Delhi District Court
State vs . (1) Narender Kumar on 18 August, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST):ROHINI COURTS:DELHI
Session Case No. 824/2007
Unique Case ID No. 02404R0336392007
State Vs. (1) Narender Kumar
S/o Sh. Kashmiri Lal
R/o C-581, J.J. Colony,
Hastsal, Uttam Nagar,
Delhi.
(Convicted)
(2) Mohd. Guddu
S/o Urasat
R/o C-837, JJ Colony,
Hastsal, Uttam Nagar,
Delhi.
(Convicted)
(3) Arif Ahmed
S/o Sharif Ahmed
R/o B-275, JJ Colony,
Hastsal uttam Nagar,
Delhi.
(Acquitted)
FIR No.: 293/2007
Police Station: Uttam Nagar
Under Section : 302/34 Indian Penal Code
Date of committal to session court: 22.8.2007
Judgment Reserved on: 19.7.2010
Judgment Announced on: 24.7.2010
JUDGMENT:
As per the allegations, all the accused Narender Kumar, Mohd. Guddu and Airf Ahmed alongwith their co-accused Ballu and St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 1 Kalim (both juveniles) committed the murder of one Nand Kishore @ Nandu on 4.4.2007 at about 10.40 pm. BRIEF FACTS:
Case of the prosecution:
The case of the prosecution is that on 4.4.2007 an information was received in the Police Control Room from telephone no. 9313522370 regarding the quarrel and stabbing in JJ Colony, C Block, Uttam Nagar and DD No. 51A was recorded pursuant to which ASI Jai Prakash reached the spot where he came to know that the injured was shifted to hospital by his family members. In the meantime, ASI Mamur Khan alongwith staff also reached the spot and thereafter ASI Jai Prakash left ASI Mamur Khan at the spot and reached DDU Hospital where he found the dead body of Nand Kishore @ Nandu since the the doctor had opined him brought dead. On receipt of DD No. 51A Inspector Suresh Chand also reached the spot and thereafter DDU Hospital where he recorded the statement of Kishan Lal the father of Nand Kishore @ Nandu. Kishan Lal who informed the police that at about 9:30 pm one Ballu came to his house and told his son that some boys of B Block were calling him on which his son Nandu went with Ballu. At about 10:30 pm Kishan Lal received an information from his brother Phool Chand that some boys of B Block were beating his son Nandu near a juice shop. Kishan Lal went to the spot on his motorcycle and Phool chand followed him on another motorcycle and on reaching the spot Kishan Lal saw that Nandu was lying on the floor, Ballu was holding him by the hair, accused Narender was holding Nandu by hands, Mohd. Guddu was holding a broken glass tumbler and was hitting Nandu on his neck and side of the back and accused Arif Ahmed was standing at a little distance. On the basis of the said statement of Kishan Lal, the St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 2 present FIR was got registered and on the very next day i.e. 5.4.2007 on the basis of secret information the accused Ballu, Kalim, Mohd. Guddu and Arif Ahmed were apprehended from Ambedkar Stadium and arrested. On 16.4.2007 the accused Narender Kumar surrendered in the court of Ld. MM when he was arrested. Charge sheet was filed against the accused Narender Kumar, Mohd. Guddu and Arif Ahmed and a separate charge sheet was filed against the accused Ballu and Kalim before the Juvenile Justice Board.
CHARGE:
After hearing arguments from both the sides, the Ld. Predecessor of this court, settled the charges under Section 302/ 34 Indian Penal Code against the accused persons to which they have pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case, the prosecution has examined as many as 28 witnesses.
Public witnesses/ eye witnesses:
PW4 Kishan Lal is the father of the deceased who has deposed that 4.4.2007 at about 9:30 PM one Ballu came to his house and told his son Nandu that some boys of B-Block were calling him. According to the witness, he advised Nandu to stay back but Nandu went away with Ballu and at about 10:30 PM, his brother Phool Chand came to him and informed him that some boys of B-Block were beating Nandu near a juice shop. He has deposed that thereafter he went to the spot on his motor cycle and Phool Chand followed on another motor cycle and whey he reached the spot, he saw that his son Nandu was lying on the floor, Ballu was holding Nandu by hairs; Narinder was holding Nandu by feet; Kalim was holding him by hand and Guddu who was holding a St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 3 broken glass tumbler, was hitting Nandu on his neck and side of the back. The witness has deposed that another tall boy whose name he does not remember, was standing a little distance away and on raising alarm all the five boys ran away. The witness has further deposed that Nandu was bleeding profusely and he himself and his brother Phool Chand took Nandu to DDU hospital on the motor cycle brought by Phool Chand where Nandu was declared brought dead. He has proved his statement made to the police which is Ex. PW4/A and has deposed that thereafter they went at the spot, where he pointed out the place of occurrence to the investigating officer and the site plan was prepared at his instance. According to PW4, the investigating officer lifted the blood from the spot and kept the same in plastic dibbi and also seized blood stains pieces of small stones and also pieces of blood stained glass which were kept in plastic dibbi but he does not remember the description of seal with which these pulandas were sealed. According to the witness his blood stained clothes were seized by the police vide memo Ex.PW4/B. Blood lifted from the spot and pieces of small stones and glass pieces were also seized by the investigating officer vide memo Ex.PW4/C. He has further proved that he identified the dead body of his son at the mortuary of DDU hospital vide his statement which is Ex.PW4/D and after the postmortem the dead body was handed over to him. PW4 has deposed that Nandu was an accused in a cases of murder and the present accused persons were friends of the deceased in the said case and had threatened his son that they would kill him for having murdered their friend. He has deposed that at the time of occurrence, his son was on bail in the said murder case.
The witness has duly identified the accused persons in the court and also the case property i.e. his clothes which are Ex.P1 & St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 4 Ex.P2; clothes of deceased i.e. Baniyan which is Ex.P3, pyajama and track suit Ex.P4, underwear Ex.P5 and T-shirt which is Ex.P6 and the pieces of broken glasses, some of which were blood stained which are collectively Ex.P7.
The said witness was cross-examined by the Ld. Addl. PP since he was found resiling from his previous statement given to the police. He has deposed that when he reached the spot, his son was lying in a pool of blood and was unable to speak. He has admitted that he left his motorcycle at the spot and went with Phool Chand on his motorcycle carrying his son to the hospital. He has also deposed that when he reached near Aman Sweets, the entire marked had closed and one Manish was present who called the PCR. The witness has further admitted that on 6.5.2007 he alongwith the investigating officer and SI Mahesh reached and spot and got prepared the rough notes for the site plan.
In his cross-examination by the Ld. Counsels for the accused persons, the witness has deposed that the place of occurrence is about 5 minutes walk and less than half kilometer from his house. According to him, the juice shop was closed when he reached there and the glasses were lying outside. He has admitted that he had not named accused Arif Ahmed in his statement Ex.PW4/A alongwith the other accused persons who had been threatening his son. He has further admitted that accused Arif Ahmed lives in his neighbourhood and he knew him prior to the occurrence. The witness has further deposed that he does not remember the clothes which Ballu was wearing when he came to call Nandu. According to him, police officials reached the hospital at about 10:45 pm and his statement was recorded at the police booth in DDU hospital. He has admitted that 5.4.2007 was polling day for MCD elections. The St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 5 witness has testified that his motorcycle had been returned to his house from the spot but he is not aware who left it at his house. He has also admitted that a Halwai Shop is situated at the corner where two roads meet. According to PW4, he tried to apprehend the accused persons but they ran away from the spot. He is not aware if Phool Chand had tried to apprehend any of the accused persons. The witness has further deposed that he signed various documents at the spot and the documents were read over to him by the police officials. He has testified that accused Narender had also come to his house 5-6 times on previous occasions and had threatened his son.
PW3 Phool Chand is the uncle of the deceased and brother of PW4 Kishan Lal. He has deposed that on 5.04.07 (wrongly mentioned as 5.4.2007 instead of 4.4.2007) at about 11.00 PM, he had returned from work and was parking his vehicle Mahindra Champion, when one Harpreet who lives opposite the parking slot, came and told him that his nephew Nandu was being beaten by some boys. According to the witness he informed his brother Krishan Lal of the same after which both of them reached Fauzi Dhaba on a motor cycle owned by his friend Manish where they found that Nandu was lying there in an injured condition. He has deposed that he and Krishan Lal took Nandu on motorcycle to DDU hospital and thereafter he returned to his house and was some time later called at the police station and his blood stained clothes i.e. pant and shirt were seized by the investigating officer vide memo Ex.PW3/A. He has further deposed that when he was shifting the deceased on his motor cycle, his clothes were stained with the blood of the deceased Nandu. The witness has identified his blood stained shirt which is Ex.P8 and pant which is Ex.P9. He is unable to identify the assailants since according to him he had not seen them on the spot.St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 6
The witness has turned hostile on the aspect of identification of the accused persons and the role attributed to them. In his cross- examination by the Ld. Addl. PP for the state he has denied that on 5.4.2007 (wrongly mentioned as 5.4.2007 instead of 4.4.2007) at about 10:30 pm he was going on a borrowed motorcycle of his friend Sunil Kumar towards Shani Bazar when he saw that near Fauzi Dhaba opposite the shop of Sugarcane juice wala 4/5 boys were causing injuries to Nand Kishore. He has also denied that he stopped his motorcycle and asked them as to why they were fighting on which Arif Ahmed told him to proceed lest they would cause beatings to him. The witness has further denied that after seeing the incident he rushed towards the house of Nandu where he met Kishan Lal and narrated him the entire occurrence to him or that Kishan also accompanied him on his motorcycle. PW3 has also denied that when he returned to the spot he saw that Nandu had been made to lie on the pavement opposite the shop of Aman Sweets where one boy had caught hold Nandu by hair, the other boy caught hold of Nandu by his right hand and the third boy had caught the feet of Nandu and the fourth one was causing injuries on the neck and waist of Nandu with the help of a broken glass tumbler. He has also denied that Kishan Lal raised alarm "Pakro Pakro" and both of them parked their respective motorcycles and in the meantime all the four assailants ran towards the Kali Basti. He has, however, admitted that he and Kishan Lal shifted Nandu to DDU Hospital on the motorcycle possessed by him and in the hospital Nandu was declared brought dead.
He has denied that from the hospital he went to the house of deceased to inform the family. He has denied having described the role of all the 5 accused persons to the police or having identified them before the investigating officer on 5.5.2007. he has also denied having identified St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 7 that 5th accused on 26.6.2007. The witness has been confronted with his statements Ex.PW3/DA, PW3/DB and PW3/DC despite which he has denied the above facts.
PW2 Radhey Shyam is the uncle of deceased Nandu who has deposed that on 5.04.07 he went to mortuary of DDU hospital and identified the dead body of his nephew Nand Kishore @ Nandu vide his statement Ex.PW2/A and after postmortem examination, dead body was handed over to them.
PW7 Jaffar Ali has deposed that he was having a Sugarcane Juice Shop situated at C-404, JJ Colony, Hastsal, Uttam Nagar, Delhi which he had taken the shop on rent from Maqbool Ahmed for Rs.3,200/- per month. According to him, one boy namely Abdulla S/o Badlu was employed by him for help and a day prior to the MCD Elections, he was running his Sugar Cane Juice Machine which had been installed on a Thiya and there were no walls or door around the machine. According to him, Abdulla left at about 4.00 PM to meet his brother and he also left his shop at about 9.30 PM to have dinner. He has deposed that when he returned at about 11.15 PM and saw that five glass tumblers were missing from his Thiya and also saw that some broken glass pieces of the tumblers were lying on the road opposite his Thiya, about four five feet away from his machine. He has deposed that three of the missing glasses were of small size and two were of large size. According to him, he had not seen any occurrence and he did not know as to how his glasses were broken.
In his cross-examination the witness has deposed that there was no agreement or rent note for the Thiya and he was not given any rent note by the landlord.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 8PW8 Manish Kumar has deposed that on 4.4.07, at about 10.45 PM / 11.00 PM he was at his shop in A Block and he came to know that an occurrence had taken place wherein one Nand Kishore @ Nandu had received injuries. According to him, he reached the spot i.e. opposite Halwai Shop near Fauji Dhaba, C Block, Hastsal, Uttam Nagar where he saw that Nandu was lying in pool of blood on the road and pieces of glass were lying around him after which he called up PCR at number 100, using his mobile phone bearing no. 9313522370, intimating that a person had been stabbed. According to the witness, he mentioned of a knife stab in the PCR call as the nature of injuries seen sharp & Nandu was bleeding all over. He has deposed that the mobile phone was owned by his brother namely Sunil Kumar and the motorcycle bearing registration no. DL 9 SU-7799, owned by brother Sunil Kumar was in possession of Phool Singh as he had borrowed the same from him about one hour earlier of the incident. He has testified that when he had reached the spot, Kishan Lal the father of Nandu and Phool Singh were already present at the spot. He has deposed that Kishan Lal had reached on his own motorcycle and Phool Chand had reached on his motorcycle and both of them took Nandu to hospital on his motorcycle, driven by Phool Singh and Kishan Lal held Nandu in his lap.
In his cross-examination the witness has deposed that a crowd had gathered at the spot when he reached there and there was no police official present at that time. According to him, he remained at the spot for hardly 5 minutes.
Medical witnesses:
PW5 Dr. Bhawna, has deposed that on 04.04.2007 she was posted as Casualty Medical Officer and on that day, at about 11:40 PM a patient namely Nand Kishore was brought by his father and Constable St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 9 Rakesh. She has deposed that patient was unconscious and was not responding to Deep Painful Stimulus; his pulse was not pulpable and BP was not recordable. According to PW5, on local examination following injuries were noticed:
(i) Stab wound over posterior aspect (back mid thoracic region, just lateral to the midline left side) size 2.5 X 1.5 cm. Depth could not be made out. Little finger could be inserted completely.
(ii) Stab wound left side back, lower portion of the chest about four finger breadth from midline. Size 2.5 X 1.5 cm. Tailing seen downward. Depth not made out.
(iii) Stab wound over the posterior part of the neck. Size 2.5 X 1.5 cm tailing laterally. Depth not made out.
(iv) Clean incised wound over posterior part of neck. Size 2 X 0.5 cm superficial.
(v) Clean incised wound over the occipital region. Size 2.5 X 1/5 cm superficial.
According to her, ECG showed straight line and therefore, patient was declared dead on arrival. She has proved the MLC which is Ex.PW5/A. PW6 Dr. Ajay Sharma, has proved that he medically examined accused Kalim S/o Shammi on 6.4.2007 who brought by Constable Harpal and found the injuries as mentioned in MLC Ex.PW6/A which injuries were caused by Sharp edged weapon. According to him, on the same day, he also medically examined Arif Ahmed S/o Sharif Ahmed and found the injuries on the person of patient as mentioned in MLC Ex.PW6/B and the kind of weapon used was sharp edged weapon.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 10On a specific question put by the Ld. Addl. PP the witness has admitted that injuries on the person of Kalim and Arif Mohd. were possible with broken glass.
He has further deposed that on 06.04.2007, one patient namely Mohd. Guddu S/o Mohd. Urasat was examined by Dr. Ankush Garg had left the services of DDU hospital and his present address was not available in the hospital record. He has identified the signature and handwriting of Dr. Ankush Garg as he had seen him writing and signing various documents during the course of co-employment. He has proved the MLC of Mohd. Guddu which is Ex.PW6/C and as per the findings recorded by Dr. Ankush Garg, there were old abrasions with scars on left hand dorsal. According to the witness, old abrasion means one to seven days old. The nature of injuries were opined to be simple.
The witness has also deposed that on 06.04.2007 one patient namely Ballu S/o Vishwanath was examined by Dr. Akhil Seth, who had left the services of DDU hospital and his present address was not available in the hospital record. He has identified the signature and handwriting of Dr. Akhil Seth on the MLC of accused Ballu which is Ex.PW6/D. In his cross-examination the witness has admitted that the objects with sharp edged can be very multifarious and vast and the injuries were about one day old. He has denied that the injuries were more than one day old. He has deposed that the words 'no fresh injuries seen' indicates that there was no injuries from which the blood was oozing.
PW14 Dr. Amit Kumar has deposed that on 5.04.07 he was posted at DDU hospital as Junior resident doctor in the department of forensic medicine. On that day on the written request of investigation St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 11 officer inspector Suresh Chand of PS Uttam Nagar which is Ex.PW14/A postmortem examination on the body of Nand Kishore @ Nandu was conducted by him. He has proved having conducted the postmortem examination and his findings which are as under:-
On Genera Examination, no abnormality was declared. External Injuries
1. Contused lacerated wound with clean cut and well defined margins present over left parieto occipital region of dimensions 4.5 cm X 5 cm X bone deep.
2. Contused wound in an area 2.5 cm X 1 cm present over right ala of nose and dried up blood and clots present over face and nostrils.
3. Abraded contusion present over the lateral aspect of neck on the right side in an area of 7 cm X 3 cm, 5 cm above the clavicle (collar bone).
4. Incised wound with clean cut and regular margins present over left side nape of neck area, 3 cm below the hairline, obliquely arranged of size 2.5 cm X 1 cm X muscle deep, 3 cm from the mid line.
5. Incised wound with clean cut and well defined margins present over left side of back of the neck, of size 2.3 cm X 8 cm X muscle deep, vertically arranged, 7 cm below the injury no. 4.
6. 14 cm below injury no. 5, over the back of the lower chest, incised wound with clean cut and well defined margins, of size 2.5 cm X 1 cm X chest cavity deep, both angle acute (elliptical shape), 1 cm from mid line, on exploration traversed and pierced ninth inter- costal space, penetrating and cutting through left lung.
7. Incised wound with clean cut margins and well defined shape present over the back of the lower chest upper abdomen, 9 cm St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 12 below injury no. 6, 5 cm from mid line, of size 2.5 cm X 1 cm X muscle deep.
8. Incised wound of size of 2.5 cm X .7 cm X 3 cm present over the right buttock, 8 cm from the natal cleft and 21 cm from right iliac spine.
9. Abrasion of irregular shape of light brown - reddish colour of dimensions 4 cm X 3 cm present over left knee - patellar region.
On internal examination he found the following facts:-
1. Sub-scalp extravasation of clotted in an area of 3 cm X 2.4 cm over occipital aspect, bilateral brain meninges and vessels were found pale.
2. On the left side of chest region, bruising of inter-costal muscles with effused blood and blood clots with fracture of 3rd , 4th and 5th ribs at costo-chondral junction with corresponding indentation over left lung with punctured and collapsed lower lobe of left lung with contusion of tear of left ventricle of heart detected with presence of approximately 2000 ml of blood and clots in the cavity. Right lung was found pale.
3. Approximately 150 ml fluid of dark reddish colour was found in stomach with congested mucosal lining.
According to the witness, in his opinion, all injuries were ante mortem in nature and of same duration, caused by blunt force impact and sharp edged object/ weapon. Cause of death is heamorrahagic shock consequent upon injuries to left lung and heart, sufficient to cause death in ordinary course of nature, however, blood and viscera was preserved to rule out any intoxication prior to death. The witness has proved that the following items were preserved.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 131. Blood and viscera in saturated solution of common salt for chemical analysis.
2. Blood in gauze piece.
3. Blood preserved in EDTA vial.
4. Clothes, sealed and handed over to the Investigation Officer.
He has proved his report which is Ex.PW14/B. The witness has further deposed that an application Ex.PW14/C was submitted by IO Inspector Suresh Chand and a request was made for opinion about the weapon of offence. On 29.4.07, IO Inspector Suresh Chand brought a parcel duly sealed with the seal of SC and the same was opened in the presence of IO. The seal of the parcel was broken and from the parcel one plastic jar containing blood stained / without blood stained pieces of tumbler were taken out and shown to him. The witness has deposed that after looking at the pieces of the tumbler he tendered his opined as under:
That injury no. 2, 3 and 9 could have been caused by the articles/ alleged weapon of offence and considering the postmortem report, photographs of dead body and the articles submitted by the IO, injury no. 1, 4, 5 and 8 can also be caused by articles/ alleged weapon of offence or by some other weapon/ weapons similar to the submitted articles/ alleged weapon of offence. His detailed opinion regarding the weapon of offence is Ex.PW14/D which bears his signature at point A. He has also deposed that at the time of conducting the postmortem examination investigation officer had produced the inquest papers on which he had put his initials.
In his cross-examination the witness has admitted that the description of weapon of offence is not mentioned in the inquest papers St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 14 and that the postmortem report records alleged history of stabbing by knife. He has denied that the opinion given by him was on the basis of alleged history or the inquest papers and that the opinion Ex.PW14/D was given by him as desired by the investigating officer or that the tumbler pieces were produced before him in an open condition. According to the witness, the injuries in the present case could not have been caused by a knife and for some of the injuries the weapon could be a dagger or a long piece of broken glass (about 10 cm long) and for some of the other injuries the weapon of offence could be a glass tumbler.
Police witnesses:
PW1 ASI Balbir Singh has deposed that on 4.4.07, he was posted at Central Police Control Room and was on duty from 8 PM to 8 AM at channel no. 117. According to him, on that day at about 11.02 PM he received an information through telephone number 9313522370 regarding the quarrel at J. J. Colony, C Block, Uttam Nagar, New Delhi which he recorded in form No.1 of PCR and after recording the same he had given this information to DO, NET and CAT, which form is Ex.PW1/A. PW9 HC Jai Singh has deposed that on 5.04.07, he was posted at PS Uttam Nagar and on that day he was working as a motorcycle rider at the PS. According to him, he was handed over the copies of FIR No. 293/07 PS Uttam Nagar after which he went at the house of learned Ilaka Magistrate and delivered the copy of FIR at his house, the Special delivered to the Learned MM at his residence is Ex.PW9/A and the other copies, one each was also delivered by him to the concerned ACP, DCP and Joint CP as special report.St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 15
PW10 Ct. Manoj has deposed that on 5.4.07, he was posted at PS Uttam Nagar and on that day at about 11.30 PM the duty officer had directed him and HC Ashok Kumar to reach at the spot i.e. Fauzi Dhaba, Shani Bazar, where they reached at about 11.50 PM and they met Inspector Suresh Chand alongwith HC Harpal, Ct. Rajender and HC Rajneesh there. According to him, four accused persons were already in the custody of investigating officer and he was directed to get the medical examination of accused Guddu and the remaining accused persons custody were given to the other official for their medical examination. He has proved that after getting the accused Md. Guddu medically examined at DDU hospital, Hari Nagar, New Delhi, he collected the MLC which is Ex.PW6/C. PW-11 Constable Rakesh Kumar has deposed that on 04/04/2007 he was posted at PS Uttam Nagar on which day ASI Jai Prakash was on Emergency Duty. At about 11 PM ASI Jai Prakash received a telephonic message regarding the stabbing incident after which he alongwith ASI Jai Prakash went to the spot i.e. C-323, J.J. Colony, Hastshal where they noticed that on the cover sewerage and on the road pool of human blood was lying and pieces of broken glass were also lying at the spot. According to the witness, all the shops had already shut because of late hours and in the meantime ASI Mamu Prasad also reached at the spot and he was left at the spot to guard the spot. He has deposed that some person at the spot informed them that the injured had been shifted to the DDU Hospital after which he alongwith ASI Jai Prakash went to the DDU Hospital where they found one Nand Kishore under treatment and he was declared brought dead. He has further deposed that in the meantime, Inspector Suresh Chand reached the hospital and recorded the statement of Kishan Lal (father of the St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 16 deceased) and rukka was prepared by Inspector Suresh Chand which was handed over to him for registration of FIR. The witness has deposed that he then went to the police station and got recorded the FIR and returned back at the spot alongwith original rukka and copy of FIR, which he handed over to Inspector Suresh Chand at about 4:00 AM.
PW12 SI Jai Prakash has deposed that on 04.04.2007 he was posted at PS Uttam Nagar as an ASI and was on emergency duty at PS Uttam Nagar from 8:00 AM next day. According to him, at about 11:05 PM he received DD No.51A regarding the quarrel and stabbing incident after which he alongwith Constable Rakesh went at the spot i.e. Near Aman Sweets, C-323, J.J. Colony, Hastsal and near Fauzi Dhaba. He has further deposed that on enquiry, they came to know that the injured had been shifted to hospital through his family members and they also noticed the blood on the cover of sewerage and broken pieces of glass which were blood stained. He has deposed that after some time, ASI Mamur Khan alongwith staff also reached at the spot alongwith staff and ASI Mamur Khan remained at the spot to look after the spot and he himself alongwith Constable Rakesh reached at DDU Hospital where he noticed the dead body of deceased whose name was told to him as Nand Kishore @ Nandu. According to him, on the MLC, the doctor had recorded that the patient was brought dead in the hospital and also noticed the injuries on the neck & back of the dead body and after some time Inspector Suresh Chand also came to the hospital alongwith his staff. They handed over MLC of deceased to the investigating officer who also inspected the dead body. According to the witness, the investigating officer recorded the statement of Kishan Lal father of the deceased in the hospital and prepared rukka which was sent to the police station through Constable Rakesh for registration of the case after which they returned to the spot where on the pointing out of the complainant, St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 17 the investigating officer prepared rough site plan. The witness has further deposed that the investigating officer picked up blood with the help of cotton which was lying in front of Aman Sweets and same kept in a jar and it was further kept in a cloth pulanda and same was given serial No.1; after which the blood stained floor was also broken and broken pieces of blood stained floor was kept in a plastic jar and it was given serial No.2; Earth control of floor was taken in Jar No.3 and Blood stained glass pieces were kept in a jar with serial No.4 and all the jars were kept in sealed pulanda with the seal of SC and seized vide memo Ex.PW4/C. According to the witness, blood stained clothes of Phool Chand were collected and kept in a pulanda sealed with the seal of SC and pulanda was given serial No.5 and the same was seized vide memo Ex.PW/A. Blood stained clothes of Kishan Lal were also kept in a pulanda sealed with seal of SC and given serial No.6, which were seized vide memo Ex.PW4/B and seal after use was handed over to HC Harpal.
PW-13 SI Mahesh Kumar has deposed at the request of Inspector Suresh Chand, PS Uttam Nagar, he visited the place of occurrence i.e. Road at JJ Colony, Hastsal along with the investigating officer. He has deposed that at the instance of Kishan Lal, he took rough notes and measurements of the spot and on the basis of those rough notes, he prepared scaled site plan, which is Ex.PW13/A. He has deposed that Rough notes were destroyed after preparation of scaled site plan.
PW 15 HC Murari Lal has deposed that on 28.04.07 he was posted as Ct. in PS Uttam Nagar and on that day he collected one pullanda sealed with the seal of HC from MHC(M) PS Uttam Nagar vide RC No. 33/21/07 to DDU Hospital Mortuary but the doctor did not receive the said pullanda as he was busy so he come back and deposited St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 18 the same with MHC(M) in an intact condition. According to him, as long as the case property remained in his possession no one tampered with it and again on 29.04.07 on the directions of IO he again collected the said sealed pullanda sealed with the seal of MHC(M) vide RC No. 35/21/07 and along with IO went to DDU Hospital Mortuary. He has deposed that there the pullanda was presented by him to Dr. Amit who in his presence opened the same and from inside it certain broken pieces of glass were taken out some of which were having blood stains upon them. He has further deposed that the doctor put all the glass pieces in one glass jar and covered it with a white cloth & put it in a polythene bag and sealed it with the seal of DFMT and handed over the same to IO along with a sample seal of DFMT which the Inspector Suresh Chand took into possession vide memo Ex.PW15/A and IO gave the same to him and he took the said sealed pullanda along with sample seal to MHC(M) PS Uttam Nagar.
PW16 HC Jaiveer Singh has deposed that on 04.04.07 he was posted as photographer in mobile crime team, West District and on that day after receiving the information he alongwith other members of the mobile crime team reached the spot i.e near C 324/325, JJ Colony, Hastsal Uttam Nagar where they met ASI Mamur Khan and other police officials and he at the instance of ASI Mamur Khan taken the six photographs of the spot. The negatives are Ex.PW/16-A1 to A6 and the photographs are Ex.PW16/A7 to A12.
PW17 HC Rajnish Kumar has deposed that on 5.4.07 he was posted as HC in PS Uttam Nagar and joined the investigations of this case alongwith Inspector Suresh Chand and HC Harpal and at about 8:05 pm when they were present at Shani Bazar JJ Colony, Hastsal, HC Harpal received a secret information that Mohd. Guddu, Kalim Nai, St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 19 Narender and Ballu and their other associates who are involved in this murder case would come in Ambedkar Stadium and if raided they could be apprehended. Thereafter Ct. Rajender was also called at the spot and he had joined them and thereafter they reached Ambedkar Stadium, Hastsal where in the stadium near the gate 4 boys were found laying down there and secret informer had pointed towards those boys who after seeing the police party tried to run away but two boys were apprehended by Inspector Suresh and HC Harpal and two other boys who ran towards Vikaspuri were apprehended by him and Ct. Rajender after giving chase. The name of the boy who was apprehended by him came to know as Kalim and the name of the boy who was apprehended by Ct. Rajender was later on revealed as Mohd. Guddu. the name of the boy who was apprehended by HC Harpal came after inquiry as Ballu and the name of the boy who was apprehended by Inspector Suresh came to know after inquiry as Arif. The witness has further proved that the accused persons were thereafter arrested. The accused Ballu was arrested vide memo Ex.PW27/A, the arrest memo of Kalim is Ex.PW27/B, copy of arrest memo of Guddu is Ex.PW27/C and a copy of arrest memo of Arif is ExPW27/D; the personal search memo of Kalim is Ex.PW27/E, personal search memo of Guddu is Ex.PW27/F, personal search memo of accused Arif Ahmed is Ex.PW27/H. The witness has also proved the disclosure statements of the accused. The copy of disclosure of Ballu is Ex.PW27/J, copy of disclosure of Arif Ahmed is Ex.PW27/K, copy of disclosure statement of Kalim is Ex.PW27/L and copy of disclosure statement of Mohd. Guddu is Ex.PW27/M. According to the witness, the clothes which the accused were wearing were also seized by putting the same into different pullandas. He has deposed that Kalim was wearing black and brown coloured shirt with strips and jeans pent of St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 20 blue jeans pent of blue colour; Arif Ahmed was wearing black shirt and track pent of grey colour; Mohd. Guddu was wearing black shirt and dark blue and brown pent of jeans; Ballu was wearing brown and black shirt with strips and Pajama of blue colour which pullandas were sealed with the seal of SC. The pulanda of Arif Ahmed was seized vide memo Ex.PW27/N; the pulanda of Guddu was seized vide memo Ex.PW27/O, the pullanda of Kalim was seized vide memo Ex.PW27/P and the pulanda of Ballu was seized vide memo Ex.PW27/Q and the seal after used was handed over to HC Harpal Singh. The witness has further deposed that the accused also pointed out the place occurrence i.e. C- 323, JJ Colony Uttam Nagar, Aman Sweets near Fauji Dhaba Shani Bazar. Pointing out memo of Ballu is Ex.PW27/R; pointing out memo of Guddu is Ex.PW27/S; pointing out memo of Kalim is Ex.PW27/T; and pointing out memo of Arif Ahmed is Ex.PW27/U. He has deposed that Ct. Manoj and HC Ashok were called at the spot and they came in a TATA 407 and thereafter, accused were sent to DDU Hospital because Mohd. Guddu, Kalim and Arif Ahmed was having injuries on their heads (wrongly mentioned on heads as the MLC shows that the injuries were on hands of the accused and due to typographical error has been typed as 'heads' and in view of the above, henceforth shall be read as 'hands') and they stated that they sustained injuries when they were giving blows to Nandu with the help of Glass after which accused were medically examined and after completing the investigation the accused were brought to the police station and the pulandas were deposited in the malkhana. The witness has correctly identified the accused Mohd. Guddu and Arif in the Court.
The witness has also deposed that on 16.04.2007 he again remained in the investigation of this case alongwith HC Harpal and on St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 21 the instruction of the IO Inspector Suresh Chand reached Rohini Courts where accused Narender was appeared and IO after taking the permission from the court, arrested the accused vide arrest memo Ex.PW17/A after which his formal personal search was conducted vide memo Ex.PW17/B. Thereafter, the disclosure statement of the accused was recorded vide Ex.PW17/C. According to the witness, the wearing clothes of accused Narender were put up into pulanda and sealed with seal of HPS and was seized vide memo Ex.PW17/D and the accused was directed to muffled his face and was produced before Sh. Puran Chand Ld. MM where he refused to participate in the TIP proceedings. According to the witness, 03.05.2007 on the instruction of the IO, he took 13 sealed pulanda from MHC(M) for depositing in FSL vide RC no. 39/21/07 dated 03.05.2007 along with FSL form and he accordingly deposited the same with the FSL and thereafter deposited the receipt with the MHC(M). He has also deposed that the sealed pulanda were intact during his custody and he did not interfere with them nor he allowed anyone to interfere with them.
The witness has identified the accused persons in the court as well as the case property i.e. clothes of Kalim which are collectively Ex.P-8; clothes of accused Arif which are collectively Ex.P-9; clothes of accused Guddu which are collectively Ex.P-10; clothes of accused Ballu which are collectively Ex.P-11; the clothes of accused Narender which are collectively Ex.P-12.
In his cross-examination the witness has deposed that he did not go along with IO either from the spot or from the police station. He has further deposed that secret information had been received by HC Harpal Singh and that he, HC Harpal and IO had left together from the police station. According to the witness, the IO had also noted down the St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 22 description of the clothes of Mohd. Guddu who was wearing a T-shirt bearing the Mark 'Diesel'. He has testified that he has not mentioned in his statement dated 6.4.2007 that the family members of the accused persons were called.
PW18 HC Daulat Singh has placed on record the copy of FIR No. 174/06, U/s 302/34 IPC, PS Uttam Nagar which is Ex.PW18/A from the records of the police station which remains under his custody. He deposed that the said FIR was recorded by the duty officer ASI Vijay Pal Singh No. 2584/West.
PW19 HC Anil Kumar deposed that on 04.04.07 he was posted as HC at PS Uttam Nagar and was working as DD writer from 5 pm till 1 am in the night and on that day at around 8.32 pm the wireless operator of the PS informed him on intercom about an information received by him from HC Attar Singh of PCR regarding a quarrel at Maharani Enclave Sharma Nursing Home, Lucky Model School, Hatsal. He recorded the said information in the roznamcha vide DD No.44A which is Ex.PW19/A and handed it over to ASI Jai Parkash. He further deposed that on that day at around 8.34 pm the wireless operator again informed that from Ct. Parvender, PCR he had received an information that there was a huge traffic jam from Dwarka Mor till Utta Nagar Nazafgarh Road which information he recorded vide DD No.46A which is Ex.PW19/B and gave it to ASI Mamur Khan, who along with Ct. Rajender left for the spot. According to the witness at around 11.05 pm on 04.04.07 the wireless operator again informed about information received from ASI Dalbir Singh of PCR regarding a quarrel and stabbing incident at Uttam Nagar, JJ Colony, C block. He conveyed the said information through mobile phone no. 9968398418 and asked ASI Jai Parkash to reach the spot to take necessary action, the true copy of the St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 23 said DD entry is Ex.PW19/C. He also deposed that at around 11.15 pm on 04.04.07 Inspt. Suresh Chand along with HC Ram Kumar, Ct. Suresh Kumar, HC Harpal left in official gypsy no. DL1CJ-3200 for the spot in connection with DD no. 51A and he recorded their departure vide DD No. 52A which is Ex.PW19/D. The witness has further deposed that thereafter, at 11.50 pm information was received from Duty Ct. Yashpal from DDU Hospital that one Nand Kishore who was brought to hospital by his father and Ct. Rakesh has been declared brought dead by the doctors which information he recorded vide DD No.58A which is Ex.PW19/E and sent a copy thereof to Inspt. Suresh Chand through Ct. Vijay Kumar.
PW20 SI Mamur Khan has deposed that on 04.04.07 he was posted at ASI at PS Uttam Nagar and on that day he was on emergency duty from 8 pm to 8 am with Ct. Rajender Singh. According to him, on that day at about 8.30 pm duty officer informed him that there was traffic jam at Najafgarh road and thereafter he along with Ct. Rajender went there. He further deposed that when they were coming back after clearing the traffic at around 11.10 pm duty officer informed him on telephone that at Shani Baazar, Kali Basti at C block a quarrel had taken place and knife blow had been given, ASI Jai Parkash had already reached at the spot and he was also instructed to reach at the spot. The witness has further deposed that thereafter he along with Ct. Rajender reached the spot opposite shop no. C323, Aman Sweets at Fauzi Dhaba and there was huge blood on the road and on the patri and the blood was also lying on the gutter. There he came to know that injured had already been taken to the hospital. He has testified that ASI Jai Parkash went to DDU hospital and asked him to remain at the spot for taking care of the spot and after some time Inspt. Suresh along with staff reached at the St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 24 spot and he also gave him instructions to present the spot and went away to DDU Hospital. According to the witness at about 11.30 PM crime team reached at the spot who inspected the spot and handed over the report to him. The witness has deposed that at about 2.20 AM Inspt. Suresh along with complainant and other public persons came at the spot and IO prepared site plan at the instance of complainant and from the spot IO Lifted the exhibits and seized them and sealed with the seal of SC. He has also proved that he handed over to IO the crime team report, after which IO instructed him to search the accused with the help of beat staff. He searched for the accused but not found and he came back at the spot at around 7 am and IO recorded his statement.
In his cross-examination the witness has deposed that he did not received any DD No. 47A at 9 pm on 4.4.2007 regarding information of a quarrel at WZ1/6 Roop Vihar. He has admitted that there were houses also in the aid area near the spot besides the shop and there is a Fauzi Dhaba which is quite famous but he has denied that the said Dhaba remains open till 12 mid night.
PW21 HC Sri Ram has deposed that on 05.04.07 he was posted as HC and was working as Duty Officer from 1:00 am on the night intervening 4/5-4-07 till 9 am in the morning and on that day at around 2.30 am in the night he received a rukka mark X from Ct. Rakesh which was sent by Inspt. Suresh Chand, on the basis of which he recorded FIR No.293/07, under Section 302/34 IPC, copy of which is Ex.PW21/A. He further deposed that he also recorded DD No. 3A dated
05.04.07 in this regard of the roznamcha of the PS regarding commencing of writing of FIR and DD No.4A dated 05.04.07 after he finished writing the FIR, copy of DD No. 3A and 4A are Ex.PW-21/B and C respectively. He has also placed on record the DD No. 11 A and St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 25 DD No. 12 A dated 05.04.07 which pertains to arrival and later on again departure from PS respectively of Inspt. Suresh Chand in connection with the investigation of the case, which entries were recorded by Inspt. Suresh Chand in his own hand. True copy of DD No. 11A and DD No. 12A are respectively Ex.PW21/D and E. According to the witness, he had also dictated the said FIR to the computer operator and a print out of the same is Ex.PW9/A and was given to HC Jai Singh for delivery to Sr. Officers to the Police and Area MM.
PW22 Ct. Shiv Shanker has deposed that on 16.04.07 he was posted as a Constable at Police Station Uttam Nagar and was working as DD writer from 9 am till 5 pm and on that day at around 11.40 pm Inspt. Suresh Chand left in connection in the investigation of the case to Rohini Courts to the court of Ld. MM Sh. Dig Vinay Singh along with Ct. Murari Lal on official motorcycle no. DL1SN-5551. HC Rajnish also left for Rohini Court. He has proved having recorded their departure in the roznamcha which DD is Ex.PW 22/A. PW23 ASI Satbir Singh has deposed that on 05.04.07 he was posted as HC at PS Uttam Nagar and was working as MHC(M) and on that day Inspt. Suresh Chand deposited six sealed pullandas sealed with the seal of SC vide three separate memos. He deposited four pullandas allegedly contained the various exhibits lifted from the spot vide a common memo in the malkhana against entry no. 4595 of R.No.
19. The witness has deposed that other pullanda stated to be containing blood stained clothes of Phool Chand was also deposited vide another memo against the same entry no. 4595 of R.No. 19 and another pullanda stated to be containing the blood stained clothes of Kishan Lal was deposited in the malkhana vide another memo against the same entry no. 4595. He has further deposed that Inspt. Suresh Chand had also given to St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 26 him three sealed pullandas sealed with the seal of DFMT DDU hospital along with sample seal stated to be containing the clothes of deceased, his blood sample and viscera vide another memo and the same were also deposited in the malkhana against the same entry no. 4595. He has further deposed that all the aforesaid sealed pullandas and the sample seal were handed over to him together by Inspt. Suresh Chand so he entered them against one common entry, copy of which is Ex.PW 23/A. The witness has also deposed that on 06.04.07 Inspt. Suresh Chand deposited four sealed pullandas sealed with the seal of SC stated to be containing the clothes of one Kalim, Arif Ahmed, Mohd. Guddu and Ballu and he deposited them in the malkhana vide entry no.4598 of R. No. 19, copy of which is Ex.PW23/B. According to him, on 16.04.07 Inspt. Suresh Chand deposited one sealed pullanda sealed with the seal of HPS stated to be containing clothes of one Narender. Besides, he also handed over to him the personal search articles of one accused Narender Kumar in unsealed condition and he deposited both the articles in the malkhana vide entry no.4614 of R. no. 19, copy of which is Ex.PW23/C. The witness has also deposed that on 29.04.07 on the directions of the IO he had sent the sealed pullanda sealed with the seal of SC and stated to be containing broken glass pieces for opinion to HOD Forensic and Medicine Deptt. DDU Hospital through Ct. Murari Lal vide RC No.35/21 and he made an entry to that effect in R.No. 19, copy of which entry is Ex.PW23/D. PW23 has further deposed that the said pullanda was received back by him from DDU Hospital sealed with the seal of DFMT and bearing endorsement PM NO. 296/07 along with sample seal & he deposited the same in malkhana vide entry no. 4646 of R. No. 19, copy of which is Ex.PW23/E. He has further proved that on on 30.04.07 R. No. 19 shows that his successor MHCM-HC Anil Kumar had sent one St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 27 sealed pullandas containing two plastic jars sealed with the seal of DFMT along with sample seat through Ct. Rajender Singh to FSL Rohini vide RC No.36/21 but the same could not be deposited & were accordingly returned back in malkhana in an intact condition. He has identified the handwriting and signatures of HC Anil having worked with him in the police station, and proved the relevant entry which is Ex.PW23/F. He also deposed that on 30.04.07 itself vide RC No. 37/21, 13 other pullandas were also sent through Ct. Rajender which also were returned back in an intact condition as they could not be deposited in the FSL and the FSL form was also received back, the relevant entry which is Ex.PW23/G. Thereafter, on 03.05.07 the said 13 pullandas were sent to FSL Rohini vide RC No.39/21 through HC Rajnish no. 953 West, vide relevant entry Ex.PW23/H. The witness has also proved that on 04.05.07 one sealed pullandas containing two plastic jars sealed with the seal of DFMT were sent to FSL Rohini through Ct. Umesh Kumar vide RC No. 40/41 and the relevant entry is Ex.PW23/J. According to him, on 18.02.08, 13 sealed pullandas sealed with the seal of FSL along with the FSL result were deposited by MHCM in the malkhana after bringing them from PS Rajouri Garden and the relevant entry is Ex.PW23/K and the photocopy of RC No. 39 an 40 vide which the pullandas were sent to FSL are Ex.PW23/L and M respectively. He has proved that as long as the case property remained in his possession nobody tempered with it.
PW24 W/Ct. Shakuntala has deposed that on 05.04.07 she was posted at DD writer in PS Uttam Nagar and on that day Inspt. Suresh Chand has himself recorded DD No 40 regarding his arrival in the PS, copy of DD No. 40 which is Ex.PW24/A. PW25 Ct. Umesh has deposed that on 05.04.07 he was posted as Ct. in PS Uttam Nagar and on that day on the instructions of St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 28 IO he took one sealed pullanda sealed with the seal of DFMT vide RC No.40/21/07 for depositing FSL Rohini. Accordingly, he deposited the same and thereafter deposited the receipt with the MCH(M).
PW26 Ct. Birbal Singh has deposed that on 05.04.07 he was posted as DD writer in PS Uttam Nagar and on that day Inspt. Suresh Chand recorded DD No. 61 and 62B in the DD register regarding his arrival and departure at about 7.45 pm and 8.05 pm respectively, copy of DD No. 61 is Ex.PW26/A and copy of DD No. 62 which is Ex.PW26/B. PW27 HC Rajender has deposed that on 05.04.2007 he was posted as a constable in PS Uttam Nagar and on that day at about 8.30 pm he was present in the Community Centre and was getting prepared food for the home guards who had came on election duty. According to him, he received information from police station that he had to reach at Shani Bazar J.J. Colony pursuant to which he reached there where he met inspector Suresh alongwith HC Harpal and HC Rajneesh where the IO told him that they have to raid at Ambedkar Stadium where accused Ballu, Kalim Mohd. Guddu, Narender and his associates would came there. Thereafter they reached at Ambedkar Stadium and found four boys were lying near the stage in the stadium who after seeing the police party tried to ran away. According to him, two boys were apprehended by Inspector Suresh and HC Harpal and two boys ran away towards Vikas Puri Jungle. He has deposed that one of them was apprehended by him and whose name came to know after enquiry as Guddu and the second boy was apprehended by HC Rajneesh and whose name he came to know after enquiry as Kalim after giving a chase, the boy who was apprehended by HC Harpal was revealed as Ballu and the name of the boy who was apprehended by Inspector Suresh was revealed as Arif Ahmed. He has proved the arrest memo of Ballu which is Ex.PW27/A;
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 29arrest memo of Kalim which is Ex.PW27/B; copy of arrest memo of Guddu which is Ex.PW27/C and copy of arrest memo of Arif which is Ex.PW27/D, the personal search memo of Kalim which is Ex.PW27/E, personal search memo of Guddu which is Ex.PW27/F, personal search memo of Ballu which is Ex.PW27G, personal search memo of Arif Ahmed which is Ex.PW27/H. He has also proved the disclosure statements of the accused persons. The copy of disclosure statement of Ballu is Ex.PW27/J, copy of disclosure of Arif Ahmed is Ex.PW27/K, copy of disclosure of Kalim is Ex.PW27/L and copy of disclosure of Guddu is Ex.PW27/M. According to the witness, the wearing clothes of the accused were also seized by putting the same into different pulandas. He has proved that Kalim was wearing black and brown coloured shirt with strips and jeans pent of blue colour and it was given serial no.7; Arif Ahmed was wearing black shirt and track pent of grey colour and pullanda was given S. No.8; Mohd. Guddu was wearing black shirt and dark blue and brown pent of jeans and the pulanda was given S. No.9; Ballu was wearing brown and black shirt with strips and Pajama of blue colour and the pulanda was given S. No. 10, which pulandas were sealed with the seal of SC. The pulanda of Arif Ahmed was seized vide memo Ex.PW27/N, the pulanda of Arif Ahmed was seized vide memo Ex.PW27/O, the pulanda of Kalim was seized vide memo Ex.PW27/P and pulanda of Ballu was seized vide memo Ex.PW27/Q and the seal after use was handed over to HC Harpal. The witness has deposed that accused also pointed out the place occurrence i.e. C-323, JJ Colony, Uttam Nagar, Near Aman Sweets, near Fauji Dhaba, Shani Bazar, the pointing out memo of Ballu is Ex.PW27/R, pointing out memo of Guddu is Ex.PW27/S, pointing out memo of Kalim is Ex.PW27/T and St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 30 pointing out memo of Arif Ahmed is Ex.PW27/U. According to the witness, Ct. Manoj and HC Ashok were also called at the spot and they came in a TATA 407 after which the accused were sent to DDU hospital because Mohd. Guddu, Kalim and Arif Ahmed were having injuries on their heads and they informed them that they sustained injuries when they were giving blows to Nandu with the help of Glass and were therefore, medically examined. The pulandas of clothes of the accused remained with him and after completing the investigation the accused were brought to the police station and the pulandas were deposited in the malkhana. The witness has further deposed that on 30.04.2007 on the instruction of the IO, he took 13 sealed pulanda and one more sealed pulanda containing Viscera for depositing in FSL vide RC No. 36/21/07 and 37/21/07 dated 30.04.07 along with FSL form but the same could not be deposited due to rush and therefore he re-deposited the same with the MHC(M).
The said witness has identified the accused persons in the court and the case property as well i.e. clothes of Kalim which are collectively Exhibited as P-8; clothes of accused Arif which collectively Exhibited as P-9; clothes of accused Guddu which are collectively Exhibited as P-10 and clothes of accused Ballu are collectively Exhibited as P-11.
In his cross-examination the witness has deposed that the investigating officer handed over the seal of SK to HC Harpal in his presence. According to him, they were five persons went to apprehend the culprits which is about 800 yards away from the spot of incident. He does not remember as to whose statement was recorded first or after wards.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 31PW28 Inspector Suresh Chand is the investigating officer in the present case. He has deposed that on 04.04.2007 he was posted as Inspector Investigation in Uttam Nagar Police Station and on that day after receiving the information about DD No.51-A copy of which is Ex.PW28/A regarding quarrel and incident of stabbing, he along with HC Harpal, HC Ram Kumar Driver, Ct. Suresh reached at the spot i.e. C Block JJ Colony, Hastal in a government vehicle No. DL1CJ 3200. According to the witness, he left the police station vide DD No.52A, copy of which is Ex.PW28/B and on the spot he met ASI Mamur Khan along with other staff and blood was lying opposite Aman Sweets, shop No C-323. On inquiry he came to know that injured has been taken to DDU Hospital by his family members and thereafter, he left ASI Mamur at the spot and he along with staff reached DDU Hospital where he met ASI Jai Parkash and Ct. Rakesh. According to the witness, ASI Jai Parkash handed over to him MLC of Nand Kishore on which Dr. had opined him declared dead after which he inspected the dead body of Nand kishore and he found injury mark on his neck and back and he was stained in blood. He has deposed that the dead body was sent to mortuary and recorded the statement of Kishan Lal which is Ex.PW4/A and attested his signatures. The witness has further deposed that in the hospital he also met one Phool Singh who had brought the injured/deceased to the hospital with Kishan Lal. He has proved having made an endorsement which is Ex.PW28/C and Rukka was handed over to Ct. Rakesh for getting the FIR registered. Thereafter he along with complainant Kishan Lal and staff reached at the spot i.e. Near C-323, JJ Colony Hastal where he prepared the site plan which is Ex.PW28/D. According to him, Ct. Rakesh came back at the spot and handed over to him a copy of FIR and original rukka and ASI Mamur handed over St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 32 report of the crime team to him. He has proved that he lifted the blood from the spot with the help of cotton and put the same into a plastic box and sealed with the seal of SC and it was given serial No. 1; Blood stained cemented floor and put up into plastic dibi and sealed with the seal of SC and given serial no. 2; Earth control was also lifted from the spot and put into plastic dibbi and sealed with the seal of SC and given serial no.3; the broken piece of glass which were blood stained were also lifted and put into a plasic dibbi and sealed with the seal of SC and given S.No.4; and after use seal was handed over to HC Harpal Singh. He has proved that all the items were seized vide memo Ex.PW4C and has deposed that accused persons were search but was not found and the case property was deposited in the Malkhana.
The witness has deposed that on 05.04.2007 he prepared the inquest papers, the brief facts which are Ex.PW28/E and request for postmortem which is Ex.PW14/A. According to the witness, dead body was identified by Sh. Kishan Lal and Radhey Shyam vide their statement Ex.PW4/D and Ex.PW2/A after which he filled the Form 25.35 which is Ex.PW28/F and after postmortem examination the dead body was handed over to the LRs of the deceased. He has proved that the doctor handed over pulanda containing clothes, blood sample and viscera alongwith sample seal which were seized vide memo Ex.PW28/G. According to the witness, on 05.04.2007 he alongwith HC Harpal Singh and Ct. Rajneesh left the police station for the investigation of the present case and when they reached Shani Bazar, where HC Harpal received a secret information that accused Mohd. Guddu, Narender, Kalim, Ballu and their other associates were present at Ambedkar Stadium, if raided they could be apprehended. HC Harpal passed this information to him and then he called Ct. Rajender who was present in St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 33 the community Centre who immediately reached there. Thereafter they reached at Ambedkar Stadium and they found four boys were lying down near the stage in the stadium who after seeing the police party tried to ran away. He has proved that two boys were apprehended by him and HC Harpal, two boys ran away towards Vikas Puri Jungle, one of them was apprehended by Ct. Rajender whose name came to know after enquiry as Guddu, the second boy was apprehended by HC Rajneesh whose name came to know after enquiry as Kalim after giving a chase, the boy who was apprehended by HC Harpal was revealed as Ballu and the name of the boy who was apprehended by him was revealed as Arif Ahmed. He has proved having interrogated the accused and their arrest. Arrest memo of Ballu is Ex.PW27/A; arrest memo of Kalim is Ex.PW27/B; arrest memo of Guddu is Ex.PW27/C and arrest memo of Arif is Ex.PW27/D. The witness has also proved the personal search memos of the accused persons, the personal search of Kalim is Ex.PW27/E, personal search of Guddu is Ex.PW27/F, personal search of Ballu is Ex.PW27/G and personal search of Arif Ahmed is Ex.PW27/H. According to him the accused made the disclosure statements, copy of disclosure of Ballu is Ex.PW27/J, copy of disclosure of Arif Ahmed is Ex.PW27/K, copy of disclosure of Kalim is Ex.PW27/L and copy of disclosure of Guddu is Ex.PW27/M. The witness has also proved that the wearing clothes of the accused were also seized by putting the same into different pulandas. According to him, Kalim was wearing black coloured shirt and jeans pent of blue colour and it was given serial no.7; Arif Ahmed was wearing black shirt with white strips and track pant of grey colour and pullanda was given S. No. 8; Mohd. Guddu was wearing black shirt and dark blue and brown pent of jeans and the pulanda was given S. No.9; Ballu was wearing brown St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 34 and black shirt with strips and Pajama of blue colour and the pulanda was given S. No.10; and the pulandas were sealed with the seal of SC. He has proved that the pulanda of Arif Ahmed was seized vide memo Ex.PW27/N; the pulanda of Guddu was seized vide memo Ex.PW27/O, the pulanda of Kalim was seized vide memo Ex.PW27/P and pulanda of Ballu was seized vide memo Ex.PW27/Q and the seal after used was handed over to HC Harpal. He has further deposed that the accused also pointed out the place occurrence i.e. C-323, JJ Colony, Uttam Nagar, Near Aman Sweets, near Fauji Dhaba, Shani Bazar, Pointing out memo of Ballu is Ex.PW27/R, pointing out memo of Guddu is Ex.PW27/S, pointing out memo of Kalim is Ex.PW27/T and pointing out memo of Arif Ahmed is Ex.PW27/U. The witness has also deposed that Ct. Manoj and HC Ashok were also called at the spot who came in a TATA 407 and thereafter accused were taken to DDU Hospital because Mohd. Guddu, Kalim and Arif Ahmed were having injuries on their hands and they told that they sustained injuries when they were giving blows to Nandu with the help of Glass. According to him, after completing the investigation the accused were brought to the police station and the pulandas were deposited in the malkhana.
He has further proved that on 16.4.2007 accused Narender had surrendered in the court of Sh. Dig Vinay Singh, Ld. MM and after taking the permission, Narender was arrested vide arrest memo Ex.PW17/A and his personal search was conducted vide memo Ex.PW17/B and he made disclosure statement which is Ex.PW17/C and clothes of Narender were also put up into a pulanda and sealed with the seal of HPS and seized vide memo Ex.PW17/D after which the accused Narender was produced for TIP in the court of Sh. Puran Chand, Ld. MM, Rohini Courts, Delhi where he refused to participate in the Test St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 35 Identification Parade, the application for TIP is Ex.PW28/H and the Test Identification Parade proceedings are collectively Ex.PW28/J. The witness has further proved that on 24.04.2004 accused Kalim, Guddu, Arif and Ballu were produce for Judicial Test Identification Parade, the application for Test Identification Parade which was moved on 07.04.2007, is Ex.PW28/K and the Test Identification Parade proceedings are collectively Ex.PW28/L wherein and all the accused refused to participate. He has further deposed that on 29.04.2004 the pullanda containing broken pieces of glass for taking the opinion from the Atopsy Surgeon who gave his opinion which is Ex.PW14/D. According to him, on 30.04.2007 on his instruction Ct. Rajender took 13 sealed pulanda and one more sealed pulanda containing Viscera for depositing in FSL vide RC no. 36/21/07 and 37/21/07 dated 30.04.2007 alongwith FSL form but the same could not be deposited due to rush and thereafter he re-deposited the same with the MHC(M). He has also deposed that on 03.05.2007 on his instructions HC Rajneesh took 13 sealed pulanda from MHC(M) for depositing in FSL vide RC no. 39/21/07 dated 03.05.2007 alongwith FSL form and accordingly he deposited the same with the FSL and thereafter deposited the receipt with the MHC(M). Further, on 4.5.2007 pulanda containing viscera was sent to FSL through Ct. Umesh and thereafter he deposited the receipt with the MHC(M). He has testified that on 06.05.2007 SI Mahesh Kumar took rough notes and measurement for preparing the scaled site plan and later on he handed over the same to him. According to him, after completing the investigation charge sheet against Ballu, Kalim, Gullu and Arif were initially filed before the Ld. Juvenile Justice Board and charge sheet of accused Narender was filed before Ld. MM but later on accused Mohd. Guddu and Arif were sent to regular court.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 36He has proved having collected the FSL result which is Ex.PX and filed in the court and that on 05.04.2007 he also seized blood stained clothes of Kishan Lal i.e. one T. Shirt and one pent after putting the same into a pulanda vide memo Ex.PW4/B. The clothes of Phool Chand i.e. one shirt and one pant which were blood stained were also seized vide memo Ex.PW3/A. The witness has correctly identified the accused Narender, Mohd. Guddu and Arif in the court as well as the case property produced in the court.
In his cross-examination the witness has deposed that Fauzi Dhaba is at a distance of 20 steps from the spot where in the injured was lying and there are some shops between Fausi Dhaba and the spot. He has admitted that it is a thickly populated area and lot of people move and passed by on this road. He has also admitted that DD No. 44A dated 4.4.2007 indicated that the quarrel had taken place at Maharani Enclave, Sharma Nursing Home and Model School situated at Hastsal. He has also admitted that in DD no. 3A dated 6.4.2007 the timings of arrest is mentioned at 9:30 am but states that it is not 9:30 am but it is 9:30 pm. He has denied the various suggestions put by the Ld. counsels for the accused persons.
Statement of accused/ defence witness:
After completion of prosecution evidence the statements of all the accused were recorded under Section 313 Cr.P.C. wherein all incriminating evidence has been put to them which they have denied. The accused Mohd. Guddu has examined his father Mohd. Usarat in his defence.
DW1 Mohd. Usarat has deposed that on 5.4.2007 when he came from his workplace, two police official in civil dress came and told St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 37 him that SHO had called him after which he went to police station at about 8:00 pm where he waited for about one hour and thereafter he was asked about his son Guddu. According to the witness, on 6.4.2007 when he was taking meals with his son at about 8 pm again two police officials came and took him and his son to police station where SHO told him that the name of his son had come in a murder case. He has deposed that IO of the case got certain blank papers signed from him and inform that his son has been arrested in the present case.
In his cross-examination the witness has deposed that he did not make any entry in the police station showing that he had gone to the police station on 5.4.2007. He has also admitted that he did not make any complaint to any senior police officer or court regarding lifting on his son on 6.4.2007.
FINDINGS:
I have carefully perused the record along with the written synopsis of arguments filed by both the parties. I propose to first deal with all the allegations/ averments individually in a tabulated form and later on comprehensively.
Sr. Name of the Details of deposition No. witness EYE WITNESSES/ PUBLIC WITNESSES
1. Kishan Lal (PW4) He is the father of the deceased and the eye witness to the incident. He has proved the following:
1. That on 4.4.2007 at about 9:30 pm one Ballu came to his house and told his son Nandu that some boys of B Block were calling him.
2. That Nandu went away with Ballu despite his advise.St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 38
3. That at about 10.30 pm his brother Phool chand came to him and informed that some boys of B Block were beating Nandu near a Juice Shop.
4. That he went to the spot on his motorcycle and Phool Chand followed on another motorcycle.
5. That when he reached the spot he saw that his son was lying on floor, Ballu was holding him by hairs, Narinder was holding him by feet, Kalim was holding by the hand and Guddu who was having a broken glass tumbler was hitting Nandu on his neck and side of the neck while accused Arif Ahmed was standing at a little distance.
6. That he and his brother Phool Chand took Nandu to DDU Hospital on the motorcycle brought by Phool Chand, where Nandu was declared brought dead.
7. That his clothes had got stained with the blood of his son (deceased) which were seized by the police vide memo Ex.PW4/B. The above witness has correctly identified the accused Narender Kumar, Mohd. Guddu and Arif Ahmed and attributed the specific role to them. He has also deposed that the deceased Nandu was an accused in a murder case and the present accused are friends of the deceased in the said case and had threatened his son that they would hill him. He has proved the following documents.
PW4/A His own statement on the basis of which
the FIR was registered.
PW4/B Seizure of his blood stained clothes
PW4/C Seizure of blood, pieces of small stones
and glass pieces
PW4/D Statement regarding identification of dead
body of his son.
2. Phool Chand He is the uncle of deceased Nandu, who had informed
(PW3) PW4 Kishan Lal regarding the incident. He has
proved the following:
1. That on 5.4.2007 (wrongly mentioned as 5.4.2007 instead of 4.4.2007) at about 11:00 pm, one Harpreet who lived opposite the parking slot came and told him that his nephew Nandu was being beaten by some boys.
2. That he informed his brother Kishan Lal after which both of them reached Fauzi Dhaba.St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 39
3. That he reached the spot on a motorcycle owned by his friend Manish whereas Kishan lal went on a different motorcycle.
4. That he found Nandu lying in an injured condition at the spot.
5. That he and his brother Kishna Lal took the injured to DDU Hospital on the motorcycle driven by him.
6. That when he was shifting the deceased on his motorcycle, his clothes were stained by blood of deceased Nandu which were seized by the police vide memo Ex.PW3/A. The said witness has turned hostile on the identity of the accused persons. He has been confronted with his statement Ex.PW3/DA but he has denied having seen the incident or the accused persons.
3. Radhey Shyam This witness has identified the dead body of his (PW2) nephew Nandu vide his statement Ex.PW2/A and after postmortem the dead body was handed over to him.
4. Jaffar Ali (PW7) This witness was having a Sugarcane Juice Shop at C-
404, JJ Colony, Hastsal, Uttam Nagar and has proved the following:
1. That he left his shop at about 9:30 pm to have dinner and returned at about 11:15 pm when he saw that five glass tumblers were missing from his Thiya.
2. That he also saw some broken glass pieces of the tumblers were lying on the road opposite his Thiya about 4-5 feet away from his machine and three of the missing glasses were of small size and two were of large size.
3. That the glass pieces were of his tumbler with which the deceased had been attacked.
5. Manish Kumar This witness is the friend of Phool Chand who has (PW8) given his motorcycle to Phool Chand, one hour prior to the incident:
1. That on 4.4.2007 at about 10:45/ 11:00 pm he came to know that an occurrence had taken place wherein one Nand Kishore @ Nandu had received injuries.
2. That he reached the spot where he found Nandu lying in a pool of blood and pieces of glass were lying around him.St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 40
3. That he called up PCR at 100 number from his mobile phone bearing no. 9313522370 intimating that a person had been stabbed since the nature of injuries seen sharp and Nandu was bleeding all over.
4. That Kishan Lal father of the deceased and Phool Singh were already present at the spot.
5. That Kishan Lal reached on his own motorcycle and Phool Chand had reached on his (Manish Kumar's) motorcycle and both of them took Nandu to hospital on his motorcycle driven by Phool Singh and Kishan Lal held Nandu in his lap.
6. That the motorcycle bearing no. DL-9SU-7799 owned by his brother Sunil Kumar was borrowed by Phool Singh from him.
MEDICAL WITNESSES:
6. Dr. Bhawna She has proved having examined the patient Nand (PW5) Kishore on 4.4.2007 at about 11:40 pm. She has proved that the patient was unconscious and not responding to Deep, Painful Stimulus, pulse was not pulpable, BP was not recordable and there were three stab wounds and two incised wounds over the body of patient and the patient was declared brought dead. She has proved the MLC of Nandu which is Ex.PW5/A.
7. Dr. Ajay Sharma This witness has medically examined the accused (PW6) Kalim (Juvenile), Arif Ahmed vide MLCs Ex.PW6/A and Ex.PW6/B respectively. He has also proved the MLCs of accused Mohd. Guddu and Ballu (juvenile) who had received injuries on their hands while inflicting glass blows to the deceased, which are Ex.PW6/C & PW6/D.
8. Dr. Amit Kumar This witness has proved having conducted the (PW14) postmortem on the dead body of Nandu which report is Ex.PW14/A. According to this witness, the cause of death is hemorrhagic shock consequent upon injuries to left lung and heart which are sufficient to cause death in ordinary course of nature. He has also proved his opinion on the articles/ alleged weapon of offence which report is Ex.PW14/D wherein he has opined that the injury no. 1,2,3,4,5,8 & 9 could have been caused by the articles/ alleged weapon of offence (broken pieces of glass tumbles) or similar articles.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 41POLICE WITNESS (Proving investigations)
9. ASI Balbir Singh He is a formal witness and was posted at Central (PW1) Police Control Room. He has proved having received an information from telephone no.9313522370 on 4.4.2007 which he recorded in Form No.4 which is Ex.PW1/A.
10. HC Jai Bhagwan He is a formal witness being the motorcycle rider who (PW9) has proved having delivered the copy of FIR at the residence of Ld. Ilaka Magistrate vide Ex.PW9/A, Assistant Commissioner of Police, Deputy Commissioner of Police and Joint Commissioner of Police.
11. Ct. Manoj (PW10) He is a formal witness who has proved having medically examined the accused Mohd. Guddu on 5.4.2007 and collected the MLC Ex.PW6/C.
12. Ct. Rakesh Kumar He is a formal witness who has proved having visited (PW11) the spot alongwith ASI Jai Prakash and thereafter hospital where Inspector Suresh Chand recorded the statement of Kishan Lal and prepared the rukka which was handed over to him. He has proved that he went to the police station and got recorded the FIR and returned back at the spot alongwith original rukka and copy of FIR which he handed over to Inspector Suresh Chand.
13. SI Jai Prakash He has proved having received the DD No.51 (PW12) regarding quarrel and stabbing incident after which he alongwith Ct. Rakesh went to the spot and they came to know that the injured had been shifted to hospital. According to him, after some time ASI Mamur Khan alongwith staff also reached the spot after which they reached at DDU Hospital whereas ASI Mamur Khan remained at the spot. At hospital they obtained the MLC of deceased Nand Kishore and noticed the injuries on the neck and back of the body. Thereafter Inspector Suresh Chand reached hospital and also inspected the dead body. He has proved that the statement of Kishan Lal was recorded by the investigating officer in his presence and Ct. Rakesh was sent to police station for registration of the case. According to the witness, thereafter they reached back to the spot where the exhibits of this case were collected and the blood stained clothes of Kishan Lal and Phool Chand were seized.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 4214. SI Mahesh Kumar He has proved having prepared the scaled site plan (PW13) Ex.PW13/A on the basis of rough notes & measurement which he took from the spot.
15. HC Murari Lal He is a formal witness who has proved having (PW15) collected one pullanda on 28.4.2007 from MHC(M) to DDU Hospital but the doctor did not receive the same and therefore, he again taken the said pullanda to DDU Hospital. He handed over the said pullanda to Dr. Amit who open the same in his presence and certain glass pieces were taken out some of which were having blood stains. According to the witness, the doctor put the glass pieces in one glass jar and covered it with a while cloth and put it in a polythene bag and handed over to the IO.
16. HC Jaiveer Singh He has proved having taken the photographs of the (PW16) spot negatives of which are Ex.PW16/A1 to A6 and the photographs are Ex.PW16/A7 to A12.
17. HC Rajnish Kumar This witness has joined the investigations with (PW17) Inspector Suresh Chand and HC Harpal on 5.4.2007 when a secret information was received regarding the presence of accused persons in Ambedkar Stadium. He has proved the apprehension of accused Kalim (juvenile), Mohd. Guddu, Ballu (juvenile) and Mohd. Arif. He has proved their arrest memos, personal search memos, disclosure statements, pointing out memos and seizure of their clothes. He has also proved the arrest of accused Narender Kumar who had surrendered before the court on 16.4.2007. He has also proved having taken the 13 pullandas from the MHC(M) for depositing in FSL which he deposited with the FSL. He has identified the accused Mohd. Arif, Narender and Mohd. Guddu as well as the case property in the court.
18. HC Daulat Singh He is a formal witness has proved the FIR No. 174/06, (PW18) PS Uttam Nagar Under Section 302/34 IPC copy of which is Ex.PW18/A in which the deceased Nandu was an accused and was out on bail.
19. HC Anil Kumar He is a formal witness being the DD writer. He has (PW19) proved that on 4.4.2007 at about 8:32 pm he received an information from the wireless operator regarding a quarrel which he recorded vide DD No.44A which is Ex.PW19/A. He has proved the various DD entries which are Ex.PW19/B to Ex.PW19/E. St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 43
20. SI Mamur Khan He is the witness who has proved that on 4.4.2007 he (PW20) received an information regarding a quarrel and stabbing incident at Shani Bazar, Kali Basti at C Block. He alongwith Ct. Rajender reached at the spot where they found a lot of blood and he came to know that the injured was taken to hospital. ASI Jai Prakash who was already present there, left him at the spot and and went away to DDU Hospital. According to him, Inspector Suresh Chand also reached the spot and instructed him to remain at the spot and at about 11:30 pm crime team also reached the spot and inspected the spot in his presence and prepared their report which he in-turn handed over to the investigating officer.
21. HC Sri Ram He is the Duty Officer who has proved having (PW21) recorded the FIR No. 293/07 under Section 302/34 IPC copy of which is Ex.PW21/A. He has also proved the various DD entries which are Ex.PW21/B to PW21/E. According to the witness, he also dictated the said FIR to the computer operator and a print out of the same which is Ex.PW9/A was given to HC Jai Singh for delivery to Senior Officers of the police and Ld. MM.
22. Ct. Shiv Shanker He is the DD writer and has proved having recorded (PW22) the DD on 16.4.2007 that Inspector Suresh Chand left for Rohini Courts to the court of Sh. Dig Vinay Singh, Ld. MM alongwith Ct. Murari Lal and HC Rajneesh, copy of which DD is Ex.PW22/A.
23. ASI Satbir Singh He is the MHC(M) who has proved that various (PW23) pullandas were deposited on different dates.
24. Lady Ct. He is a witness who has proved that on 5.4.2007 Shakuntala Inspector Suresh Chand himself recorded DD No.40 (PW24) regarding his arrival in the police station which DD No.40 is Ex.PW24/A.
25. Ct. Umesh He is a witness who has proved that on 5.4.2007 he (PW25) took one pullanda for depositing in FSL Rohini and after depositing the said pullanda he reported the receipt with the MHC(M).
26. Ct. Birbal (PW26) This witness has proved that Inspector Suresh Chand recorded the DD No. 61 and 62B in the DD register regarding his arrival and departure, copy of which are Ex.PW26/A and Ex.PW26/B. St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 44
27. HC Rajender This witness has joined the investigations with (PW27) Inspector Suresh along with HC Harpal and HC Rajneesh. He has proved the arrest of accused Mohd. Guddu, Mohd. Arif, Ballu and Kalim (both Juveniles) and their disclosure statements, personal search memos and pointing out memos. He has identified the accused as well as the case property in the court. He has also proved that on 30.4.2007 he took sealed 13 pullandas and one more pullanda alongwith FSL form but the same could not be deposited due to rush and thereafter he re-deposited the same with the MHC(M).
28. Inspector Suresh He is the investigating officer of the present case and Chand (PW28) has proved the various investigations proceedings conducted by him.
I now come to the microscopic examination of evidence against the various accused persons individually. Evidence against the accused Mohd. Arif:
I have gone through the written synopsis of arguments filed on behalf of the parties and also the evidence on record. At the very outset, I may observe that it is evident from the record that the accused Arif Ahmed has not been named in the First Information Report. PW4- Kishan Lal who is the father of the deceased has admitted in his testimony before this court that he has not named the accused Arif Ahmed who was known to him even prior to the date of incident as he is residing in the same gali, in his first statement made to the police which is Ex.PW4/A. Even in his testimony before the court PW4-Kishan Lal has not attributed any role to Arif Ahmed except that he was the boy who was standing at a distance. The accused Arif Ahmed has not been named as assailant which fact PW4 has also admitted. None of the other eye witnesses have named the accused Arif Ahmed and PW3 Phool Chand who is the uncle of the deceased, has not identified the accused. The prosecution has failed to bring on record any incriminating evidence St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 45 against the accused Arif Ahmed and therefore, under these circumstances, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Arif Ahmed. The accused Arif Ahmed is hereby acquitted of the charges under Section 302/ 34 Indian Penal Code.
Evidence against the accused Narender Kumar and Mohd. Guddu:
In so far as the accused Narender Kumar and Mohd. Guddu are concerned, the case of the prosecution is that the deceased Nandu was an accused in the case of murder of one Deepak in FIR No.174/06, PS Uttam Nagar, under Section 302/34 Indian Penal Code and was on bail in the said case due to which the accused persons being the friends of deceased Deepak had been nurturing a grudge against the deceased Nandu and threatening him. It is alleged that in pursuance to the aforesaid on the date of incident i.e. 4.4.2007 the accused Ballu (Juvenile) called Nandu out from his house where the accused Narender Kumar, Mohd. Guddu, Arif Ahmed alongwith their co-accused Ballu and Kaleem (facing separate trial being juvenile) attacked Nandu with broken glass tumbler as a result of which Nandu expired. During this process when the accused Mohd. Guddu had attacked Nandu with broken glass tumbler, he had also received injuries on his hands.
PW4 Kishan Lal the father of the deceased is the most material witness of the prosecution being an eye witness to the incident who has supported the entire case of the prosecution and has in his oral testimony proved the following:
1. That on 4.4.2007 at about 9:30 pm the accused Ballu came to his house and told his son Nandu that some boys of B Block were calling him.St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 46
2. That his son Nandu (deceased), despite his advise, went away with Ballu (juvenile accused).
3. That at about 10:30 pm he received an information from his brother Phool Chand that some boys were beating his son Nandu on which he went to the spot on his motorcycle.
4. That his brother Phool Chand followed on another motorcycle.
5. When he reached the spot he found that his son Nandu was lying on the floor.
6. He saw that the accused Ballu was holding Nandu with his hairs, Narender was holding the feet of Nandu, Kalim was holding Nandu with his hands and the accused Guddu who was holding a broken glass tumbler, hitting Nandu on his neck and side of the back whereas accused Arif Ahmed was standing at some distance whom he has correctly identified.
7. He immediately picked up his son Nandu and put him on a motorcycle which was driven by Phool Chand and both of them took Nandu to DDU Hospital where he was declared brought dead.
8. That his blood stained clothes and also the clothes of his brother Phool Chand were seized by the police which he has dulyidentified in the court.
PW3-Phool Chand the uncle of the deceased has turned hostile only on the identity of the accused persons. He has deposed that he is not an eye witness to the incident and on the date of incident but had received an information from one Harpreet who lives opposite the parking slot that Nandu was being beaten by some boys. According to Phool Chand he took his motorcycle which he had borrowed from his friend Manish and went to the spot and the father of the deceased Sh.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 47Kishan Lal also reached on his motorcycle where he found his nephew lying in a pool of blood on which he along with his brother Kishan Lal took Nandu to DDU Hospital on the said motorcycle where he was declared brought dead. He has proved the following aspects and also corroborated the testimony of PW4 Kishan Lal on material particulars as under:
1. That he received information from one Harpreet Singh who lived opposite the parking slot, that his nephew Nandu was being beaten by some boys.
2. That he went to the house of his brother Kishan Lal and communicated this fact to him.
3. That his brother Kishan Lal went to the spot on his motorcycle and he went to the spot on the motorcycle owned by his friend Manish.
4. On reaching the spot he and his brother picked up Nandu and while he drove the motorcycle his brother sat behind him alongwith Nandu and rushed him to DDU Hospital.
5. On reaching DDU Hospital Nandu was declared brought dead by the doctor.
6. That his blood stained clothes and the blood stained clothes of his brother Kishan Lal were seized by the police which he has duly identified in the court.
This witness Phool Chand has turned hostile on the aspect that he had seen the incident and also on the presence of accused when he reached the spot. It is a settled law that even the testimony of a hostile witness can be read into evidence to the extent it support the case of the prosecution. In the present case the statement of Phool Chand to the extent that it establishes the presence of Kishan Lal at the time of incident and also to the extent it corroborates the oral testimony of other St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 48 witnesses, can always be read into evidence.
PW8-Manish Kumar who is a friend of Phool Chand and has a shop in the area also corroborates the testimony of PW3 and PW4 on the following aspects:
1. That Phool Chand has taken his motorcycle one hour prior to the incident.
2. That on 4.4.2007 at about 10:45/ 11:00 pm he was present at his shop and he came to know that Nandu had received injuries.
3. That he immediately went to the spot and saw that Nandu was lying a pool of blood and pieces of glass were lying scattered.
4. That he immediately called the PCR from his mobile no.
9313522370 (owned by his brother Sunil Kumar) informing them about the stabbing incident.
5. That in his presence Phool Chand and Kishan Lal picked up the injured Nandu and carried him to the hospital on his motorcycle.
It is evident from the testimony of this witness that the presence of Kishan Lal and Phool Chand at the spot stands established.
PW7 Jaffar Ali has completed the sequence of the events and has proved the following:
1. That he is having a juice shop in the area.
2. That on the date of incident he left his shop at about 9:30 pm to have dinner and returned at about 11:15 pm when he saw that five glass tumblers were missing three of which were of small size and two were of large size.
3. That he saw the broken glass pieces of these tumblers were lying on the road (This is the same place where the incident had taken place and Nandu had been hit by broken piece of glass tumblers as a result of which he scummed injuries).St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 49
The Hon'ble Supreme Court in the case of Bantu Vs. State of Uttar Pradesh reported in 2008 (11) SCC 113, has observed that:
"......... For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed ............"
Applying these settled principles of law to the facts of the present case, it is evident that Firstly the accused persons are residents of the same area and were known to the family of the deceased and therefore, Kishan Lal the father of the deceased could identify the boys who were attacking his son. In his statement Ex.PW4/A, on the basis of which the First Information Report was registered at 2:30 am, Kishan Lal (PW4) has specifically named the accused Narender Kumar and Mohd. Guddu and also specified the role attributed to both the accused. (Kalim and Ballu being juveniles are being tried separately and hence St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 50 their role has not been specifically discussed). Kishan Lal has proved that Narender caught hold the legs of the deceased while accused Mohd. Guddu was having a glass tumbler in his hand and was hitting Nandu on his neck and side on which he raised a hue and cry by and all the 4 persons ran away. Blood stained clothes of Phool Chand and Kishan Lal were seized by the police. The seizure memo of the clothes of Phool Chand is Ex.PW3/A which he has duly identified and similarly the seizure memo of the clothes of Kishan Lal is Ex.PW4/B which he has duly proved. PW4-Kishan Lal has proved his statement made to the police which is Ex.PW4/A on the basis of which the First Information Report was registered. The First Information Report has been registered without any delay and therefore, the authenticity of the same cannot be doubted.
Secondly it is evident from the testimonies of PW3 & PW4 that both Kishan Lal and Phool Chand went to the spot on separate motorcycles and therefore, under these circumstances, the possibility of Kishan Lal having reached a few minutes earlier to Phool Chand cannot be ruled out for which reason he (Kishan Lal) witnessed the entire incident of stabbing which must have lasted for a few minutes only and Phool Chand only witnessed the deceased lying at the spot after which he and his brother Kishan Lal took Nandu to DDU Hospital.
Thirdly PW7-Jaffar Ali who is having a sugarcane juice shop in the area has proved that the glass tumblers which were used as weapon of offence by the accused persons after breaking them into pieces, were missing from his shop which pieces of glass tumbler he has identified as lying at the spot when he returned.
Fourthly PW5-Dr. Bhawna has proved the MLC of the deceased which is Ex.PW5/A showing that he was brought to the St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 51 hospital by his father and there were as many as 5 injuries on the body of the deceased on which three were stab injuries and two were incised wound. Dr. Amit Kumar who has been examined as PW14 has proved the postmortem report of the deceased which is Ex.PW14/A showing that there were as many as 9 external injuries and three injuries were internal. He has also proved his opinion on the weapon of offence which opinion is Ex.PW14/D wherein he has specifically opined that the injuries no.1,2,3,4,5,8 and 9 could have been caused by the articles/ alleged weapon of offence (broken pieces of glass tumbles) or similar articles. The witness has in his cross-examination stated that no injury has been caused by knife and for some of the injuries the weapon could be a dagger of a long piece of broken glass (about 10 cm long) and for some of the other injuries the weapon of offence could be a glass tumbler. Ld. counsels appearing on behalf of the accused have argued that it would be evident from the first call made to the Police Control Room by Manish Kumar that stab injuries had been caused to the deceased. The witness PW8-Manish Kumar has proved that that it was he who had made a call to the PCR and has deposed that on reaching the spot when he saw that Nandu was lying in pool of blood on the road and he thought that the injuries were caused by knife. Therefore, Manish Kumar the public person had given the first information to the police on the basis of his perception of what was seen by him. No benefit can be given to the accused for the same.
Fifthly the common intention of the accused Narender Kumar can be inferred from the fact that he caught hold the feet of the deceased Nandu while Mohd. Guddu was inflicting the injuries upon the deceased. Mohd. Guddu has examined his father Mohd. Usrat as his own witness who has testified that on 6.4.2007 it was he who had St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 52 surrendered his son in the police station. I have gone through the testimony of Mohd. Usrat and I do not find any merit in the ground raised by him with regard to manipulation of the story of arrest of his son Mohd. Guddu on 6.4.2007 in view of the fact that he has admitted that he did not make any complaint to any senior officer or to the court with regard to the lifting of his son on 6.4.2007. More over it is evident from the MLC of Mohd. Guddu which is Ex.PW6/C that during the said incident he himself had suffered certain abrasions with scars on the left hand dorsal region which MLC has been duly proved by Dr. Ajay Sharma who has been examined as PW6. Dr. Ajay Sharma has specifically denied the suggestion that the injuries caused were more than one day old. Therefore, the presence of accused Mohd. Guddu at the spot and his involvement in the incident also stands established from the aforesaid.
Lastly in the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 53
Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
So far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 54 can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. Courts should, however, bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 55 the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 56 psychological defence mechanism activated on the moment.
Applying the aforesaid settled principles to the facts of the present case, it is evident that the prosecution has been able to establish the sequence of events in so far as accused Narender and Mohd. Guddu are concerned. Both the accused were arrested on 5.4.2006 one day after the incident and the testimonies of PW17 HC Rajneesh Kumar, PW27 HC Rajender Singh and PW28 Inspector Suresh Chand are categorical in this regard. They have corroborated each other on material particulars and discrepancies in their statements are only minor. A secret information was received by them with regard to the presence of the accused persons in Ambedkar Stadium. The DD entry with regard to their departure from the police station has been duly proved in the court and it has been proved that Ct. Rajender apprehended the accused Mohd. Guddu; HC Rajneesh apprehended the accused Kalim; HC Harpal apprehended the accused Ballu and Inspector Surech Chand apprehended the accused Arif Ahmed. In so far as the accused Narender is concerned, he had surrendered in the court of Sh. Dig Vinay Singh, the then Ld. MM on 16.4.2007 after which he was arrested. The glass pieces/ tumblers which were lifted by the investigating officer from the spot and has been duly proved by PW4 Kishan Lal who has identified his signatures on the various documents prepared by the investigating officer and also by PW12 SI Jai Prakash, PW11 Ct. Rakesh Kumar and PW28 Inspector Suresh Chand. The MHC(M) who has been examined as PW23 has proved that the investigating officer had taken these articles from the Malkhana which articles were sent to DDU Hospital for opinion of the doctor which opinion has been duly proved by PW14 Dr. Amit Kumar wherein he has specifically stated that the injuries had been St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 57 caused by blunt force impact and sharp edged weapon. He has duly proved that the cause of death in the present case was due to haemorrhagic shock consequent upon injuries to left lung and heart which are sufficient to cause death in the ordinary course of nature bringing the act of the accused persons within the purview of Section 300 Indian Penal Code punishable under Section 302 Indian Penal Code.
I, therefore, hold that the prosecution has been able to prove and substantiate the charges under Section 302 read with 34 Indian Penal Code against the accused Narender Kumar and Mohd. Guddu.
CONCLUSION:
In view of my aforesaid findings, the accused Arif Ahmed is acquitted of the charges under Section 302/ 34 Indian Penal Code. He be released if not wanted in any other case. The accused Narender Kumar and Mohd. Guddu are hereby held guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code and are accordingly convicted.
Case be listed for arguments on sentence on 3.8.2010.
Announced in the open court (Dr. KAMINI LAU) Dated: 24.7.2010 ASJ-II(NW): ROHINI St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 58 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST):ROHINI COURTS:DELHI Session Case No. 824/2007 Unique Case ID No. 02404R0336392007 State Vs. (1) Narender Kumar S/o Sh. Kashmiri Lal R/o C-581, J.J. Colony, Hastsal, Uttam Nagar, Delhi. (2) Mohd. Guddu S/o Urasat R/o C-837, JJ Colony, Hastsal, Uttam Nagar, Delhi. FIR No.: 293/2007 Police Station: Uttam Nagar Under Section : 302/34 Indian Penal Code Date of Judgment: 24.7.2010 Arguments heard on: 12.8.2010 Date of sentence: 18.8.2010 ORDER ON SENTENCE:
Vide my detailed judgment dated 24.7.2010, the accused Narender Kumar and Mohd. Guddu have been held guilty of the offence under Section 302 Indian Penal Code.
The case of the prosecution is that accused Narender Kumar, Mohd. Guddu and Airf Ahmed alongwith their co-accused Ballu and Kalim (both juveniles) committed the murder of one Nand Kishore @ Nandu on 4.4.2007. The facts in the present case are not less than that of story of a bollywood pot boiler. One Deepak who was a friend of St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 59 Narender Kumar and Mohd. Guddu the accused before this court, was murdered in the year 2006, allegedly by Nand Kishore @ Nandu. An FIR bearing No. 174/06, PS Uttam Nagar, Under Section 302/34 IPC was registered in respect of the said incident and during the trial of the said case Nand Kishore @ Nandu managed to secure a bail and walked free. Narender Kumar and Mohd. Guddu alongwith Ballu and Kailm (both juveniles) who were friends of the deceased Deepak were greatly aggrieved by this fact and therefore, in order to avenge the killing of their friend Deepak, they on the date of incident i.e. 4.4.2007, sent Ballu (juvenile) to the house of Nand Kishore to call him to the spot. Kishan Lal father of Nandu tried to stop him from going but despite his advise Nandu accompanied Ballu to the spot where the accused before this court Narender Kumar and Mohd. Guddu attacked him with broken glass tumblers which tumblers they had picked up from the shop of Jaffar Ali. Nand Kishore @ Nandu was given multiple blows with the help of sharp edged glass of broken tumblers as a a result of which he died on account of haemorrhagic shock. While Narender Kumar and Mohd. Guddu were attacking the deceased Nand Kishore @ Nandu, his father Kishan Lal reached the spot and saw the incident when he tried to stop the accused but on seeing him they ran away. Nand Kishore @ Nandu was immediately picked up by his father and uncle Phool Chand and was taken to DDU Hospital on a motorcycle where he was declared brought dead. This being the background of the case, both the accused Narender Kumar and Mohd. Guddu had been held guilty of the offence under Section 302 read with Section 34 Indian Penal Code. The prosecution, however, failed to prove its case against the accused Mohd. Arif who has been acquitted.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 60I have heard the submissions made by the Ld. Addl. Public Prosecutor and counsels for the convicts on the point of sentence. Ld. counsel appearing on behalf of the convict submit that the convict Narender Kumar is a young boy of 26 years and has a family comprising of aged parents, one brother and one unmarried sister. He is 9th class pass and was doing the work of embroidery. Ld. counsel has argued that the convict Narender Kumar is a first time offender and has no previous involvement and is in judicial custody w.e.f. 16.4.2007.
It is argued by the Ld. counsel for the convict Mohd. Guddu that he is a young boy of 24 years having a family comprising of father, four unmarried brothers and three unmarried sisters. He is 6th class pass and is a Barber by profession. According to the Ld. counsel the convict Mohd. Guddu is in judicial custody w.e.f. 6.4.2007. Ld. counsels for the accused submits that keeping in view the young age of the convicts, they be treated with mercy.
Ld. Addl. PP for the State on the other hand has pleaded for a strict punishment for both the convicts on the ground the murder of Nand Kishore @ Nandu had been committed in cold blood by the convicts Narender Kumar and Mohd. Guddu in order to take revenge of the murder of their friend Deepak. Ld. Addl. PP has pointed out that the convict Mohd. Guddu was involved in another case bearing FIR No. 469/06, PS Uttam Nagar under Section 377 Indian Penal Code though he conceeds that he has been acquitted in the said case and no other case is pending against him. The Ld. Special Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 61 alternative before this court but to impose death sentence upon the convicts. It is also stated that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.
The necessity of there being a proportion between the offences and punishment has been long felt. However off late various judgments of the higher courts of the land and various jurists have tried to provide certain rules to this moral arithmetic.
(i) The punishment sought to be inflicted for any given offence should be such that the evil of the punishment must be made to exceed the advantage of the offence.
ii) The more deficient in certainty a punishment is, the severer it should be.
iii) The greater an offence is, the greater reason there is to hazard a severe punishment for the chance of preventing it, and
iv) Same punishment for the same offence ought not to be inflicted upon all delinquents. It is necessary to pay some regard to the circumstances which effect sensibility.
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 62However, at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
I have considered the submissions made before me. Both the convicts are young boys and in order to avenge the death of their friend took law into their hands when the deceased Nandu an accused in the said case secured a bail. Both the accused are young boys and come from very poor families. They have no other case against them. No doubt, no person can be permitted to take law into his hands, yet the case in hand does not fall within the category of Rarest of Rare or least even in category of Rare Case.
In view of the aforesaid, I hereby sentence Narender Kumar and Mohd. Guddu to Rigorous Imprisonment for life and fine to the tune of Rs.25,000/- (Rs. Twenty Five Thousand) each for the offence under Section 302 Indian Penal Code. In default of payment of fine convicts shall undergo Simple Imprisonment for a period of three months each. The entire amount of fine of Rs.50,000/- (Rs. Twenty Five Thousand imposed upon each convict), if recovered, shall be paid to the family of the deceased Nand Kishore @ Nandu under Section 357 Cr.P.C. as compensation.
The convicts are already in judicial custody. They are sent to custody for serving the remaining sentence. Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period undergone by St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 63 them during the trial.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to all the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 18.8.2010 ASJ-II(NW): ROHINI
St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 64
18.8.2010
Present: Addl. PP for the State.
Sh. Anil Mehta, advocate for convict Narender Kumar. Sh. S.K. Sood, Advocate for Mohd. Guddu.
Vide my separate detailed order dictated and announced in the open court, the convict Narender Kumar and Mohd. Guddu are sentenced to Rigorous Imprisonment for life and fine to the tune of Rs.25,000/- (Rs. Twenty Five Thousand) each for the offence under Section 302 Indian Penal Code. In default of payment of fine convicts St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 65 shall undergo Simple Imprisonment for a period of three months each. The entire amount of fine of Rs.50,000/- (Rs. Twenty Five Thousand imposed upon each convict), if recovered, shall be paid to the family of the deceased Nand Kishore @ Nandu under Section 357 Cr.P.C. as compensation.
The convicts are already in judicial custody. They are sent to custody for serving the remaining sentence. Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period undergone by them during the trial.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to all the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJ-II(NW): 18.8.2010 St. Vs. Narender Etc., FIR No. 293/07, PS Uttam Nagar Page No. 66