Delhi District Court
Supreme Court Of India In State Of ... vs . Jeet Singh Sc 1991 on 10 June, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 55/1
Unique Identification No.02404R0006432007
State
Versus
1. Raju @ Vikas
S/o Hardwari
R/o Village Malikpura, District Aligarh,
UP, Vegabond Delhi,
2. Lala Mukhiya
S/o Jag Narain Mukhiya
R/o village Mahe Singhia
(Mool Gaon Mukhepur)
PS Singhia, District Samastipur (Bihar)
3. Dheeraj @ Dheeraj Jha @ Ram Charan Jha
S/o Padarth Jha @ Ganga Parshad Jha
R/o Village Basant Pur, Sobhan, PS Khan Pur,
District Samastipur, Bihar
FIR No.959/06
PS - Uttam Nagar
U/s. 304 Part-II read with Sec. 34 of IPC
Date of Decision: 08/06/2011
Date of Sentence: 10/06/2011
ORDER ON SENTENCE
10/06/2011
Present. Ld. Addl. PP for State.
All convicts in person with Sh. Aseem Bhardwaj, Amicus curiae for
all the convicts.
Heard on the point of sentence.
SC No. 55/1 1
Ld Amicus curiae submits that convict Lala Mukhiya is aged about
31 years. He is married and having three children including two daughters. He
was selling eggs on rehri and was earning Rs. 4000/- p.m.. He is the only bread
earner of his family. He is not a previous convict. Hence, a lenient view be taken.
Ld Amicus curiae further submits that convict Dheeraj @ Dheeraj
Jha is aged about 30 years. He is divorcee. He has old aged mother to support. He
was working as meson and was earning Rs. 150/- per day. He is the only bread
earner of his family. He is not a previous convict. Hence, a lenient view be taken.
Sh. Aseem Bhardwaj Amicus curiae for convict Raju @ Vikas submits
that convict Raju @ Vikas is aged about 25 years. He is unmarried and having
two elder brothers. He was selling etables on rehri. He is not a previous convict
Hence, a lenient view be taken.
On the other hand, learned Addl. PP has contended that all the three
convicts are habitual offenders and cases have been registered against them in PS
Uttam Nagar. Ld. Addl. PP has further contended that convicts have been
convicted for the offence U/s. 304 Part II read with Section 34 of IPC, which is
punishable with imprisonment which may extend to 10 years or with fine or with
both. So, appropriate sentence be awarded.
Considering the age, antecedents and characters of all the convicts,
sentence of four and a half years R.I. is imposed upon each convict with fine of
Rs. 2500 /- each. In default of payment of fine, each of the convict shall undergo
simple imprisonment for a period of six months.
Convict Lala Mukhiya is in custody from 30/11/2006 till today.
Convict Dheeraj is in custody from 08/06/2007 till today.
Convict Raju @ Vikas is in custody from 06/10/2006 till today.
Benefit U/s. 428 of Cr.PC be given to each of the convict.
SC No. 55/1 2
Fine not deposited by any of the convict.
All the three convicts are remanded to JC to serve the sentence.
Announced in Open Court on
dated 10th of June , 2011
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No. 55/1 3
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 55/1
Unique Identification No.02404R0006432007
State
Versus
1. Vikas @ Neta @ Tuntun (Juvenile)
S/o Mahender Singh
R/o Village Chamtha Lachhman Toll,
PS Bachhuara, District Begusarai, Bihar
2. Raju @ Vikas
S/o Hardwari
R/o Village Malikpura, District Aligarh,
UP, Vegabond Delhi,
3. Lala Mukhiya
S/o Jag Narain Mukhiya
R/o village Mahe Singhia
(Mool Gaon Mukhepur)
PS Singhia, District Samastipur (Bihar)
4. Dheeraj @ Dheeraj Jha @ Ram Charan Jha
S/o Padarth Jha @ Ganga Parshad Jha
R/o Village Basant Pur, Sobhan, PS Khan Pur,
District Samastipur, Bihar
FIR No.959/06
PS - Uttam Nagar
U/s. 302/34 of IPC
SC No. 55/1 4
Date of institution of the case: 21/01/2007
Arguments heard on: 06/06/2011
Date of reservation of order: 06/06/2011
Date of Decision: 08/06/2011
JUDGMENT
This case was registered on the statement of SI Jai Parkash u/s 302/34 of IPC against some boys, whose names were later on revealed as Vikas @ Neta, Raju @ Vikas and two of the boys were escaped from the spot.
During investigation, copy of DDs were collected. Rough site plan and scaled site were prepared. MLC of deceased Shambu was collected. Identification statement of the dead body were recorded. Postmortem on dead body was got conducted. Inquest papers were prepared. Sealed puallandas received from the hospital were also seized.
Disclosure statement of accused Vikram @ Neta and Raju @ Vikas were recorded. They were arrested in this case by preparing arrest memo and their personal search memos were also prepared.
Accused Lala Mukhia was also arrested in this case. His disclosure statement was recorded. He also pointed the place of occurrence. He was arrested in this case by preparing arrest memos and his personal search memo was aslo prepared. Accused Lala Mukhia was also put to Judicial TIP, but he refused to join the same. Statement of witnesses were recorded.
Later on accused Dheeraj was also arrested in this case by preparing memo. His personal search was conducted. Rough site plan was prepared. Accused Dheeraj also pointed the place of occurrence. His disclosure statement was recorded and he got recovered one danda i.e. weapon of offence, which was seized in this case. Accused Dheeraj was put to judicial TIP, but he refused to join the same.
SC No. 55/1 5On completion of evidence chargesheet was filed against accused Vikas @ Neta, Raju @ Vikas and Lala Mukhiya u/s 302/34 of IPC and supplementary chargesheet was filed against accused Dheeraj u/s 302/34 of IPC.
During trial FSL report was filed, which was taken on record. Case was committed to the Court of Sessions and was received on 15/02/07.
Charge u/s 302/34 of IPC was framed against accused Raju @ Vikas, Lala Mukhiya and Dheeraj @ Dheeraj Jha, to which they pleaded not guilty and claimed trial. Chargesheet against accused Vikas @ Neta was directed by Ld ASJ, Predecessor of this Court, to be filed before the juvenile court, vide order dated 26/03/2007.
To prove its case prosecution has examined PW1 to 31 in all. Statement of accused persons were recorded. All the accused persons denied the case of the prosecution. Accused Raju @ Vikas has stated in his statement that he is innocent and he has no role to play in the alleged incident in any manner. He was not even present at the said spot on the date and time. Further nothing was recovered from him or at his instance as alleged. He was forcibly removed from his house and was mercilessly beaten by local police and was later on shifted to DDU hospital. His signatures were taken on various blank papers and forms which were later on converted into various memos and documents including his alleged disclosure statement. He was shown to the public persons in the PS and his photographs were also clicked there.
Accused Lala Mukhia has stated in his statement that he is innocent. He has no role to play in the alleged incident in any manner. He was not even present at the said spot on the date and time. Further, nothing was recovered from him or at his instance as alleged. He was called by the local police from his village and was kept in wrongful confinement in the PS. Later on his custody was handed over to Delhi police officials. His signatures were taken on various blank papers and forms, which were later on converted into various memos and SC No. 55/1 6 documents including his alleged disclosure statement . He was shown to the public persons in the PS and his photographs were also clicked there.
Accused Dheeraj has stated in his statement that he is innocent. He has no role to play in the alleged incident in any manner. He was not even present at the said spot on the date and time. Further, nothing was recovered from him or at his instance as alleged. He was called by the local police from his village and was kept in wrongful confinement in the PS. Later on his custody was handed over to Delhi police officials. His signatures were taken on various blank papers and forms, which were later on converted into various memos and documents including his alleged disclosure statement . He was shown to the public persons in the PS and his photographs were also clicked there.
None of the accused has examined any defence witness.
I have heard Ld APP for State and Sh Aseem Bardhwaj, Ld Amicus Curiae for all the accused persons and have gone through the evidence on record and material placed on record.
Last seen evidence and identification of dead body.
In this respect, prosecution has examined PW1 Guddu Kumar Jha and PW2 Udai Kant Jha. PW1 Guddu Kumar Jha is brother of the deceased and has deposed that on 06/10/2006, he was working as labour with his father at Uttam Nagar, Mini Bus stand. On that day, in the evening, police took them to DDU hospital and he identified the dead body of his brother Shambhu in the hospital. His brother Shambhu was residing at B-72, Nanhe Park, Uttam Nagar with his wife. At that time, Vikas @ Neta and Raju were also present there. His brother Shambhu was ordered for extern from Delhi. Accused Dheeraj, Lala, Vikas @ Neta were the friends of his brother Shambhu and they were present at the time of commission of offence with him. As he saw them with his brother Shambhu in the morning, when he was going for his job and same was confirmed by Vikas @ Neta also. Accused Dheeraj is relative of PW1 Guddu, whereas SC No. 55/1 7 accused Lala was resident of village Scindia, Distt. Samastipur, Bihar. PW1 has further deposed that he knows all the accused persons prior to the offence. He has further stated that police recorded his statement Ex.PW1/A about the identification of body. After the postmortem, dead body was handed over to his father vide memo Ex.PW1/B. PW2 Udai Kant Jha has deposed that he was residing with his younger son Guddu Kumar Jha at Om Vihar and they were working at Mini Bus Stand, labour chowk. On 06/10/06, at about 9.00 am, his son Shambhu, Raju, Vikas @ Neta, Dheeraj and Lala were present at Metro Station. He knows all of them prior to the incident. Dheeraj is his relative and belongs to village Vasant Pur, Thana Khan Pur, Samastipur, Bihar. His son Shambhu was helping all the four boys by helping them for selling the stolen articles. His son Shambhu was ordered for extern from Delhi. PW2 Udai Kant Jha has further deposed that on the same day, police called him and his son Guddu Kumar and taken them to DDU hospital. He identified the dead body of his son Shambhu @ Langra. He was residing at B-71, Nanhe Park, Uttam Park with his wife. Police recorded his statement. PW2 has further identified accused Raju, Dheeraj and Lala in the court, who were seen by him with Shambhu near Metro Station. Police recorded his statement Ex.PW2/A regarding the identification of dead body and after postmortem dead body was handed over to him vide memo Ex.PW1/B. Ld. Defence Counsel has contended that PW1 Guddu Kumar Jha has stated that Vikas @ Neta had not confirmed that PW1 Guddu Kumar Jha had seen his brother Shambhu in the morning with them as accused Vikas @ Neta is not facing trial before this court.
Ld. Defence Counsel has further contended that in the cross examination, PW1 Guddu Kumar Jha has stated that he leaves for his work at about 5.00 am in the morning and returned back in the evening at about 6.00/7.00 pm. His deceased brother was wearing a light blue colour shirt on 06/10/2006, SC No. 55/1 8 when he was seen with Raju and Neta. Ld. Defence Counsel has further contended that PW1 has been confronted with his statement Ex. PW1/DA, where it is not recorded there that PW1 had seen Shambhu with the accused persons, while he was going for his work. So PW1, is a witness only to the identification of dead body and nothing more than that.
Ld. Defence Counsel has further contended that PW1 Guddu Kumar Jha has further submitted in the cross examination that he got the information of his brother's death at his room through police as he was resting on that day in his room because he was unwell. Which shows that he had not gone to his work on that day, so there was no occasion for PW1 to see the deceased Shambhu with accused persons in the morning on 06/10/06.
PW1 Guddu Kumar Jha has deposed that he received the information regarding death of his brother, when he was resting at his home because he was unwell. No inference can be drawn from the same that he had not gone out from his house in the morning as deposed by him and had not seen his brother Shambhu with accused persons.
PW1 has deposed that he saw his brother with the accused persons in the morning while he was going for his job. PW1 has explained in his cross examination that sometimes he used to returned after 2-3 hours also, so it could had happened that on the day of incident PW1 had returned within 2-3 hours being unwell, and he was resting in his house. So inference cannot be drawn that PW1 had not seen accused persons with his brother in the morning on 06/10/06. Accordingly, the contentions of Ld. Defence Counsel are not tenable in any manner.
According to PW11, HC Babu Lal, on 06/10/06, he was posted in PCR west zone Power-53 and was on duty between 8 am to 8.00 pm. At about 9.53 pm, his PCR van was stationed at Metro Station East Uttam Nagar. He received a call from control Room regarding a quarrel at Garhi Mohlla, Pradhan SC No. 55/1 9 wali Gali, Hastsal Village. He reached at the spot at 10.05 am with PCR. Public persons were present there and they produced two boys namely Vikas son of Mahender and Vikas Son of Arun. One boy was lying unconscious . He took both the boys and the unconscious boy to DDU hospital. Public persons also informed that two boys had fled away from the spot and that police officials of local police had gone to apprehend them. Boy, who was unconscious was declared brought dead by the doctor. So from the deposition of PW11 HC Babu Lal, it is clear that Shambhu was declared dead after 10.05 am. So, the police official might have informed PW1 Guddu Kumar Jha about the death of his brother Shambhu after he was declare brought dead.
PW2 Udai Kant Jha has also deposed that he had seen his son Shambhu with accused persons near Metro station at about 9.00 am. PW2 has stated fairly that his son Shambhu was helping the accused persons in selling the stolen articles and both PW1 and PW2 have admitted that order of externment was passed against Shambhu. PW1 and PW2 both have deposed that accused persons were known to them previously.
In the cross examination, PW2 Udai Kant Jha has stated that he was working as labour and has no fixed timings of work and he used to go for his work between 7.00 to 8.00 am. It is suggested to PW1 that he has falsely implicated the accused persons to settle the personal score as they have lodged complaints against his brother previously. It is suggested to PW2 that he has falsely implicated accused persons as accused persons have lodged complaint against his son previously and he was having animous relations with them. No such complaint has been brought on record by the accused persons, to prove this fact that PW1 and PW2 were having reasons for their false implication on the ground of previous enmity rather PW2 has admitted that his son Shambhu was helping the accused persons in selling the stolen articles, so neither PW1 nor PW2 can be disbelieved in any manner. They are trust worthy and inspire SC No. 55/1 10 confidence regarding last seen evidence that they saw deceased Shambhu with accused persons in the morning on 06/10/06.
Deposition of Eye witnesses.
The incident was seen by PW3 SI Jai Parkash, who was going from there with PW5 Constable Birbal.
PW3 has stated that on 06/10/06, he was posted at PS Uttam Nagar and was coming back after attending DD no.15 A alongwith PW5 Constable Birbal. When they reached near Garhi Mohlla, Village Hasthal, Pradhan wali Gali, Uttam Nagar. They heard noise and saw that four boys were beating the fifth boy and the fifth boy was lying on ground to whom the four boys were giving beatings. One person was having danda in his hand and he was beating with danda and remaining three boys were beating with legs and fists blows to the injured. They immediately reached there and managed to over power two persons, out of four. Their names were revealed as Vikas @ Neta (juvenile) and Raju @ Vikas and the name of injured was revealed as Shambhu @ Langra. Remaining two boys ran away from the spot. They immediately handed over the custody of above mentioned accused persons to the public persons and PW3 alongwith Pw5 tried to chase the remaining two persons, but both the accused disappeared and they could not be apprehended. Thereafter, they came back to the spot and came to know that someone had informed the PCR and the injured and above mentioned two accused persons were taken to DDU hospital by PCR Van. Thereafter, PW3 directed PW3 to remain present at the spot for guarding the place of occurrence and he himself reached at DDU hospital. There he found ASI Ram Chander and Constable Ramesh of PS Uttam Nagar. Shambhu was declared as brought dead by the doctor. In the mean time, Additional SHO PS Uttam Nagar, Inspector R.S. Chahal reached at DDU hospital and recorded his statement Ex.PW3/A. On the basis of his statement, Investigating Officer prepared rukka and handed over the same to ASI Ram Chander, who took the SC No. 55/1 11 same to PS for registration of the case.
PW3 SI Jai Parkash has further deposed that he joined the investigation of this case with the Investigating Officer. Constable Ashok was directed to guard the accused persons in the hospital. Thereafter, he alongwith Inspector R.S. Chahal came back to the spot and Investigating Officer inspected the place of occurrence and prepared the site plan at his instance. Thereafter, he alongwith SHO reached at PS Uttam Nagar. Thereafter, he alongwith Investigating Officer reached DDU hospital and Investigating Officer interrogated accused Vikas @ Neta and Raju @ Vikas and both the accused were arrested in this case vide arrest memo Ex. PW3/B and Ex.PW3/C. Their personal searches were also conducted vide memo Ex.PW3/D and Ex.PW3/E. Both the accused made their disclosure statement Ex.PW3/F and Ex.PW3/G. Thereafter relatives of deceased were called and they reached in the hospital and correctly identified the dead body of Shambhu. Their statements were recorded in this respect. PW 3 prepared the inquest proceedings. Postmortem on the dead body of deceased Shambhu was got conducted. Thereafter, dead body was handed over to its relatives.
PW5 Constable Birbal has also deposed on the same facts as of PW3 regarding the incident and apprehension of accused persons and further that they handed over apprehended accused persons to public persons and they chased accused persons, who had fled away from the spot.
Both PW3 and PW5 have corroborated each other that custody of accused persons was handed over to public persons and that they tried to apprehend remaining two accused persons. Later on, both the accused and injured were taken to DDU hospital by PCR officials and that PW5 Constable Birbal was left at the spot and PW3 reached at DDU hospital.
Ld. Defence Counsel has contended that DD15A, which was investigated by PW3 and they were returning after attending the same has not SC No. 55/1 12 been produced on record, so it cannot be said that PW3 and PW5 had attended DD no.15A, hence they cannot be believed in this manner.
Ld. Defence Counsel has further contended that PW3 has stated in the cross examination that he had first given warning to the accused persons when he first saw the alleged incident and both PW3 SI Jai Parkash and PW5 Constable Birbal have contradicted each other about the presence of public persons as PW3 has stated that 10-12 or 10-15 public persons were collected at the spot, where as PW5 has stated that no public person gathered there, when they reached near the spot. Ld. Defence Counsel has further contended that PW5 has further stated in the cross examination that custody of two accused persons were given to 4-5 public persons. So, it is doubtful whether any public persons were present there or not at the time of incident.
In my opinion, PW3 SI Jai Parkash has deposed about the presence of public persons at the time when he had apprehended two of the accused persons and PW5 Constable Birbal has stated that no public person was present when they reached at the place of occurrence, so the witnesses have deposed about the presence of public persons at different times, which shows that public persons might have collected at the spot after seeing the apprehension of the accused persons and previously the public persons might have not interfered in the quarrel, when accused persons were giving beatings to Shambhu, so the contentions of Ld. Defence Counsel are not tenable in any manner as there is no contradictions in the statement of PW3 SI Jai Parkash and PW3 Constable Birbal in this respect.
Ld. Defence Counsel has further contended that photograph of the person, who had been extern from the area of PS had been displayed in the concerned PS and PW3 has further deposed that he came to know later on that Shambhu was exterened from the area of PS Uttam Nagar, so he had deposed falsely as PW3 were also knowing Shambhu was externed from the area.
SC No. 55/1 13In my opinion, this contention is not forceful as PW1 Guddu Kumar Jha and PW2 Udai Kant Jha hve already admitted that Shambhu was externee and identity of the deceased is also not disputed in any manner as both PW1 and PW2 have proved the same beyond reasonable doubts. The fact of BC/Externee of the are in respect of deceased Shambhu is not relevant in any manner.
Ld. Defence Counsel has further contended that PW3 SI Jai Parkash has stated in the cross examination that he had not stated to the Investigating Officer about the description of danda allegedly used by accused pereosns in the incident, so without giving any description, identification of danda by PW3 is of no meaning. Ld. Defence Counsel has further contended that PW3 SI Jai Parkash has also stated in the cross examination that Investigating Officer had not taken any blood stains or torn pieces of clothes from the spot, which shows that no incident had taken place as deposed by PW3.
Ld. Defence Counsel has further contended that in the cross examination, PW5 Constable Birbal has stated that he had disclosed the description of danda in his statement to the Investigating Officer, but the same is not appearing in his statement Ex.PW5/DA from which he had been confronted and PW5 has further stated that Investigating Officer had not picked any torn pieces of clothes from the spot, which shows that no such incident had taken place as alleged by PW3 and PW5.
In my view, these contentions of Ld. Defence Counsel are not helpful as PW5 has stated further in the cross examination that no torn pieces were present there. PW7 ASI Ram Chander had also reached at the spot on receipt of DD no.18A Ex.PW7/A along with Constable Ashok Kumar, but he did not see any blood stains or pieces of torn clothes at the spot. PW11 HC Babu Lal also had not seen any blood stains at the spot or pieces of torn clothes. Even PW31 R.S. Chahal, ACP has not seen blood stains or torn pieces of clothes and had stated in the cross examination that he did not see any dragging marks at the spot SC No. 55/1 14 or pieces of clothes.
While PW3 SI Jai Bhagwan and PW5 Constable Birbal were chasing the remaining two accused persons after handing over the custody of two of the accused persons, PW14 Rambir at about 9.50 am, was going towards Pradhan wali gali and he noticed that many public persons gathered there. On inquiry, he came to know that quarrel had taken place with some boys and public persons requested to inform the police. PW14 made a call at 100 number. Two boys were apprehended by public persons. PCR came at the spot. Both those boys, who were under the custody of public persons, were handed over to the PCR officials. Thereafter, PW14 left the spot.
PW-14 Rambir has further deposed that he cannot identify those two boys, due to lapse of time.
PW14 has been cross examined by Ld APP and he has admitted that on 27/12/06, his statement was recorded by the police. He has denied the case of the prosecution regarding the statement as recorded u/s 161 Cr.PC that two police officials, who were in uniform had handed over two boys to the public and were chasing other two boys involved in the incident. He has been confronted with his statement Ex.PW14/A, recorded u/s 161 Cr.PC.
Ld. Defence Counsel has contended that PW14 Rambir cannot be believed as he has admitted in his cross examination that his statement was not recorded in his presence by the police.
In my opinion, the contention of Ld. Defence Counsel is not tenable in any manner because, PW14 has admitted himself in the cross examination conducted by Ld APP that his statement was recorded by the police on 27/12/06. Moreover, he has informed the police at 100 number, from his mobile no. 9968077508, two boys were found apprehended by the public persons. PCR came there and both those boys were handed over to PCR officials. So in part, he has supported the case of the prosecution and also corroborated with PW3 SI Jai SC No. 55/1 15 Parkash and PW5 Constable Birbal that custody of two boys was hand over to public persons by PW3 and PW5, when they had gone to chase the other two accused persons.
PW11 HC Babu Lal , who was PCR official, has also corroborated these facts. He received the call regarding the quarrel and reached there at about 10.05 am. Information was given by PW14 Rambir at about 9.53 am, so PW111 reached there within the reasonable time and two boys i.e. Vikas son of Mahender and Vikas son of Arun were produced by public persons. He took both the boys and the boy, who was lying unconscious to the DDU hospital. He was also informed by the public persons that two boys had fled away from the spot. So PW11 HC Babulal has corroborated with PW14.
Nothing came out from the cross examination of PW14 Rambir. He is public witness. He has deposed truthfully before the court that he had informed the police and two of the accused persons were found in the custody of the public persons at that time, which were handed over to PCR and deposition of PW11 HC Babulal also inspires confidence, who has further corroborated with PW14 Rambir and has stated that two of the persons, who were in the custody of the public persons and one boy, who was lying unconscious were removed to DDU hospital.
PW12 HC Amit Kumar has stated that on 06/10/2006, he was on duty at PCR control Room at police HQ. At about 9.50, am he received a telephone call from mobile phone at Rambir that a quarrel took place between H. No. 333-335, Pradhan Wali Gali, Hastsal Village, Garhi Mohalla and that the persons, who were quarreling were apprehended. He filled up the PCR form no.100 and transferred the same to the net. He also produced the original PCR form Ex.PW12/A. In the cross examination conducted by Ld APP, PW12 admitted that he had received the information from mobile no. 9968077508. PW12 HC Amit SC No. 55/1 16 Kumar, has been confronted by Ld APP regarding certain facts, which he had not deposed before the court i.e. PCR van reached at the spot at about 10.00 am and PCR informed at 10.10 am that Vikas son of Mahinder and Vikas, who was lying unconscious was beaten up and there were 3-4 boys with him, who had fled away; that PCR van rushed all the three injured persons to the hospital and at about 10.58 pm, P-53 informed that a boy by the name of Shambhu was declared brought at the DDU hospital and his description was given; that at about 11.11 am, P-53 informed that Vikas son of Mahinder and Vikas son of Arun had a quarrel with Shambhu on account of money and that there were 3-4 boys with Shambhu who had fled away from the spot.
PW-12 has also denied that he had told to the Investigating Officer in his statement that at about 11.15 am, P-53 informed that Shambhu had injuries and was bleeding from his mouth or that Vikas was having injury on his head and foot and Vikas son of Arun was having injury on his foot . So PW12 has been confronted with his statement Ex.PW12/A, where all these facts have been recorded.
PW 12 has not been cross examined by Ld. Defence Counsel in any manner. So it seems that he was a witness to the recording of information only, which was given by PW14 Rambir from his mobile phone at about 9.50 am about a quarrel and also that persons, who had quarreled were apprehended.
In view of the above discussion, PW3 SI Jai Parkash and PW5 Constable Birbal have deposed truthfully and their deposition inspire confidence, which have been further corroborated by PW11 HC Babu Lal that injured Shambhu and accused Vikas son of Mahender and other Vikas were removed to DDU hospital and they were got admitted there.
It is also proved that from the deposition of PW11 HC Babu Lal that both accused persons and injured Shambhu were taken to DDU hospital by PCR at about 10.05 am.
SC No. 55/1 17PW15 Constable Dinesh has deposed that on 06/10/06, he was posted at DDU hospital as Duty Constable. On that day, PCR Van P-53 came to DDU hospital with three injured persons. One person Shambhu was unconscious and he was declared brought dead. Both accused persons Vikas each were medically examined and MLCs were prepared. He informed about the same at PS Uttam Nagar on telephone. PW11 HC Babu Lal was in PCR. Constable Ashok also came from PS Uttam Nagar. PW15 has also not identified both the accused persons, due to lapse of time. So he has been cross examined by Ld APP, even then PW15 Constable Dinesh has not been able to identify accused Raju @ Vikas, but he has stated that he may be one of the injured, who was brought by the PCR in the hospital on that day. So he has also deposed truthfully in this respect that accused Raju @ Vikas was also sustaining injuries and was medically examined. In the cross examination, PW15 has stated that PCR officials had come at about in between 10.30 to 11.00 am. After about 15-20 minutes, he gave information at PS Uttam Nagar.
PW8 ASI Pricilla has deposed that on 06/10/06, she recorded DD no.23A an information received from Constable Dinesh, Duty Constable, regarding the admission of Shambhu through HC Babu Lal, PCR, who was declared brought dead and regarding the handing over of Vikas son of Mahender Singh and Vikas son of Rakesh to Constable Ashok. The aforesaid DD entry was handed over to Inspector R.S. Chahal, who alongwith Constable Sandeep went to DDU hospital. PW8 ASI Pricilla has proved the attested copy of DD no.23A as Ex.PW8/C. She has also proved copy of Ex.PW24/A as Ex.PW8/D copy of DD no.25A as Ex.PW8/E. In the cross examination of PW8 nothing came out to disbelieve her testimony in any manner. According to MLC Ex.PW13/A, injured Shambhu was removed to DDU hospital by PW11 HC Babu Lal at about 11.00 am, which corroborated with the deposition of PW15 Constable Dinesh. Similarly, SC No. 55/1 18 accused Vikas son of Rakesh was also removed to DDU hospital and was admitted at about 11.45 am on the same day and accused Vikas son of Mahender was admitted there at about 11.45 on 06/10/06. So, in other words, accused Raju @ Vikas has been identified by PW15 Constable Dinesh, because he was also removed there as one of the injured person and Duty Constable might not be knowing that he was the accused.
The contention of Ld. Defence Counsel that there is time gap in the MLC of injured Shambhu and other co-accused persons is not explained by the prosecution, hence the same creates doubt on the case of the prosecution. In my view, there is no contradiction as witness have corroborated each other. They are trust worthy and inspire confidence. Injured Shambhu was serious and was unconscious, hence he was admitted at about 11.00 am whereas both accused i.e. Vikas son of Rakesh and Vikas Son of Mahender had sustained injuries, but were not serious, hence their MLC might have been prepared after some time i.e. 11.40 am or 11.45 am, so from this time gap no inference can be drawn that injured Shambhu was and both accused persons were removed separately to DDU hospital or later on. In this respect, PW14 Rambir and PW11 HC Babu Lal have corroborated each other and also PW15 Constable Dinesh, according to whom all the three were brought by PCR in the DDU hospital and PW15 accordingly informed at PS Uttam Nagar, which has been further corroborated by PW8 HC Pricilla, who recorded DD no.23A in this respect, which was handed over to PW31 R.S. Chahal.
So the prosecution, has been able to prove that from the spot, PW14 informed about the quarrel and two of the accused persons were in the custody of the public persons and further as per deposition of PW11 HC Babu Lal, both the accused and injured Shambhu were removed to DDU hospital and were got admitted there and further that PW15 Constable Dinesh gave information about the same at the PS, which were recorded by PW8 as DD NO.23A.
SC No. 55/1 19On 06/10/06, PW7 ASI Ram Chander was posted at PS Uttam Nagar and was on emergency duty between 8 am to 8 pm. On that day, at about 9.56 pm, DD no.18A Ex.PW7/A was marked to him regarding quarrel at Mohalla Garhi Hastsaal. He alongwith PW4 Constable Ashok Kumar reached there, where he came to know that a PCR van had rushed three injured to DDU hospital. He alongiwth Constable Ashok also reached at DDUhospital where PCR Van incharge HC Babu Lal told that Shambhu was the injured and that Raju @ Vikas and Vikas @ Neta were two suspects. Shambhu was declared brought dead by doctor. PW7 handed over the suspects to PW4 Constable Ashok. Duty Constable Dinesh PW15 passed on the information to PS Uttam Nagar and it was recorded vide DD no.23A. Inspector R.S. Chahal Additional SHO Uttam Nagar came at the hospital and PW3 ASI Jai Parkash also reached at the hospital. Statement of PW3 SI Jai Parkash was recorded by PW31 R.S. Chahal and on his statement, rukka was prepared by PW31 and handed over to PW7 for registration of the case. PW7 has further deposed that he took rukka to PS and got registered the FIR and informed the FIR number to inspector R.S. Chahal on telephone and handed over the FIR to PW31 R.S. Chahal, when he returned to the PS. PW7 has been cross examined by Ld APP on certain aspects. PW7 has also identified accused Raju @ Vikas as one of the accused, who was present in the hospital.
PW31 R.S. Chahal also reached there, who was working as Additional SHO at PS Uttam Nagar. He recorded the statement of PW3 SI Jai Parkash, so there was no occasion for PW7 ASI Ram Chander to record the statement of any witnesses.
PW4 Constable Ashok has also deposed the same facts as of PW7 and has further deposed that he handed over both the accused to SHO. Dead body of Shambhu was got preserved at Mortuary of DDU hospital. Both the accused were got medically examined in the hospital. Thereafter, additional SHO alongwith SC No. 55/1 20 SI Jai Parkash came back from the hospital to the spot. Both the accused were interrogated and their disclosure statement were recorded vide memo Ex.PW3/F and Ex.PW3/G. Both the accused were arrested vide memo Ex.PW3/B and Ex.PW3/C and their personal searches were conducted vide memo Ex.PW3/ D and Ex.PW3/E. PW4 has further deposed that Investigating Officer R.S. Chahal sent PW3 Jai Parkash to call the parents of deceased. After some time, father and brother of deceased reached there and identified the dead body. PW4 has also identified both the accused persons before the court.
Ld. Defence Counsel has contended that on that day two of the accused persons were apprehended and one of the accused was facing trial before the Juvenile Court, so it is not known, who was the second accused identified by PW4, so his testimony is doubtful regarding identification of accused persons.
Ld. Defence Counsel has contended that according to PW4 Constable Ashok Kumar he has deposed in the cross examination that he reached at the spot at about 10.05/10.10 am along with PW7 Constable SI Ram Chander. Public persons at the stop had informed them that injured were removed to DDU hospital whereas PW7 has stated in the cross examination that he had not gone to the spot in connection with this case and he did not made any inquiries from the public persons and both these facts are contrary and creates doubts in the testimony of both PW4 and PW7 as to whether they had gone to the spot or not.
In my view, the contentions of Ld. Defence Counsel are not forceful in any manner because PW7 SI Ram Chander has deposed in the cross examination that he was informed by the public persons that PCR Van rushed the injured persons to DDU hospital and he received this information about 10- 15 paces before the spot. So, naturally, he had stated that he had not gone to the spot in this connection, which means that he did not visit the actual place of occurrence and rather on receipt of information 10-15 paces before the spot, he went to DDU hospital and did not make any other inquiry from the public SC No. 55/1 21 persons.
Ld. Defence Counsel has further contended that PW4 Constable Ashok Kumar and PW7 SI Ram Chander reached at DDU hospital and according to PW4 Constable Ashok Kumar they reached there at about 10.45- 10.55 am whereas according to PW4 SHO reached at the hospital at about 11.45- 12.00 noon and according to PW7 SI Ram Chander Inspector R.S. Chahal reached at the hospital at about 11.30 or 11.45 am. So there is no corroboration about time , when these police officials reached at the hospital.
In my view, the contention of Ld. Defence Counsel is not forceful in any manner as certain discrepancies about time are bound to come in the deposition of witnesses as incident was of the year 2006, whereas PWs have been examined after about 2-4 years, so such short comings are natural because facts can be memorised, but it is difficult to memorize the time of each event and to depose the same in log book manner. It is also clear from the deposition of PW4 that he handed over both the accused to SHO, thereafter statement of PW3 was recorded Ex.PW3/A on which rukka was prepared. PW7 ASI Ram Chander went to PS for registration of the case and the custody of both the accused were handed over to him and Investigating Officer with ASI Jai Parkash left for the spot. Dead body of deceased Shambhu was got preserved at Mortuary DDU hospital. Both the accused were medically examined in the hospital, which shows that some time had taken in the proceedings and after that both the accused were medically examined, so there is a time difference in the examination of injured Shambhu and both the accused persons. There is nothing abnormal in the deposition of all these witnesses in this respect. They have corroborated each other and are trust worthy.
PW-16 is HC Azad Singh. He has deposed that on 06/10/06, he was posted at PS Uttam Nagar as Constable and on that day, Duty officer handed over four envelopes for handing over to Ilaka Magistrate, Joint CP SR, ACP Tilak SC No. 55/1 22 Nagar and DCP West. He made DD entry No.25A, in this regard. Firstly, he went to residence of Ld MM and handed over the envelopes to him. Thereafter, he went to the Police Headquarters and delivered the envelope to Joint CP, South Range. Thereafter, he went to Rajouri Garden , at the office of DCP and handed over the one envelope to him and lastly he handed over the envelope at a ACP office, Tilak Nagar. Thereafter, he came back to PS Uttam Nagar and made arrival entry. Nothing came out from his cross examination to disbelieve that he did not hand over the envelopes to concerned persons.
PW6 is ASI Satyaveer Singh. He has stated that on 07/10/06, he was posted at PS Uttam Nagar as MHC(M). On that day, Inspector R.S. Chahal, Additional SHO deposited one plastic bag containing two jars having viscera of deceased sealed with the seal of DFMT DDU Hospital. He also deposited one transparent bag containing clothes of deceased sealed with the seal of DFMT DDU hospital. He also deposited one envelope containing specimen blood sample of deceased sealed with the seal of DFMT DDU Hospital alongwith sample seal and copy of seizure memo. He made an entry at SL. No. 4564 in register no.19, to this effect.
PW6 ASI Satya Veer Singh has further deposed that on 03/11/06, PW6 handed over two sealed pullandas alongwith sample seal to HC Rajbeer Singh vide RC no. 242/06, who deposited the same at FSL Rohini and gave copy of the RC to PW6. PW6 has also proved the copy of road certificate register as Ex.PW6/A and photocopy of relevant entry as Ex.PW6/B. PW6 has further deposed that on 08/06/2007, while he was handing over the charge to HC Anil Kumar, Inspector Suresh Chand came to Malkhana and deposited one danda duly sealed with the seal of SC alongwith copy of seizure memo in the malkhana and he made entry at serial no,4765 to this effect. Photocopy of same is Ex.PW6/C. None tampered the case property till it remains in his possession.
SC No. 55/1 23Certain questions were put to PW6 during the cross examination, but nothing abnormal has been pointed out by Ld. Defence Counsel, so there is no ground to disbelieve the testimony of PW6 regarding the fact that articles were deposited by various police officials for which he made entry in the register.
PW13 is Dr. Udai Kumar Singh. He has proved the MLC of Shambhu. He has deposed that on 06/10/06, he was posted at DDU hospital as CMO and on that day, he medically examined Shambhu, male aged about 20 years brought by HC Babu Lal, PCR and declared him brought dead in the casualty itself. He has proved the MLC as Ex.PW13/A and identified his signatures at point A. PW13 has further deposed that on the same day, he medically examined Vikas, male 18 years brought by HC Babu Lal, PCR with the alleged history of assault as told by Vikas himself. He found certain injuries on the body of injured and referred him to DOD Ortho for further management and treatment. PW13 has further proved MLC of Vikas as Ex.PW13/B and also identified his signatures at point B. In the cross examination, PW13 has stated that the injuries found on the body of Vikas could be possible if a person is hit with a round danda/stick. In my opinion that it is not the case of the prosecution that Vikas was beaten with danda by deceased Shambhu, so the cross examination of PW13 is not helpful to the accused in any manner.
Again Dr. Udai Kumar Singh was examined as PW20 in place of Dr. Ishwar, who had signed the MLC of accused Vikas Ex.PW20/A. Nothing came out from the cross examination of PW20 that accused Vikas was not examined by Dr. Ishwar also. Even otherwise, it has been proved from the deposition of the witness that injured Shambhu and both accused were taken to hospital by PW11 HC Babu Lal, where they were medically examined.
PW24 SI Mahesh Kumar has prepared the scaled site plan on 27/12/06, when he was posted as Draughtsman at Crime Branch. On that day, he SC No. 55/1 24 was called by inspector R.S Chahal Additional SHO PS Uttam Nagar, he went to PS Uttam Nagar thereafter he along with additional SHO went to the place of occurrence and on pointing of Investigating Officer, he took rough notes and measurements of the place of incident and on the basis of rough notes and measurements, he prepared scaled site plan Ex.PW24/A. Thereafter he destroyed the rough notes and measurements. Merely suggestion have been given to PW24 that he did not go to the spot and did not take measurements to prepare rough notes or that he prepared the scaled site plan at the instance of the Investigating Officer. So there is nothing to disbelieve regarding the preparation of scaled site plan by visiting at the spot at the instance of the Investigating Officer.
PW25 ASI Satbir Singh, the then MHC(M) has been examined again and he has deposed the same facts as previously deposed, while examined as PW6. He has further deposed that on 01/03/2007, one sealed pullanda alongwith FSL report were received in the malkhana through ASI Umed Sigh and on 02/03/07, two sealed pullandas and two FSL reports were again received in the malkhana through ASI Umed Singh from FSL office. He handed over the reports to Inspector R.S. Chahal, as and when received.
Only suggestion has been given to PW25 that he has fabricated the entries regarding deposit of case property at the instance of Investigating Officer, which has been denied, so nothing came out from his deposition to disbelieve the fact that he did not receive sealed pullandas and FSL reports from ASI Umed Sngh and thereafter did not handover handed over to R.S. Chahal. Arrest of accused Lala Mukhia.
PW9 SI Randhir Singh has stated that on 28/11/2006, he was posted at PS Uttam Nagar. He carried out the investigation in respect of the present case from 28.11.2006 to 02.12.2006 and in that investigation, went to Bihar. He, with the help of the local police, arrested accused Lala Muhkhiya on 30.11.2006 at PS SC No. 55/1 25 Scindia, vide memo Ex.PW9/A . He also took personal search of accused vide memo Ex.PW9/B. Information regarding the arrest of accused Lala Mukhiya was given to Chowkidar Laxmi Paswan and PW21 HC Rajbir Singh and Constable PW17 Rajender Kumar were also present It seems that PW9 has deposed the name of the PW17 Constable Rajender Kumar as Constable Narender Kumar, which seems to be phonetic mistake during typing. PW9 has further deposed that accused Lala Mukhiya made a disclosure statement vide Ex.PW9/C. PW9 produced the accused before the ACJM, Rosda, Samastipur on 30.11.2006 and obtained his transit remand upto 03.12.2006 to produce him in Delhi Courts. He kept the accused in muffled face and on 02.12.2006, produced the accused in Delhi before Investigating Officer R.S. Chahal, who also interrogated the accused. PW9 has further deposed that accused pointed out the place of occurrence and pointing out memo was prepared Ex.PW9/D. Thereafter accused was produced before the Court in muffled face and was remanded to JC.
PW21 HC Rajbir Singh has deposed that on 03/11/06, as per instructions of the Investigating Officer, he took four sealed pullanda alongwith sample seal etc from MHC(M) and deposited the same in FSL, Rohini on the same day vide RC no. B-3708 and C-3709 and after depositing the sealed pullandas, he handed over the receipt as RC to MHC(M). None tampered the pullandas , till it remains in his custody.
PW25, ASI Satbir Singh, has also corroborated this fact with PW21 regarding the deposit of sealed pullanda on 03/11/06 at FSL, Rohini and also proved copy of RC as Ex.PW25/B. PW21 HC Rajbir Singh has also deposed the same facts as of PW9 SI Randhir Singh regarding the arrest of accused Lala Mukhiya and obtaining his transit remand from Ld ACJM, Rosda in District Samastipur, Bihar and also regarding his arrest in this case.
In the cross examination, both PW17 Constable Rajender Kumar and SC No. 55/1 26 PW21 HC Rajbir Singh have corroborated each other that they reached at PS Scindia, where PW9 SI Randhir Singh briefed the SHO. SI Randhir Singh also made arrival entry and local police officials accompanied them to village Mahi and accused Lala Mukhia was pointed out by Laxmi Paswan and he was arrested. Merely signatures of Laxmi Paswas have not been obtained on the documents prepared by police, does not mean that PW9 SI Randhir Singh, PW17 Constable Rajender Kumar and PW21 HC Rajbir Singh had not gone to Samastipur in search of accused Lala Mukhiya. According to the deposition of these witnesses accused was also produced before Ld ACGM, District Samastipur, Bihar for obtaining transit remand, so they cannot be disbelieved in any manner. These witnesses have denied the suggestion that accused Lala Mukhiya was already present in PS Scindia and was brought there by local police.
PW21 HC Rajbir Singh has also denied the suggestion that all the writing work was done in Delhi and signatures of accused Lala Mukhiya were obtained on some blank papers, which were later on fabricated against him. PW21 has further denied the suggestion that accused Lala Mukhia was not arrested from his village or that he was already available with the local police and they arrested him and brought to Delhi after obtaining his transit remand.
Similarly, PW9 SI Randhir Singh has also stated in the cross examination that he obtained permission from the ACP and reached at Samastipur, District Bihar. He lodged his arrival entry at PS Scindia, Samastipur. PW9 has denied the suggestion that he had not informed Chowkidar Laxmi Paswan regarding the arrest of accused.
Ld. Defence Counsel has contended that PW9 has stated in the cross examination that he had not recorded that accused Lala Mukhiya was produced in muffled face before Ld Court of Samastipur. To my mind, this contention of Ld. Defence Counsel has no force as neither any eye witness was with the police nor complainant had accompanied them, so there was no chances of seeing the SC No. 55/1 27 accused Lala Mukhiya in the Court of ACJM, Rasoda, District Samastipu, Bihar for identification. Nothing came out from the cross examination of PW9 SI Randhir Singh, so the prosecution has been able to prove beyond reasonable doubts that accused Lala Mukhiya was arrested from Bihar and was brought to Delhi after obtaining transit remand.
PW31 Inspector R.S. Chahal has stated that accused Lala Mukhiya was arrested by PW9 SI Randhir Singh from his village Samastipur and was brought to Delhi on transit remand on 02/12/06. Accused Lala Mukhiya was produced before him. He interrogated accused Lala Mukhiya and thereafter accused pointed out the place of occurrence vide pointing out memo Ex.PW9/D. Accused Lala Mukhiya was produced before the court and he moved an application for conducting TIP of accused Lala Mukhia before the court concerned, copy of which is Ex.PW31/G . Later on, TIP proceedings were conducted by Smt Geetanjali Goel, the then Ld MM at Tihar Jail. Accused Lala Mukhiya refused to join the TIP proceedings. Copy of TIP proceedings Ex.PW9/F was collected by PW9 SI Randhir Singh.
PW31 has not been cross examination on any aspect regarding the arrest of accused Lala Mukhiya or further that accused Lala Mukhiya was produced before him in muffled face or unmuffled face. So, it cannot be said that accused Lala Mukhiya was not interrogated by PW31 R.S. Chahal and he did not point out the place of occurrence PW9/D. Prosecution has also been able to prove that accused Lala Mukhiya was put to TIP, but he refused to join the TIP proceedings.
PW19 Ms. Geetanjali Goel has also deposed that on 04/12/04, an application to conduct TIP of accused Lala Mukhia was put up before her and she fixed the same for 12/12/06, as per her endorsement on application Ex.PW19/A. On 12/12/06, she reached at Central Jail no.3. Accused was produced before her. He was identified by Assistant Superintendent Sh Mahnder Prasad at point C on SC No. 55/1 28 Ex.PW19/B. Accused Lala Mukhia also put his thumb impression at point D. She asked the accused to join the TIP proceedings, but he refused t o join the TIP proceedings and she warned him that it may be taken against him at the time of trial, but accused refused to join the TIP. Accordingly, she recorded the statement of accused Lala Mukhiya and the proceedings Ex.PW19/B also bears her signature at point G. PW19 further allowed one copy of TIP proceedings to the Investigating Officer SI Randhir Singh vide her endorsement on Ex.PW19/C. PW19 has not been cross examined by Ld. Defence Counsel in any manner, hence her testimony is unrebutted and unshaken, which corroborates with the testimony of PW31 that after the arrest of accused Lala Mukhiya, he was put to judicial TIP, but he refused to join the same.
PW3 has deposed that on 12/12/06, he alongwith PW5 Constable Birbal went to Tihar Jail no.3 in the court of Ms. Geetanjali Goel, the then Ld MM for the TIP of Lala Mukhiya, and there they came to know that accused Lala Mukhiya had refused to join the TIP proceedings. His statement was recorded in this respect.
PW5 has also deposed the same facts regarding the TIP of Lala Mukhiya and also that he identified accused Lala Mukhiya, when accused was produced for remand in Tihar Jail.
PW3 SI Jai Parkash has denied the suggestion that accused Lala Mukhiya was not residing at Delhi about one and a half year prior to this incident. Similarly, PW5 Constable Birbal has not been cross examined about the identity of accused Lala Mukhiya. PW5 has also denied the suggestion that he has not seen accused Lala Mukhiya while giving beatings or that he was seen in the police station for the first time. It has not come in the deposition of PW SI Jai Parkash, PW5 Constable Birbal, PW9 SI Randhir Singh, PW17 Constable Rajender Kumar, PW21 HC Rajbir Singh and PW31 Inspector R.S. Chahal that accused Lala Mukhia was shown to PW3 and PW5 in PS at any time when he SC No. 55/1 29 was brought from PS Scindia, Samastipur, Bihar on transit remand to Delhi nor the witnesses have been cross examined by Ld. Defence Counsel that accused Lala Mukhiya was shown to PW3 and PW5 in the PS. Accused Lala Mukhiya has not brought any evidence to prove that he was not in Delhi for about one and half year as suggested to the witnesses. It has also not proved by leading any evidence that accused Lala Mukhiya was BC of the area and his record was available in PS Uttam Nagar, so police officials were also knowing the identity of accused Lala Mukhia particularly PW3 SI Jai Parkash and PW5 Constable Birbal. PW3 SI Jai Parkash has stated that he alongwith PW5 Constable Birbal had gone to Tihar jail for identification of accused Lala Mukhiya, but he refused to join the TIP proceedings. When JC remand of accused Lala Mukhiya was taken, he identified accused Lala Mukhiya at the time as the same person, who escaped from the spot at the time of incident.
Accused Lala Mukhiya has refused to join the TIP on 12/12/06, so he was not required to kept in muffled face in any manner and PW3 has told about the identity of accused Lala Mukhiya as the same person, who had fled away from the spot, to the Investigating Officer. In this respect, PW3 has stated that he came to know from the disclosure statement of other accused, about the name of accused Lala Mukhiya and Dheeraj, so it cannot be said that accused Lala Mukhiya was also known to PW3 in any manner either being resident of area or being BC of the area. Accused Lala Mukhiya has been identified by PW3 and PW5 before the court firstly when he was seen by both these witnesses at the time of incident when he fled away from the spot and secondly after his refusal to join the TIP proceedings, as the same persons, who had caused beatings to Shambu and thirdly in the Court as the same person who had fled away from the spot after causing beating to Shambhu.
PW5 Constable Birbal had also reached at Tihar Jail to identify the accused, but accused Lala Mukhiya had refused to join the TIP proceedings on SC No. 55/1 30 16/12/06. He has also identified the accused Lala Mukhia as the same person who was among the four boys, who had caused beatings to injured Shambhu. So nothing came out from the cross examination of these witness i.e. PW3 SI Jai Parkash and PW5 Constable Birbal. Their testimonies inspire confidence and thus can be relied upon about the identity of accused Lala Mukhiya as the same person, who on the day of incident was amongst four boys, who had caused beatings to deceased Shambhu, in consequences of which, Shambhu had died. Arrest of accused Dheeraj and recovery on his pointing.
PW23 Inspector Suresh Chand has stated that on 05/05/07, he was posted at PS Uttam Nagar. On that day, file of this case was assigned to him for investigation. He came to know from the case file that accused Dheeraj was in jail in some other case in Samastipur, Bihar . He moved an application before the concerned MM for production warrants of accused Dheeraj at PS Uttam Nagar. PW23 has further deposed that on 08/06/07, the police officials of Samastipur, Bihar produced accused before the Court of Sh. Digvinay Singh, the then Ld MM and PW23 moved an appropriate application for permission to interrogate the accused and with the permission of the Court, he interrogated accused Dheeraj. Accused Dheeraj made a disclosure statement and was arrested in this case vide memo Ex.PW23/A. His personal search was also conducted vide memo Ex.PW23/B. Thereafter, accused was directed to muffle his face. PW23 moved an application for conducting the TIP of accused Dheeraj. Accordingly, TIP of the accused was conducted, but he refused to join the TIP. PW23 has further deposed that he obtained the copy of TIP proceedings vide his application Ex.PW23/C. Original TIP proceedings were shown to the witness, who had identified his signature at point A on Ex.PW23/D and copy of his application is Ex.PW23/E. PW23 has further deposed that that he obtained one day PC remand of the accused Dheeraj. Accused Made disclosure statement Ex.PW23/F. In furtherance of his disclosure statement, accused Dheeraj led the police party near SC No. 55/1 31 pond, village Hastsal, Delhi and pointed out the place of incident. PW23 prepared the pointing out memo Ex.PW23/G. Accused further led the police party to Pradhan wali gali towards Vidhya Vihar and got recovered one danda from vacant plot. It was sealed with the seal of SC and was seized vide memo Ex.PW23/H. Seal after use was handed over to Constable Hansraj. He also prepared the site plan of the place of recovery Ex.PW23/I. Thereafter, they came back to PS and he deposited the case property with malkhana. In the PS pW3 ASI Jai Parkash and PW5 Constable Birabal also identified accused Dheeraj as the same person who was seen by them on the place of incident, when he had fled away from there. PW23 recorded their statements u/s 161 Cr.PC. He also sent the accused for his medical examination along with Constable Murari Lal and Constable Hansraj. Thereafter accused was locked up and on expiry of PC remand and was produced before the concerned Court and was remanded to JC on 09/06/07.
PW23 also prepared the supplementary chargesheet of accused Dheeraj on 02/07/07 and has also identified the danda got recovered by accused Dheeraj as Ex.P1.
PW30 Constable Hansraj has also deposed the same facts as of PW23 Inspector Suresh Chand and has further deposed that accused Dheeraj was produced in muffled face by Bihar Police. PW30 has also identified accused Dheeraj in the court and has also identified the danda as Ex.P1.
PW23 Inspector Suresh Chand has been cross examined by Ld. Defence Counsel on the point that accused Dheeraj was BC of the area, but PW23 has stated that he was not knowing that accused Dheeraj was BC of the area. Accused Dheeraj has not brought any evidence in his defence to prove this fact that he was BC of the area. PW23 has also denied the suggestion that he obtained the signatures of the accused Dheeraj on some blank papers, which were later on converted and fabricated into his disclosure statement.
Ld. Defence Counsel has contended that danda has been recovered SC No. 55/1 32 from the vacant plot, which was easily accessible and was open from three sides, hence it was not recovery on the pointing out of accused Dheeraj in the eye of law. Similar suggestion have been given to PW30 Constable Hansraj, but he has also denied the same.
Ld. Defence Counsel has further contended that according to PW30 Constable Hansraj, danda Ex.P1 was found smeared with mud, but PW30 Constable Hansraj does not know whether this fact was mentioned in the seizure memo or not. Ld. Defence Counsel has further contended that no finger prints have been lifted from the danda. To my mind, the contention of Ld. Defence Counsel are not tenable in any manner as it is hardly relevant that danda was smeared with mud or not. Even if it was not smeared with mud, then the same is not creating doubt in the testimony of witnesses regarding the recovery of danda as Ex.P1 as pointed out by accused Dheeraj. Even finger prints were not necessary to be lifted from the danda. In respect to the contention of Ld. Defence Counsel that danda was got recovered from the vacant plot, which was accessible to all and was open from three sides, is not tenable as it has been held by Hon'ble Supreme Court of India in State of Himachal Pradesh Vs. Jeet Singh SC 1991 page 1, Law Finder-Library Edition Supreme Court Law Finder that:
" There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is " open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the articles is buried on the main roadside or if its concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disintered its hidden state would remain unhampered. The person who hid it alone knows until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.SC No. 55/1 33
It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. Pulikrai Kottaya, AIR 1947 PC 67. The said ratio has received unreserved approval of this court in successive decisions. (Jaffar Hussain Dastagir vs. State of Maharashtra, 1969(2) SCC 872, K.Chinnaswamy Reddy v. State of Andhra Pradesh, A.I.R. 1962 SC 1788, Earabhadrappa @ Krishnappa v. State of Karnatka, 1983(2) SCC 330, Shamshul Kanwar vs. State of U.P., 1995 (4) SCC 430, State of Rajasthan v. Bhup Singh,1997 (10) SCC 675.
In my view, nothing came out from the cross examination of PW23 Inspector Suresh Chand to disbelieve his testimonies. Accused Dheeraj was produced before the court in muffled face and was formally arrested in this case. Accused refused to join the TIP proceedings and thereafter he led police party to vacant plot and got recovered the danda Ex.P1.
PW26 Sh Puran Chand, the then Ld MM had conducted the TIP proceedings of accused Dheeraj on 08/06/2007. He has deposed that on 08/06/2007, an application for TIP Ex.PW26/A for accused Dheeraj was assigned to him and he made his endorsement on application. Accused Dheeraj refused to join the TIP. He warned him that it may be considered against him during the trial, but still he did not join the TIP. He recorded the TIP proceedings with certificate Ex.PW23/D and gave one copy of proceedings to Investigating Officer on his application Ex.PW23/A, vide his endorsement at point X1. PW26 has not been cross examined by Ld. Defence Counsel in any manner, so testimony of PW26 is unshaken and unrebutted, which corroborates with the testimony of PW23 inspector Suresh Chand and PW30 Constable Hansraj that after production of accused Dheeraj, he was put to TIP, but he did not join the same.
From the deposition of PW23 inspector Suresh Chand, it is clear that on 08/07/06, accused Dheeraj was produced before concerned MM, and PW23 formally arrested him and thereafter accused was muffled and was produced to SC No. 55/1 34 join the TIP, but accused refused to join the TIP proceedings, which were recorded accordingly and thereafter they came to PS. PW3 SI Jai Parkash has deposed that he came to know the name of accused Lala Mukhia and Dheeraj @ Dheera Jha in the disclosure statement of accused persons, who were apprehended. He has further deposed that on 08/06/2007, he was present at PS Uttam Nagar alongwith PW5 Constable Birbal. Inspector Suresh Chand Meena alongwith Constable Hansraj came to PS alongwith one boy, who was in their custody and he correctly identified that boy as accused Dheeraj @ Dheera Jha, as the same person who had escaped from the spot and was chased by him and Constable Birbal. PW3 has further stated that accused Dheeraj is the same person who was carrying danda in his hand. His statement was recorded by the Investigating Officer in this respect.
PW3 had identified the danda Ex.P1 as the same danda, which was in the hands of accused Dheeraj at the time of incident with which, he was giving beatings to Shambhu.
So, it is clear from the testimony of PW23 Inspector Suresh Chand and PW3 SI Jai Parkash that accused Dheeraj was identified in the PS when he was brought back from the Court after refusing to join the TIP proceedings and was identified by PW3 SI Jai Parkash as the same boy, who had fled away from the spot on the day of incident while carrying danda in his hands.
Similarly PW5, Constable Birbal has also deposed that on 08/06/2007, at about 7.00 pm, he identified accused Dheeraj, when he was brought at the police station by Inspector Suresh Chand as the same boy who had beaten injured Shambhu with danda and after beating him, had fled away from the spot. PW5 has also identified accused Dheeraj before the court and also danda as Ex.P1.
Ld. Defence Counsel has contended that testimony of PW5 cannot be believed as he has stated in the cross examination that he had disclosed to the SC No. 55/1 35 Investigating Officer in his statement about the description of danda Ex.P1, where it is not appearing in his statement Ex.PW5/DA and further accused Dheeraj has been identified in the Police station, so his identity is not proved beyond reasonable doubts.
Ld. Defence Counsel has further contended that on the other hand PW3 SI Jai Parkash has stated that he had not disclosed to the Investigating Officer about the description of the danda alleged to have been used by accused Dheeraj in the incident, in his statement. So identification of danda by PW3 SI Jai Parkash is of no help. Hence neither prosecution has been able to prove accused Dheeraj as the same person, who had caused beatings to the injured Shambhu, on the day of incident with the danda and further accused Dheeraj fled away from the spot with danda, nor that danda, which has been recovered in this case is the same with which accused Dheeraj had given beatings to injured Shambhu.
In my view, the contentions of Ld. Defence Counsel are not forceful because accused Dheeraj has been identified in the PS and prior to that, accused Dheeraj was also put to judicial TIP proceedings and he had refused to join the same. The TIP proceedings have been proved by PW26 Sh. Puran Chand, the then Ld MM, whose testimony is unrebutted and unshaken and merely that description of danda was not given by PW3 or was given by PW5, but is not appearing in his statement Ex.PW5/DA, is not material in any manner, as accused Dheeraj got recovered the danda, during his custody from a place, which was within the knowledge of accused Dheeraj only and the danda has been identified as Ex.P1 as the same, which was recovered on the pointing of accused Dheeraj.
Incident took place on 06/10/06 whereas accused Dheeraj was arrested on 08/06/2007, in this case when he was produced by Bihar Police before the Court concerned because he was in custody in some other case in Bihar. In such circumstances, witnesses examined in this respect cannot be disbelieve. Hence prosecution has been able to prove the identity of accused Dheeraj from SC No. 55/1 36 the depositions of these witnesses as the same, who had caused injuries with danda to injured Shambhu on the day of incident and had escaped from the spot. Even assuming that danda, which was recovered on the pointing of accused is not the same with which he had given beatings to injured Shambhu. Even then, it has been proved beyond reasonable doubts from the deposition of PW3 SI Jai Parkash and PW5 Constable Birbal that accused Dheeraj had given beatings to injured Shambhu with danda and recovery of weapon of office is not necessary at all. It has been held in 2008 CRLJ 816, Umar Mohd Vs State of Rajasthan"
We also do not find any force in the submissions of the Ld counsel that the weapon of offence were not recovered. In any event, non-recovery of incriminating material from the accused cannot be a ground to exonerate them of the charges when the eye-witnesses by the prosecution are are found to be trustworthy".
PW28 is HC Nem Pal. He has stated that on 08/06/2007, he was posted in PS Uttam Nagar and on that day, he was working as Duty Officer from 5.00 pm to 1.00 am night. On that day, Inspector Suresh Kumar made his arrival entry, which was reduced into writing as DD no.38, copy of which is Ex.PW28/A. PW10 HC Pramod Kumar has stated that on 13-11-06, he was posted as MHC(R) at PS Uttam Nagar. He handed over the typed list of entries relating to deceased Shambhu and accused Vikas @ Neta, Raju@ Vikas, Dheeraj and Lala Mukhiya from the police record. There were ten cases pending against accused Shambhu relating to theft and Arms Act. Six months externment orders were also issued against Shambhu by Addl. DCP (West) vide his orders dated 02-05-06. Cases under theft and Arms Act were also pending against accused Dheeraj and Lal Mukhiya and cases under Arms Act were pending against accused Vikas @ Neta. The typed copy of the record is Ex.PW10/A. PW10 has not been cross examined by Ld. Defence Counsel in any manner. From the statement of PW10, it is clear that deceased Shambhu was SC No. 55/1 37 BC of the area, whereas PW10 has not deposed that accused Vikas @ Neta, Raju @ Vikas, Dheeraj and Lala Mukhiya were also BC of the area, so merely some cases were pending against them does not mean that they were declared BC of the area by the police and their record were available in the PS Uttam Nagar, on the basis of which police officials have identified accused and falsely implicated in this case. Nothing has been suggested to PW10 that in cases pending against accused Dheeraj and Lala Mukhia alongwith accused Vikas @ Neta and Raju @ Vikas, photographs of the accused persons were also available, which helped the police officials to identify the accused persons and also to falsely implicate them in this case to solve the case. So the contention of Ld. Defence Counsel reagarding in the cross examination of the witnesses in this respect are not forceful in any manner and witnesses examined by prosecution have identified the accused persons on the basis that they had seen the accused persons, while they were beating injured Shambhu at that time as deposed by witnesses.
Postmortem of the deceased Shambhu was conducted by Dr. Anil Shandil on 07/10/2006. On that day he was posted as Senior Resident at DDU hospital and he conducted postmortem on the body of deceased Shambhu along with Dr. Amit Pundir Vide PM report no.915/06, aged about 20 years, brought to DDU hospital with alleged history of assault by four boys. He conducted internal and external examination. Blood in gauze piece, clothes of the deceased and blood and viscera for chemical analysis preservative common salt were preserved, sealed with the seal of the hospital and handed over the concerned Investigating Officer.
According to the opinion of PW18 Dr. Anil Shandil, injuries sustained by deceased Shambhu were antemortem in nature. Cause of death was asphyxia resulting from closure of external air passage, nose, mouth, which was sufficient to cause death in ordinary course of nature. Injury no.1 to 7 resulting from blunt force impact. Time since death was approximately 24 hours. PW18 proved his SC No. 55/1 38 report Ex.PW18/A . He also identified the writing and signatures of Dr. Amit Kumar at point B on MLC. PW18 also identified the clothes of the deceased i.e. one shirt of sky blue colour, one baniyan,one black colour pant with belt and one blue colour underwear as Ex.P2 to Ex.P5. PW18 has also identified blood gauze piece as Ex.P6.
Ld. Defence Counsel has contended that PW18 Dr. Anil Sandil has stated in the cross examination that injuries sustained by deceased could have been caused due to fall on blunt object.
I am not agree with the contention of Ld. Defence Counsel as from the deposition of PW3, it has been proved by prosecution that when they reached at the spot, they saw all the four accused persons giving beatings to the injured Shambhu, who was lying on the ground. So in such circumstances, it is difficult to say that injured Shambhu had sustained injuries due to fall on the ground.
PW18 Dr. Anil Sandil has identified the blue colour shirt of the deceased and it has been stated by PW1 Guddu Kumar Jha, brother of the deceased, in his cross examination that his deceased brother was wearing light blue colour shirt on 06/10/06 and at that time, he was seen with accused persons, so PW18 has also corroborated with PW1 that lastly when deceased Shambhu was seen with the accused persons, he was wearing blue colour shirt, which has been identified by PW18 Dr. Anil Sandil before the Court and was seized during the postmortem of the dead body of Shambu.
PW22 Dr. Rajender Kumar has deposed that on 03/11/2006, he was posted as Senior Scientific Officer at FSL, Rohini and on that day, he received two sealed parcels i.e. Parcel no.1 and 2 sealed with the seal of DFMT, DDU hospital. On opening parcel no.1, it was found containing exhibits 1a, 1b, 1c, 1d i.e. shirt, banian, pant with belt and underwear. Parcel no.2 was containing Ex.2 i.e. blood gauze cloth piece.
On biological examination, blood was detected on exhibits 1a, 1b, and SC No. 55/1 39
2. On Serological examination exhibits 1a, 1b, and 2 were found to have human blood of A group. PW22 has proved his reports as Ex.PW22/A and Ex.PW22/B. PW22 has also identified one sky blue colour shirt, one banian, one black pant with belt and one blue colour underwear as Ex.P2 to Ex.P5 and also identified blood gauze piece as Ex.P6. PW22 has not been cross examination by Ld. Defence Counsel in any manner, hence his testimony is unrebutted and unshaken.
From the testimony of PW22 Dr. Rajender Kumar, prosecution has been able to prove that the wearing clothes of the deceased were having blood stains, which were of the blood group A same as of blood sample taken of deceased Shambhu.
PW27 is Sh. Jitender Kumar, Senior Scientific Assistant. He has deposed that on 03/11/04, one parcel was received in his office. Same was assigned to him for examination. One polythene bag sealed with the seal of "DFMT DDU hospital" labelled as PMR no. 915/2006 of Shambhu contained Ex.1A and 1B. These were found containing Ex.1A i.e. stomach and piece of small intestine with contents, which was kept in sealed jars. Ex.1B contains piece of liver, spleen and kidney, which was also sealed in a jar. On chemical examination, Ex.1A and Ex.1B were found to be having ethyl alcohol. He has proved his detailed report in this regard as Ex.PW27/A. Thereafter, he resealed the exhibits in the jars with the seal of "JK FSL Delhi". He has also identified the plastic jar containing liver parts, spleen and kidney as Ex.P2 and plastic jar containing stomach wash and small intestine as Ex.P3. PW27 has also not been cross examined in any manner, hence his testimony is unshaken and unrebutted PW18 Dr. Anil Sandil has stated that blood and viscera were preserved for chemical analysis to rule out any intoxication before death and it has come in the report of PW27 that the contents Ex.1a and Ex.1b were found having ethyl alcohol, but there is no opinion that presence of ethyl alcohol was the cause of death in any manner.
SC No. 55/1 40PW29 is Sh. Parshuram Singh, Senior Scientific Officer, Physics, FSL, Rohini, Delhi. He has deposed that one parcel in connection with this case was received and same was marked to him. Parcel no.1 was containing Ex.1a to 1d i.e. one shirt, one banian, one pant with belt and one underwear. On examination, he found no cut/tear/hole in Ex.1a, 1b and 1d. Three tear/abrasion marks were observed in Ex.1c. One was in front middle portion of right leg mark as Q1 and two were on front middle portion of left leg mark as Q2 and as Q3. After examination, the exhibits were sent to Biology Division after sealing the same with PS-FSL, Delhi. He has proved his report in this respect as Ex.PW29/A. PW29 has also identified one sky blue colour shirt, one banian, one black pant with belt and one blue colour underwear as Ex.P2 to Ex.P5. This witness has not been cross examined by Ld. Defence Counsel in any manner, hence his testimony is unrebutted and unshaken.
From the deposition of witnesses, the contentions of Ld. Defence Counsel that there must be some torn pieces of clothes and blood stains at the place of occurrence, but nothing was collected nor observed by the police officials during investigation is not tenable because only tear/abrasion mark was observed on Ex.1c i.e. one pant with belt, which was found on the right and left leg at middle portion of the same. It has not been suggested to PW29 that the tear abrasion mark on the wearing pant of deceased Shambhu was of such nature that some torn pieces of clothes and blood stains have left at the spot, when Shambhu was beaten by the accused persons. The contentions of Ld. Defence Counsel in this respect are not forceful in any manner and report of PW29 corroborated with the police officials, who conducted the investigation and did not see any torn pieces of clothes or blood stains at the spot. Even PW11 HC Babu Lal has not stated that deceased Shambhu was bleeding from any of his injuries, so there was no possibility of having any blood stains on the spot. According to PW18 Dr. Anil Sandil, injured Shambhu sustained lacerated wound, abrasions and SC No. 55/1 41 contusions, so there was no possibility of having any bleeding from any of the injuries so consequently there were no blood stains at the spot.
Certain external injuries have been observed i.e. contused lacerated wound 1.4 c.m. lateral to left eyebrow over forehead of size 1.3 c.m. x 0.3 c.m., Contused lacerated wound 2 c.m. from injury no. 1 over left frontal aspect, Contused lacerated wound over occipital aspect 6.6 c.m. from left mastoid of size 2 c.m. x 1.4 c.m, abrasion reddish in colour, irregular shape over frontal aspect 3 c.m. above right eyebrow, contusions over right thigh 14 c.m. above knee joint anterior aspect reddish in colour 11 c.m. x 2 c.m., contusions over left arm 11 c.m. above elbow posterior aspect. These injuries were not of such nature, which could have been caused asphyxia resulting from closure of external air passage, nose, mouth, which were sufficient to cause death in ordinary course of nature. Injury no.1 to 7 resulting from blunt force impact, which corroborates with the fact that injured Shambhu was beaten by legs, fists blows and danda and the injuries sustained by deceased Shambhu were not due to fall on blunt object. The witnesses examined by the prosecution do not support the contention of Ld. Defence Counsel that injuried Shambhu had sustained such type of injuries due to fall on blunt object rather he was beaten by accused persons with legs, fists blows and danda. In internal examination of neck, bruising of both upper and lower lips and nose with mucosal laceration on inner aspect of lips, gum with loosening of teeth with localised haematoma effused blood and clots on incision. Forthy secrection in trachea were seen and this injury must have caused the closure of external air passage i.e. nose and mouth, which were sufficient to cause death in the ordinary course of nature and these injuries were caused by accused persons with legs and fists blows and danda, due to which injured Shambhu died.
In view of the above prosecution has been able to prove beyond reasonable doubts from the deposition of PW1 Guddu Kumar Jha and PW2 Udai Kant Jha that on 06/10/06, Shambhu was lastly seen with all the four boys i.e. SC No. 55/1 42 Vikas @ Neta (juvenile), Raju @ Vikas, Lala Mukhia and Dheeraj, and from the deposition of PW3 SI Jai Parkash and PW5 Constable Birbal prosecution has also been able to prove beyond reasonable doubts that all the three accused persons along with fourth accused in furtherance of their common intention caused beatings to Shambhu while he was lying on the ground with legs, fists blows and danda.
Prosecution has also been able to prove beyond reasonable doubts that accused Raju @ Vikas was apprehended at the spot and he has been identified by the witnesses as the same person, who had caused injuries to Shambhu with legs, fist blows and danda with his co-accused persons, in furtherance of their common intention. Prosecution has also been able to prove beyond reasonable doubts that accused Lala Mukhia and Dheeraj were arrested in this case and have been identified by eye witnesses i.e. PW3 SI Jai Prakash and PW5 Constable Birbal as the same person, who had caused injuries to Shambhu with legs, fists blows and danda on the day of incident, in furtherance of their common intention. Prosecution has also been able to prove beyond reasonable doubts that accused Dheeraj got recovered one danda Ex.P1, with which he gave beatings to Shambhu on the day of incident. Further prosecution has also been able to prove beyond reasonable doubts that due to beatings given by all the accused persons including fourth boy, injured Shambhu died.
Ld. Defence Counsel has contended that prosecution has not been able to prove the motive to commit murder of Shambhu by the accused persons as according to PW11 HC Babu Lal, he along with injured Shambhu also removed accused Vikas @Neta and Raju @ Vikas to DDU hospital for their medical examination and got admitted them in the hospital. Accused both Vikas @ Neta and Raju @ Vikas were also medically examined in the hospital. MLC of accused Vikas son of Rakesh has been proved as Ex.PW20/A. On external examination, PW29 Dr. Uday Kumar Singh observed tenderness swelling over SC No. 55/1 43 right side of right leg, just above right malleoler, contusion over right shoulder, tenderness over right shoulder. According to PW20, Raju @ Vikas was also referred to Orthopadecis.
Ld. Defence Counsel has contended that MLC of accused Vikas @ Neta has not been proved as he is facing trial before the Juvenile Justice Board. Ld. Defence Counsel has further contended that if MLC of Raju @ Vikas and injured Shambhu is considered then, it seems that there was a fight of accused persons with injured Shambhu and they were not having not motive to commit murder of Shambhu.
The contentions of Ld. Defence Counsel are forceful, PW3 SI Jai Parkash and PW5 Constable Birbal, who are eye witnesses, have deposed that when they reached at the spot, four boys were beating fifth boys, who was lying on the ground and one boy was having danda and he was beating with danda and remaining boys were beating with legs and fists blows.
PW3 SI Jai Parkash and PW5 Constable Birbal have nowhere deposed that those four boys claimed in their presence that they wanted to kill Shambhu, but they were beating him with legs and fists blows and danda and it was not known whether they were having intention to kill Shambhu. From the MLC of accused Vikas @Neta it is clear that a quarrel had taken place in which he sustained injuries. So the accused persons were not having any motive to commit murder of Shambhu nor they were having any intention to cause such bodily injuries, which were likely to cause death, so case of the accused persons falls under exception (4) of section 300 of IPC as it was sudden fight without any premeditation and consequently death took place due to injuries caused by accused persons, so the prosecution has not been able to prove offence u/s 302 of IPC beyond reasonable doubts against the accused persons for which accused Raju @ Vikas, Lala Mukhia and Dheeraj are acquitted u/s 302/34 of IPC, but SC No. 55/1 44 as accused persons have caused injuries to Shambhu with the intention that the same were likely to cause death, but they were not having any intention to cause death or to cause such bodily injury sufficient to cause death, so accused Raju @ Vikas, Lala Mukhia and Dheeraj are held guilty u/s 304 Part II read with section 34 of IPC and are convicted for the same.
Announced in Open Court on dated 8th June, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No. 55/1 45 SC No. 55/1 46 SC No. 55/1 47 SC No. 55/1 48