Delhi District Court
The State vs 1. Hira Lal @ Toni on 25 April, 2008
IN THE COURT OF SH. BABU LAL
ADDITIONAL SESSIONS JUDGE, DELHI
SC No 83/07
The State Versus 1. Hira Lal @ Toni
2. Niranjan Lal
3. Hari Om
4. Rakesh
5. Ved Parkash @ Bobby
6. Dharmender
FIR No 231/05
P.S. Sadar Bazar
U/s 302/307/34 IPC
ORDER ON POINT OF SENTENCE
1. Vide my judgment dated 24.4.08, I had convicted
accused (1) Heera Lal @ Tony, (2) Niranjan, (3) Hari
Om, (4) Rakesh, (5) Ved Parkash @ Bobby and (6)
Dharminder U/s 302/149 and 307/149 IPC. Cases of two
of the accused namely Kanchan Singh and Bhupender
have been sent to Juvenile Justice Bard for passing
appropriate order against them. Today I have heard ld
Addl P.P. for the State and ld counsels for accused
1
persons on the point of sentence. Ld counsels Mr
C.L.Dhawan and Mr Kishore Kumar has submitted that
none of the accused is previous convict, they are the
persons of clean antecedents without any involvement in
any criminal matter at any point of time. It is submitted
that they are only bread earners of their family, therefore,
a lenient view be taken.
2. Accused have been held guilty U/s 302/149 IPC
and 307/149 IPC. For offence U/s 302 IPC only two
sentences have been prescribed (1) imprisonment for life
and (2) the capital sentence. Judged on any parameters
prescribed for awarding capital sentence, case does not
qualify to be rarest of rare cases. Therefore, it is not a fit
case where death sentence can be awarded. Next
sentence which the court can pass on the convicts is
sentence for imprisonment for life. Therefore, I am of the
view that ends of justice would be met by awarding
sentence of imprisonment for life.
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3. So far as sentence U/s 307 IPC is concerned, the
sentence prescribed may extend upto 10 years and where
hurt has been caused, the convict can be sentenced for
imprisonment for life and fine. In this case, the convicts
have come with a design to assault the deceased and his
brothers. This shows premeditation on their part.
Accused Heera Lal had stabbed the deceased with a Churi
which pierced through his liver and other parts of the
stomach. Accused Ved Parkash @ Bobby and
Dharmender had also used knives in inflicting injuiries on
TSR driver whereas other accused persons also assisted
by catching hold of injured or by causing injuries with
hockey sticks or cycle chain. Circumstances are such that
they do not deserve any leniency. But at the time of
commission of offence, they were between the age group
of 18-27 years. In these circumstances, I am of the view
that they can not be given benefit of Probation of
Offenders Act. However, in my opinion that ends of
3
justice would be met, if they are sentenced with
imprisonment and fine.
4. Keeping in view totality of circumstances, I
sentence, convicts Heera Lal @ Tony, Niranjan, Hari
Om, Rakesh, Ved Parkash @ Bobby and Dharminder to
undergo imprisonment for life and imposed a fine of Rs
10,000 on each for offence U/s 302/149 IPC. In default
of payment of fine, they shall undergo SI for four months
each. I sentence, convicts Heera Lal @ Tony, Niranjan,
Hari Om, Rakesh, Ved Parkash @ Bobby and
Dharminder to undergo imprisonment for 10 years and
imposed a fine of Rs 10,000 each for offence U/s 307/149
IPC. In default of payment of fine, they shall undergo SI
for four months each. Both these sentences shall run
concurrently. Any period during which, convicts have
remained in custody shall be set off against the sentence
awarded to them. A copy of judgment and order on
sentence be given to the convicts free of cost so as to
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enable them to file an appeal against the judgment and
order of sentence, if they so desire. Jail warrants be
prepared for convicts to serve the sentence awarded to
them. Out of the amount of the fine, if realised, an
amount of rupees one lac ( Rs 1,00,000) shall be given to
heirs of deceased Hem Raj. File be consigned to record
room.
Announced in the Open Court
on 25.4.2008 (BABU LAL)
ADDL. SESSIONS JUDGE
DELHI
5
IN THE COURT OF SH. BABU LAL
ADDITIONAL SESSIONS JUDGE, DELHI
SC No 83/07
The State Versus 1. Hira Lal @ Toni
2. Niranjan Lal
3. Shishpal
All sons of Sh Yad Ram
R/o 4157, Gali Barna,
Sadar Bazar, Delhi.
4. Rakesh
5. Bhupinder
6. Hari Om
All sons of Sh Ramesh Chand
7. Ved Parkash
8. Dharmender
9. Kanchan Singh
All sons of Shankar Lal
10. Umrao S/o Sh Munna Lal
Accused No 5 to 10 are R/o.
4305, Basti Nand Ram Gali
Barna, Sadar Bazar, Delhi.
FIR No 231/05
P.S. Sadar Bazar
U/s 302/307/34 IPC
Arguments heard on 22.04.08
Judgment pronounced on 24.04.08
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JUDGMENT
1. Prosecution has filed the present challan U/s 302/307/34 IPC against accused Heera Lal @ Tony, Niranjan Lal, Shishpal, Bal Kishan @ Bale, Rakesh, Bhupender, Hari Om, Ved Parkash @ Bobby, Dharmender, Kanchan Singh and Umrao. Out of these accused persons, accused Bal Kishan @ Bale has already expired and other accused persons are facing trial in this case. Facts leading to filing of the present challan are that on a day prior to 13.8.95 accused Bobby and Tony etc had allegedly made some comments on the sister in law of the complainant Ram Swaroop on account of which father of the complainant had scolded accused Tony. However, no formal report was allegedly lodged in the PS. On 13.8.95 at about5.30 p.m. sister of the complainant was proceeding from her parents house to go to her in-laws' house and to arrange a TSR for her, complainant along with his brother Hem Raj, deceased, are alleged to have come on the road Gali Burna near Om Sweet House. TSR of PW Rajesh was allegedly parked on the road who was to take sister of the complainant to her matrimonial 7 house. The women folk were in the process of coming along with sister of the complainant to see her off in the TSR. In the meantime, accused Heera Lal @ Tony, Bobby, Dharmender, Kanchan, Rakesh, Hari Om, Nianjan and Bhupender, who were resident of same locality and were known to the complainant, came one by one at the spot. Accused Tony is alleged to have exhorted the aforesaid persons to attack and give beatings to the complainant and his brother Hem Raj and also exhorted that they should not allow complainant and Hem Raj to go scot free on that day. Accused Tony is alleged to have also stated that father of the complainant had insulted them a day earlier. On this accused, Niranjan and Hari Om allegedly caught hold of Hem Raj and accused Heera Lal and Tony allegedly stabbed Hem Raj on his stomach with a knife. When complainant Ram Swaroop allegedly tried to save Hem Raj, accused Heera Lal @ Tony is alleged to have hit on the head of the complainant with back side of the knife. In the meantime, accused Hari Om is alleged to have caught hold of him and accused Rakesh allegedly gave hockey blows to him as a result of which he 8 sustained injuries on his back and head. Accused Hari Om is alleged to have also taken out an iron chain and gave blows on the person of Rajesh, the TSR driver. Accused Kanchan and Bhupender are alleged to have caught hold of Rajesh TSR driver and accused Ved Prakash @ Bobby and Dharmender allegedly gave knife blows on his back. Accused Rakesh is alleged to have given hockey blows to him on his head as a result of which he sustained injuries on his head and back. Accused Hari Om is alleged to have given chain blows to Rajesh. Thereafter all the accused persons allegedly fled away from the spot shouting. Since Hem Raj had sustained injuries, he was removed to RML hospital. However, complainant Ram Swaroop and TSR driver Rajesh were removed by PCR van to Hindu Rao Hospital where they were medically examined. Statement of complainant Ram Swaroop was recorded on the basis of which FIR was recorded and police came into action. On 14.8.95 at about 11.00 a.m. Hem Raj @ Puppy died in RML hospital, therefore, case was converted into section 302 IPC. Dead body of deceased Hem Raj was sent for postmortem examination in which injuries on the 9 abdomen were opined to have been caused by sharp edged object and were opined to be sufficient in ordinary course of nature to cause death. Death was opined to have been cause due to hemorrhagic shock on account of injuries sustained by the deceased. Accused Bhupender, Kanchan, Niranjan and Hari Om were allegedly arrested. Thereafter on 15.8.95 accused Ved parkash @ Bobby, Dharmender, Heera Lal and Rakesh were arrested. Accused Heera Lal @ Tony is alleged to have made a disclosure statement and thereafter got recovered a blood stained knife. Other accused persons were also allegedly arrested who had allegedly made disclosure statements. On 19.9.95 accused Shish Pal was arrested. Accused Umrao and Bal Kishan ( since dead) surrendered in the court on 3.11.05. After investigation of the case, police came to the conclusion that sufficient evidence exists on record to charge accused persons U/s 302/307/34 IPC.
2. After complying with provisions of section 207 Cr.P.C., ld M.M. Committed the case to Court of Sessions which assigned this case to this court for trial in accordance with law.
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3. After hearing ld Addl PP for the State and ld counsel for the accused, charges U/s 148/302/307/149 IPC were framed against accused persons to which they pleaded not guilty and claimed a trial.
4. In order to prove its case, prosecution in all has examined as many as 32 witnesses.
5. Statement of accused U/s 313 Cr.P.C. was recorded in which they have denied all the facts which emerged in the evidence against them. They have stated that they are innocent and have been falsely implicated in this case. DW-1 Sh Raja has been examined on behalf of accused Shishpal. DW-1 Raja Ram has stated that he did not remember the date but in the year 1995 and in the month of Sawan, it was Sunday when accused Shish Pal was working with him from 9.00 a.m. to 9.00 p.m. Shish Pal is alleged to have collected payment of Rs 1300 on that day from his employer and went. Next day, he is deposed to have not reported for work. This witness is deposed to have gone to his house and came to know that he had gone to PS and thereafter he returned back to his room. (1.) Ocular Evidence of witnesses/injured persons : 11
6. Coming to evidence on record, I find that FIR in this case has been registered on the statement of injured Ram Swaroop. He has been examined as PW-4. He is the star witness of the prosecution, therefore, it will be better to start with his testimony. According to him a day prior to 13.8.95, some hot words had exchanged between his father and accused Tony on account of some remarks passed by him on his sister in law. He has also stated that his father had scolded accused Tony but no report was lodged with the police. According to him on 13.8.95 at about 5.30 p.m. his sister Bhagwanti was proceeding to her in-laws' house, therefore, in order to see her off and in order to hire a scooter for her, he along with his deceased brother Hem Raj @ Puppy and Raju were standing near TSR which was parked near Om Sweet Corner, Gali Barna, Pahari Dheeraj. According to this witness, Rajesh was TSR driver. It is deposed that all the accused persons, namely, Hira Lal @ Tony, Hari Om, Niranjan, Rakesh, Bobby, Dharmender, Kanchan and Bhupender came there one by one. All the accused persons are deposed to have been known to him since his childhood. He has stated that accused Hira Lal 12 @ Tony and Niranjan reside in front of his house. After reaching near complainant and his brother, accused Tony asked his companion to beat them as their father had insulted him. On hearing this, accused Niranjan and Hari Om are deposed to have caught hold of his brother Hem Raj and accused Hira Lal @ Tony gave a knife blow on the stomach of his brother Hem Raj and when he caught hold of Tony from behind, he is deposed to have given knife injury on his head with its back portion. In the meantime, accused Hari Om caught hold of this witness from behind and accused Rakesh caused injuries to him on his person including on his head. He has also stated that accused Kanchan and Bhupender caught hold of TSR driver Raju @ Rajesh and accused Ved Prakash @ Bobby and Dharmender gave knife injury to Raju as a result of which he sustained injury on his back. Accused Rakesh is deposed to have hit Raju with hockey and accused Hari Om is deposed to have caused injuries to him with cycle chain. So far as accused Umrao, Shishpal and Bal Kishan are concerned, they are deposed to have come there and asked accused persons to beat them and should not allow them to 13 escape. In the meantime, PCR van is deposed to have come at the spot which removed Ram Swaroop and Rajesh @ Raju to Hindu Rao hospital. Hem Raj had been taken away to hospital by some other person. Ram Swaroop is deposed to have given statement Ex PW4/A to the police.
7. PW-12 Kanta Parsad is second witness who is deposed to have witnessed the incident. His version is that on 13.8.95 at about 5.30 p.m. he was present on his shop which was at a distance of 40-50 paces from the place of incident. According to him, Hem Raj and Ram Swaroop, his brothers, were going with luggage of Bhagwanti, their sister, who was to go to her in laws' house in the scooter of Rajesh which was standing in the Gali near Om Sweet shop. According to him, TSR was standing and its driver Rajesh was also standing there. Ram Swaroop and Hem Raj are deposed to have stopped near the stationary TSR. Since Bhagwanti and Tulsa, their sisters, were coming, after 10-15 minutes he heard the noise of bachao-bachao from outside the Gali and on hearing noise, he went to the Gali and found that his deceased brother Hem Raj was held by Hari Om and Niranjan and accused Hira Lal @ 14 Tony was giving knife blows on the stomach of his brother Hem Raj. According to him, accused Kanchan, Bhupender, Bobby, Rakesh, Dharminder were also present there. Accused Kanchan and Bhupender are deposed to have caught hold of TSR driver Rajesh and accused Bobby and Rakesh are deposed to have given knife injuries on his person. According to him, these persons caused injury on the person of Rajesh because he was trying to save Hem Raj. He has further deposed that when Ram Swaroop tried to save Hem Raj, accused Hira Lal @ Tony caused injury on his head from reverse side of his knife. Ram Swaroop is deposed to have also been hit by Hari Om with hockey. According to this witness, other accused persons were having iron chain in their hands and had also given chain blows to Ram Swaroop. PCR van is deposed to have come and removed Rajesh and Ram Swaroop to Bara Hindu Rao Hospital. Hem Raj was removed to RML hospital by Chandu Lal. It is deposed that accused Umrao, Shish Pal and Bal Kishan were also standing at the time of occurrence near the spot and they were saying to other accused persons ''Aaj inko mar do, jaane na payein''. This 15 witness was declared hostile by the prosecution and was cross examined by Addl PP. In his cross examination by Addl PP, he has admitted that accused Kanchan and Bhupender had caught hold of Rajesh and accused Ved Parkash @ Bobby and Dharmender had given injuries on his person with knife. He has even admitted that accused Rakesh had not given any knife injury to Rajesh but it was accused Bhupender, who had done so. He has admitted that it was accused Heera Lal @ Tony who had given knife injuries to Ram Swaroop and Ram Swaroop was caught hold by accused Hari Om. It is admitted by the witness that accused Rakesh had given beating to Ram Swarrop with hockey and accused "Jitender" had hit him with chain which he was having in his hand. This witness had pointed out towards accused Dharmender and identified him as Jitender and as regards Jitender, he has stated that he had gone to RML hospital with Hem Raj and was a different person. He was confronted with his previous statement that Jitender was having any chain in his hands and he admitted subsequently that there was no person like Jitender who had assaulted injured persons in his presence. Ultimately he has 16 identified accused Dharmender to be a person who along with accused Ved Prakash @ Bobby had attacked Rajesh TSR driver with knife at his back.
8. Third alleged witness is Chandu Lal. He has been examined as PW-11. His version is that on 13.8.95 on hearing noise of quarrel, he had reached the spot at about 5.30 p.m. Near Om Sweet House, Gali Burna. It is important to note that when he reached, according to this witness, accused Umrao, Bal Kishan and Shish Pal were standing and they were calling accused Hira Lal @Tony and Bobby etc. to kill injured persons and that they should not manage to escape. According to this witness, after beating all the 3 injured persons, they fled away from the spot. PCR van is deposed to have reached the spot and removed Ram Swaroop and Rajesh to Hindu Rao Hospital. This witness and Kanta Parsad took their brother Hem Raj in a three wheeler to Narang Hospital and that he got him admitted in the hospital. He has further deposed that his brother was murdered by Hira Lal @ Tony, Niranjan, Rakesh, Bhupinder, Hari Om, Ved Parkash @Bobby, Dharmender and Kanchal. He has also stated that Umrao, Shishpal and Bal 17 Kishan had also killed his brother. However, in his cross examination, this witness has admitted that he did not see any of the accused persons hitting injured including his brother Hem Raj. He has not attributed any particular role to any of the accused. It seems that this witness had reached the spot only after the incident had taken place. Therefore, his version is nothing but seems to be based on information given to him by other persons. However, all these witnesses in their cross examination have admitted that place of incident was a thickly populated area having number o shops nearby. They have also admitted that even on the holiday, area remains over crowded.
9. Another set of witnesses consists of TSR driver Rajesh, Nirmal Kumar and Jitender Kumar. These witnesses are hostile and have not supported the prosecution story. Since TSR driver was present at the spot who himself had sustained injuries, I will begin with Rajesh. He has been examined as PW-1. He has stated that on 13.8.95 he had parked his TSR at the corner of Gali Barna, Pahari Dheeraj where Hem Raj was requesting him to carry in his TSR his sister to her in law's house. In the meantime 4-5 boys are 18 deposed to have come from behind and asked him to carry them. But he requested them that he was to carry sister of Hem Raj to her in laws' house. Those 4-5 boys are deposed to have tried to force him to take them in his TSR but he again refused at which, he is deposed to have grappled with them. Those 4-5 boys are deposed to have occupied seat in the TSR and started beating him. According to him, two of those boys were armed with knife and two were armed with hockey. He is deposed to have called Hem Raj and in the meantime one of those boys stabbed Hem Raj in his stomach. He has stated that he was also given knife blow and hockey blow on his back as a result of which he had sustained injuries on his back and head. He has stated that he had received indiscriminate hockey blows on his head and thereafter he became unconscious and regained consciousness in the hospital at about 7.00/7.30 p.m. He has also stated that he can not tell the name of those boys as he did not know them. His version is that except Hem Raj and he himself, none else had sustained injuries. He has also stated that he had not seen any of the accused persons present at the place of incident on the day of 19 incident in which he and Hem Raj had received injuries and that they were different boys. He has deposed that he was not hit by any of the accused persons. He was declared hostile by the prosecution and was cross examined by Addl PP. However, in his cross examination by Addl PP, he has denied that accused Hira Lal @ tony, Ved Prakash @ Bobby, Dharmider, Kanchan, Rakesh, Hari Om, Niranjan and Bhupender were present at the place of incident or that accused Tony had exhorted them to give beating and that they should not allow them to go scot free because their father had insulted him a day before. He has denied that on this yeiling accused Hira Lal, Niranjan and Hari Om caught hold of Hem Raj and accused Heera Lal inflicted knife injuries on the stomach of Hem Raj. He has denied that when Ram Swaroop stepped forward to save his brother, accused Heera Lal had hit on his head with back side of knife as a result of which he had received injuries on his head. He has denied that accused Hari Om caught hold of Ram Swaroop and accused Rakesh had inflicted injuries on his head and back with hockey and iron chain. He has also denied that accused Kanchan and 20 Bhupender caught hold of him and accused Ved Prakash @ Bobby and Dharmender gave knife blows to him as a result of which he had received injuries on his back. He has also denied that accused Rakesh had given hockey blows on his head and accused Hari Om gave iron chain blows to him. He has denied that accused Shish Pal and Bal Kishan, who were brothers of Umrao and Hari Om were standing near Om Sweet House and were exhorting accused persons to kill them and that they would manage everything. Therefore, when this witness has been declared hostile and was confronted with his previous statement on all material points, his testimony is hardly of any use so far as participation of the accused and their role in the incident is concerned.
10. Next witness examined by the prosecution is PW2 Nirmal Kumar. He has also not supported the prosecution story. According to him, on the day of occurrence at about 6 or 6.30 p.m. when he was returning from Baratooti chowk, he saw that a crowd had assembled at the corner of Gali Barna. He is deposed to have made inquiry as to what had happened and 2-3 Bihari persons told him that a quarrel had taken place 21 with boys who were residing in his gali. He has stated that he did not know as to who had caused injuries and to whom. This witness was also declared hostile by the prosecution and was cross examined by Addl PP. In his cross examination by Addl PP, he has denied having made any statement to the police regarding this incident. He has also denied that on 13.8.95 at about 5.30 p.m. near Om Sweet House, main Road, accused Tony, Bobby, Dharminder, Kancha, Rakesh, Hari Om, Niranjan and Bhupender were standing near a three wheeler. However, he has admitted that accused Niranjan and other accused persons were residents of his Mohalla and were known to him. He has denied that accused Tony was exhorting other accused persons to kill injured persons and that they should not go scot free. He has denied that accused Niranjan and Heera Lal @ Tony had inflicted knife blows on the stomach of Hem Raj. He has also denied that when Ram Swaroop tried to save Hem Raj, accused Tony also inflicted knife injury on his head from its back side. He has also denied that Hari Om caught hold of Ram Swaroop and accused Rakesh caused injuries on his head and back with 22 hockey and thereafter Hari Om inflicted injuries with iron chain on the person of Ram Swaroop. He has also denied that Bhupender caught hold of Rajesh and Bobby and Dharminder caused knife injury on the back of Rajesh. He has also denied that Rajesh was also hit on his head and backwith hockey by accused Rakesh and Hari Om caused injuries with iron chain on him. He has also denied that when accused were assaulting Hem Raj, Rajesh and Ram Swaroop, he saw accused Shish Pal and Bal Kishan standing there at some distance near Om Sweet House and were exhorting Tony and Bobby to kill them. He has denied that he had been won over by accused and this is why he was suppressing the true facts.
11. Next witness is PW-22 Jitender. He has also not supported the prosecution story. He was also declared hostile by the prosecution and was cross examined by Addl PP. In his cross examination by Addl PP, he has denied that on 13.8.95 he was accompanying his neighbours Bhagwanti, Tulsi and other ladies and children and was carrying their luggage. He has denied that near Om Sweets Ram Swaroop, Hem Raj and TSR driver Rajesh met him who were waiting for Bhagwanti 23 to come and board TSR and in the meantime, accused Heera Lal @ Toni Dharmender, Kanchan, Rakesh, Hari Om, Bhupender and Niranjan came there one by one and accused Heera Lal @ Tony exhorted them to attack the abovesaid persons and that nobody was to be spared. He has also denied that accused Tony had stated that father of Hem Raj had insulted them. He has also denied that accused Niranjan and Hari Om caught hold of Hem Raj and accused Hira Lal @ Toni stabbed him in his abdomen and when Ram Swaroop came to rescue him, accused Tony also attacked him and hit him with handle of knife on his head. He has denied that accused Hari Om had caught hold of Ram Swaroop and accused Rakesh had given stick blow on his back. He has also denied that accused Hari Om took out an iron chain and hit on the person of Ram Swaroop. He has also denied that accused Kanchan, Bhupender had caught hold of Rajesh and accused Dharmender and Bobby had stabbed him on his back and accused Rakesh had given hockey stick blows to him. He has denied that accused Hari Om had given blows of iron chain. He has also denied that he had removed injured Hem Raj to 24 RML Hospital while Ram Swaroop and Rajesh were removed to Hindu Rao Hospital by PCR van. He was confronted with his previous statement on all these material points. This in brief is the summary of evidence of ocular witnesses on record.
(2.) Medical Evidence :-
12. PW-5 Dr Seema from RML Hospital has proved MLC in respect of Hemraj as Ex PW5/A. She has testified that Hemraj was examined by Dr R. Agarwal on 13.8.95. He has identified signatures of Dr. R. Agarwal as she had seen him writing and signing during the course of her official duties. She has also deposed that Dr R Agarwal has left the services of the hospital and her whereabouts are not available in the hospital. PW-7 Dr Renuka Malik had examined Hemraj in casualty at about 8.30 p.m. According to her, patient at that time was unfit for statement. She has proved her report in this regard as Ex PW7/B.
13. PW-6 Dr L.K.Barua had conducted postmortem on the dead body of Hem Raj on 14.8.05. according to him, dead body was identified by Kanta Prasad, brother of the deceased 25 before postmortem examination. He has found following injuries :-
One vertically placed mid line stitched wound was seen in front of upper and middle abdomen of length 10 inches. Another stitched wound of length 1-2/3 inches was seen four inches above the umbilicus. No other external injury was seen on the body.
Internal Injuries :- After opening stitches of the wounds both injuries were seen to be cleanly cut. The big mid line stitched wound was operational, but the small one was the one that was stab wound. After exploration, the abdominal cavity the deodenum of intestine was found to be stitched. The pancreas and liver were seen to be stitched. These injuries were seen to be corresponding to the injury placed four inches above umbilicus. All the abdominal and viscera were seen smeared with blood clots.
14. Dr. L.K. Barua had also given his opinion about the time since death to be 12/13 hours. According to him, injury on the abdomen was anti-mortem in nature caused by sharp edged weapon and was opined to be sufficient in ordinary course of nature to cause death. He has proved his report as Ex PW 6/A. He has also proved request for postmortem received from Inspector M.S. Malikas Ex PW6/B.
15. He has testified that on 9.9.95 he had received an application from Inspector Mahender Singh, Addl SHO PS 26 Sadar Bazar asking his opinion about weapon of offence. A sealed parcel sealed with the seal of MSM containing the knife was also produced before him. According to him after opening the packet, one rusted chura with plastic handle was seen. Total length of the chura was 34.5 cm and handle part was of 10.4 cm. After examining the chura, he gave his opinion that injury present on the abdomen of the deceased could be caused by the chura produced before him for examination. He has proved his opinion in this regard as Ex PW6/C.
16. PW-8 Dr Sanjay Shroff has proved death summary in respect of Hemraj prepared by Dr Narender Singh. He has proved carbon copy of death summary as Ex PW8/A. He has also proved copy of MLC in respect of Hemraj prepared by Dr Rupali Agarwal as Ex PW8/B. He has identified handwriting and signatures of both the doctors who had prepared death summary and MLC. He has also testified that both these doctors have left the services of the hospital and their whereabouts are not known.
17. PW-9 Dr Vibha Mittal had medically examined 27 injured Rajesh on 13.8.95 in Hindu Rao Hospital ( casualty). According to her, general condition of the patient was satisfactory. She has observed following injuries on the body of injured Rajesh :-
(1) two lacerated wounds on scalp, profusely bleeding on the left side around two and half inches.
(2) 2 inches tenderness in back slight was observed on the centre of scalp.
(3) Sharp Injuries:- (i) 1 cm x 2 inch, below upper axilla (ii) 1 cm x 8 inch below left axilla (iii) 1 cm right side of back middle (iv) 1cm right side of back below (v) 1 cm on left side of back (vi) Right side 1 cm long, 4 inch below axilla ( vii, viii & ix) on back 1 cm, 1 cm and ¾ cm at the level left iliac crest approximately.
18. In her opinion injury No1 was caused by blunt weapon and injury no 2 was caused by sharp weapon. In her opinion, injuries present on the person of injured Rajesh were "dangerous" in nature.
19. PW-10 Dr Naveen Atal of Hindu Rao Hospital had medically examined injured Ram Swaroop on 13.8.95. He has observed following injuries on his person :-
(1) CLW, left parietal region about 3 cm x 1 mm long.
(2) CLW, forehead, 1cm long, near the mid-line.
(3) Sharp tissue swelling behind the right ear side 2 cm x 3 28 cm.
(4) Abraison, abdomen, right side in mid axillary line, just below the sub-costal margin.
(5) Abrasion right side of chest, on the back at its level of inferior border of scapulae, just lateral to mid-line.
20. According to him, injuries were caused by blunt weapon and they were simple in nature. He has proved MLC prepared by him as Ex PW10/A.
21. PW-19 Dr Ashok Tyagi, Medical Officer of Hindu Rao Hospital has proved endorsement of Dr Lokesh ( Orthopedic surgeon) who had given opinion about nature of injuries on MLC Ex PW10/A at mark A and his signatures at point B. He has also proved nature of injury given by Dr Mukesh and that his signatures appear at point A. He has proved photocopy of MLC as Ex PW19/A. According to him, both the above doctors had left the hospital and their whereabouts are not known.
22. Accused Heera Lal was also examined at Aruna Asaf Ali Hospital on 16.8.95 by Dr Amit Kr Sharma who has been examined as PW-29. According to him on 16.8.95 patent Heera Lal was brought to the hospitalby Ct Sajjan Singh with 29 alleged history of being injured in a quarrel three days before. He has observed :- scar mark on abdomen and forehead 1 cm in length. According to him duration of injuries was opined to be 2 to 6 days old as assessed by scar formation in the injury. He has proved MLC prepared by him as Ex PW29/A. (3.) Scientific Evidence
23. Blood stained clothes of deceased, blood sample and chura Ex. P-2 were sent to FSL for chemical examination. The report of FSL has been proved as Ex. PX. According to the report blood on clothes of deceased and the sample blood were of "A" group. Human blood was detected on Chura Ex. P-2, the group of which was also found "A".
(4.) Evidence of Investigational steps and recoveries
24. PW-30 Ct Mukesh Kumar was working as DD writer at PP Ahata Kidara PS Sadar Bazar. According to him on 13.8.95 at about 5.40 p.m. information regarding quarrel at Pahari Dheeraj and removal of injured to hospital was received on the basis of which he had recorded DD No 11. According to him, this DD was assigned to ASI Kanwal Singh. He has 30 proved copy of the DD as Ex PW27/A. He has proved the copy of order vide which said DD was destroyed as Ex PW30/A. PW-28 Hc Omesh Kmar was posted as Head constable on PCR van and on receipt of information on 13.8.95 regarding quarrel at Om Sweet House, he had reached the spot and had removed two injured persons to H.R. Hospital and had informed the control room in this regard. PW-13 Ct Narinder Singh Rawat was posted as duty constable at RML Hospital on 30.8.95. He is deposed to have given one MLC of Hem Raj, one parcel containing one blood stained shirt of Hem Raj and one blood stained banian of Hem Raj sealed with the seal of CMO Welington hospital to ASI Kamal Singh who had taken the same into police possession vide memo Ex PW3/A.
25. PW-27 SI Kanwal Singh on receipt of DD No 11 is deposed to have reached the spot along with Ct Rishi Prakash. It was revealed at the spot that two injured had been removed to Hindu Rao Hospital and third injured had been to RML Hospital. SI Narender Singh along with Hc Dhyam Singh is deposed to have also reached the spot. Hc Dhyan Singh is 31 deposed to have been left at the spot for guarding the same and SI Narender Singh, ASI Kanwal Singh and Ct Rishi Parkash had gone to H.R. Hospital where injured Rajesh was declared unfit for statement. Injured Ram Swaroop was declared fit for statement, therefore, his statement was recorded by SI Narender. MLCs of the injured persons were collected by him. Statement of Ram Swaroop has been proved as Ex PW4/A which was endorsed by SI Narender and Ct Rishi Parkash was sent to PS for registration of the case on the basis of which PW-15 SI Harbir Singh had recorded FIR. Copy of the FIR has been proved as Ex PW15/A. He has also testified that sealed packet containing clothes of injured Rajesh were taken into police possession vide memo Ex PW17/A. Thereafter he along with SI Narender Singh is deposed to have gone to RML hospital, collected MLC of injured Hemraj who was declared unfit for statement by the Doctor. One sealed packet containing clothes of injured Hemraj is deposed to have been handed over by the Doctor which was also taken into possession vide memo Ex PW13/A.
26. PW-27 SI Kanwal Singh has further deposed that 32 accused Bhupender and Kanchan were arrested from Tikona Park, Idgah, Sadar Bazar at the instance of PW Jitender. Personal search of accused Bhupender and Kanchan Singh have been proved as Ex PW27/B and Ex PW27/C respectively. On 14.8.95 accused Niranjan and Hari Om were arrested from Sadar Bazar Railway Station and their personal search were carried out vide memo Ex PW27/D and Ex PW 27/E. From the search of accused Hari Om, one cycle chain is deposed to have been recovered from right side pocket of his pant and same was taken into possession vide memo Ex PW27/F. Cycle chain has been identified by the witness as Ex P-1. PW-32 Inspector Narinder Singh has also deposed on the same lines as deposed by PW 27, therefore, for the sake of brevity, his testimony is not being repeated here.
27. PW-31 Inspector Mahender Singh Malik was working as Addl SHO PS Sadar Bazar on 14.8.95. According to him, investigation of this case was handed over to him after conversion from section 307 to 302 IPC. He is deposed to have gone to RML Hospital and prepared inquest papers of Hem Raj @ Pappu Ex PW31/A . According to him dead body 33 of Hemraj was identified by Sh Kanta Prasad and Jitender Kumar vide identification statement Ex PW31/B and Ex PW31/C. Dead body of Hem Raj is deposed to have been sent for postmortem examination. on the dead body was got conducted. PW-16 Ct Dharambeer and PW-26 Ct Raj Kumar had taken the dead body from RML Mortuary to Subzi Mandi, Mortuary for postmortem examination. According to them, after postmortem dead body was handed over to Kanta Parsad, brother of the deceased. The doctor on duty is deposed to have handed over a sealed envelope contained blood of the deceased and one sample seal which are deposed to have been handed over to the IO who took the same into possession vide memo Ex PW16/A. PW-31 Inspector Mahender Singh is deposed to have deposited the case property in the malkhana and recorded statement of injured Rajesh on 14.8.95 in Hindu Rao Hospital. On 15.8.95 on receipt of secret information that four accused persons were hiding at D-326, Nathu Colony, Nand Nagri, Delhi, they reached at aforesaid address. Prior to that two public persons, namely, Raj Kumar and Suresh Kumar had willingly joined the raiding party. Four accused 34 persons, namely, Heera Lal, Rakesh, Bobby and Dharmender are deposed to have been arrested at the pointing out of secret informer from aforesaid address. This witness has correctly identified accused Hira Lal, Bobby and Dharmender. However, on the day of examination of this witness, accused Rakesh was exempted from his personal appearance and his counsel had undertaken that he would not dispute the identity of accused. All the four accused persons were interrogated and their personal search was conducted vide memo Ex PW31/E, Ex PW31/F, Ex PW31/G and Ex PW31/H respectively. Disclosure statement of the accused are deposed to have been recorded vide memo Ex PW31/J to Ex PW 31/M respectively. Thereafter all the accused persons are deposed to have led the police party consisting of PW Raj Kumar and Suresh Kumar to Main Road, Pahari Dheeraj. Accused Heera Lal is deposed to have led the police party to the wall of Lady Public Toilet, Vastu Ram Lal, Gali Barna, Sadar Bazar and produced a knife from there. Said knife was taken into possession vide memo Ex PW 31/N after converting it into a pulanda and sealing the same with the seal of MSM. Prior to 35 that knife was measured and its length came to be 34.5 cm having blade of 24.1 cm and that blade was stained with blood and was rusted. Sketch of the knife was prepared which has been proved as Ex PW31/O. Thereafter at the pointing out of accused Rakesh, from his room on the first floor of H.N. 4305, Gali Dharamshala, Basti nand Ram, Gali Barna, Sadar Bazar, Delhi one hockey used by him in this case was recovered and same was taken into possession vide memo Ex PW31/P. On the next day accused Ved Prakash @ Bobby and Dharmender are deposed to have been remanded to police custody. Accused Shish Pal is deposed to have been arrested on 19.9.95 from the area of Sadar Bazar and his personal search was conducted vide memo Ex PW31/Q.
28. On 1.11.95 accused Umrao and Bal Kishan are deposed to have been arrested with the permission of the court as they had surrendered before the court. He is deposed to have obtained opinion of the Doctor regarding weapon of offence. On 11.9.95, exhibits of this case were sent to FSL, Malviya Nagar through Ct Dinesh Kumar (PW-23). Report of FSL has been proved as Ex PX. According to this report blood found on the 36 chura and clothes of the deceased was of 'A' group which is the blood group of deceased. PW-23 Ct Dinesh Kumar has also testified that on 11.9.95 he had taken four sealed pulandas out of which two were sealed with the seal of Dr B.Singh, one was sealed with the seal of CMO, RML Hospital and another sealed with the seal of HRH vide RC No 56/21 and deposited the same at FSL, Malviya Nagar.
29. On 13.9.95 SI Mukesh Kumar, Draftman from Crime Branch had visited the scene of occurrence where on the pointing out of Ram Swaroop and S Narender Singh, he inspected the scene of crime, took rough notes and measurements of the spot. He is deposed to have prepared scaled site plan Ex PW20/A. This witness has identified the knife as Ex P-2 and hockey as Ex P-3.
30. PW-24 Ct Rajesh Chaudhary had taken one sealed pulandas of knife sealed with seal of MSM from MHCM vide RC No 55/21 to Subzi Mandi Mortory on 9.9.95 for opinion of the Doctor. PW-25 Miraj had taken photographs of the spot. Positives have been proved as Ex PW25/1 and 2 and negatives thereof have been proved as Ex PW25/3 and 4. PW- 37 21 ASI Dhyan Singh has testified that on 13.8.95 he along with SI N.S. Rana on receipt of information of quarrel reached near Gali Barna, Pahari Dheeraj near Om Sweet House and from there SI N.S. Rana went to the hospital leaving him there and till his arrival, he remained present at the spot. PW-17 Ct Risal Sigh was posted as duty constable in Hindu Rao Hospital on 13.8.95. According to him sealed parcel sealed with the seal of HRH containing blood stained cloths of injured Rajesh were handed over to him by the Doctor and he had handed over the same to SI Kanwal Singh which were taken into possession vide memo Ex PW17/A. PW-14 Ct Rishi Prakash has testified that on 13.8.95 he had handed over DD No 11 to ASI Kanwal Singh who met him near Badi Masjid. He is deposed to have accompanied ASI Kanwal Singh to Hindu Rao Hospital who had recorded the statement of injured Ram Swaroop. He is deposed to have obtained his MLC. He was sent to PS with rukka prepared by ASI Kanwal Singh for registration of the FIR. He has proved copy of the FIR as Ex PW4/A. They are deposed to have gone to RML Hospital where injured Hem Raj was found admitted.
38
31. PW-18 ASI Mahender Singh was working as MHCM on 13.8.95. He has deposed that on 13.8.95 SI Narender Singh had deposited with him two sealed pulandas sealed with the seal of HRH and RML allegedly containing blood stained clothes of Rajesh and Hemraj. He has also deposed that on 14.8.95 SI Narender Singh had also deposited one cycle chain, one sealed envelope sealed with the seal of Dr Bharat Singh allegedly containing blood sample of deceased Hem Raj. He has also deposed that on 15.8.95 Sh Mahender Singh Addl SHO had deposited one hockey stick, one sealed pulanda sealed with the seal of MSM allegedly containing a knife. On 9.9.95 he is deposed to have sent one sealed pulanda of knife to Civil Hospital Mortury for opinion of the Doctor. On 11.9.95 all the sealed pulandas as mentioned above are deposed to have been sent to FSL vide RC No 156/95 through Ct Dinesh and on 30.7.96 all the sealed pulandas were received from FSL through Ct Naresh Kumar. He is deposed to have made entries of all above pulandas in register No 19, copy of which has been proved as Ex PW18/A-1 to A-5. 39
32. From perusal of the evidence on record, it is clear that the whole prosecution case is based on the testimony of two alleged ocular witnesses, namely, PW-4 Ram Swaroop and PW-12 Kanta Parsad. TSR driver injured Rajesh Kumar is hostile and no incriminating evidence is discernable against accused from his evidence. Similarly PW-2 Nirmal Kumar and PW-22 Jitender Kumar are also hostile and their evidence is hardly of any incriminating nature against the accused.
33. So far as role attributed to accused persons is concerned, testimony of PW-4 Ram Swaroop, can be divided into four parts. In the first part, he has described the role of accused persons who had assaulted Hem Raj. In the second part he has described the role of accused in beating TSR driver Rajesh @ Raju and in the third part he has attributed the positive role to some of the accused persons. The fourth part narrates the role of other accused persons who had not actively participated in the attack on injured persons.
34. Coming to first part, the genesis of the incident as given by PW-4 is that Tony along with other accused persons had gathered at the spot one by one. Accused Tony @ Heera 40 Lal is deposed to have exhorted his co-accused to beat injured persons at which (1) accused Niranjan and Hari Om caught hold of Hem Raj; (2) accused Hira Lal @ Tony gave knife blow on the abdomen of Hem Raj; (3) when Ram Swaroop caught hold of Tony to save Hem Raj, he hit Ram Swaroop on his head with handle of the knife he was holding; and (4) Hari Om caught hold of Ram Swaroop from behind and accused Rakesh assaulted him and caused injuries to him. So far as description of attack on deceased Hem Raj is concerned, version of PW-12 Kanta Parsaid is same. The second part of the deposition of PW-4 Ram Swaroop relates to attack on TSR driver. According to him, (1) accused Kanchan Singh and Bhupender caught hold of Raju; (2) Ved Parkash @ Bobby and Dharmender gave knife injury on his back; and (3) accused Rakesh hit Raju with hockey; (4) accused Hari Om caused injuries on his person with cycle chain. In this part also, PW-4 Ram Swaroop has attributed to Rakesh that he was armed with hockey and he had given hockey blows to him as well as to Raju. On this role, there is variance in the testimony of PW4 Ram Swaroop and PW Kanta Parsad. In his 41 examination in chief, though he had attributed role to various accused persons who were responsible for attacking Hem Raj and which has been described in detail by PW-4 Ram Swaroop. But so far as attack by accused persons on Raju TSR driver is concerned, he gave a different version. According to him, accused Kanchan and Bhupender had caught hold of TSR driver and accused Bobby @ Ved Prakash and "Rakesh" had given knife blows on his back. On this point, he was declared hostile by the prosecution and was cross examined by Addl PP. In his cross examination by Addl PP, he came out with the version that Kanchan Singh and Bhupender had caught hold of TSR driver and accused Bobby and Dharmender had caused knife injuries to him and it was not Rakesh who had caused injuries. Witness had described Dharmender as "Jitender" and had stated that he was armed with cycle chain. Rest of the version of assault as given by this witness is same as deposed by PW-4.
35. Question arises whether testimony of PW-4 Ram Swaroop and PW-12 Kanta Parsad is reliable and convincing and can be acted upon? Reasons which go in favour of these 42 witnesses and which add credence to their testimony are that both these witnesses and accused persons reside in the same locality and are known to each other. Secondly PW-4 Ram Swaroop is deposed to have sustained injuries in the incident. He was medically examined and injuries have been found to be present on his person as shown in Ex PW-10/A. The occasion of persons of these two witnesses was that they had come to see off their sister who was going to her matrimonial house. This is not even disputed on behalf of the accused being brothers their presence was natural. Therefore, presence of these two witnesses at the spot can not be disputed. Secondly, their evidence on the point of identification of accused also can not be disputed because both the parties are known to each other being neighbourers. Fourthly PW-1 Rajesh, TSR driver has been examined in the court. He had also sustained injuries. Though he had been declared hostile, nevertheless he does not dispute that PW-4 Ram Swaroop was present at the spot and that he had also sustained injuries. Therefore, I am of the view that unless there are cogent reasons to disbelieve the testimony of these 43 witnesses, I do not find any reasons to disbelieve their version.
36. Ld counsel for the accused persons have assailed the testimony of these two witnesses on the ground that they have motive for false implication of accused persons inasmuch as a day prior to incident, there had been a quarrel between accused Toni and father of Ram Swaroop who had scolded Toni. However, witnesses have admitted that no police report was lodged. Father of the PW-4 was an old man. If at all accused Toni happened to have an altercation with sister in aw of PW- 4 and was scolded by father of this witness and no police report was lodged, this only shows that matter was not taken seriously between the two and taking the same to be triffle, it was not reported to the police. When the matter had ended, I do not find that on such a triffle, witnesses could have in their mind any revengeful attitude to falsely implicate 11 persons. Ld counsel for the accused persons have argued that burden to prove prosecution case lies on the prosecution with yardstick of proof beyond reasonable doubt. To support this contention he has relied upon authorities reported as Kali Ram vs State of Himachal Pradesh, 1974 Cri. L.J. 1 (V) 80 C 1) and Mohd 44 Alimuddin and others vs State of Assam 1992 Cri.L.J. 3287 (Guwahati High Court). There is no dispute so far as legal proposition is concerned. It is well settled principle of criminal jurisprudence that in a criminal trial burden of proving its case beyond reasonable doubts remains on the prosecution. However, at the same time, it should be taken note of that even the principle to reach the conclusion whether case has been proved beyond reasonable doubt or that are also well settled. It should also be noted that a Judge is not required to act as an Umpire to test strength of two parties engaged in a dual before him and declare one of them as victorious. In State of UP vs Anil Singh AIR 1988 SC 1998, it has been held that it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent person is convicted. A Judge is also required to see that a guilty person does not escape. The Judge has to perform both these functions. This facts will have to be taken into account while performing the function of a Judge.
37. The first argument raised by ld counsel for the accused persons is that though there were number of shops 45 near place of incident and area was crowded one nevertheless no independent witness has been joined. It is also argued that in the absence of evidence of any independent witness, testimony PW-4 and PW-12 is not reliable. To press this contention, reliance has been placed on Awadhesh and another vs State of Madhya Pradesh ( 1988) 2 SCC 557.
38. First of all the principle that merely because witness is related to the deceased, his testimony should not be relied upon unless corroborated by independent witness is not a principle of uniform applicability. In Swaran Singh vs State of Punjab 1973 SCC 646, Siya Ram Rai vs State of Bihar 1973 SCC( cri) 236, Rajendra Rai vs State of Bihar 1974 SCC ( cri) 84 and State of Jammu and Kashmir vs Hazari Singh 1981 SCC ( cri) 537, it was held that testimony of an interested witness does not require corroboration as a rule. Even in Ambika Parsad vs State of Delhi 2000 Cri L.J. 810(SC), where 20-25 public persons are deposed to have been present at the time of incident but none joined in the investigation, in that eventuality it was held that independent witness as may not like to join as witnesses due to fear of their 46 safety, therefore, testimony of the witnesses related to deceased can not be discarded merely on this count. It was also held by their lordships that public persons are generally indifferent and reluctant to come forward to join investigation of a criminal case. If any authority on this proposition of law is required, then State of UP vs Anil Singh AIR 1988 SC 1998 can be relied upon. In Seelan Rameshu vs State of AP 2000 Sri LJ 51 SC, it was held that even if other persons who were present at the spot were not examined, it does not discredit the testimony of witnesses examined by the prosecution. On this count also, testimony of the witnesses examined by the prosecution can not be discredited. Therefore, I do not find that argument advanced by accused persons is valid.
39. However, a word of caution has been given by their lordships in Dharampal and others vs State of UP AIR 2008 SC 920 that evidence of witnesses who were relatives of the deceased can not be discredited in the absence of any infirmity in the evidence. Similar was view taken in State of Himachal Pradesh vs Mast Ram 2004 8 SCC 660. However, a rule has been propounded that their testimony should be scrutinized 47 with utmost care to evade and avoid miscarriage of justice. All these yardsticks will be applied while appreciating the evidence of these witnesses.
40. Ld counsel for the accused persons has also argued that testimony of PW-4 and PW-12 is not reliable inasmuch as their conduct was inconsistent with circumstances of the case when the incident had taken place.
41. To my mind, this argument can not be accepted. In Vijay Pal Singh vs State of NCT AIR 2001 SC 2405, it has been held that no fixed pattern of natural behaviour can be laid down as different persons would react differently in the same set of facts and merely because on the basis of a particular conduct displayed by a witness, witness can not be dubbed as incredible. Similar was view taken in State of Karnataka vs Kyarappa Reddy 2000 Cri L.J. 400 SC. In the abovesaid authority, their lordships of Hon'ble Supreme Court had given caution to criminal Courts that they should not expect a kind of set reaction from eye witnesses on seeing the incident like murder. Therefore, I am of the view that there may be different conduct displayed by witnesses, it is not sufficient to 48 view their evidence with suspicion.
42. Ld counsel for the accused persons has further argued that PW-4 Ram Swaroop was admitted in Hindu Rao Hospital but his MLC does not show that he had given name of the accused persons to the Doctor. He has also argued that even Hem Raj when admitted in RML Hospital did not give name of the assailants nor TSR driver Rajesh, therefore, their testimony should be viewed with suspicion. To press his contention he has relied upon authorities reported as Devender vs State of Haryana 1996 Cri LJ 4461.
43. However, it should not lost sight of that whenever a person is admitted in the hospital, he is more concerned with his treatment rather than disclosing the name of assailants. Secondly even the Doctor is supported to be interested only to elicit information relevant to the treatment of the injured rather than to behave like an Investigating Officer and to press the patient to apprise him of names of assailants which may be of little significance to him. In Shrawan Dhadaji and others vs State of Maharastra 2002 IX AD ( SC) 455, injured had not disclosed name of assailants to the Doctor and accused 49 persons were not apprehended from the place of incident. The injured in their statement U/s 164 Cr.P.C. for the first time had disclosed names of the assailants much after the incident. Question had arisen whether identification of the accused persons as deposed by the injured was reliable? In that context, it was held by their lordships that when victim had not disclosed name of the accused to the Doctor, it would not make the identification of the accused persons by the victim doubtful. Therefore, I am of the view that merely because injured had not disclosed name of the assailants/accused persons to the Doctor is hardly of any significance. Even otherwise it is not disputed on behalf of accused persons that they have been residing in the same locality where witnesses have been residing. It is not disputed on behalf of accused persons that they and both the witnesses are known to each other because of the fact they are neighbours. Therefore, when question of identification has not arisen, omission to disclose name of accused to doctor by the injured is hardly of any significance. Even otherwise, there is no law under which injured is required to disclose to the doctor name of the 50 assailants. Ex PW10/A is MLC of injured Ram Swaroop and PW 9/C is that of Rajesh, TSR driver. Former had been opined to be fit for statement at 8.00 p.m. on 13.8.95 and latter has been opined to be fit at 8.10 p.m. on 14.8.95. Incident had taken place on 13.8.95 at 5.30 p.m. Rukka was dispatched at 8.45 p.m. Statement of Ram Swaroop was recorded by the IO soon after this witness had been taken to hospital. His statement was recorded at the first opportunity soon after the incident when IO met him in the hospital. He had given details about the role played by each of the accused persons in the incident. On this count also, testimony of PW-4 and PW- 12 can not be disbelieved.
44. It is further argued by ld counsel for the accused persons that sister of Ram Swaroop was going to her matrimonial house and that they were present near Om Sweet House to see her off. It is also argued that neither sister nor sister in law of Ram Swaroop on whom comments were allegedly passed by Tony have been made as a witness in this case. It is also argued that even father of PW-4 Ram Swaroop who had allegedly scolded accused Toni a day prior to the 51 incident has not been made as a witness. It is argued that non examination of these persons who had seen the alleged incident is a circumstance which is fatal to the prosecution case. To press their contentions, they have relied upon Awadhesh and another ( supra).
45. Prosecution has brought on record name of all the ocular witnesses which consisted of two persons who had sustained injuries and third who had witnessed the incident. Neither it is mandatory on the part of prosecution to make each and every person a witness who had witnessed the incident nor it is mandatory on its part to examine all such persons. Situation may be such that incident might have been witnessed by 100 persons, nevertheless prosecution may examine only a few. To my mind, best witness could have been injured and some other persons who might have witnessed the incident. Prosecution has made them as a witnesses. If some of them did not support the prosecution case and turned hostile, it is not fault of the prosecution. In such circumstance, it is duty of the Court to separate grain from the chaff and take into account what is on record rather 52 than as to who has not been brought on record. In Raja vs State ( 1997) 2 Crimes 175 ( Delhi), it has been held that it is well known principle of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that said statement is true and correct version of the case of the prosecution. It was also held that Courts are concerned with merit of the statement of a particular witness and that they are not concerned with number of witnesses examined by the prosecution. If on perusal of evidence on record, Court comes to a conclusion that witnesses are credible it may conclude that prosecution case stands proved. Otherwise it may come to a contrary conclusion. Either way the testimony of the witnesses can not be discarded merely on the ground that prosecution could have examined other witnesses.
46. It is further argued on behalf of accused persons that presence of PW-4 Ram Swaroop at the time of incident is doubtful inasmuch as he has been projected as eye witness to support the prosecution case. It is argued that though injuries present on the person of PW-4 were opined to be simple, 53 nevertheless duration of the injury has not been given, hence, it can not be said that he had sustained injuries in the incident and that it is a circumstance which makes his presence at the scene of occurrence doubtful.
47. I do not find any force in this contention. MLC of Ram Swaroop has been proved as Ex PW10/A. Soon after the incident he was taken to Hindu Rao Hospital by PCR Van. He had reached the hospital at 5.45 on 13.8.95 i.e. within 15 minutes after the incident had taken place. Soon thereafter he was examined by the Doctor who had observed various injuries on his person by the doctor who is well versed in the medical science and knows difference between old injury and fresh injuries. If injuries had been old on the person of PW-4, certainly doctor would not have failed to make an observation to that effect in the MLC. Inference is, therefore, that all the injuries sustained by PW-4 were fresh. When injuries were fresh, it can not be said that presence of PW-4 on the spot is doubtful. Therefore, contention of ld counsel for accused is not tenable.
48. It is also argued on behalf of accused persons that 54 injuries present on the person of PW-4 Ram Swaroop are not serious but are simple injuries and if he had sustained injuries in the incident, he would have certainly sustained serious injuries. It is argued that absence of serious injuries on the person of PW-4 goes to prove that he was not present at the spot and did not witness the incident.
49. This argument is not again tenable. Before injuries were inflicted on the person of PW-4, accused Toni had already inflicted knife injuries on the person of Hem Raj, deceased. It was only thereafter he ( PW-4 Ram Swaroop) tried to save his brother and tried to overpower accused from behind. Accused Toni had hit the handle of the knife in his hand on the head of PW-4 Ram Swaroop. He had also sustained injuries with hockey at the hands of accused Rakesh, therefore, whatever injuries have been inflicted on him have been honestly narrated by him in his testimony. Why he did not sustain serious injuries in the incident is not a ground to disbelieve or discard his testimony.
50. It has further been argued by ld defence counsel that PW-4 Ram Swaroop and PW-12 Kanta Parsad have made 55 improvements in their testimony which go to discredit the witnesses. He has also argued that if there are inconsistencies in the testimony of witnesses on material facts, witnesses will be held as '' unreliable''. To press his contention, he has relied upon authorities reported as Kunju Muhammed @ Khumani and another vs State of Kerala 2003 (3) JCC 1549; Ram Kumar and another vs The State 1986 C.C. Cases 192(Delhi); Ram Swarup and others vs State of UP, 1990 Cri L.J. 511; Ahmed Bin Salam vs State of Andhra Pradesh 1999(3) C.C.Cases ( SC) 72; Shyam Lal vs State 1991(1) C.C. Cases 502( HC); Suraj Mal vs The State ( Delhi Admn.) AIR 1979 SC 1408; State of UP vs Mundrika and ors 2001 (1) JCC (SC) 61; Mahesh Chander vs The State of Delhi 1991 Cri L.J. 1703; Rishi Pal and others vs State 1994 (1) C.C. Cases 509( HC); Rameshwar vs State of Madhya Pradesh 2002(3) Crimes 154; Jagdish & Anr. Vs State of M.P. 2000(2) JCC ( SC) 482; State of Karnataka vs Daya @ Dayanand and others 2003 Cri.L.J.NOC 259 ( Karnt).
51. In criminal cases, it is not uncommon that witnesses may narrate facts by exaggeration. But it is the duty of the 56 Court to separate grain from the chaff and arrive at a correct conclusion. As already pointed out that PW-4 Ram Swaroop has ascribed a definite role played by each particular accused and has given a vivid description of course of events. He has specifically stated that deceased Hem Raj was caught by accused Hari Om and Niranjan and accused Tony @ Heera Lal had stabbed him in his stomach. He is specific that when he caught hold of Heera Lal, he was hit with handle of the knife on his head. Accused Hari Om is deposed to have caught hold of him and accused Rakesh is deposed to have also assaulted him and caused injuries on his head with hockey. He is also specific that accused Kanchan and Bhupender caught hold of TSR driver Raju and accused Bobby @ Ved Pradesh and Dharmender gave knife injuries on the back of Raju. Accused Rakesh is deposed to have hit Raju with hockey and accused Hari Om caused injuries to him with cycle chain. Accused Umrao, Shish Pal and Bal Kishan( since dead) are deposed to have come there and asked accused to beat them. PW-12 is specific about role played by accused persons in the incident.
52. There is only a little variance on the role of accused 57 Dharmender, Kanchan , Bhupender, Bobby and Rakesh. PW- 12 has described Dharmender as Jitender. But when he was cross examined by Addl PP, he had supported the prosecution story that Rajesh was caught hold by Kanchan and Bhupender and was assaulted by Bobby and Dharmender. He has even admitted that accused Rakesh had hit Ram Swaroop with hockey.
53. Incident is deposed to have taken place on 13.8.95. PW-12 Kanta Parsad was examined on 30.3.2001 i.e. after five years and seven months. In my view after such a long gap, such like discrepancies are bound to occur. In State of Rajasthan vs Kalki AIR 1981 SC 1390, it has been held that in the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be . It was also observed that these discrepancies are due to normal error of observation, normal error of memory and due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and the like. But fact remains that when PW-12 was reminded by Addl PP, he had supported the prosecution story so far as role of each accused persons is 58 concerned. I do not find any contradiction so far as assault on Hem Raj and PW-4 Ram Swaroop is concerned, therefore, merely on account of small contradictions, his testimony can not be disbelieved.
54. It has further been argued by ld defence counsel that whole prosecution case is based on solitary testimony of PW-4 Ram Swaroop who is the only witness who supports the prosecution story. It is argued that PW-12 Kanta Parsad being confronted with his previous statement as to role played by each of accused persons is not reliable, and since there is conflict in the deposition of these two witnesses which are mutually contradictory, evidence on record is not sufficient to warrant conviction of accused persons.
55. It is true that it is well recognized principle of criminal jurisprudence that heinous is the crime, higher is standard of proof for the prosecution. If any authority on this proposition of law is required, then Ashish Batham vs State of MP AIR 2002 SC 3206, Sudama Pandey vs State of Bihar, AIR 2002 SC 293 and Subhash Chand vs State of Rajasthan AIR 2001 SCW 4209 can be relied upon. Now applying this 59 principle to the present case, I have already come to the conclusion that there are no reasons to disbelieve PW-4 inasmuch he was present at the spot, he had sustained injuries in the incident, therefore, his presence at the spot can not be doubted. He has meticulously described the role played by each of the accused persons and has given a vivid account of course of events resulting in death of Hem Raj and injuries on his person. It is true that so far as part of the incident relating to assault on Rajesh Kumar (PW-1) is concerned, there is slight difference in the version of PW-4 and PW12. PW-4 ram Swaroop had stated that Kanchan and Bhupender had caught hold of Rajesh whereas Bobby @ Ved Parkash and Rakesh had given knife blows to him. So far as version of PW-12 Kanta Parsad is concerned, he has also given some vivid account of course of events. But he had only made mistake in describing ''Dharmender'' as ''Jitender''. For this reason, his whole testimony can not be discarded, when he has already vividly described entire incident attributing a specific role to each accused in the incident. Therefore, I am of the view that there are no reasons to disbelieve PW-4 Ram Swaroop and 60 PW-12 Kanta Parsad who were present at the spot and had witnessed the incident. Even there are no serious infirmities in their testimony so as to raise suspicion about their testimony.
56. Ld counsel for the accused persons has raised a legal issue that in such like cases where prosecution case is based on the testimony of interested witnesses, as a rule of caution, court must insist on corroboration of their testimony by independent evidence. In Chander Mohan vs State ( Delhi Administration) 2001 IV AD ( Delhi) 29 where husband was charged with murder of his wife and maternal uncle and mother of the deceased were witnesses to the occurrence, it was held by their lordships of our own Hon'ble High Court that mere relationship is no ground to reject the evidence of witnesses. It was also observed by their lordships that it is always advisable to test the evidence of such witnesses on the anvil of objective circumstances in the case. On objective evaluation of their testimony, it is clear that sisters of both these witnesses were going to their matrimonial houses and their presence at the spot was natural as they had come to make them board a TSR and see off them. Both of these 61 witnesses had sustained injuries in the incident. Evidence of witnesses is duly corroborated by medical evidence. Postmortem report of deceased Hem Raj has been proved as Ex PW6/A in which Dr L.K.Barua has observed one vertical wound of 10 inch length caused in the abdomen and another wound of 1-2/3 inch above umbilicus. Both these wounds were anti mortem in nature and were opined to be sufficient to cause death in ordinary course of nature. PW-6 Dr L.K.Barua has also opined that wounds on the abdomen of the deceased could be possible by chura Ex P-2 recovered at the instance of accused Heera Lal.
57. MLC of Rajesh has been proved as ExPW9/C and two lacerated wounds were found present on the scalp and 9 other wounds near axilla caused by sharp edged object were also observed. Injuries suffered by Rajesh were opined to be dangerous. MLC of PW-4 Ram Swaroop has been proved as Ex PW10/A. According to MLC, Ram Swaroop had suffered one CLW on pariental region, another CLW on forehead and had also suffered abrasion. I am, therefore, of the view that testimony of PW-4 and PW-12 is duly corroborated by 62 medical evidence. Their testimony is also corroborated by the fact that accused Heera Lal @ Tony was found to have also sustained injuries on his person which were opined to be 2 to 6 days old. He was arrested on 15.8.95. He was medically examined on 16.8.95. His MLC has been proved as Ex PW29/A. The Doctor has opined presence of injury on his person. It is clear that he had sustained injuries in the incident. Both the witnesses have stated that accused Heera Lal @ Tony had stabbed deceased Hem Raj with knife in his stomach. Role attributed to Niranjan and Hari Om was that they caught hold of Hem Raj while accused Heera Lal @ Tony had stabbed him on his stomach. Secondly when Ram Swaroop tried to catch hold of Tony from behind, he is deposed to have hit on his head with back side of the knife. Accused Hari Om is deposed to have caught hold of Ram Swaroop from behind and accused Rakesh is deposed to have assaulted him and caused injuries on his head. So far as assault on Raju, TSR driver, is concerned, it was Ved Parkash @ Bobby and Dharmender who had caused injuries on his person with knife. Accused Rakesh is deposed to have hit Raju with hockey, accused Hari 63 Om is deposed to have caused injuries to him with cycle chain. Thus role attributed to accused (1) Heera Lal @ Tony (2) Niranjan (3) Hari Om (4) Kanchan (5) Bhupender (6) Rakesh (7) Ved Parkash @ Bobby and (8) Dharmender is that they had played active role as described above in the incident of assault on Hem Raj, PW-4 Ram Swaroop and Raju @ Rajesh, TSR driver. Accused are deposed to have come at the spot one by one. Accused Heera Lal @ Tony is deposed to have exhorted them to teach injured party a lesson at which Niranjan and Hari Om caught hold of Hem Raj and accused Heera Lal @ Tony had stabbed him on his stomach as a result of which he sustained injuries. When PW-4 Ram Swaroop tried to catch hold of Tony from behind, he is deposed to have hit knife from its back side on his head and accused Hari Om had caught hld of him from behind and accused Rakesh had assaulted him on his head with hockey. Accused Kanchan and Bhupender, on the other hand, are deposed to have caught hold of Raju, TSR Driver, and accused Bobby and Dharmender had given knife blows to him at his back. This shows tht they have come at the spot with specific objective to teach injured party 64 a lesson, therefore, they had played active part in the incident.
58. Role attributed by PW-4 Ram Swroop to accused Umrao, Shishpal and Bal Kishan ( since dead) is that they had also come there and they had asked accused persons to beat injured persons and that they should not go scot free. It is not case of PW-4 Ram Swaroop that these accused persons had actively participated in the incident or had caused any injuries on the person of any of the injured persons. It is not his case that they had any arm with them. All these three accused are brother of the other accused persons. Being brothers it was natural for them to beat injured persons but they did not do so. Therefore, except their presence at the spot, there is noting on record against them. In his testimony, PW-12 Kanta Parsad has ascribed role to these three accused persons that they were also standing at the time of occurrence near the spot and that they were saying other accused persons '' aaj inko mar do, janena payein''. However, fact remains that it is not case of PW-12 that they had played any active role in whole of the incident except that they had orally exhorted other accused persons, though PW-12 Kanta Parsad has described the words 65 allegedly used by accused persons. Both PW-4 Ram Swaroop and PW-12 Kanta Parsad have stated that accused Umrao, Shishpal and Bal Kishan were exhorting other accused persons to beat them and that they should not go scot free. It is a general statement. No specific words have been inputed to any of these three accused persons. Moreover, there is variance in the version of these two witnesses about the words used by these accused in exhorting other accused persons. Secondly, these accused were three in number and it is difficult to believe that they might have used the same words for exhorting other accused persons. Therefore, the version of these two witnesses that these three accused exhorted other accused person cannot be relied upon. There is no other evidence on record on the basis of which it could be said they were consciously part of unlawful assembly of the accused persons.
59. The testimony of both these witnesses is duly corroborated by medical evidence as referred to above. Their testimony is also corroborated by another evidence. According to PW-31 Inspector Mahender Singh Malik, 66 accused Heera Lal @ Tony was arrested on 15.8.95 from Nand Nagri Delhi where he had been hiding himself. During the course of investigation, he is deposed to have made disclosure statement Ex PW31/J regarding whereabouts of the knife allegedly used by him in the incident. Accused Heera Lal is deposed to have led the police party to public toilet, Basti Ram Lal, Gali Barna, Sadar Bazar Delhi and produced a knife from the wall of lady public toilet. Knife is deposed to have been taken into possession vide memo Ex PW 31/N. Sketch of the knife was prepared which has been proved as Ex PW31/O. Length of the knife was 34.5 cm having a blade of 24.1 cm. The knife Ex P-2 was stained with human blood and was rusted. This very knife was sent to FSL for examination. As per report of FSL Ex PX, this knife was found to be stained with human blood of 'A' group. Gauze blood sample of the deceased was also sent to FSL for scientific examination and determination of blood group. According to report of FSL, blood group of deceased was opined to be of 'A' group. Shirt and banian of the deceased were taken into possession and were also sent to FSL for examination. They were opined to 67 be stained with human blood of 'A' group. Chura Ex P-2 which was sent to FSL for examination was also opined to be stained with human blood of 'A' group. This piece of evidence also corroborates the version of PW-4 Ram Swaroop and PW- 12 Kanta Parsad about user of the knife Ex P-2 by accused Heera Lal.
60. Accused Rakesh was also arrested and he had also made disclosure statement Ex PW31/K. He is deposed to have led the police party to his room on first floor of H.N. 4305, Gali Dharamshala, Basti Nand Ram, Gali Barna, Sadar Bazar and produced one hockey which he had used in the incident. Hockey was taken into possession vide memo Ex PW31/P. This piece of evidence also corroborates the testimony of PW- 4 and PW-12 that accused Rakesh had given hockey blow to injured party in the incident and thus had actively participated in the incident.
61. On 14.8.05 accused Hari Om is deposed to have been arrested from stairs, Sadar Bazar Railway Station and a cycle chain used by him in the incident was recovered from right side pocket of his pant which was taken into possession vide 68 memo Ex PW27/F. Therefore, testimony of PW-4 and PW-12 stands sufficiently corroborated by pieces of evidence as described above.
62. It has been argued on behalf of accused Heera Lal @ Tony that knife has been planted upon him with a view to create false evidence against him. Secondly it is argued that accused is alleged to have got recovered the chura Ex P-2 from a public toilet accessible to all, therefore, it can not be said that it was the accused who had exclusuve knowledge of the knife. Thirdly, it is argued that no connection has been established between accused and knife inasmuch as neither the finger prints of the accused were found on the knife nor the same were taken nor the same were got compared and found to be that of accused, therefore, evidence on record does not establish any connection between accused and knife Ex P-2.
63. In Mohd Inaytullah vs State of Maharastra AIR 1976 SC 483 their lordships of Hon'ble Supreme Court had decided the scope and relevancy of a statement made by the accused U/s 27 of the Evidence Act. It was held that whole of the statement of the accused does not become admissible. All 69 parts of statement of confessional nature are to be excluded. Only that portion of the statement which ''distinctly relates to the facts discovered'' in consequence of information furnished by the accused are relevant. In other words, disclosed fact which are relevant would be (i) recovery of a particular object in consequence of information given by the accused (ii) knowledge of the accused as to place from where it had been recovered and ( iii) knowledge of the accused as to the presence of that articles at that particular place. In the factual matrix the court has to draw inference if the recovery effected at the instance of the accused connects him with the alleged offence.
64. In the present case incident had taken place on 14.8.95. Recovery of knife was effected on 15.8.95. Accused Heera Lal is deposed to have led the police party to a public toilet, Basti Ram Lal, Gali Barna, Sadar Bazar, Delhi and produced knife Ex P-2 from the wall of toilet. No doubt public toilet is a place frequented by the people at large nevertheless the place where knife had been concealed was wall of the toilet. Therefore, it can not be said that he did not 70 have exclusive knowledge of the knife or that it does not establish his connection with knife Ex P-2. Knife was recovered at the instance of toilet at the instance of accused Heera Lal. Therefore, accused Heera Lal was only the person who had specific knowledge about presence of knife at that place and got it recovered. Therefore, I am of the view that it was accused Heera Lal only who had knowledge about presence of knife at the wall of public toilet. Inference drawn on the basis of this evidence is that either it was accused Heera Lal who himself had kept the knife there or he was the person who had knowledge thereof.
65. It is argued by ld defence counsel that when two interpretation of evidence are possible, then one favouring the accused must be adopted. There is no dispute so far as this proposition of law is concerned. However, fact remains that when evidence can be explained only on the hypothesis of guilt of accused, he can not be given such benefit. Report of serologist Ex PX clearly goes to prove that blood group of deceased was 'A' and human blood of this group had been found present on Chura Ex P-2. Witnesses are specific that it 71 was accused Heera Lal who had inflicted knife blows on the stomach of Hem Raj, deceased. In this context recovery of knife at the instance of accused Heera Lal is susceptible only one interpretation that knife Ex P-2 is the same which was used by accused Heera Lal in commission of the crime and no other interpretation is plausible and convincing.
66. So far as argument of ld defence counsel that no fingers prints were lifted from the knife nor they were got compared, to my mind, is hardly of any assistance to the accused. Incident had allegedly taken place on 14.8.95 at 5.30 p.m. Knife Ex P-2 had been recovered at the instance of accused Heera Lal on 15.8.95. If the finger prints had been present on the knife, police would not have failed to detect the same. When knife had been exposed to the atmosphere, finger prints of the accused must have faded away.
67. It has also been argued on behalf of accused Heera Lal @ Tony persons that group of blood of the deceased is not substantive evidence to connect accused with alleged offence unless age of the blood present on the knife has also been determined by the scientific analyst.
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68. Even if age of the group of blood on the knife has been determined, it would not have brought falsehood in the age of blood with microscopic exactitude. The age of the blood as in scientific determination of age of any other substance is only a rough guess about the age. Secondly it is too much to expect prosecution to produce corroborative scientific evidence with microscopic exactitude. Prosecution can only be expected to produce independent evidence which broadly goes to corroborate the evidence of witnesses. In the present case, recovery of knife and presence of blood of 'A' group thereon ( which is blood group of the deceased) is sufficient corroborative evidence. To my mind, therefore, scientific and medical evidence as discussed above goes to support the evidence of PW-4 Ram Swaroop and PW-12 Kanta Parsad substantially. Their evidence is also supported by evidence of recovery of knife x P-2 at the instance of accused Heera Lal @ Tony. It has been proved that this very knife had been used by the accused in the incident and it was stained with human blood of 'A' group ( blood group of the deceased). Recovery of hockey at the instance of accused 73 Rakesh and cycle chain at the instance of accused Hari Om is sufficient corroboration of the testimony of PW-4 and PW-12 in broad spectrum. I do not find that testimony of PW-4 and PW-12 can be doubted on any ground whatsoever.
69. In view of above discussion, I hold that accused (1)Heera Lal @ Tony, (2) Niranjan, (3) Hari Om, (4)Kanchan Singh,(5) Bhupender, (6) Ved Parkash @ Bobby, (7) Dharmender and (8) Rakesh had come to the spot at the exhortation of accused Tony and had assaulted Hem Raj, Ram Swaroop and Rajesh @ Raju. Therefore, conduct in coming together armed with weapon like knife, hockey, cycle chain and attacking the injured persons and deceased Hem Raj clearly goes to prove that they had come with common object to teach a lesson to Hem Raj and his brothers.
70. It also stands proved on record that it was accused Heera Lal @ Tony who had inflicted knife injuries with knife Ex P-2 on the abdomen of Hem Raj on account of which he has died and that very injury was responsible for causing death of Hem Raj. Thereafter accused Ved Parkash @ Bobby and Dharmender had also used knives in inflicting injuries on the 74 person of Raju @ Rajesh, TSR driver, whereas other accused persons have participated in the incident by catching hold of Raju, Hem Raj and Ram Swaroop. Injuries on the person of Raju @ Rajesh have been described as '' dangerous''. They are guilty of forming unlawful assembly common object of which was to teach lesson to Ram Swaroop and Hem Raj. It also stands proved on record that in execution of common object of unlawful assembly, accused persons, namely, Heera Lal @ Tony, Niranjan, Hari Om, Kanchan Singh , Bhupender, Ved Parkash @ Bobby, Rakesh and Dharminder actively participated by doing criminal acts attributed to them as detailed earlier. These accused persons were charged u/s 148 IPC apart from Section 302/149 and 307/149 IPC which are of graver nature, so the accused can be held guilty only u/s 302/149 and 307/149 IPC. Therefore, it stands proved that accused(1) Heera Lal @ Tony, (2) Niranjan, (3) Hari Om, (4) Rakesh, (5) Bobby @ Ved Parkash, (6) Dharmender, (7) Bhupender, (8) Kanchan Singh have committed offences U/s 302/149 IPC and Section 307/149 IPC.
71. Accused persons have also produced evidence in their 75 defence and now it will have to be seen whether accused have been able to create any reasonable doubt about the prosecution case. DW-1 Raja Ram has been examined on behalf of accused Shish Pal. According to him, in the year 1995 it was the month of Sawan, accused Sish Pal had worked in his establishment from 9.10 a.m. To 9.30 p.m. And had collected Rs 1300 from his employer and had gone away. According to him next day he did not turn up for work. He has stated that accused had good moral character. However, in his cross examination, he has stated that he had not been maintaining any attendance register showing arrival and departure time of accused Shish Pal In the absence of such a record, mere bald statement of DW-1 Raja Ram is hardly of any assistance. This is all the more so when he has not given any date on which accused Shish Pal had left his establishment. Therefore, testimony of this witness is hardly of any assistance.
72. Second witness is Yashodanand DW-2. His version is that on 13.8.95 at about 5.00 p.m. A quarrel had taken place near Om Sweet House between a TSR driver and family member of the deceased who were residents of the same 76 locality. According to him since quarrel had taken place, police had taken both the parties and he had not seen any accused stabbing the deceased. According to him he had not seen any of the accused persons at the spot. However, in his cross examination he has stated that none of the accused had been working in his establishment. Testimony of this witness is contrary to what PW-1 TSR driver has deposed. It was not his case that a quarrel had taken place between him and the family members of the deceased. Even though he is hostile nevertheless the version of this witness is totally contrary to the testimony of ocular witnesses. Particularly when police had arrived at the spot and had taken both the parties, he has not explained as to how the deceased came to have injuries on his abdomen due to which he had died. Ld counsel for the accused persons have relied upon an authority reported as State of Haryana vs Ram Singh I 2002 CCR 68 SC. In this authority, it has been held that defence witnesses are entitled to equal treatment and equal respect as the prosecution witnesses. There is no dispute so far as legal proposition is concerned. However, on the basis of parity, the defence 77 witnesses are subject to the same scrutiny of their evidence as prosecution witnesses are. The principle of appreiciation of prosecution evidence are equally applicable on defence witnesses. Applying these yardstick I do not find any intrinsic truth in the testimony of two Dws examined by defence for the reasons given above. Therefore, I come to the conclusion that evidence examined by accused is hardly of any assistance to them. Defence evidence is incapable of creating any reasonable doubt about prosecution case.
73. Accused Kanchan had claimed himself to be 17 years of age at the time of commission of offence. An inquiry was held in this regard of ld M.M. who had come to the conclusion that age of accused Kanchan was 17 years of age. His date of birth has been recorded as 30.4.79 in the school record which on verification has been found to be correct. Therefore on 14.8.95 he was 16 years, 4 months and 16 days old. Similarly accused Bhupender has produced his school leaving certificate in which his date of birth has been recorded as 9.1.1978. This certificate was sent to concerned school for verification. SHO of concerned PS had conducted the inquiry and found that 78 certificate had been genuinely issued by the school. He has annexed a certificate issued by the Principal that his date of birth is 9.1.1978 in school record. No doubt can be raised on this date of birth as it had existed in the school record prior to date of incident and there were no chances of any manipulation in the date of birth. Therefore, date of Bhupender as 9.1.78 is taken as correct. On the basis of this date of birth he was 17 years, 7 months and 5 days old on the date of incident. In other words, he was more than 17 years of age but was less than 18 years of age. Similarly Kanchan was more than 16 years of age but was less than 18 years age at the time of incident.
74. At the time of the commission of the offence i.e. 3.8.95 Children Act was in force. As per definition of 'child' given in abovesaid Act in section 2 (e) in case of male, a child who has not attained the age of 16 years was designated as 'child'. Since Kanchan and Bhupender were more than 16 years of age at the time of commission of offence, they were not entitled to be tried by Children Court and challan was rightly presented in this court. During pendency of these 79 proceedings, Juvenile Justice ( Care and Protection of Children) Act, 2000 came into force. In that Act Section 2(l) a juvenile in case of male was defined to be the person who has not attained the age of 16 years on the date of commission of offence. The Act was again amended by Juvenile Justice ( Care and Protection of Children) Amendment Act 2006. In this Act, disparity of age between male and female in case of juvenile in conflict of law has been abrogated and now such a person is one who has not attained the age of 18 years on the date of commission of the offence irrespective of his/ her sex. Section 20 of the abovesaid Act make provision for trial of pending cases. According to this provision, the court in which cases of juveniles are pending, shall be tried by them but in case they are found guilty of commission of any offence, in that eventuality such cases, after pronouncement of judgment, shall be referred to Juvenile Justice Board for passing appropriate order in accordance with provision of Act. An explanation has been added to section 20 of Amended Act by Act of 2006 in which it has been clarified that for the purpose of this act a juvenile in conflict of law shall be 80 considered to be the person who has not attained the age of 18 years on the date of commission of offence as defined in section 2(l) of the said Act. Since both these accused persons were above16 years of age, however, they have been found to be less than 18 years of age. Since they have been found guilty U/s 302/149 IPC, and 307/149 IPC, as provided under section 20 of the abovesaid Act, their cases will have to be placed before Juvenile Justice Board for passing appropriate order against them. Accordingly I direct Ahlmad to get the ordersheets, challan, charge, evidence, documents exhibited in the court, documents showing date of birth of accused, statement of these two accused persons U/s 313 Cr.P.C, defence evidence recorded on their behalf, photostat, make a compilation thereof and send the same along with attested copy of this judgment to be placed before Juvenile Justice Board for passing appropriate order against them, as per provisions of Juvenile Justice ( Care and Protection of Children) Act, 2000 as amended.
75. So far as accused (1) Hira Lal @ Tony, (2) Niranjan, (3) Hari Om, (4) Rakesh, (5) Ved Prakash @ Bobby and (6) 81 Dharminder are concerned, I hold that prosecution has proved its case against them beyond reasonable doubt. Since these accused were charged u/s 148 IPC, however, it is proved that they have committed offence u/s 302/149 and 307/149 which are graver in nature, they can only be held guilty for graver offence. For the reasons given earlier, I hold these six accused persons guilty u/s 302/149 and 307/149 IPC and convict them.
76. So far as, accused Umrao and Shishupal are concerned, for the reasons given in the earlier part of the judgment, I hold that prosecution has failed to prove that they consciously formed part of the unlawful assembly with other accused persons. Therefore, accused Umrao and Shishupal are acquitted. Accused Bal Kishan had already died.
Announced in the Open Court
on 24.4.2008 (BABU LAL)
ADDL. SESSIONS JUDGE
DELHI
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