the house and saw two peoples near Baljeet and she saw accused Daya Kishan was having a knife and the knife 74 was blood stained and Baljeet was on the ground. She further stated that Hari Kishan and his son were also standing near Baljeet and she saw accused Sanjay and another son of Daya Kishan were beating Raj Bala. She also deposed that Prakashwati also came at the spot simultaneously alongwith her and she was also given beatings by wife of Daya Kishan and Hari Kishan. PW-3 also stated that she was hit on her head by dandas by three daughters of Daya Kishan. Similarly, PW-5 Prakashwati stated that after hearing the cries of Raj Bala, she came outside her house and saw that Baljeet was lying injured in the park and was bleeding from his chest and at that time, she saw that accused Daya Kishan was standing near to Baljeet with a knife in his hand and she also saw that two sons of Daya Kishan were giving beatings to Raj Bala with cricket bats and accused Satish and Hari Kishan were also standing near to the body of Baljeet in the park and she came forward to save Raj Bala at that point of time alongwith Gyanwati and accused Manju, Neha and Pinky, who were the daughters of accused Daya Kishan, grappled with Gyanwati and hit her with dandas and accused Leelawati and Sonawati grappled with her and she was also beaten by dandas by falling her on the ground with her hair. In these circumstances, in 75 view of the evidence on record, it is clear that all the accused persons constituted an unlawful assembly and were armed with deadly weapons and in prosecution of the common object of the said assembly, the murder of Baljeet was committed and injuries were also inflicted on the person of PW-2 Raj Bala, PW-3 Gyanwati & PW-5 Prakashwati.
The important fact is that the aforesaid material witnesses PW-2 Raj Bala,PW-3 Gyan Wati and PW-5 Prakashwati were cross examined by the Ld. Defence counsel, but nothing material has come on record which could assail the credibility or trustworthiness of these witnesses or which could be of any help to the accused. In her cross examination by the Ld. defence counsel, PW-2 Raj Bala denied the suggestion that on the day of occurrence, she alongwith her mother and father went to park and picked up the quarrel. She further denied the suggestion that PCR was already there at the spot. She also denied the suggestion that other female members of her family and her father, after reaching the park, started removing the benches. PW-2 denied the suggestion that at the spot on the date of occurrence there was any quarrel between two sides. She further denied the suggestion that both side were 76 pelting the stones. She also denied the suggestion that 200-250 people gathered at the spot at the time of incident. PW-2 denied the suggestion that in the incident of stoning from the other side, injury was sustained by her father. She also denied the suggestion that PCR took her father to the hospital when he was injured in this incident by stones. She also denied the suggestion that her father was pull down from the crowd and taken to the hospital. PW-2 denied the suggestion that incident did not take place in the manner deposed by her in her examination in chief. She further denied the suggestion that any of the accused did not cause of injury to her, her Bhabhi and Chachi. She also denied the suggestion that that two rival faction had a quarrel and exchange of stones and lathi blows. PW-2 denied the suggestion that her statement Ex. PW-2/A was prepared after due deliberation and consultations between their male folk, which was lodged at the PS at about 10:30 P.M. PW-2 denied the suggestion that on the date of occurrence at the relevant time Neha was in Shalimar Bagh in her in laws house. She further denied the suggestion that at the time of the incident in question, accused Manju, Pinky, Sona & Leela Wati were in their house and were not present at the place of occurrence. She also denied the 77 suggestion that aforesaid lady accused did not participate in the occurrence of the rioting nor did they caused injury to any one. PW-2 denied the suggestion that FIR was lodged after due deliberations with her relatives and that accused persons have been falsely implicated by her on their advise and suggestions or that no incident as deposed by her had happened in her presence or witnessed by her or that she was deposing falsely.
In her cross examination by the ld. Defence counsels, PW-3 Gyanwati denied the suggestion that PCR Van was there before her arrival at the spot. She further denied the suggestion that she had not seen any incident or she was not hit by anyone or that being the relative of the deceased, she have become a witness in this case. She also denied the suggestion that she have made a false statement.PW-3 denied the suggestion that she arrived at the spot and there was one PCR van and a crowd of about 200/250 persons was also present. She further denied the suggestion that she never visited the spot in the manner as deposed by her or that she was not hit on her head by dandas by the three daughters of Daya Kishan. She also denied the suggestion that Sanjay and another son of Daya Kishan had not given beatings to Raj Bala by the bat or that she 78 was deposing falsely.
In her cross examination by the ld. Defence counsels, PW-5 Prakash Wati denied the suggestion that when she reached at the spot there was crowd of 200-300 people. She further denied the suggestion that when she reached at the spot, police van was already there and accused Daya Kishan was showing papers to police person. She also denied the suggestion that by that point of time, quarrel took place between the members of the crowd and in that quarrel, Baljeet sustained knife injury. PW-5 denied the suggestion that she had not seen any incident or that accused Daya Kishan did not give any stab injury nor he was holding the knife. She further denied the suggestion that Daya Kishan was talking to the police persons when the crowd collected there had quarrel and Baljeet sustained injuries by someone in the crowd . She also denied the suggestion that she being in relation, created the fake simple injuries and thus become the witness in the present case. She also denied the suggestion that she had made a false case and have not deposed correctly. PW-5 denied the suggestion that she did not visit the site or that she was not beaten with dandas by Leelawati and Sonawati. She further denied the suggestion that she was never grappled by 79 them . She also denied the suggestion that accused Manju, Neha and Pinky did not caught hold of Gyanwati nor did they give any beatings to her. PW-5 denied the suggestion that the aforesaid ladies accused did not cause any injury to her and Gyanwati or that she was deposing falsely.
16. In addition to above, the case of the prosecution has also been supported by the PW-8 Sunder Lal, who deposed that on 18.05.2002 at about 10:45 A.M when he returned back to the house, he found a large crowd in front of the house and he also found that his Tau Baljeet Singh was in injured condition and he immediately rushed to his Tau and on inquiry, his Tau told him that Daya Kishan had given a knife blow and Hari Kishan and Satish had caught hold of him and thereafter he and PCR personnel put his Tau Baljeet in PCR Van and proceeded towards Babu Jagjiwan Ram Memorial hospital and on the way to BJRM hospital, his Tau was crying that 'Daya Kishan did not act well by stabbing him by a knife and thereafter his Tau become unconscious and at about 11:35 A.M., doctors of the BJRM hospital checked his Tau Baljeet Singh and declared him dead. It is being submitted on behalf of the prosecution that aforesaid statement made soon 80 before his death by Baljeet Singh to PW-8 that Daya Kishan had given knife blow and Hari Kishan and Satish had caught hold of him and that Daya Kishan did not act well by stabbing him by a knife tentamounts to dying declaration of deceased Baljeet Singh. I find considerable force in the said submissions made on behalf of the prosecution and in my considered opinion, the said statement made by Baljeet Singh soon before his death to PW-8 Sunder Lal is an important piece of corroborative evidence regarding the committing of murder by the accused persons, which fact have even otherwise been proved on record beyond reasonable doubts, in view of the testimonies of PW-2 Raj Bala, PW-3 Gyanwati & PW-5 Prakashwati. This witness PW-8 was also cross examined by the ld. Defence counsels, but nothing material has come on record which could shake the credibility of this witness. In his cross examination by the ld. Defence counsels , PW-8 denied the suggestion that his Tau Baljeet Singh had lost consciousness before he reached at the spot or that he had not revealed any information to him or that he has concocted the information allegedly given by his Tau to him during shifting at BJRM Hospital. He further denied the suggestion that he was deposing falsely or that he was a 81 false witness. He also denied the suggestion that deceased Baljeet Singh was unconscious all through out or that he did not speak to him at all .
It has also been submitted on behalf of the accused persons that it has been alleged on behalf of the prosecution that after stabbing the deceased Baljeet with knife, accused Daya Kishan handed over the knife to co-accused Rahul and asked him to dispose of the same and the said co- accused Rahul took the knife and after cleaning the knife with mud and water, he hid the knife under the bushes of Keekar on the Lampur side and the said conduct attributed to accused Rahul was against the human conduct and behaviour as no prudent person will hide the knife at a place from where it could be easily got recovered by the police, when the said person was having all the opportunities to dispose of it in some other manner so that the said knife could not have been recoverable by the police under any circumstances, however the said contentions put forward on behalf of the accused persons does not hold water as no fixed rule can be laid down regarding the conduct of a person in a given situation as the conduct of a person in a particular situation varies from individual to individual and as such it can not be conclusively said that aforesaid conduct of accused was 82 against human conduct or behaviour.
Ld. Defence counsels have relied upon the case law cited as 1985 (2) Crimes 129, AIR 1957 SC 614, AIR 1941 Patna 362 , 1997 (4) Crimes 36 (SC) and 1996 (1) RCR 342, however the said case law is not applicable in the present case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed in the said case law and in my considered opinion, the aforesaid case law is not of any help to the accused in the present case.
17. It has been submitted by the ld. defence counsels that prosecution was mainly relying upon the testimonies of PW-2 Raj Bala, PW-3 Gyan Wati and PW-5 Prakash Wati, who were relatives of the deceased and were highly interested witnesses and their testimonies in the absence of any independent corroboration could not form the basis of the recording of the conviction against the accused persons , however the said submissions made on behalf of the accused are devoid of any merits as a witness can not lack credibility only on account of the fact that he or she is related to the deceased, if otherwise the said witness appears to be 83 trustworthy and no personal enmity of the witnesses have been alleged towards the accused. In fact, the relation of the witnesses with the deceased can hardly be a ground to discard their version.
In the case titled as "Sonelal Vs. State of M.P." (cited as 2009 I AD (Cr.) (S.C.) 263), it has been laid down by the Hon'ble Supreme Court of India that:
"We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose J. it was observed:
" We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If 84 it is grounded on the reason that they are closely related to the deceased we are unable to concur".
Further, in the case titled as "Maranadu and Anr. Vs. State by Inspector of Police, Tamil Nadu" (cited as 2008 V AD (Cr.) (S.C.) 327), it has been laid down by the Hon'ble Supreme Court of India that:
" Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person".85
18. It has been submitted by the ld. Defence counsels that there were material contradictions and discrepancies in the testimonies of various prosecution witnesses and these contradictions and discrepancies were fatal to the case of the prosecution, however the said contentions put forward on behalf of the accused does not hold water and are contrary to the record as perusal of the testimonies of the various prosecution witnesses reveals that there are no material contradictions/discrepancies in their testimonies and the contradictions/discrepancies, if any are minor or trivial in nature and these are not fatal to the case of the prosecution.
In the case titled as "Sukhdev Yadav and others Vs. State of Bihar" (reported as JT-2001(7) - SC-597), it has been laid down by the Hon'ble Supreme Court of India that:-
"The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence. It is indeed necessary however to note that there would 86 hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment sometimes, there would be a deliberate attempt to offer the same. Sometime, the witnesses in their over anxiety to do better from the witness box details out an exaggerated account."
19. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the present case and in view of the testimonies of various prosecution witnesses, I am of the considered opinion that prosecution has been able to prove on record beyond the reasonable doubt that all the accused - Daya Kishan, Hari Kishan, Satish, Jitender @ Sonu, Sona Devi, Leela Wati, Neha @ Rakesh, Manju & Pinky being the members of the unlawful assembly were armed with the deadly weapons and made use of force and violence while committing rioting and in prosecution of the common object of the said unlawful assembly, all the above named accused persons committed the murder of Baljit and also caused simple injuries on the person of Rajbala @ Pinky, Gyanwati and Prakashwati. Accordingly, I hold all the accused - Daya Kishan, Hari 87 Kishan, Satish, Jitender @ Sonu, Sona Devi, Leela Wati, Neha @ Rakesh, Manju & Pinky guilty of the offences punishable u/s- 148 IPC, u/s 302 r/w Section 149 IPC and u/s- 323 r/w Section 149 IPC and convict them accordingly.
Now to come up for arguments on the point of sentence on 26.02.2010.
(Announced in the open ) (Paramjit Singh)
(court on 24.02.2010) Addl. Sessions Judge
(North-West)-04
Rohini/Delhi
88
FIR No.-214/02
P.S.- Narela
24.02.2010
Present: Sh. A.K.Gupta, Spl.PP for the State.
Accused Daya Kishan in JC and remaining accused persons are present on bail with their counsel Sh. Kundan Kumar.
Vide separate judgment, announced in the open court, all the accused-Daya Kishan, Hari Kishan, Satish, Jitender @ Sonu, Sona Devi, Leela Wati, Neha @ Rakesh, Manju & Pinky have been convicted u/s- 148 IPC, u/s 302 r/w Section 149 IPC and u/s- 323 r/w Section 149 IPC .
Convict Daya Kishan is already in JC.
PB and BB of the convicts- Hari Kishan, Satish, Jitender @ Sonu, Sona Devi, Leela Wati, Neha @ Rakesh, Manju & Pinky are cancelled. They are taken into custody and are sent to JC till 26.02.2010.
Now to come up for the arguments on the point of sentence on 26.02.2010, as requested.
(Announced in the open ) (Paramjit Singh)
(Court on 24.02.2010) Addl. Session Judge
(North-West)-04
Rohini/Delhi
89
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE (NORTH-WEST)-04, ROHINI : DELHI (Sessions Case No. 71/08) State Vs. Daya Kishan & Ors.
FIR No. : 214/02
U/s : 148/323/302/149 IPC
P.S : Narela Indl. Area
ORDER ON THE POINT OF SENTENCE
In the present case, the convicts- Daya Kishan, Hari Kishan, Satish, Jitender @ Sonu, Sona Devi, Leela Wati, Neha @ Rakesh, Manju & Pinky have been convicted u/s- 148 IPC, u/s 302 r/w Section 149 IPC and u/s- 323 r/w Section 149 IPC .
I have heard the arguments on the point of sentence put forward by ld. Spl. PP and ld. defence counsel for the convicts. Arguments have also been addressed by the convict- Daya Kishan.
2. It has been submitted by the ld. Spl.PP that in view of the serious and grave nature of offences, the convicts do not deserve any 90 leniency. It is further submitted that convict Daya Kishan is a habitual offender and a known land grabber of village Bankner and he had created terror in the area by his acts of land grabbing. Ld. Spl. PP submits that in the present case, deceased Baljeet Singh was about 70 years of age and was head of the family of the complainant and he was murdered by the convicts in a extremely brutal, grotesque, diobioligical, revolting and dastardly manner so as to arouse intense and extreme indignation of the community. Ld. Spl. PP also submited that the present case falls within the ambit of gravest cases of extreme culpability, which requires extreme penalty i.e death sentence and he prays that death penalty may be imposed upon all the convicts.
In support of his contentions, ld. Spl. PP has relied upon the case law cited as 1987 (II) SCR 710 & 2009 I AD ( Cr) 175.
3. On the other hand, it has been submitted by the ld. defence counsel that convicts are not previous convicts and are having clean antecedents. It is further submitted that convicts belongs to a respectable family and convicts- Sona Devi & Leela Wati are old ladies, convicts- 91 Daya Kishan & Hari Kishan are also old age persons and convicts -Neha, Pinky & Manju are young girls and convicts - Jitender & Satish are also young boys and are not involved in any other case. It is also submitted that the case law relied upon by the Ld. Spl. PP is not applicable in the present case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed therein. Ld. defence counsel also submits that the present case does not fall within the ambit of rarest of rare cases and he prays that a lenient view may be taken in this case. Convict- Daya Kishan submitted that his entire family has been roped in this case by the complainant and he also prayed that a lenient view may be taken.
4. I have carefully considered the submissions made by ld. Spl. PP, ld. defence counsel and convict Daya Kishan and have carefully gone through the record of the case. I have also carefully perused the case law relied upon by the Ld. Spl. PP.
5. In the present case, the convicts-Daya Kishan, Hari Kishan, 92 Satish, Jitender @ Sonu, Sona Devi, Leela Wati, Neha @ Rakesh, Manju & Pinky have been convicted for committing the offences punishable u/s- 148 IPC, u/s 302 r/w Section 149 IPC and u/s- 323 r/w Section 149 IPC .
Keeping in view the fact and circumstances of the present case and having regard to the manner in which the offences have been committed in the instant case, I am of the considered opinion that the present case does not fall within the category of 'rarest of rare cases'.
Ld. Spl. PP has relied upon the case law cited as 1987 (II) SCR 710 & 2009 I AD ( Cr) 175 , however the said case law is not applicable in the instant case as the fact and circumstances of the present case are different and further, the present case does not fall within the ambit of 'rarest of rare cases'.
6. Thus, in view of the above discussion and observation and having regard to the fact and circumstances of the present case, I hereby sentence the convicts- Daya Kishan, Hari Kishan, Satish, Jitender @ Sonu, Sona Devi, Leela Wati, Neha @ Rakesh, Manju & Pinky to undergo imprisonment for life and to pay a fine of Rs. 7000/- each in default SI for 93 seven months each u/s- 302 r/w section-149 IPC. The convicts are further sentenced to undergo RI for two years and to pay a fine of Rs. 3000/- each in default SI for three months each u/s- 148 IPC . The convicts are also sentenced to undergo RI for six months each u/s- 323 r/w section 149 IPC, which sentences shall meet the ends of justice in this case.
All the sentences shall run concurrently .
Benefit u/s 428 Cr.PC be also given to the convicts.
Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convicts, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 26.02.2010) Addl. Session Judge
(North-West)-04
Rohini/Delhi
94
FIR No.-214/02
P.S.- Narela Industrial Area
26.02.2010
Present: Sh. A.K.Gupta, Spl.PP for the State.
All the convicts in JC with their counsel Sh. Kundan Kumar. Arguments on the point of sentence heard.
Vide separate order on the point of sentence, announced in the open court, the convicts-Daya Kishan, Hari Kishan, Satish, Jitender @ Sonu, Sona Devi, Leela Wati, Neha @ Rakesh, Manju & Pinky have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 7000/- each in default SI for seven months each u/s- 302 r/w section-149 IPC. The convicts have been further sentenced to undergo RI for two years and to pay a fine of Rs. 3000/- each in default SI for three months each u/s- 148 IPC . The convicts have also been sentenced to undergo RI for six months each u/s- 323 r/w section 149 IPC, which sentences shall meet the ends of justice in this case.
All the sentences shall run concurrently .
Benefit u/s 428 Cr.PC have also been given to the convicts. Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convicts, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 26.02.2010) Addl. Session Judge
95
(North-West)-04
Rohini/Delhi