Delhi District Court
Sc No.7263/17, State vs . Pradeep Etc., Fir No. 271/13. Ps ... on 10 October, 2018
In the Court of Sh. Ajay Kumar Jain, Additional Sessions Judge02,
South District, District Court Saket, New Delhi.
Session Case No. 7263/17 (Old No. 109/13)
In the matter of :
State
Versus
1. Pradeep S/o Sh Babu
R/o H.No. H1/ 158, Madangir,
New Delhi.
2. Rafique S/o Sh Aliyas
R/o H.No. C1/1028, Madangir,
New Delhi.
3. Ravinder @ Raju
S/o Sh Prem Raj @ Munna Lal
R/o 11/50, Dakshinpuri,
New Delhi.
4. Vishal @ Bunti
S/o Sh Madan Lal
R/o H.No. C1/986, Madangir,
New Delhi.
5. Mohd. Salman @ Samma
S/o Sh Mohd. Aslam
R/o B2/181, Madangir,
New Delhi.
FIR No. : 271/13
Police Station : Ambedkar Nagar
Under section. : 302/307/34 IPC &
25/54/59 Arms Act
Date of assignment : 17.10.2013
Reserved for judgment : 26.09.2018
Date of decision : 03.10.2018
SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page1 of 54) dated 03.10.2018
JUDGMENT
1. Prosecution story as per chargesheet in brief is that on receiving DD No. 50A dtd. 25.6.13, SI PK Jha alongwith HC Sunil Guar reached the spot i.e., in front of Sapna Opticals, Shiv Shakti Market, Madangir. In the meanwhile, Inspt. Abhay Singh alongwith Constable also reached the spot and where they noticed blood lying on the ground, however, no eye witness was found. Thereafter, Inspector Abhay Singh after leaving SI PK Jha and HC Sunil at the spot, reached Batra Hospital where they found injured Pankaj brought dead. However, injured Lekhraj was declared fit for statement. Injured Lekhraj in this statement to the police stated that he runs one lady's garment shop at Shiv Shakti Market, and he knew Pankaj as he was his good friend and they used to roam around together. He alleged that 56 months prior to the incident, a quarrel took place between Om Prakash son of his bua Lata and Bunti, Raju and Samma, however, lateron the matter was compromised but Bunti, Raju and Samma used to have grudge with Om Prakash, Pankaj and with him, and also threatened that they will take revenge. Thereafter, on 24.6.13, when he alongwith his friend Yajuvender and Pankaj were going towards his shop on the motorcycle of Pankaj driven by Yajuvender, and he was sitting in the middle, at around 9:30pm when they reached in front of Sapna SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page2 of 54) dated 03.10.2018 Opticals, accused Raju, Bunti, Rafique, Samma and Pradeep Madrasi stopped their motorcycle. Accused Raju caught hold of Pankaj and Bunti having the knife in his hand inflicted number of stab injuries over Pankaj and when he tried to save him, Rafique caught hold of Yajuvender. Pradeep Madrasi caught hold of him and thereafter, Samma inflicted knife injuries on his left leg. However, Yajuvender escaped from the spot and he started shouting, then all accused ran away from the spot. He further stated that he called his bua Kamlesh, but in the meanwhile one known person Chetram also came to the spot who had also seen the incident, who also told the entire facts to SHO as well as called at 100 number. His bua also came to the spot in Honda Activa and thereafter, they took Pankaj on the Activa to the Batra Hospital, where he was declared brought dead. Pursuant to his statement FIR u/s 302/326/34 IPC was registered.
2. During investigation, site plan was prepared. Crime Team inspected the spot took the photographs. Exhibits were lifted. Postmortem of deceased Pankaj was conducted. Statement of Yajuvender was also recorded u/s 161 Cr.P.C, who stated that on the said night he alongwith Lekhraj and Pankaj who were his friends were going towards the shop of Lekhraj and at around 9.30 pm when they reached Sapna Opticals on the motorcycle driven by him accused Raju, Bunti, Rafique, Samma and Pradeep Madrasi whom he knew prior to the incident, surrounded the motorcycle, then Raju caught hold of Pankaj and Bunti started inflicting knife injuries and therefore Pankaj fell down unconscious and when he tried to save him, Rafique caught hold of him and Pradeep Madrasi caught hold SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page3 of 54) dated 03.10.2018 of Lekhraj and Samma tried to hit him with knife on the left leg due to which he got frightened and escaped from the spot and lateron he came to know at hospital that injured Pankaj died at hospital. Chetram in his statement alleged that he had seen that Lekhraj, Yajuvender and Pankaj were on motorcycle and as soon as they reached in front of Sapna Opticals, accused Raju, Bunti, Rafique, Samma Pradeep, Madrasi to whom he knew prior to the incident encircled the motorcycle, thereafter Pankaj was caught hold by Raju and Bunti inflicted several knife injuries over him and when Lekhraj and Yajuvender tried to save him, Rafique caught hold of Yajuvender and Samma inflicted knife injuries on Lekhraj, however Yajuvender escaped the place and when crowd gathered all accused ran away, thereafter at around 9.38 am, he called SHO as well as at 100 number. In the meanwhile, Lekhraj's bua Kamlesh also came on Activa scooty then she also called 100 number and they had taken the injured to hospital on Activa scooter.
3. Police during investigation also recorded the statement of Om Prakash on 25.06.2012 in which he alleged that Lekhraj and Pankaj were his friends and on 25.12.2012 at around 3.30 pm when he was going on his motorcycle then accused Salman @ Samma had stopped him and thereafter Raju and Vishal also came , then on the dictate of Raju, Vishal @ Bunti given a katta to Salman who had fired over him thereafter he fell down at that place in the meanwhile his mausi Kamlesh came and took him to the hospital, thereafter an FIR u/s 307/34 was registered. PW Kamlesh in her statement to the police stated that at around 9.309.40 pm her nephew Lekhraj called her and told that accused Raju, Bunti, Rafique, Samma and SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page4 of 54) dated 03.10.2018 Pradeep Madrasi had inflicted knife injuries to him and his friend Pankaj then she reached the spot on her Activa scooty at spot ie Sapna Opticals where she found the blood and Pankaj was lying unconscious, thereafter she called police and took Pankaj on her Activa to hospital.
4. On 25.6.13, accused Pradeep was arrested, thereafter, on 26.6.13, accused Rafique was arrested from the Saket Court. Lateron, on 20.07.2013 accused Ravinder @ Raju was arrested, thereafter on 01.08.2013, accused Vishal @ Bunti was arrested. At the instance of accused Vishal @ Bunti one knife was recovered. On 21.8.13, accused Samma @ Salman was arrested on secret information and from his possession one buttondar knife was recovered. As per postmortem report, the cause of death of deceased Pankaj is shock due to hemorrhage. Injury No. 6 and all injuries collectively are sufficient to cause death in ordinary course of nature. All injuries are antemortem in nature. Injury No. 3 to 15, are caused by sharp edged weapon. Injured Lekhraj was also found to have suffered grievous injuries. On completion of investigation, chargesheet was filed against the accused Pradeep, Rafique, Ravinder @ Raju, Vishal @ Bunti and Mohd. Salman @ Samma for commission of offence u/s 302/307/34 IPC & Sec. 27/54/59 Arms Act.
5. On committal, vide order dtd. 15.1.14, charges u/s 302/307/34 IPC were framed against all accused. Accused Vishal @ Bunti and Mohd. Salman @ Samma were also charged for the offence u/s 25 Arms Act. Accused pleaded not guilty and claimed trial.
6. Prosecution for substantiating its case examined 33 witnesses. The material witness Lekhraj and Yajuvender who accompanied the SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page5 of 54) dated 03.10.2018 deceased and got injured in the incident are examined as PW12 and PW1. Another eye witness Chetram and witness Kamlesh who reached the spot after the incident are examined as PW15 and PW13. PW28 IO Abhay Singh Yadav and PW29 SI PK Jha who reached the spot initially. PW3 Dr. Asit Kumar Sikary conducted postmortem. PW19 Dr. Neelakantha Sahu prepared MLC of deceased Pankaj and injured Lekhraj. The summary details of prosecution witnesses is reproduced as under:
7. PW12 Lekhraj in his testimony stated that on 24.6.13 at about 9:30, he alongwith Yajuvender and Pankaj going to his shop at Central Market and when they were at the gali at Sapna Optical, surrounded by Pradeep, Salman @ Samma, Bunti, Raju and Rafique. Raju caught hold of Pankaj and Bunti started stabbing Pankaj. Pradeep caught hold of him and Rafique caught Yajuvender. Yajuvender able to free himself and escaped. However, when he raised hue and cry, Salman stabbed him on his left lower part of the leg. In the meanwhile, commotion took place and attention of the neighbouring shopkeeper was drawn and they started gathering. In the meanwhile, all the accused flew from the spot. He further stated Pankaj was stabbed badly and there was profuse bleeding. Then he took the chunni of his mother and tied on his injuries. Then he called his bua, who came on scooty and with the help of the person present there, they took him to Batra Hospital where he was declared dead. Family members of the deceased also arrived at the hospital. He further stated that 56 months prior to the incident, a quarrel had taken place between Om Prakash and accused Samma, Bunti, Raju. Then he and his friend Pankaj SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page6 of 54) dated 03.10.2018 approached the police for arrest of thee accused i.e, Samma, Bunti, Raju. Accused Samma, Bunti, Raju alongwith their two associates Pradeep and Rafique encircled them on the day of incident as Samma, Bunti and Raju wants to take revenge. He, however unable to identify the knife but stated that Bunti used same kind of knife.
8. In cross examination, on behalf of accused Vishal, stated that his blood stained clothes were taken at PS and his shop was around 25 30 paces from the place of incident and visible from the spot and at that time, his mother and father were present at the spot and they also came running after seeing the incident. Pankaj was stabbed when he was in standing position. He further stated that he do not know about the motorcycle on which they were riding. It should be lying somewhere and might be with his friend. After the knife blow, Pankaj unable to walk and leaned with the wall, and he was taken to hospital by him and his aunt on Activa scooty. His bua also reached within 57 minutes as her shop was nearby. Injured Pankaj wearing the sleepers which were left at the spot itself but he do not know what happened to the sleepers. He also stated that he remained in the hospital for about 1-1 ½ hr and his bua also reached there. He further stated that there is no criminal case pending against him, and there is one case pending against Om Prakash u/s 307 IPC. He also stated that he knew one Manoj Chandi, and he suffered knife injury on his left ankle. His sleepers were not seized by the police. He also stated that he knew all the accused prior to the incident. He denied the suggestion that Om Prakash has caused fire injuries on the person of accused Salman @ Samma. He also stated that he alongwith Pankaj were coming on the motorcycle, and on the way SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page7 of 54) dated 03.10.2018 they took Yajuvender who lateron started driving the motorcycle. He denied the suggestion that they made the planning to assault the accused persons and the place of incident is a crowded place. He further stated that Pankaj was pulled down by the accused, and he and Yajuvender also fell down with motorcycle and Yajuvender had sustained abrasion injuries on his knee. However, he did not sustain any injury due to fall. When the accused were assaulting, public persons started running here and there. In cross examination on behalf of accused Salman @ Samma, he denied the suggestion that he did not sustain any injury from knife and sustained injury due to fall. He also denied suggestion that he was not present at the spot. He also denied suggestion that he has falsely implicated accused Pradeep and Rafique because of rivalry.
9. PW1 Yajuvender stated that on 24.6.13, he alongwith Lekhraj and Pankaj going to the market, and he was driving the motorcycle, and on that day Pankaj and Lekhraj met him near his house on motorcycle, and when they reached Shiv Shakti market near shop of Sapna Opticals, motorcycle fell down due to skid, therefore, he sustained injuries on his right knee and he immediately returned to his house leaving motorcycle, his friend Pankaj and Lekhraj. He further stated that he do not know the accused persons. On being declared hostile, in cross examination by Ld. Addl. PP, denied suggestion that police recorded his statement and also denied suggestions of the infliction of injuries by accused Vishal @ Bunti, and the role of the other accused in committing the offence.
10. PW4 Om Prakash stated that on 25.12.2012 at around 3.30 pm when he was going from his job place to village Madangir and SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page8 of 54) dated 03.10.2018 when reached Hira Chakki then he was encircled by Salman, Vishal and Raju, thereafter they abused him, then Raju directed Vishal to hand over the country made pistol to Salman to fire at him thereafter caused injury on his back and he fell down on the road and became unconscious, thereafter, his Mausi Kamlesh came and took him to AIIMS trauma center. He also stated he alongwith Lekhraj and Pankaj are residing in vicinity and known to each other and FIR u/s 307/34 IPC registered at PS Ambedkar Nagar. Accused persons are involved in number of cases as they used to snatch money from public and also used to snatch money from him but he had not made any complaint for the same. He further stated all these three persons wants to take revenge from him and his cousin Lekhraj and school friend Pankaj. In crossexamination, stated deceased Pankaj never abused or quarreled with him. Accused Salman @ Samma is also known to him being resident of their vicinity for last 10 years and also denied suggestion that accused Salman not fired upon him on 25.12.2012. As far as motive is concerned, this witness stated that he fired because Salman snatched money from him one year prior to date of incident. He also stated that he has not made complaint for the incident of snatching as he was afraid of accused Salman. He also stated he has not told the police about the snatching of money in present case. He also denied suggestion that he has cordial relations with Salman. He denied suggestion that in connivance with Lekhraj, he booked accused Salman and other accused in present case as well as FIR No. 441/12.
11. PW13 Kamlesh stated that at around 8.30 pm in Madangir SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page9 of 54) dated 03.10.2018 Market she heard some noise and saw 810 boys, 3 of whom were on motorcycle being chased by the remaining boys who caught hold of Pankaj and motorcycle fell down and all were having the knives, they assaulted Pankaj with knife whereas Lekhraj and Yajuvender managed to escape, then she made call at 100 number. Lekhraj went towards his shop in order to call his family, thereafter arrived alongwith his father and tied her mother's chunni on injuries of Pankaj. Then one of the neighbour provided the motorcycle and offered to take the victim to the hospital. Pankaj caught hold of Lekhraj while sitting on pillion of motorcycle and at hospital the victim was declared dead by the doctors. She also accompanied to hospital on her Activa scooty. The details of assault were told by Pankaj to Lekhraj. She further stated she cannot identify the assailants. On being declared hostile, on crossexamination by Ld. Addl. PP, stated it is correct that police recorded her statement on 25.06.2013 and the incident took place at around 9.30 on 24 th and his nephew Lekhraj made a telephone call to her that he and his friend Pankaj were caused stab injuries by Raju, Bunti, Rafique, Samma and Pradeep @ Madrasi. She also volunteered that accused Samma caused bullet injuries to her bhanja Om Prakash earlier. She also stated it is correct that she reached the spot in her Activa scooter and found Pankaj lying unconscious, and made a call to 100 number, and also noticed stab injuries on the hand and foot of Lekhraj.
12. In crossexamination, stated when she received call from Lekhraj she was driving the activa and her position was near Virat cinema, and she reached the spot after the incident. She also stated SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page10 of 54) dated 03.10.2018 that her wearing clothes got blood stains when the injured was taken to hospital however she had not handed over the clothes to the police. She also stated it is correct that incident did not take place in her presence and name of assailants came to her notice through Lekhraj. In crossexamination on behalf of accused Pradeep and Rafique stated that distance between her shop and place of incident is about 30 ft., and denied suggestion that she named accused persons on the basis of information gathered from the crowd. However, volunteered it was was revealed to her by Lekhraj. She further stated police did not arrived at the spot in her presence and met the police at PS. She also stated her statement was recorded at PS. She denied suggestion that she do not know anything about the present case.
13. PW15 Chet Ram stated that on 24.06.2013 at about 9.30 pm he had gone to the market to buy paneer alongwith his friend Mohar Singh and Keshav and while standing at the spot near Sapna Optical. He noticed the crowd gathered into the gali known as Sapna Optical gali and one Pankaj his neighbour was lying on the road. A motorcycle was also found lying there. Thereafter, Pankaj told him that he has been stabbed, then he made a call to PCR at 100 number and also called SHO on his mobile, then police arrived at the spot and he left the place. On being declared hostile in cross examination by Ld. Addl. PP, he denied suggestion that police recorded his statement on 25.06.2013 and Lekhraj was introduced one day earlier to him by Pankaj and he do not know any Yujvender. He denied suggestion that he had seen Lekhraj, Yajuvender and Pankaj going to Shiv Shakti market and Lekhraj SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page11 of 54) dated 03.10.2018 sitting in the middle and Pankaj was behind Lekhraj on the motorcycle. He denied suggestion that accused persons present in the court known to him. He also denied suggestion that on that day accused persons encircled the motorcycle and accused Raju dragged Pankaj and Bunti inflicted knife injuries. He further stated in those days he was using mobile no. 9971717710. He also denied suggestion that Kamlesh came to the spot in honda scooty and took the injured to hospital in that scooty. However stated it is correct that it came to his notice that injured Pankaj declared dead by doctor at hospital.
14. PW28 IO ACP Abhay Singh Yadav stated that after the information of the incident, he met SI PK Jha and HC Sunil at spot then they reached Batra hospital where collected the MLC of Pankaj who was declared dead, and MLC of Lekhraj who was declared fit for statement. Then, he recorded the statement of Lekhraj and FIR was registered. Doctor handed him two sealed parcels containing clothes of Pankaj and personal belonging of deceased, crime team was called at the spot where photographs were taken. No chanceprints could be lifted. Blood in gauze as well as blood stain concrete and earth control were lifted. Injured Lekhraj produced his blood stained clothes including denim jeans pant and tshirt. He recorded the statement of Chet Ram, Kamlesh and supplementary statement of Lekhraj and also the statement of Yajuvender. The doctor who conducted the postmortem handed over three parcels containing viscera, underwear and blood sample of deceased. At around 4 pm, on secret information he apprehended Pradeep. Thereafter, on 26.06.2013 arrested accused Rafique from SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page12 of 54) dated 03.10.2018 Saket court. On the night of 1920/07.2013, SI PK Jha and ASI Rattan Lal apprehended one Ravinder @ Raju. On 01.08.2013 SI PK Jha and ASI Rattan Lal arrested accused Vishal @ Bunti. Thereafter during police custody at his instance buttondar knife was recovered underneath the pulia of nala. On 21.08.2013 on secret information accused Salman @ Samma was arrested and on his formal search one buttondar knife was recovered. Blood sample of injured Lekhraj was also collected.
15. In crossexamination, stated that caller of DD no. 50A was Kamlesh and he do not know whether Chet Ram also called at 100 number or not. He also stated he had not seized any scooty nor found the motorcycle at the spot when he reached the place of incident or thereafter during entire investigation and also not made efforts to locate the motorcycle on which the deceased and witnesses arrived at the spot as found it not necessary. He further stated it never came to his notice whether deceased was wearing slipper or not. He stated that as per PCR form, the name of one Abhishek reflected but he do not remember whether he interrogated him or not. He further stated he is not aware whether subsequent opinion has been sought with regard to weapon of offence or nature of injury and he remained investigating officer till the challan was filed. He also stated it is correct that FIR was received by Ld. MM on 26.06.2013 as it took sometime to ascertain the address of Ld. MM. He denied suggestion that he deliberately delayed FIR in order to facilitate the inclusion of the names of accused persons. He further stated initially the MLC of Lekhraj was collected by him to 12 to 1 night of 24/25.06.2013 and whatever overwriting at the SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page13 of 54) dated 03.10.2018 places has already been made when he received the same. He stated he do not recollect if he had taken the MLC of Lekhraj to doctor for making endorsement at place DA. He do not know who made this endorsement subsequently and how it appeared on MLC of Lekhraj. He denied suggestion that this manipulation in MLC has been done in order to see that no discrepancy appears in the time of recording of the statement and time of endorsement of being fit for statement by the doctor. He stated that he was with Lekhraj at spot from 1.30 am to 4 am. He also stated he could not recollect in whose writings the portions of rukka, site plan, request to conduct postmortem, statement of Suresh Kumar and Rajesh Kumar, death report were written. He also stated that Ilaka Magistrate was at Faridabad as well as his official residence in GK and special messenger went to Faridabad. The witnesses were examined at the spot and their computer printout were taken at PS. He do not remember which computer technician accompanied the police party to the spot. It is not specifically told to crime team that it was on account of gang war volunteered they might have recorded on their own.
16. PW29 SI PK Jha stated that he reached the spot on DD no.
50A with HC Sunil Gaur where he met SHO Inspector Abhay Singh and SHO left the hospital after leaving him at the spot. At around 1.30 am SHO came with Lekhraj to the spot, crime team was also called. Spot was inspected, exhibits were lifted. IO recorded statement of complainant Lekhraj and was discharged thereafter police persons went to Batra hospital where doctor handed over two cloth parcels. Then they reached the house of complainant Lekhraj where they met Chet Ram, Kamlesh, Om SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page14 of 54) dated 03.10.2018 Prakash, Yajuvender, Lekhraj then IO recorded their statement seized the jeans pant and tshirt of Lekh Raj. Then they came back to PS. He further stated that on 25.06.2013,on secret information arrested accused Pradeep @ Madrasi. On 19.07.2013 accused Ravinder @ Raju. Thereafter on 01.08.2013, accused Vishal @ Bunti from Saket court. On 21.08.2013, on secret information accused Salman @ Samma. In crossexamination, stated initially the information was received at PS at around 9.50/9.55 pm and he came to know about place of incident from HC Sunil Gaur and he did not find any motorcycle or scooty lying or present at scene of occurrence. He did not meet PW Lekh Raj or any other public person being eye witness at the spot. He had not made any inquiry from shopkeeper or residents. He also stated rukka was not sent from the spot. He also stated no scooty or motorcycle was taken into possession nor he had seen motorcycle at place of occurrence.
17. PW2 HC Sunil Gaur stated that on 24.06.2013 at PS DD no. 50A was assigned to SI PK Jha and from its content he came to know that stabbing incident had taken place in front of Sapna Opticals and said information was passed from Batra hospital, and at spot they noticed blood and injured were already removed to hospital. After one hour, IO came to spot with injured lekhraj, crime team official were also at the spot. Photographs were taken, exhibits were lifted, complainant from hospital took them to house of other witnesses. In crossexamination stated he reached the spot within 10 minutes of getting the information, crime team reached around 10.45 to 11 pm. No eye witness met at the spot and he remained at the spot for about 56 hours. He stated he is not aware that Lekhraj SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page15 of 54) dated 03.10.2018 and Chet Ram are involved in any criminal case or not.
18. PW3 Dr. Asit Kumar Sikary who conducted the postmortem and exhibited the postmortem report. He stated that injury no.6 is individually and collectively sufficient to cause death in ordinary course of nature and all the injuries are ante mortem in nature. Injury no. 3 to 15 were caused by sharp edged weapon and he put initials on 7 inquest papers. Clothes of deceased having blood stains, cut marks, blood in gauze, nail clippings from both hands and viscera were taken, sealed and handed over to concerned officer. He again on recalling exhibited the subsequent opinions over the knives and stated that the injuries could be possible with the knives submitted before him. PW5 Ct. Sukhbir is witness to arrest of accused Salman @ Samma and consequent recovery of buttondar knife from his pocket. PW6 Ct. Sachin stated that at around 1.30 am he had taken the FIR in envelope to deliver the same at residence of Ld. MM Sh Navjot Budhiraja and to deliver the same to Sr. police officers. He delivered the same one by one and returned to PS by government vehicle at 4 am. He stated he returned to PS at around 4 am and delivered the FIR at the residence of Ld. MM at GK1. PW7 Rajesh Kumar identified the dead body of deceased Pankaj. PW8 Suresh Kumar also identified the dead body of deceased Pankaj. PW9 Ct. Jeetam Singh stated at hospital statement of eye witness injured Lekhraj was recorded and he took rukka to the PS and thereafter with FIR and rukka reached the spot. PW10 HC Bansi Lal is the witness to arrest of accused Vishal @ Bunti and consequent recovery of knife SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page16 of 54) dated 03.10.2018 at his instance. PW11 Ct. Pitamber brought the postmortem report from the hospital. PW14 Ct. Jitender witness to arrest of accused Rafique. PW16 SI Giriraj Singh duty officer who registered FIR and also informed crime team and sent the copy of FIR to Sr. police officials and concerned MM through Spl. Messenger Ct. Sachin. PW17 ASI Sajjan Kumar crime team incharge found blood lying on the spot and took the photographs of the same and prepared the crime team report. PW18 Baljeet Singh stated that on 17.09.2013 he took PW Lekhraj for getting his blood sample to Batra hospital. PW19 Dr. Neelakanta Sahu exhibited the MLCs of deceased and injured Lekhraj . He also stated that he noticed on lacerated wound on the left lateral foot of injured Lekhraj. In crossexamination stated that the injury mentioned in MLC of Lekhraj possible due to fall. In crossexamination also stated there is overwriting as some confusion over the timing of examination of patient Lekhraj and denied suggestion that it was changed at the instance of IO. PW20 Ct. Sanjay brought the two sealed parcel containing viscera and blood in gauze from AIIMS and handed over to IO. PW21 Ct. Sukhbir Singh exhibited DD No. 94B regarding information from Batra hospital that injured Pankaj expired during treatment. PW22 Ct. Puneet inspected the spot between 10.40 am to 11.20 pm and taken 5 photographs. In crossexamination stated that he noticed blood at spot and denied suggestion that he had not taken the photographs or visited the spot. PW24 ASI Umed Singh duty officer who recorded DD no. 50A. PW25 SI Rattan Lal is the witness to arrest of accused Ravinder @ Raju. PW26 Inspector SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page17 of 54) dated 03.10.2018 Mahesh Kumar draftsman prepared the scaled site plan of place of occurrence. PW27 SI Prasoon witness to arrest of accused Rafique. PW30 Ct. Archana exhibited the PCR form and stated that at around 9.41 am she received a call from Chet Ram 'yahan par ek ladke ko kisi ne chaku maar diya hai, injured serious hai, and place of incidence was Shiv Shakti Mandir, Madangir, Sapna Optical ke pass'. She also exhibited another PCR form relating to the information received at 9.45 pm, 'hum Batra hospital jaa rahe hain, mere bhai ko kisi ne goli maar di hai, police bhejo'. PW31 Santosh Tripathi Sr. scientific officer FSL exhibited the viscera report. PW34 Dr. Ruchi Sharma exhibited the biological and serological report. PW33 HC Keshav Kumar MHC(M) exhibited malkhana entries.
19. Accused persons in their statements u/s 313 Cr.P.C denied all the incriminating circumstances put to them and not opted to lead any defence evidence. Accused Rafique pleaded that he was implicated because having previous enmity with Om Parkash and Lekhraj.
Material Exhibits
20. Ex.PW12/A is the statement of Lekhraj. Ex.PW28/A is the rukka. Ex.PW16/A is the FIR. Ex.PW24/A is DD No. 50A recorded at around 9.51pm showing the caller taking injured to Batra hospital as somebody fired at him. Ex.PW21/A DD No. 94B recorded at 11.20 pm showing that the injured died due to stab injuries at hospital. Ex.PW28/B is the site plan of place of occurrence. Ex.PW26/A is scaled site plan of place of occurrence.
SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page18 of 54) dated 03.10.2018 Ex.PW19/A is the MLC of injured Pankaj. Ex.PW19/B is the MLC of injured Lekhraj. Ex.PW19/C is the police intimation form. Ex.PW19/A1 is the MLC of Pankaj. Ex.PW28/K is the death report. Ex.PW2/A is DD no. 50A. Ex.PW18/A is the seizure memo of blood sample of Lekhraj. Ex.PW2/D is the seizure memo of clothes of deceased Pankaj alongwith sample seal. Ex.PW2/C is seizure memo of belonging of deceased. Ex.PW2/A is the seizure memo of blood in gauze lifted from the spot. Ex.PW2/B is seizure memo of blood stained earth from the spot. Ex.PW2/C is the seizure memo of blood stained clothes of victim Lekhraj. Ex.PW28/E is the seizure memo of blood in gauze with sample seal of deceased. Ex.PW20/A is the seizure memo of underwear of deceased. Ex.PW20/B is the seizure memo of viscera. Ex.PW10/B is the seizure memo of weapon of offence ie knife at the instance of accused Vishal @ Bunti on 02.08.2013. Ex.PW5/D is seizure memo of knife at instance of accused Salman dated 21.08.2013. Ex.PW10/A and Ex.PW5/C are sketches of knife. Ex.PW28/G is the site plan of the place from where knife was recovered at instance of Vishal. Ex.PW2/G, Ex.PW2/J, Ex.PW5/E, Ex.PW25/I, Ex.PW28/E are disclosure statements of accused Pradeep, Rafique, Salman, Vishal, Ravinder @ Raju respectively. Ex.PW5/F, Ex.PW2/K, Ex.PW28/F, Ex.PW2/H, Ex.PW25/J are pointation memo of place of occurrence at instance of accused. Ex.PW17/A is the crime team report showing time of visit between 10.40 pm to 11.20pm. Ex.PW31/A is the viscera SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page19 of 54) dated 03.10.2018 report. Ex.PW3/A is postmortem report. Ex.PW33/A are entries of malkhana register. Ex.PW33/B is road certificate. Ex.PW30/A is the PCR form showing that the intimation of knife injuries given to PCR at 21:39:40 by one Chetram from mobile no. 9971717710. The place of incident Shiv Shakti Mandir, Madangir, near Sapna Opticals. Thereafter the intimation received from PCR that injured is already taken to hospital and the name of injured is Pankaj and "Pankaj ko jaankar ladke Raju, Bunti aur uske anya sathiyo ne chaku maare hain" and at hospital he was declared dead, "caller Abhishek jo iske dost hai ne bataya ki Bunti, Raju, Pradeep, Samma aur Madrasi ne isko chaku maare hain, purani ranjish thi, Abhishek ko bhi mamuli chaku laga hai, jo theek hai". Ex.PW30/B is the PCR form showing intimation received at around 21:43:57 from some M/s Population Services International mobile no. 9818679618 showing "hum Batra hospital le jaa rahe hain, mere bhai ko kisi ne goli maar di hai, police bhejo", further reported that injured Pankaj was declared dead in hospital and callers friend Abhishek told that "Bunti, Raju, pradeep aur Madrasi ne isko chaku maar diya hai and Abhishek also suffered mamuli injury". Further informed "goli wali baat nahi hai". Ex.PW22/A is the photographs of the spot. Ex.PW32/A is the biological report. Ex.PW32/B is serological report.
21. Ld. counsel for the accused Pradeep submitted that the prosecution case dependent upon the testimony of PW12 Lekhraj, however this witness is not found at all reliable. Ld. Counsel submits that this witness has improved in his testimony over the SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page20 of 54) dated 03.10.2018 place of occurrence, furthermore in his statement u/s 161 Cr.P.C stated that injured got unconscious after being stabbed whereas in the testimony stated he was conscious and moved after the assault. This witness also mentioned one Chet Ram as and eye witness however, eye witness Chet Ram resiled from that statement. The testimony of this witness is not at all supported by any other witness. PW14 Chet Ram specifically deposed that he had not witnessed the incident, furthermore the testimony of PW13 Kamlesh is not reliable because she invented new facts in her testimony. PW1 Yajuvender not supported the prosecution case. The DD entries of PCR regarding reporting of incident are entirely different, one stating that it is an incident of stabbing and other DD stating it is an firearm. One Abhishek had informed about the incident as per the DD entry, however said Abhishek is not examined by the police. The testimony of Lekhraj on the manner of assault over him cannot be relied upon. The MLC of the injured Lekhraj has number of extra polations which are not explained by the prosecution. As per case of the prosecution, PW12 Lekhraj suffered injuries from the knife, however the doctor in cross examination stated that the injuries might be sustained due to fall. Ld. Counsel submits that there is no whisper of any exortation on the spot by accused Pradeep. There is no evidence of prior meeting of mind or association between accused Pradeep and other accused. Ld. Counsel submits that PW12 Lekhraj in his testimony stated that after they were surrounded by the accused persons, accused Bunti whipped out a knife. This itself suggest that the accused Pradeep has no common intention shared with other accused persons. Ld. SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page21 of 54) dated 03.10.2018 Counsel further submits that as per testimony of PW12,28 and 29 the place of incident is a crowded place, however no independent witness was joined. Police during investigation neither choose to seize the motorcycle nor the Activa scooter on which the deceased was taken to the hospital. Ld. Counsel submits that the prosecution even not able to prove from whom the police received the intimation of the incident. Ld. Counsel submits that the prosecution case is doubtful over the place of occurrence, manner of commission of injuries over the deceased as well as PW12. Testimony of PW12 is full of contradictions and improvements. No other witness supported the prosecution case. PW13 Kamlesh introduced the new version, hence the prosecution not able to prove its case. Ld. Counsel also filed written submissions.
22. Ld. counsel for accused Vishal @ Bunti and Ravinder @ Raju submitted that the star witnesses PW1, PW13 and PW15 have not supported the prosecution case. The testimony of PW12 is not at all reliable as given the contradictory versions. The recovery of weapon of offence from Vishal @ Bunti after one month of incident in another case is not at all reliable. The accused has already been acquitted in that case. The description of weapon of offence as per the witnesses ie whether it is buttondar knife, khanjar of dagger is not clear. The recovery of knife is also from the public place. Furthermore, the accused Ravinder @ Raju also arrested after 36 days. The clothes of the deceased do not have cutmarks and the entire proceedings were conducted in the PS as per the convenience of the police. There is no occasion for causing injuries on the lower portion ie at ankle of PW12, however PW19 also stated that these SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page22 of 54) dated 03.10.2018 injuries could be caused due to fall which belies the version of PW12. Ld. Counsel also filed the written submissions.
23. Ld. counsel for the accused Salman @ Samma also stated that none of the material witness supported the prosecution case. The role attributed to the present accused is only that he has given injuries on ankle of PW12 but there is no occasion for him to injure PW12 in this manner. Ld. Counsel submits that there inherent contradictions in the testimony of PW12. The investigation is also malafide and there are material omissions made by the prosecution. Ld. Counsel submits that the present accused was arrested on 21.08.2013 and one knife was found to be recovered from his possession. Ld. Counsel submits that on that day accused was at Faridabad, even otherwise the recovery of knife in this manner cannot be held to be believable. Knife was also not sent to CFSL. Furthermore there is no exortation by this accused to kill the deceased. Therefore, prosecution unable to prove that present accused shared common intention to kill the deceased. Ld. Counsel also filed the written submissions.
24. Ld. Counsel for accused Rafique submitted that there is no animosity of this accused shown with the deceased or any other injured. Ld. Counsel submits that there is no overtact attributed to this accused. PW1 Yajuvender had not supported the prosecution case regarding his role. Ld. Counsel submits that the investigation is malafide and biased, and there are material omissions committed by the IO. Ld. Counsel submits that prosecution not able to prove its case,hence accused is entitled to be acquitted.
25. Ld. Addl. PP on the other hand submitted that though PW1 SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page23 of 54) dated 03.10.2018 has not supported the prosecution case but the testimony of injured PW12 Lekhraj on the factum of narration of incident and attribution of role of accused persons found credible. The testimony of this witness is not found impeached over the role and presence of accused at the place of occurrence. His testimony is duly corroborated through the testimony PW13 who reached the spot just after the incident. The MLC and postmortem report also corroborated the fact that the deceased died due to multiple stab injuries inflicted on his person. Ld. Addl. PP submits that the photographs of the spot, site plan etc categorically corroborates the place of occurrence as deposed by PW12 and other witnesses. Ld. Addl. PP submits that minor discrepancy and omissions in the police investigation is not of the nature which can displace the credible testimony of injured PW12, hence prosecution able to prove its case beyond doubt and the accused persons are liable to be convicted for the offences charged.
26. Arguments heard. Record perused.
27. Apex court in "Mohan Singh Vs. State of MP, AIR 1999 SC 883", held that effort should be made to find the truth, this is the very object for which courts are created. One has to comprehend the totality of the facts and circumstances as spelled out through the evidence depending upon the facts of each case.
28. In appreciating the evidence, the approach of the court must be integrated and not truncated or isolated meaning thereby inferences should not drawn by picking up an isolated statement from here and there; rather the evidence on a particular point should be examined in the background of the total statement of said SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page24 of 54) dated 03.10.2018 witness or other witnesses as well as other evidence. The finding should be on the basis of objective assessment of the evidence and not on the conjunctures and surmises. In "Dalbir Singh and Ors. Vs. State of Punjab, AIR 1987 SC 1328", no hard and fast rule can be laid down about the appreciation of evidence and every case has to be judged on the basis of its own facts. While appreciating the evidence of the witness, the approach must be whether the evidence of a witness read as a whole appears to have ring of truth. Once that impression is formed, it is undoubtedly, necessary for the court to scrutinize the evidence more particularly, keeping in view the deficiency, drawbacks and the infirmities pointed out in the evidence as a whole, and evaluate them to find out whether it is against the general tenor of evidence given by the witness as to render it unworthy of belief. In 'Bhagwan Tana Patil Vs. state of Maharashtra, AIR 1974 SC 21', the apex court ordained that the function of the court is to disengage the truth from the falsehood and to accept what it finds the truth and rejects the rest. It is only where the truth and falsehood are inextricably mixed up, polluted beyond refinement down the core, the entire fabric of the narration given by a witness then the court might be justified in rejecting the same. This legal position was further elaborated in 'State of UP Vs. Shankar, AIR 1981 SC 897', wherein the Apex court observed that mere fact that the witness has not told the truth in regard to a peripheral matter would not justify whole sole rejection of his evidence. In this country, it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is only where the SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page25 of 54) dated 03.10.2018 testimony is tainted to the core, the falsehood and the truth being inextricably intertwined, that the court should discard the evidence. Therefore, the duty is cast over this court to dispassionately disengage the truth from the falsehood and accept the truth and reject the same. This court is not meant to reject the testimony of a witness on slightest deflection, however has a bounden duty to search the truth. Apex court in case titled "Gangadhar Behera & Ors. Vs. State of Orissa (2002) 8 SCC 381", held that the principle falsus in uno falsus in omnimus is not applicable in India and it is only a rule of caution. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused. The conviction can be maintained. It is the duty of the court to separate the grain from chaff. Apex court in 'Smt. Shamim Vs. State, Crl. Appeal No. 56/2016 dated 19.09.2018', in para 12 observed "while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed. It is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page26 of 54) dated 03.10.2018 rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof.......".
29. As far as the defective and illegal investigation is concerned, apex court held that if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of faulty investigation otherwise criminal trial descend to the IO ruling the roost. Yet if the court is convinced that the evidence of eye witnesses is true, it is free to act upon such evidence though the role of the IO in the case is suspicious (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the sole ground of defective investigation; to do so would be playing into the hands of the IO whose investigation was defective by design. (Dhanaj Singh Vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial (Paramjit Singh Vs. state of Punjab AIR 2008 SC 441). The lapses or the irregularities in the investigation could be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and evidence is of sterling quality. If the lapses or irregularities do not go the root of the matter, if they do not dislodge the substratum of the prosecution SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page27 of 54) dated 03.10.2018 case, they can be ignored (Sunil Kundu & Anr. Vs. State of Jharkhand, 2013(4) SCC 422).
30. To sum up while appreciating evidence on record the duty of the court is to separate credible and incredible part of evidence.
31. As per prosecution case, at around 9.30pm on 24.06.2013, PW1 Yajuvender, deceased Pankaj and PW12 reached Shiv Shakti market, opposite Sapna Opticals on motorcycle driven by PW1 Yajuvender where the accused Vishal @ Bunti, Ravinder @ Raju, Salman @ Samma, Rafique and Pradeep Madrasi stopped their motorcycle and thereafter accused Raju aught hold of Pankaj and Bunti having knife inflicted number of stab injuries over the Pankaj and when PW12 Lekhraj tried to stop Bunti then Rafique caught hold of Yajuvender and Pradeep Madrasi caught hold of him thereafter Salman inflicted knife injuries on his leg, however in the meanwhile, Yajuvender escaped from the spot and he started shouting then the crowd gathered and all accused ran away from the spot. PW15 Chet Ram alleged eye witness also seen the incident and called 100 number. In the meanwhile, PW13 Kamlesh was called by injured Lekhraj who took the deceased on her scooty to the hospital.
32. Therefore, as far as the prosecution case is concerned it depends upon the ocular evidence of injured/ eye witness PW12 Lekhraj, PW1 Yajuvender. The eye witness PW15 Chet Ram and Ms. Kamlesh bua of PW12 who reached the spot just after the incident and took the injured Pankaj to the hospital. The motive as per prosecution case is that the accused Bunti, Raju and Salman had grudge with PW4 Om Prakash, the cousin brother of PW12 and SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page28 of 54) dated 03.10.2018 friend of Pankaj, and on 25.12.2012 they had also attempted to kill Om Prakash by firing at him and the said case is also registered against the accused.
33. PW1 Yajuvender in his statement u/s 161 Cr.P.C stated that on the said day when he alongwith deceased Pankaj and Lekhraj reached the spot ie near Sapna Opticals, all the accused surrounded them and the accused Raju caught hold of deceased Pankaj and thereafter accused Vishal @ Bunti inflicted number of stab injuries to Pankaj but somehow he escaped from the spot. This witness in his testimony supported the prosecution case only to the extent that he alongwith Pankaj and Lekhraj driving the motorcycle reached Shiv Shakti market near Sapna hospital, however thereafter retracted from the prosecution version regarding the encircling the motorcycle by the accused persons and infliction of fatal injuries by accused Bunti to the deceased or the role attributed to all accused in the said incident, and only stated that after reaching the Sapna Optical he fell down due to skid of motorcycle and then he immediately returned to his house.
34. But PW12 Lekhraj in his testimony before the court supported his version as given in the FIR. In his testimony he has categorically stated that when on motorcycle they reached the spot they were surrounded by present accused, accused Pradeep caught hold of him, Rafique caught hold Yajuvender and Raju caught hold Pankaj and Bunti started stabbing Pankaj indiscriminately however Yajuvender freed himself and escaped the spot, and when he raised hue and cry Salman stabbed him on his lower ankle, in the meanwhile neighbouring shopkeepers gathered and accused ran SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page29 of 54) dated 03.10.2018 away. He also stated Pankaj was stabbed very badly and he was bleeding profusely. In the meanwhile he also called his bua Kamlesh (PW13) who came on scooty and thereafter he was taken to Batra hospital where he was declared brought dead. He also stated that family members of deceased also reached hospital. In crossexamination, stated that he and Pankaj were coming on motorcycle towards his shop, on the way took Yajuvender who started driving the motorcycle and denied suggestion that they made planning to assault the accused persons. He also stated that Pankaj was pulled down by accused, and Yajuvender also fell down with motorcycle and sustained injuries on his knee, however he himself did not sustain any injury due to fall. He stated that when incident took place, public persons started running here and there. He categorically denied suggestion that he was not present at the spot. Therefore, the testimony of PW12 remained unimpeached over the factum of his presence with deceased Pankaj and Yajuvender at the place of incidence and the factum of receiving of stab injuries on the deceased Pankaj by accused Raju and Bunti. From his testimony, it is also clear that all accused present on the spot and participated in the crime. There is nothing in crossexamination of this witness that these accused were not present together at the spot.
35. This witness in his testimony before the court not stated anything about the presence of PW15 Chet Ram as eye witness to the incident, whereas as per his statement Ex.PW12/A, he also stated that eye witness Chet Ram also reached the spot. PW15 Chet Ram in his testimony stated that at around 9.30 he had gone to market with his friend and standing near Sapna Optical when found SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page30 of 54) dated 03.10.2018 crowd gathered in the gali and one Pankaj his neighbour was lying on road and one motorcycle was also lying there, thereafter Pankaj told him that he was stabbed then he called PCR and when police arrived he left the spot. This witness in his testimony had not stated that he had also seen the incident, however form his testimony it can be gathered that he arrived at the spot just after the incident and seen the injured lying at the spot. He categorically denied suggestions on being declared hostile that he had seen the incident . He however stated that he was using the mobile number 9971717710 and also called the PCR. Therefore, as far as his testimony is concerned, he has supported the prosecution version on the factum of calling PCR as well as noticing the presence of injured Pankaj at the spot. The PCR form Ex. PW30/A also corroborate his statement of intimation to the police regarding the stab injuries suffered by Pankaj from his mobile number 9971717710.
36. Another important witness as per prosecution case is PW13 Kamlesh bua of PW12 Lekhraj. PW12 Lekhraj stated after the incident he called PW13 at the spot and from there she took deceased on Activa scooty to the hospital. PW13 as per her statement before the police is not the eye witness to the incident however reached the spot when Lekhraj called her and also told her that accused Raju, Bunti, Rafique, Pradeep Madrasi had inflicted knife injuries to him and his friend Pankaj. However, this witness in his testimony before the court improved and tried to project herself as the eye witness of the incident, but in crossexamination stated that at the time of incident, she was near Virat Cinema and on SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page31 of 54) dated 03.10.2018 receiving the call from Lekhraj she reached the spot. Therefore, the testimony of this witness regarding the fact that she has herself seen the incident is not at all reliable however form his testimony it is not in doubt that she reached the spot after the incident and accompanied the deceased to the hospital.
37. It is settled law that the testimony of hostile witness cannot be erased from the record and the testimony of the witnesses is to be appreciated in the entire context of the case. Though PW15 is not found to be the eye witness, however his testimony to the extent that he reached the spot just after the incident and seen the injured at the spot and further called the PCR is reliable. Furthermore, the testimony of PW13 to the extent that she also reached the spot after the incident and accompanied PW12 in taking the deceased to the hospital is reliable. Apex court in "C. Muniappan & Ors. Vs. State of Tamil Nadu 2010 (10) SCC 567", after considering various judgments held the law relating to the testimony of hostile witnesses can be summarized to the effect that the evidence of hostile witness cannot be disregarded as a whole and relevant parts thereof which are admissible in law can be used by the prosecution or the defence. Therefore, testimony of PW15 and PW13 to the extent found credible could be relied on in present case. The minor improvements, embellishments, omissions etc is no ground to reject entire testimony of the eye witnesses or the witnesses who reached the spot just after the incident.
38. From the testimony of PW12 Lekhraj, it is not in doubt that he was not present at the spot or during incident deceased Pankaj was not inflicted number of stab injuries by accused Vishal @ SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page32 of 54) dated 03.10.2018 Bunti. There is nothing in his testimony which can create doubt over the presence of accused persons at the spot and their role in commission of offence. Though PW1 Yajuvender had not supported the prosecution case over the manner of commission of offence, however from his testimony it is credible that on said day he on motorcycle with PW12 and deceased Pankaj reached the spot. PW15 Chetram testimony also supports the incident to the extent that such incident of stabbing took place near Sapna Opticals and injured Pankaj was lying on the spot and he informed the police immediately. PW13 Kamlesh presence at the spot is also not doubtful after the incident, and her testimony to the extent that she has taken the injured to hospital appears reliable.
39. The corroborating evidences on the record regarding the place of occurrence is the site plan of place of occurrence, the photographs taken by the crime team, testimony of crime team officials and the police officials. The site plan categorically shows the incident took place near Sapna Opticals. The photographs categorically shows the picture of Sapna Opticals and blood stains found at the spot. The MLC of the deceased Pankaj (Ex.PW19/A) also shows that injured was brought by Lekhraj in unconscious and unresponsive stage at around 9.50 pm at Batra hospital with alleged history of stabbing at around 9.30 pm in front of Sapna Opticals. As per MLC number of stab injuries were found on the body of deceased and he was declared brought dead. The timing of incident and the arrival of body at the hospital also corroborates the place of incident and receiving of stab injuries by the deceased, and his immediate removal to the hospital. The place of incident is also SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page33 of 54) dated 03.10.2018 confirmed through seizure memo of blood stains removed from the spot, the crime team report Ex.PW17/A.
40. Ld. counsels for the accused submitted that the testimony of Lekhraj cannot be relied upon because his testimony regarding the manner, he suffered the injuries is completely contradicted by the MLC. Ld. Counsels submits that this itself suggest that he was not present at the spot. Ld. Counsels submits that MLC Ex.PW19/B of Lekhraj showing extra polation over the time of declaration of this witness fit for statement, and also over the point whether the injury is possible through blunt or sharp object. Ld. Counsel submits that there is a cutting in the MLC regarding the nature of injury whether it is caused by blunt or sharp object. Prosecution for proving the MLC examined PW19 Dr. Neelkantha Sahu who prepared the said MLC and examined the injured Lekhraj. He categorically stated that he noticed wound on left lateral foot measuring 5X2 cm and advised patient for surgical opinion. He in crossexamination categorically stated that there is some overwriting in the MLCs because of some confusion regarding the timing of examination and categorically denied suggestion that he changed the timing or the nature of injury of weapon used at the instance of IO. He also stated that he had also put the initials where was overwriting. As per this MLC injured Lekhraj is examined at around 11 pm. As per MLC Ex. PW19/A of deceased Pankaj, deceased was brought to the hospital at around 9.50 pm by Lekhraj. There is nothing in the crossexamination of PW12 Lekhraj that he has not brought the accused to the hospital or the entry in the MLC regarding his presence is fabricated. This injured is found to be in the hospital SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page34 of 54) dated 03.10.2018 alongwith deceased Pankaj at the relevant time, therefore, in these facts and circumstances mere cutting which were also duly explained by PW19 do not at all create doubt over the fact that this witness has not suffered injury in the said incident. PW19, however in crossexamination stated that there is a possibility that this injury might be sustained due to fall. However, it is not suggested to this witness that this injury cannot be from sharp weapon whereas the MLC already shows injuries from the sharp weapon, therefore mere deposing by the doctor that the possibility of this injury due to fall, do not in any manner creates doubt in overall scenario. Ld. Counsels also dispute the testimony of PW12 regarding injury on his left ankle from the fact that if the accused will inflict the injuries in the manner stated by him then he will not receive the injury on left ankle. Nothing material found in the crossexamination of PW12 that he could not get the injury on left ankle in said fight. The incident as depicted happened in public place, the other injured was inflicted number of stab injuries. Though from the fact that PW 12 suffered injuries only on left ankle, might indicate that accused did not want to inflict any fatal injuries to him, but by mere receiving of injury on left ankle in the said incident do not suggest that he was not present at the spot or not injured in the said incident.
41. The credibility of PW12 is also substantiated through his crossexamination in which he has given the minute details regarding his presence at the spot and the factum that his shop is also nearby the place of incident, thereafter his mother and father also came and he tied the chunni/dupatta of his mother on the injuries of the deceased. The said dupatta is also sent for FSL SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page35 of 54) dated 03.10.2018 examination and found to contain the blood stains of human. Furthermore, the cut marks on the clothes of deceased are also found in FSL as well as deposed by PW3 Dr. Asit Kumar Sikary who conducted postmortem and handed over clothes belying the contentions of the accused that cut marks were not found on the clothes of the deceased as seized. The testimony of PW12 is found credible on overall appreciation of the incident. This witness found credible over the factum of reaching the spot with the deceased and PW1 Yajuvender, his presence at the time of incidence when the accused persons encircled them and over the factum that fatal injuries were inflicted to the deceased Pankaj and lateron the immediate intimation to the police and the presence of PW15 Chetram at the spot after the incident confirming his presence. PW13 Kamlesh also stated that she found injured PW12 Lekhraj at the spot who called her and thereafter they had taken the deceased to the hospital. Thus, in overall scenario the testimony of this witness is not found impeached over his presence and the role he assigned to the accused persons and their presence at the spot.
42. As far as presence of accused persons at spot is concerned, besides PW12 during investigation, PW15 Chetram also corroborated this fact but PW15 is not found credible being the eye witness and PW13 also found to have reached the spot after the incident. PW1 not at all supported the prosecution case regarding the identities and involvement of the present accused persons but there is an immediate PCR intimation Ex.PW30/A and Ex. PW30/B from one Abhishek informing that his friend Pankaj was inflicted knife injuries by accused Bunti, Raju, Pradeep, Samma and SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page36 of 54) dated 03.10.2018 Madrasi. This intimation was received at the control room immediately after the incident, therefore there appears to be no scope of manufacturing the name of accused over their presence at the spot. Ld. Counsel submits that this PCR intimation cannot be relied upon because the caller Abhishek was not examined by the police. The benefit of this omission could not be given to the accused by completely ignoring the contents of this report, and this PCR intimation could be relied to the extent that such information is received in the PCR control room, particularly when from the testimony of PCR officials it cannot be inferred that they themselves have not received such information. None of the PCR official and the official who exhibited this PCR were suggested that they deliberately without any intimation included the name of the assailants in this PCR form.
43. Ld. counsel for the accused persons submitted that there are material omissions in the police investigation creating doubt over the manner of commission of offence. Ld. Counsel submits that as per prosecution case, the victims came on the motorcycle, thereafter the deceased was taken on the scooty and during the incident the mother and father of PW12 Lekhraj also came to the spot and PW12 Lekhraj tied the chunni of his mother over the injuries, furthermore the deceased is alleged to be taken on scooty of PW13, however neither the motorcycle, scooty or mother and father of PW12 were examined by the police. Furthermore, as per police version the slippers also left at the spot but those were also not seized and even not found at the spot as per crime team photographs or the site plan. Though the police ought to have seized these SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page37 of 54) dated 03.10.2018 vehicles as well as could have recorded the statement of mother and father who immediately reached the spot during the incident but the benefit of these omissions in present facts and circumstances could not be given to the accused persons particularly when the testimony of PW12 regarding the incident as discussed appears credible. Apex court in "C. Muniappan Vs. State of Tamil Nadu (supra), observed that defective investigation by itself cannot be ground for acquittal. If the primacy is given to such designed or negligent investigations then the faith and confidence of people in criminal justice administration would be eroded. There is legal obligation on the part of court to examine prosecution evidence dehors such lapses. The investigation is not the solitary area for judicial scrutiny in the criminal trial. The conclusion of trial in a case cannot be allowed to dependent solely on probity of investigation.
44. Furthermore, Delhi High Court in Nanko Devi Vs. State, Crl.
Appeal No. 152/2001 dtd. 6.12.2010 observed in para 5 that the conviction in a criminal case can be based solely on the basis of injured witness if found reliable :
"......Conviction can be based solely on the testimony of injured witness, if found reliable, is well settled. The Hon'ble Supreme Court in Akhtar and others v. State of Uttranchal (2009) 13 SCC 722 noting its earlier decisions, held that credence to the testimony of injured eye witnesses is given since their presence at the scene of crime is seldom doubtful. In the report it was observed:
"18. In Krishan v. State of Haryana, this Court has taken the view that if the prosecution case supported by two injured eyewitnesses and if their (injured eyewitnesses) testimony is consistent before the police and the court and corroborated by the medical evidence, their testimony cannot be discarded. Similarly, in Surender Singh v. State of Haryana, this Court has opined that: (SCC p. 251, para 9) "9. The testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence, lends support to the testimony that the witness was SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page38 of 54) dated 03.10.2018 present during occurrence and he saw the happening with his own eyes." This Court has taken the view in State of M.P. v. Mansingh that: (SCC p. 419, para 9) "9. The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly."
The testimony of PW12 Lekhraj is found reliable as discussed which is duly corroborated by other associated circumstances as discussed, therefore conviction can be based on his sole testimony.
45. As far as homicidal death is concerned the same is duly proved from the postmortem report Ex.PW3/A. PW3 Dr. Asit Kumar Sikary stated that he has conducted the postmortem and noticed around 12 stab injuries and the injury no.6 was a fatal injury ie stab wound of size 3X.8 cm cavity deep, wedge shape with clean cut margin running forward and medially was present over back causing pericapsular haematoma and around left kidney and peritonial bleeding of about 2000 ml ie 2 ltr. PW2 stated that injury no. 6 individually and all other injuries mentioned collectively are sufficient to cause death. He also stated that injury no. 3 to 15 are caused by sharp edged pointed weapon. He also stated that the clothes of deceased were having blood stains, cut marks. This witness also given the subsequent opinion over the knives and stated that the injuries could be possible through those knives. This witness is not at all crossexamined therefore, from his testimony it is clear that the deceased suffered number of stab injuries from the sharp edged weapon. From the nature of injuries suffered and testimony of PW12 alongwith other associated circumstances as discussed categorically suggest that deceased was inflicted stab injuries with intention to kill. Delhi High Court in case titled Nanko SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page39 of 54) dated 03.10.2018 Devi Vs. State (supra) observed as under:
In Arun Nivalaji More (supra) the Hon'ble Supreme Court held as under: "25. In order to ascertain that "there was an intention to inflict that particular bodily injury" the enquiry should not be directed to find out whether the offender had intention to cause those very injuries to the internal organs of the body which were actually found to be there in the medical examination. The intention has to be gathered from a host of circumstances like the seat of injury viz. the place or portion of the body where the injury has been caused, the nature of the weapon, its size and dimension or other attributes and the force applied in inflicting the injury. Being a question of fact it is difficult to lay down exhaustive tests to ascertain as to whether the offender intended to inflict that particular injury which is found on the body of the deceased but the features enumerated above will certainly play a vital role in arriving at a correct conclusion on the said issue.
26. The mere fact that a dangerous or deadly weapon was not used or the injuries were not caused on vital parts of the body may not necessarily take out the offence from the clutches of clause Thirdly of Section 300 IPC. Death may take place on account of large number of blows given by a blunt weapon like lathi on hands and legs causing fractures. Though the injuries may not be on a vital part of the body as the said term is generally understood, but if the medical evidence shows that they were sufficient in the ordinary course of nature to cause death, the offence would fall in clause Thirdly of Section 300 IPC. In Anda v. State of Rajasthan where there were large number of injuries which had resulted in fractures of ulna, third metacarpal bone, tibia and fibula, Justice Hidayatullah (as His Lordship then was) speaking for a fourJudge Bench held that the offence will be under cause Thirdly of Section 300 IPC having regard to the fact that the doctor had opined that all these injuries collectively were sufficient to cause death in the ordinary course of nature though individually no injury was sufficient in the ordinary course of nature to cause death. It was observed: (AIR p.148) "The third clause of Section 300 IPC views the matter from a general standpoint. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. Here the emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature. When this sufficiency exists and death follows and the causing of such injury is intended, the offence is murder.
Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The intentional injury which must be sufficient to cause death in the ordinary course of nature, is the determinant factor."
SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page40 of 54) dated 03.10.2018
46. Ld. counsel for the accused stated that prosecution could not prove the motive for inflicting fatal stab injuries to Pankaj. Prosecution examined PW4 Om Prakash who stated that on 25.12.2012, he was encircled by accused Salman @ Samma, Vishal @ Bunti and Raju present in the court and they abused him, then Raju directed Vishal @ Bunti to hand over country made pistol to Salman, then Salman fired at him causing injury on his neck, then the FIR u/s 307/34 IPC was registered. He also stated that they want to take revenge from him, his cousin Lekhraj and his friend Pankaj. In crossexamination, he however could not tell the exact motive why accused fired at him but stated that accused Salman used to snatch money from the public, but also stated he has not filed any complaint against him. This witness could not state categorically what makes the accused persons inimical to the present deceased Pankaj and Lekhraj. He also not stated that whether Lekhraj or Pankaj were also present at that time. He further could not give any other incident why the accused persons used to take revenge from him, Lekhraj or Pankaj. PW12 Lekhraj however in his examination in chief stated that after the incident with Om Prakash, he alongwith his friend Pankaj approached the police for arrest of accused Samma, Bunti and Raju. The motive for the crime is alleged only against the accused Samma, Bunti and Raju and that too six months prior to the incident. There is nothing in the evidence which could suggest that in between that duration either PW12 or PW4 Om Prakash or deceased Pankaj were threatened by accused persons. Therefore, as far as motive is concerned, the SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page41 of 54) dated 03.10.2018 prosecution case is found somewhat weak, but it is settled law when the testimony of injured / eye witnesses regarding the manner of commission of offence if found reliable then merely because of the fact that prosecution not able to prove the motive, can't be made ground to absolve the accused from the said offence. Apex court in case titled 'Khurshid Ahmed Vs. State of Jammu & Kashmir, Crl. Appeal No. 872/2015 dated 15.05.2018' as observed in para 16 ".... as regards to the importance of existence of motive in a criminal case, here it is worthwhile to look at the ratio laid down by the Court in Shivaji Genu Mohtte vs. State of Maharashtra, AIR 1973 SC 55: "In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye witness is rendered untrustworthy". Apex court in case titled "Yogesh Singh Vs. Mahabir Singh & Ors., 2017(11) SCC 195", held that when there is a direct trustworthy evidence of witnesses as to the commission of offence, motive loses significance. If the genesis of motive of occurrence is not proved, the ocular evidence of witnesses as to the occurrence could not disregarded only on the SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page42 of 54) dated 03.10.2018 ground of absence of motive, if otherwise, the evidence is worthy of reliance. Therefore, in present case prosecution case can't be discarded because motive part is not reasonably proved.
47. As per testimony of PW12, accused Vishal @ Bunti inflicted stab injuries through knife to the deceased Pankaj and accused Salman @ Samma inflicted knife injuries on Lekhraj. Accused Vishal @ Bunti was arrested on 01.08.2013 and thereafter accused Mohd. Salman @ Samma was arrested on 21.08.2013. After the arrest of accused Vishal @ Bunti on 01.08.2013, the weapon of offence ie knife used is recovered and seized at his instance vide seizure memo 02.08.2013. As per this seizure memo, the said knife was found to be lying at the bank of the ganda nala near yellow building school, Madangir. This knife was recovered by the IO in presence of PW10 HC Bansi. PW10 HC Bansi stated that this knife was recovered at the instance of accused between pulia and nala, however stated that the knife was taken out from heep of garbage and no blood stains were found on said knife and this was put in a raxin cover, however no raxin cover was found when taken out in the court, furthermore this witness not stated it is buttondar knife. Admittedly no independent witness was joined, furthermore there is no site plan of recovery of knife prepared. The accused was arrested after around 36 days of the incident. This knife is also not shown to any of the injured. The recovery of the knife in the manner suggested do not appear credible at all.
48. The recovery of knife from accused Salman is found to be effected from his pant pocket on his personal search on 21.08.2013 at the time of his apprehension and the same was seized vide SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page43 of 54) dated 03.10.2018 seizure memo Ex. PW5/D. The manner of arrest and consequent recovery of accused after such long gap do not appear to be credible, therefore the recovery of knife from possession of accused Salman cannot be relied upon, however this is no ground to disbelieve testimony of PW12, medical evidence and other facts and circumstances as discussed before. Apex court in 'Yogesh Singh's case (supra), held that mere non recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence.
49. Ld. Counsels for the accused submitted that as per the testimony of PW12 and other witnesses number of public persons and shopkeepers were present at the time of incident and also collected after the incident but the police did not join any independent witnesses and only relied upon the statement of the relatives and friends of the deceased. Ld. Counsel submits there are material improvements made by the relative witnesses and in absence of independent witnesses, their testimony could not be relied upon. This submission has no force because there is not even a single question asked with IO PW28 why he has not joined public/ independent witnesses during investigation. Apex court in 'Yogesh Singh case (supra) after considering various judgments on this aspect also not found this plea convincing. It is common practice that public witnesses do not want to participate in any kind of criminal investigation due to various reasons. However, as far as the law relating to the appreciation of related or interested witnesses concerned, apex court in case titled 'Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, 2012 (12) SCC 701", in para 29 held as SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page44 of 54) dated 03.10.2018 under:
"The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and Pithily reiterated in Sarwan Singh in the following words:
(Sarwan Singh case, SCC p. 376 para 10) "10....The evidence of an interested witness does not suffer from any infirmity as such, but he courts required as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
50. In present case, the testimony of PW12 is credible and also found duly corroborated through other facts and circumstances as already discussed.
51. Now the pertinent question before this court is whether the prosecution able to prove that the accused persons shared the common intention to cause fatal injuries to deceased Pankaj or the stab injuries on the left ankle of PW12 Lekhraj. The motive as discussed do not appear to be credible. PW4 only named accused SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page45 of 54) dated 03.10.2018 Salman, Bunti and Raju for the previous enmity. Nothing brought against accused Pradeep Madrasi and Rafique why they were associated with these accused persons on that day. There is nothing on record that whether prior to the meeting at the spot these accused persons had planned to kill deceased Pankaj. From the testimony of PW12, it can't be inferred that accused persons had knowledge that all these will come on motorcycle at particular time, therefore any kind of conspiracy or prior meeting of mind can't be inferred, though from the prosecution case as discussed the presence of all accused at the spot is not doubtful. It is also not in doubt that PW12 Lekhraj and deceased Pankaj suffered stab injuries in said incident. From the evidence on record, the accused Rafique, Raju and Pradeep Madrasi were not carrying any knife with them. The role attributed to Pradeep Madrasi as per testimony of PW12 that he caught hold him, and Yajuvender by Rafique and Raju caught hold of Pankaj, Salman stabbed him and Vishal @ Bunti was inflicted with number of stab injuries to deceased Pankaj, however there is nothing in the testimony of PW12 that either Raju, Pradeep, Rafique or Salman boosted or exhorted the accused Bunti to cause fatal injuries to deceased Pankaj. There is nothing in testimony of PW12 over the fact what conversation took place between accused while committing the offence. In absence of that conversation, it is difficult for the court to assume that all the accused persons gathered to cause fatal injuries to the deceased particularly when the accused persons had no knowledge that all these will come on motorcycle at that particular time near the spot. However, it can be assumed that accused persons might have come to the spot because SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page46 of 54) dated 03.10.2018 they know there is a shop of Lekhraj near place of incident and in all probability he will come to that place, but it cannot be assumed that deceased Pankaj will also accompany him to that shop at that particular time.
52. Considering the testimony of PW12 and entire facts and circumstances, no prior meeting of mind over causing fatal injuries could be inferred against the accused, however the accused persons are found to be present, and common intention to kill could arose even at the spur of moment but no the common intention to kill could be inferred because there is no evidence on record to suggest what is conversed between the accused at the time of incident. The prosecution only able to prove that all accused are together at the place of occurrence at the time of offence not tried to investigate in what manner they gathered at the spot and how they got the knowledge that these persons will come on motorcycle to that place together. The incident appears to happened all of a sudden. The factum of encircling of motorcycle or catching hold at best suggest that the accused intended to inflict injury. The acts of the accused persons in furtherance of common intention do not appear of the nature that they want to kill the deceased Pankaj or even attempted to kill injured PW12 Lekhraj. It has came in evidence of PW12 that accused Bunti whipped out the knife and inflicted number of stab injuries to the deceased Pankaj. None of the other accused except Salman were carrying any knives nor shown to have inflicted any kind of injury to the deceased or PW12. Accused Salman appear to have given the injuries which was found on the ankle which itself suggest that he has no intention to kill PW12 nor anything surfaced SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page47 of 54) dated 03.10.2018 that he had shown any kind of intention to kill him. Nothing on record to suggest that he tried to inflict multiple stab injury to PW12. However the injuries on PW12 as per MLC is found to be grievous and said nature of injuries suffered remain unimpeached in the testimony of PW19 Dr. Neelakantha Sahu. The necessary ingredient for commission of offence u/s 302/307/34 IPC is that all the accused must share common intention to cause murder, however the present facts appears deficient for inference of common intention to cause murder. Apex court in case titled "Munna Ayyia Vs. State of UP, 1993 Cr.L.J 45 (SC)" held that both accused sharing common intention to beat up or assault the victim though not to kill him, however one of the accused suddenly stabbed the victim, therefore coaccused could be convicted only under sec. 326/34 IPC and not u/s 302/34 IPC. Apex court in "Hardev Singh & Anr. Vs. State of Punjab, AIR 1975 SC 79, held that the view that even the person not committing the particular crime could be held guilty of that crime with the aid of Section 34 if the commission of the act was such as could be shown to be in furtherance of the common intention not necessarily intended by every one of the participants, is not correct. The common intention must be to commit the particular crime, although the actual crime may be committed by any one sharing the common intention. Then only others can be held to be guilty. Apex court in case tittled "Dajya Moshya Bhil & Ors. Vs. State of Maharashtra, AIR 1984 SC 1717", held that in order to attract sec. 34 it is not sufficient to prove that each of the participating culprit had the same intention to commit a certain act. What is requisite ingredient of sec. 34 that each must SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page48 of 54) dated 03.10.2018 share intention of other. In present case from the nature of injuries and presence of accused persons at the spot and their participation, the maximum could be inferred that they shared common intention to commit injuries, thus could be fastened for liability only for commission of offence u/s 326/34 IPC. But from the evidence as discussed, the accused Vishal @ Bunti inflicted number of stab injuries, therefore it can be inferred that he caused injuries with intention to cause death, hence liable for commission of offence u/s 302 IPC. Accused Salman had not intended any fatal injury towards PW12, therefore offence u/s 307 IPC is also not made out, however injuries are found to have been caused in furtherance of common intention, accused persons, therefore guilty of offence u/s 326/34 IPC.
53. The accused persons were charged for commission of offence u/s 302/307/34 IPC but on appreciation of evidence as discussed, found to have committed offence u/s 326/34 IPC in furtherance of their common intention, however accused Vishal @ Bunti is also found to have inflicted multiple stab injuries resulting the death of deceased Pankaj, therefore found to have committed offence u/s 302 IPC. Accused Vishal @ Bunti and Salman @ Samma are also charged for offence u/s 25 Arms Act, however as discussed the recovery of knife at their instance after the long time of the incident, do not found to be credible, therefore granted benefit of doubt and not found guilty for offence u/s 25 Arms Act.
54. It is cardinal principle of criminal law that the guilt of the accused must be proved beyond all reasonable doubt, however burden of prosecution is only to establish its case beyond all SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page49 of 54) dated 03.10.2018 reasonable doubts and not all doubts, and such rule does not warrant acquittal of accused by resorting to surmises, conjunctures or fanciful consideration [Yogesh Singh case (supra)].
55. In view of above discussion, the prosecution able to prove its case beyond reasonable doubt, hence accused Vishal @ Bunti, Salman @ Samma, Raju @ Ravinder, Pradeep and Rafique are convicted for commission of offence u/s 326/34 IPC. Accused Vishal @ Bunti also convicted for offence u/s 302 IPC. Accused Salman @ Samma and Vishal @ Bunti stands acquitted for offence u/s 25 Arms Act. Accused be heard on point of sentence.
Announced in the open Court (AJAY KUMAR JAIN)
On 03rd October, 2018 ASJ02 (South)
District Court Saket / New Delhi
SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page50 of 54) dated 03.10.2018 In the Court of Sh. Ajay Kumar Jain, Additional Sessions Judge02, South District, District Court Saket, New Delhi Session Case No. 7263/17 (Old No. 109/13) In the matter of :
State Versus
1. Pradeep S/o Sh Babu R/o H.No. H1/ 158, Madangir, New Delhi.
2. Rafique S/o Sh Aliyas R/o H.No. C1/1028, Madangir, New Delhi.
3. Ravinder @ Raju S/o Sh Prem Raj @ Munna Lal R/o 11/50, Dakshinpuri, New Delhi.
4. Vishal @ Bunti S/o Sh Madan Lal R/o H.No. C1/986, Madangir, New Delhi.
5. Mohd. Salman @ Samma S/o Sh Mohd. Aslam R/o B2/181, Madangir, New Delhi.FIR No. : 271/13
Police Station : Ambedkar Nagar
Under section. : 302/307/34 IPC &
25/54/59 Arms Act
SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page51 of 54) dated 03.10.2018 ORDER ON SENTENCE
1) Vide judgment dated 03.10.2018, the convicts Vishal @ Bunti, Salman @ Samma, Raju @ Ravinder, Pradeep and Rafique are held guilty for the offences punishable under section 326/34 IPC. Accused Vishal @ Bunti also convicted for offence u/s 302 IPC.
2) It is contended on behalf of the convict Rafique that he is in j/c for around 5 ½ years and has no previous conviction. Furthermore, his father has already expired and have dependent old mother and was around 21 years of age at the time of commission of offence. Ld. Counsel for convict Pradeep submitted that he was around 21 years of age at the time of offence and is in custody for more than 5 years. Ld. counsel submits that there is no criminal case against the present accused. Ld. Counsel submits that old parents are dependent upon him and requested for lenient sentence. Ld. Counsel for convict Ravinder @ Raju submitted that accused Raju is in custody for about 5 years. Ld. Counsel submits that old mother and father are also dependent upon him. Ld. Counsel for convict Salman @ Samma submitted that accused is in custody for more than 5 years and have dependent old mother and younger siblings. Ld. Counsel for convict Vishal @ Bunty submitted that accused is of young age ie aged around 23 years. Furthermore, having old age mother. Ld. Counsel submits that a lenient view be taken against accused considering the age and the family background. Ld. Counsels requested that considering the custody period, the convicts be sentenced for the period already undergone for commission of offence u/s 326/34 IPC.
3) Ld. Additional Public Prosecutor, on the other hand, submitted that SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page52 of 54) dated 03.10.2018 the acts of the convicts cannot be overlooked therefore does not deserves any leniency. Ld. Additional Public Prosecutor for State further submits that punishment u/s 326 IPC is upto life imprisonment. Furthermore, the convict Vishal @ Bunty is also liable for the maximum sentence for offence u/s 302 IPC. Ld. Addl. PP submits that in present facts and circumstances, the convicts do not deserve any leniency.
4) I have considered the submissions of the contesting sides and have gone through the record as well.
5) Sentencing is the most delicate aspect of criminal law. While considering an appropriate sentence for a convict, given in a set of facts and circumstances, a lot of factors come into play such as the age, gender, educational background, socioeconomic status of the convict, his role and impact on the society etc. The sentence needs to be adequate and in consonance with the offence committed, it should neither be harsh nor should be light. Striking such a delicate balance is very crucial for a judge.
6) All the accused are found guilty for commission of offence u/s 326/34 IPC and accused Pradeep is in judicial custody from 25.06.2013 till date, but remained on bail for around 3 days in between. Accused Rafique is in custody since 26.06.2013 till date. Accused Ravinder is in custody from 20.07.2013 till 15.04.2018, thereafter jumped the interim bail and again in custody from 18.08.2018 till date. Accused Salman @ Samma is in custody from 21.08.2013 till date. Accused Vishal @ Bunty is also in custody from 01.08.2013 till date. Apex court in case titled 'Prabhu Vs. State of MP Crl. Appeal no. 1956/2008 dated 03.12.2008', on altered conviction of the appellant Prabhu from 302/34 IPC to 326/34 IPC, sentenced him for a period of 5 years. All the convicts in present case are found to be in custody for around 5 years and the case against convict SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page53 of 54) dated 03.10.2018 Vishal @ Bunty do not fall in the category of rarest of the rare case, therefore no case is made out for death sentence.
7). Considering the aforesaid facts and circumstances, convicts Vishal @ Bunti, Salman @ Samma, Raju @ Ravinder, Pradeep and Rafique are sentenced to the period already undergone and to pay a sum of Rs. 2,000/ each as a fine, in default of which they shall undergo simple imprisonment of 7 days u/s 326/34 IPC. Convict Vishal @ Bunty is sentenced for rigorous imprisonment for life and a fine of Rs. 5000/, and in default of payment of fine, to undergo SI for 03 months u/s 302 IPC. Fine of Rs. 2000/ each is deposited by convicts Salman @ Samma, Raju @ Ravinder, Pradeep and Rafique. Fine not deposited by convict Vishal @ Bunty.
8) Benefit of section 428 Cr.P.C to be given to convicts.
9). Convicts Salman @ Samma, Raju @ Ravinder, Pradeep and Rafique are directed to execute bonds u/s 437A Cr.P.C in sum of Rs. 50,000/. Convicts Salman @ Samma, Raju @ Ravinder, Pradeep and Rafique furnished bonds and same stands accepted. Convicts Salman @ Samma, Raju @ Ravinder, Pradeep and Rafique be released from jail forthwith if not required in any other case.
10). Copy of judgment and order on sentence be given to the convict free of cost. After compliance, file be consigned to Record Room.
Announced in the open Court (AJAY KUMAR JAIN)
On 10th October, 2018 ASJ02 (South)
Saket Courts / New Delhi
SC No.7263/17, State Vs. Pradeep etc., FIR No. 271/13. PS Ambedkar Nagar, (Page54 of 54) dated 03.10.2018