Delhi District Court
Fir No. 22/05; State vs . Shiv Kumar @ Shibu & Ors. Page 1 Of 36 on 28 March, 2014
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE No. 21/09
FIR No. 22/05
P.S. Uttam Nagar
U/S: 304/323/212/34 IPC
STATE
Versus
(1) Shiv Kumar @ Shibu
s/o Sh. Ramhit
r/o A16, Sehyog Vihar,
Uttam Nagar, Delhi
(2) Raju
s/o Sh. Kanha
r/o A95, Sehyog Vihar,
Uttam Nagar, Delhi
(3) Maya Ram
s/o Sh. Pati Ram
r/o 1353/3, Gali no. 6
Rajiv Nagar, Gurgaon
(4) Arjun Kumar
s/o Sh. Sri Pal,
r/o F267, Sahyog Vihar,
Matiyala, PS Bindapur,
FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 1 of 36
Uttam Nagar, Delhi
nd
2 Add
: G88,
Gali no. 6, Vishwash Park,
PS Dabri
Date of Institution: 17032005
Date of arguments: 24032014
Date of judgement: 28032014
JUDGMENT
1. The case of the Prosecution, in brief, is that on 10012005 on receipt of DD no. 13 regarding quarrel, HC Satyawan along with Ct. Bijender reached at the spot at ABlock, Sehyog Vihar, near electric transformer where nobody was found and it was informed that PCR van had shifted the injured to hospital. Thereafter, on receipt of DD no. 15, HC Satyawan along with Ct. Bijender reached DDU hospital where unknown person was found admitted vide MLC no. 769 with alleged history of assault. The personal belongings were handed over to HC Satyawan by Duty Ct. Dinesh. The injured was declared unfit for statement. No witness could be found either in the hospital or at the spot. On investigation, the name of the injured came to be known as Manoj @ Mental and his address was revealed as E19, Vishwash Park, Uttam Nagar. The father of injured was taken from his house and when they FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 2 of 36 returned to DDU hospital, the injured was already referred to RML hospital where Narayan identified the injured in the ICU as his son Manoj @ Mental. FIR u/s 308/34 IPC was got registered through Ct. Bijender and further investigation was handed over to ASI Kameshwar who took into possession blood stained earth and earth from the spot and the bloodstained clothes of injured. On 13012005, the information regarding death of injured was received in PP Matiala vide DD no. 8 and investigation was handed over to SI Vipin Kumar. Section 308 was converted into 304 IPC. After postmortem, the dead body was handed over to his father.
2. It is also the case of prosecution that statement of eyewitness Yogesh @ Jogu was recorded u/s 161 Cr.P.C. wherein he stated that on 10012005 at about 3:45 pm, deceased Manoj @ Mental had come to his house on a motorcycle driven by one unknown friend. He along with Manoj @ Mental and his friend went towards the house of said friend to the side of Matiala. When they reached A & F Block, Sehyog Vihar Park, some boys were playing cricket in the park. One Raju known to Yogesh and Manoj was standing outside the park along with 23 boys. Raju asked Manoj to have some talk and Manoj went inside the park after jumping the grill. Yogesh remained standing outside the park and friend of FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 3 of 36 Manoj was sitting on the motorcycle. There was a latrine in the park which was half inside and half outside the park. Shiv Kumar @ Shibu and Arjun were standing near the wall of latrine. Some altercation started between Raju and Manoj. At the same time, Arjun and Shibu also reached near them and they also involved in the quarrel. Manoj slapped Arjun upon which Raju grabbed Manoj. Thereafter, Arjun and Shibu gave bat blows on the head of Manoj as both were having cricket bats in their hands. Thereafter, Yogesh @ Jogu and Pradeep Singh, friend of elder brother of Manoj namely Rajpal tried to intervene, Arjun and Shibu ran behind them with the bats and hit the bat on his head. After seeing the quarrel, the friend of Manoj ran away from there with the motorcycle. Yogesh further disclosed that he also received injury and he informed the police at 100 number. Due to fear, Pradeep also ran from there. Yogesh further stated that he ran from there and reached at the house of his relative at Shahdara and then at GTB hospital at 7:45 pm and due to police fear told the doctor that he sustained injury while slipping from the stairs. Yogesh came to know about the death of Manoj @ Mental after reaching his home. Manoj Kumar died due to beatings given by Arjun, Raju and Shiv Kumar @ Shibu and they both gave beatings to Yogesh also. Accused Maya Ram, Shiv Kumar @ Shibu FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 4 of 36 were arrested. Cricket bat was recovered. After transfer of SI Vipin Kumar, investigation was handed over to SI Balihar Singh. Postmortem report of Manoj was obtained. Exhibits were sent to CFSL. Accused Arjun could not be arrested. After completion of investigation, chargesheet was filed against accused Raju and Shiv Kumar @ Shibu u/s 304/323/34 IPC and chargesheet u/s 212 IPC was filed against accused Maya Ram.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 304/323/34 was framed against accused Shiv Kumar @ Shibu, Raju and charge u/s 212 IPC was framed against accused Maya Ram to which they all pleaded not guilty and claimed trial.
4. During trial, on 04012012, HC Arvind Kumar vide DD no. 11 gave information that accused Arjun Kumar was arrested u/s 41.1. Cr.P.C. by AATS and information was given to PS Uttam Nagar. Inspector Jai Singh obtained papers regarding arrest of accused Arjun Kumar. Accused Arjun Kumar was arrested in this case with the permission of the court and during interrogation, he gave disclosure statement. Supplementary challan u/s 304/323/34 IPC was filed against accused Arjun Kumar. Charge u/s 304/323/34 IPC was framed against accused Arjun Kumar to which he pleaded FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 5 of 36 not guilty and claimed trial.
5. In order to prove its case, prosecution examined 26 witnesses. PW1 ASI Balkishan, DO proved the FIR as Ex. PW1/A and his endorsement on the rukka as Ex. PW1/B. PW2 Narain Singh proved statement regarding identification of dead body of his son as Ex. PW2/A and identified blue jeans pant as Ex. P1, underwear as Ex. P2 and torn baniyan as Ex. P3 as that of his deceased son. PW4 HC Satyawan proved the DD no. 13 as Ex. PW4/A; DD No. 15 as Ex. PW4/B; endorsement on DD no. 13 as Ex. PW4/C; earth control memo as Ex. PW4/D and blood stained earth control memo as Ex. PW4/E. PW6 Ct. Sher Singh proved disclosure statements of accused Shiv Kumar and Maya Ram as Ex. PW6/A and Ex. PW6/B; arrest memos of accused Shiv Kumar and Maya Ram as Ex.PW6/C and Ex. PW6/D respectively; personal search memos of accused Maya Ram and Shiv Kumar as Ex. PW6/E and Ex. PW6/F respectively; pointing out memo of accused Shiv Kumar @ Shibu as Ex. PW6/G; seizure memo of cricket bat as Ex. PW6/H; arrest and personal search memos of the accused Raju as Ex. PW6/J & Ex.PW6/K respectively. PW6 also identified the cricket bat as Ex. P1. PW8 Ct. Subhash proved the seizure memo of blood sample of deceased Manoj handed over by the Doctor to FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 6 of 36 ASI Satbir Singh as Ex. PW8/A. PW9 Dr. Banarsi, PG Student, Department of Medicine, MAMC, New Delhi proved the casualty card of Yogesh prepared by him as Ex. PW9/A. PW10 ASI Kameshwar Jha proved the site plan as Ex.PW10/A; seizure memo of clothes of Manoj Kumar as Ex. PW10/B; seizure memo of soil having blood as Ex. PW4/E; seizure memo of earth control as Ex. PW4/D. PW10 also identified blue colour jeans pant as Ex. P1, underwear as Ex. P2 and torn baniyan as Ex. P3. PW11 ASI Satvir Singh in his testimony, proved the statement of Rajpal as Ex. PW11/A recorded by him. PW12 HC Banwari Lal proved the entries No. 3255, 3258, 3264 and 3252 of register No. 19 as Ex. PW12/A (colly) and copy of RC No. 72/21 as Ex.PW12/B. PW13 Dr. L. K. Barua (retired) proved the postmortem report of deceased Manoj as Ex.PW13/A and his detailed opinion regarding weapon of offence as Ex.PW13/B. PW15 SI Balihar Singh proved his application Ex. PW15/A for obtaining subsequent opinion Ex. PW13/B regarding cricket bat.
6. PW16 Dr. Uday Kumar Singh, CMO, DDU hospital proved the MLC of Yogesh @ Joga as Ex. PW16/A examined by Dr. Mirza Alam Beg. PW17 SI Vipin Kumar proved the pointing out memo of place of incident prepared at the instance of accused Raju FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 7 of 36 as Ex. PW17/A and disclosure statement of accused Raju as Ex. PW17/B. PW18 Dr. L. N. Gupta, Consultant & Head of Neuro Surgery, RML Hospital, Delhi proved death summary of deceased Manoj Kumar prepared by Dr. Pankaj Kumar Singh as Ex. PW18/A. PW19 Dr. Swati Aggarwal proved the MLC of an unknown person as Ex. PW19/A. PW20 Sh. Naresh Kumar, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi proved his detailed biological and serological reports as Ex. PW20/A and Ex. PW20/B respectively. PW20 also identified the jeans pants as Ex.P1, underwear as Ex.P2, baniyan as Ex. P3, cricket bat as Ex.PX1, plastic dibbi containing blood staining earth as Ex.P4, one dibbi containing earth control as Ex.P5 and dark brown gauze cloth piece as Ex. P6. PW21 SI Jagdish Chander proved the copy of DD no. 50A as Ex. PW21/A regarding the arrest of accused Arjun Kumar from AATS South Distt. PW22 HC Satbir Singh proved the seizure memo regarding obtaining copy of Kalendra vide DD no. 11 from HC Arvind Kumar; arrest memo and disclosure statement of accused Arjun Kumar as Ex.PW22/B and Ex.PW22/C respectively; pointing out memo on the pointing out of accused Arjun Kumar as Ex.PW22/D. PW23 Ct. Balram proved the arrest and personal search memo of the accused Arjun Kumar as Ex.PW23/A and Ex.PW23/B respectively. PW24 FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 8 of 36 Inspector Jai Singh proved seizure memo of kalendra u/s 41.1 as Ex. PW22/A; arrest memo of accused Arjun as Ex. PW22/B; disclosure statement of accused Arjun as Ex. PW22/C; his pointing out memo as Ex. PW22/D. PW25 HC Arvind Kumar proved arrest memo and personal search memo of accused Arjun as Ex. PW23/A and PW23/B; DD no. 11 regarding arrival as Ex.PW25/A and Kalandra u/s 41.1 CrPC as Ex.PW25/B. PW26 Dr. Balwant Singh, SR, Neuro Surgery Department, GTB Hospital, Dilshad Garden, Shahdara, Delhi proved the medical record of Yogesh who was examined by Dr. Deepak, SR, Neruo Surgery vide Ex. PW26/A.
7. Statements of accused persons were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. Accused Maya Ram and Raju opted to lead defence evidence and examined DW1 Mrs. Urmila and DW2 Smt. Asha.
8. I have heard Ld. counsel for the accused persons and the Ld. Addl. PP for the State and have perused the entire records.
9. The Ld. counsel for the accused persons argued that the incident was dated 10012005 but the accused were arrested after a long time. PW3 is the star witness but he improved his statement u/s 161 Cr.P.C. PW3 is a chance witness. PW3 stated about the incident after two days. PW3 and PW5 were of the same area i.e. FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 9 of 36 Rajapuri and are interested witnesses. PW3 did not narrate about the incident on the same day. At least, he should have called at 100 number if he did not go to the PS which means the witness is the planted one. PW3 did not identify the bat. There is no report of blood on the bat. If PW3 never met with Yogesh then how he said about him. PW3 fled away from the spot meaning thereby, he had not seen the whole incident. No description of the clothes of the accused persons were stated. PW3 did not see where the injury was caused to the deceased. Even PW3 did not tell from where the deceased was caught hold of by the accused persons. If PW3 is the natural witness, he should have known about the whole incident. Earth report has not been filed on record. PW5 was not subjected to crossexamination. There are contradictions in the testimonies of PW3 and PW5. Injuries could have been caused due to fall from the motorcycle. There is also contradictions in the testimony of PW6 and PW17. After 7 days, the bat was recovered. The bat was sent to FSL after two months. Meaning thereby, the bat could have been planted. Neither family of the accused Maya Ram nor any independent witness was joined at the time of arrest of the accused. Accused Shiv Kumar was arrested from his sister's house. PW6 did not state whether accused Maya Ram was residing in his own room FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 10 of 36 or rented room. There is no site plan of the premises filed on record. Key and lock were not seized. PW17 did not state by which vehicle they went. Only Ct. Sher Singh signed and no other witness signed on the arrest memo of accused Maya Ram. It is also reflected from the testimony of PW6 and PW17 that they had never gone to arrest Shiv Kumar. Even, they did not know whether male or female were there. Accused Shiv Kumar was arrested from Vasant Vihar, Delhi and not from Gurgaon. The IO has not conducted the investigation fairly. The total case has been planted against the accused persons. The Ld. counsel for accused persons, in support of his arguments, relied upon the judgements reported in the cases of Sanjiv Kumar Vs. State of HP with Kamlesh Tyagi Lekh Raj Gupta Vs. State of HP (1999) 2 Supreme Court Cases 288; S. Dhanavel Vs. State:
Inspector of Police, Crl. O. P. no. 18411 of 2010 and MP. No. 1/ 2010 decided by the Madras High Court on 27012011 and Shambhu Kuer Vs. State of Bihar, 1982 CRI. L. J. 1742 (2).
10. The Ld. APP for the State argued that it was quarrel that is why the accused were charged u/s 304 IPC otherwise, they would have been charged u/s 302 IPC. PW3 has fully supported the case of the prosecution. Examination in chief of PW5 was recorded and thereafter during trial of the case, he expired and he was not FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 11 of 36 subjected to crossexamination. However, evidence of PW5 shall be read against accused Arjun u/s 299 Cr.P.C. If there are some contradictions in the testimony of PWs, they are the minor contradictions which do not go to the merits of the case. Even, the accused persons cannot take benefit of faulty investigation, if any. The prosecution has proved the case against the accused persons by way of oral testimony of PWs coupled with medical and scientific evidence. The Ld. APP for State, in support of his arguments, relied upon the judgements reported in the case of Bhagwan Dass Vs. State (NCT) of Delhi 2011 III AD (CRI.) (SC) 157; Paramjeet Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200; Dhanaj Singh alias Shera & others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653 (1) and State of UP Vs. Krishna Master and ors. 2010 CRI. L.J 3889.
11. In view of the above arguments of the Ld. counsel for the accused persons and Ld. APP for State, let us examine the evidence led in this case as to whether the accused persons had committed the offence as charged or whether they have been falsely implicated. PW3 Pradeep Singh in his examinationinchief deposed that deceased Manoj was known to him as his elder brother was his good friend. On 10.01.2005 at about 04.00 pm, he was going to FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 12 of 36 Matiala from his house and when he reached near the park of A & F Block of Sahyog Vihar, he saw a large gathering. PW3 saw accused Raju (identified by the witness) had caught hold of Manoj and accused Shibu (correctly identified) and Arjun were giving a beating with a bat to Manoj. Accused Shiv hit the bat on the head of Manoj. Accused Arjun snatched the bat from the hand of Shibu @ Shiv and uttered the words that "ki aaj tu hamari mukhbari karega, tujhe hum jaan se maar dalenge." After uttering the said words, Arjun also gave a beating to Manoj with the bat on his head. PW3 along with Yogesh @ Jogu tried to rescue Manoj. On that, Arjun gave blow of bat on the head of Yogesh @ Jogu. The accused persons also uttered the words if there was anybody who can save Manoj. On hearing that, PW3 retracted himself. After that to save himself, PW3 ran away from the spot. PW3 also stated that on the same day in the evening time, he visited the house of Manoj, but he had not narrated the whole incident to the mother of Manoj because she would become perplexed and PW3 thought it better to disclose the whole incident to brother of Manoj. PW3 tried to trace the brother of Manoj but he was not found. PW3 further stated that he again in the night hours visited the house of Manoj and upto that time it was the voice of locality that Manoj had expired and PW3 came to know that all the FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 13 of 36 family members of Manoj had gone to hospital but there was nobody in the house of Manoj who could tell him in which hospital family members of Manoj had gone. On the next day, PW3 again visited the house of Manoj and Rajpal brother of Manoj was present to whom he disclosed the whole incident. PW3 again said that Rajpal met him at the hospital to whom he disclosed the whole facts. PW3 narrated the whole fact to the police officials. About six months ago, PW3 received a telephone call from Shibu who had threatened to kill him if he would depose in the Court. PW3 again said that he had not received any call from Shibu but the actual person who had given a call to him was Arjun. PW3 could not identify the bat since long period had lapsed. PW3 also stated that he had not paid too much attention on the bat when the accused was hitting it on the head of Manoj. After the arrest of accused Arjun, PW3 was recalled for his examination during which he correctly identified accused Arjun.
12. During crossexamination by the Ld. counsel for accused Shiv Kumar, PW3 stated that when he reached the spot, the quarrel was already going on but no one from the public came forward to save Manoj. PW3 also stated that except Yogesh @ Joga, he did not see any other person in the public whom he knew before hand and when he left the spot, Yogesh was present there. Yogesh was FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 14 of 36 not his friend but he knew him. PW3 further stated that he had not seen the real injury caused to Yogesh as the moment he saw that Yogesh was hit by bat, he ran away from there. PW3 also stated in his crossexamination that there was Sulabh Sauchalaya in the park and the quarrel was going on near the Sulabh Sauchalaya. PW3 denied the suggestion that accused Shiv had not given beatings to the deceased with a bat or that no quarrel took place in his presence or that he was deposing falsely at the instance of family members of deceased. In his crossexamination by the Ld. counsel for accused Raju, PW3 categorically stated that he was eyewitness to the incident which took place about seven years back. The incident took place in front of Sauchalaya situated in the park. PW3 also categorically stated in his crossexamination that the accused Raju caught hold of deceased, accused Shiv Kumar @ Shibu and Arjun were having cricket bats with them. PW3 further stated that when accused Arjun was hitting the deceased at that time, Manoj (deceased) was crying for help. He was also crying to get himself free. PW3 denied the suggestion that deceased was giving fist blows to accused Arjun. Meaning thereby, it is evident from the aforesaid suggestion to PW3 by the Ld. counsel for accused Raju that the quarrel between them was going on at the time of incident. FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 15 of 36 PW3 further stated in his crossexamination that Arjun hit the bat on the head of Manoj but he could not tell whether Manoj received injuries on front or backside of head. PW3 further stated that he knew accused persons as well as deceased for about one year or more prior to the incident. PW3 also stated in his crossexamination that he was not aware whether deceased was known as Mental because he was criminal. However, PW3 volunteered that he was known as Mental because he did each and every job assigned to him. PW3 denied the suggestion that he was not passing from the area where incident took place. PW3 also denied the suggestion that he had not witnessed any incident. PW3 further denied the suggestion that Arjun was one of his friends or that he was the only assailant. It appears from the above suggestion made to the witness that the accused Raju is blaming the other accused Arjun as the assailant of Manoj (since deceased).
13. During crossexamination by the Ld. counsel for accused Arjun, PW3 stated that father of accused Arjun was supplier of liquor in the area. However, he had not seen the father of accused Arjun selling liquor but PW3 volunteered that all the persons of the locality knew about the same. PW3 denied the suggestion that in the winter season of January at about 4 pm, there was some darkness. PW3 FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 16 of 36 stated that he had seen the incident from a distance of about 5 to 7 feet. He was going to Matiala on foot. PW3 further stated that approximate length of the bat was around 3 feet. PW3 also stated that he was not on speaking terms with the accused persons, injured as well as deceased. PW3 volunteered that he was known to one of the injured namely Yogesh as he used to speak with him occasionally. Yogesh never played cricket with him. Yogesh was residing at a distance of half kilometre from his residence. PW3 denied the suggestion that Jogu had received injury due to fall from staircase. PW3 further denied the suggestion that Jogu had inflicted injury upon Manoj due to which he also received injury or that he was associate with Jogu. PW3 also denied the suggestion that deceased Manoj received injury in a quarrel between him and Jogu and due to which he had not made any complaint to the police. PW3 further denied the suggestion that no quarrel took place between deceased Manoj and accused persons.
14. PW5 Yogesh @ Jogu in his examinationinchief also stated that the accused Shiv Kumar @ Shibu and Raju caught hold Manoj and accused Arjun gave a bat blow on the head of Manoj @ Mental. PW5 along with a friend of Manoj who accompanied them tried to save Manoj from the clutches of accused persons but FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 17 of 36 accused Arjun also gave a bat blow on his head. After receiving injury, Manoj fell on the ground. PW5 also stated that after receiving injuries, he ran away from the park and stand by the side of the park on road. Accused Shibu snatched cricket bat from the hand of accused Arjun and he also gave a bat blow on the head and other part of the body of Manoj while he was lying on the ground. Before leaving the park, PW5 was also hit by the accused Shiv Kumar @ Shibu with bat and caused injury on his head. After leaving Manoj in injured condition, accused followed PW5 when he tried to run away from the park but PW5 managed to escape.
15. The examination in chief of PW5 Yogesh was recorded on 30072008. However, father of Yogesh appeared in the court on 10112008 and stated that Yogesh had expired on 28082008 and he also filed copy of the death certificate of Yogesh which was sent to the SHO, PS Uttam Nagar to verify death of Yogesh. Vide order dated 27092011, the report received from PS Uttam Nagar which confirmed death of PW5 Yogesh.
16. The testimony of PW2 Narain Singh father of deceased Manoj was recorded in the court on 30112006 and he stated that his statement was recorded by the police as Ex. PW2/A. However, PW2 stated that one Jogu told him that his son was killed by two FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 18 of 36 accused persons present in the court (correctly identified) and the third assailant was absconding. PW2 volunteered that accused Maya Ram who was also present in the court helped the third assailant in absconding. PW2 identified clothes of his son Manoj i.e. blue coloured jeans pants Ex. P1, underwear Ex. P2 and torn baniyan as Ex. P3. During crossexamination, PW2 stated that his son used to sell flowers with him and used to supply the flower in the houses. PW2 further stated in his crossexamination that his son used to reside with him in his house. On the day of incident, he left his house in the morning at about 8 am and at that time his son was sleeping in the house. There were 8 persons in his family. His wife told him that Jogu had come to his house and his son had accompanied him. PW2 denied the suggestion that accused Maya Ram had not helped the third assailant to run away.
17. After arrest of accused Arjun and framing of charge against him on 31052012, PW2 was recalled for his examination and he also correctly identified accused Arjun present in the court and further identified the three other accused persons present in the court who were involved in the murder of his son but he could not tell their names. During crossexamination, PW2 stated that his son Manoj used to manufacture sweet boxes with him at their house and FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 19 of 36 he used to go to collect orders from the market. PW2 volunteered that he had sent his son Manoj to collect payment on the day of incident. PW2 could not recollect whether police had called him at the PS with regard to the present case. PW2 denied the suggestion that a quarrel took place between his son Manoj, Jogu and Pradeep and in the said quarrel, his son Manoj received injury and he died. PW2 further denied the suggestion that Jogu also received injury in the said incident. PW2 also stated that he did not know Jogu.
18. PW4 HC Satyawan stated that on receiving DD no. 13 Ex. PW4/A, he went to the spot along with Ct. Bijender where he came to know that the injured was removed by PCR van to DDU hospital. He also received DD no. 15 Ex. PW4/B from DDU hospital about admission of unknown injured person. PW4 went to the hospital along with Ct. Bijender and obtained MLC of unknown person from the hospital and the said person was declared unfit for statement. PW4 also stated that on local investigation at the spot, they came to know the name of injured as Manoj @ Mental. PW4 denied the suggestion that he did not visit the spot or that he had no information of the incident. PW10 SI Kamleshwar Jha also stated that on 10012005, on receipt of DD no. 13A after registration of FIR, he along with Ct. Bijender went to Sehyog Vihar, Electricity FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 20 of 36 Transformer where he came to know that injured had been rushed to DDU hospital by HC Satyabhan. Injured Manoj @ Mental was referred to RML hospital. HC Satyabhan also met him at the hospital and he handed over him the belongings of the injured. Thereafter, he along with Ct. Bijender reached and inspected the spot and also prepared the site plan at the instance of Yogesh and Pradeep & Narain were also present there. PW10 further stated that blood soaked soil as well as the plain soil was lifted from the spot and was kept in two separate plastic containers and two separate pullandas were prepared and were sealed with the seal of KJ. PW10 went to the house of injured situated at Vishwas Park and recorded statement of Narayan Singh. Narayan Singh produced the clothes of Manoj Kumar i.e. one pants having blood stains, one underwear having blood stains, one vest having blood stains and the said clothes were seized by PW10. PW10 identified one jeans pants Ex. P1, one underwear Ex. P2 and one torn baniyan as Ex. P3 shown to the witness as the same clothes which were handed over to him by the father of the injured namely Narayan Singh. During crossexamination, PW10 stated that the spot was a park and on two sides of park, there were residential houses and on two sides there were roads. PW10 further stated that no public person was present FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 21 of 36 there when he reached at the spot. PW10 denied the suggestion that on 11012007, he had not recorded statement of any witness or that he had not visited the spot or that he had not prepared any site plan. PW14 Ct. Bijender stated almost on the same lines as deposed by PW4 HC Satyawan.
19. Let us further examine whether arrest of the accused persons and recovery & seizure of the articles and weapon have been proved by the prosecution. PW6 Ct. Sher Singh stated in his examination in chief that on 16012005, he was posted at PP Matiala, PS Uttam Nagar and he remained with the IO SI Vipin Kumar, the then Incharge, PP Matiala in the investigation of this case. IO received the information that the accused of this case namely Arjun and Shiv Kumar were present at the house of one Maya Ram at Gurgaon, Haryana and if raid was conducted, they could be apprehended. Thereafter, PW6 along with IO reached at H. No. 1353/3, Rajiv Nagar, Gali no. 6, Gurgaon where Maya Ram, owner of the said house, met them who told them that no person was present at his house in the name of Arjun and Shiv Kumar. PW6 further stated that one room of the house of Maya Ram was found locked from outside. However, on the direction of IO, Maya Ram opened the lock of the said room and they found accused Shiv FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 22 of 36 Kumar @ Shibu present inside that room. PW6 identified the accused Shiv Kumar @ Shibu and Maya Ram. The aforesaid accused were arrested and brought to PP Matiala, Delhi and later on Shiv Kumar @ Shibu pointed out the place of occurrence and thereafter, he led them towards the toilet situated inside the FBlock park, Sehyog Vihar, Matiala and got recovered one blood stained cricket bat on which label of MRF was affixed and the same was sealed in a pullanda by the IO with the seal of VK and was taken into possession. PW6 further stated that on 18012005, he again joined investigation with the IO of this case after receiving information. Accused Raju (correctly identified) was arrested by the IO from A95, Sehyog Vihar. PW6 identified the said cricket bat which was got recovered by accused Shiv Kumar @ Shibu. During cross examination by the Ld. defence counsel, PW6 stated that the accused was arrested from a room in the house of Maya Ram at ground floor. Accused Shiv Kumar was wearing pantsshirt when he was apprehended from the room. IO gave information to the local police regarding the arrest of both the accused from the room. PW6 further stated in his crossexamination that accused Shiv Kumar pointed out the place of occurrence at about 9 pm. The condition of the toilet from where recovery of cricket bat got recovered by the FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 23 of 36 accused was in damaged condition and was without roof. Accused Raju pointed out the place of occurrence inside the park and the said point was mentioned in the site plan by the IO. The place of occurrence was in the centre of a park. PW6 denied the suggestion that accused Shiv Kumar was not apprehended from the house of Maya Ram at Gurgaon on the above mentioned date or that he was apprehended from the area of PS Vasant Vihar or he was falsely implicated in this case. PW6 also denied the suggestion that the accused Shibu @ Shiv Kumar was not arrested from the house of Maya Ram or that they had not visited the house of accused Maya Ram at any point of time. PW6 further denied that nothing was got recovered by accused or that cricket bat Ex. P1 was planted upon accused Shiv Kumar in connivance with the complainant of this case and IO.
20. PW15 SI Balihar Singh stated in his examination in chief that on 04.01.2012, he along with HC Arvind, Ct. Balram, Ct. Amit were on patrolling in civil clothes and were present near Petrol Pump, Vasant Vihar. One secret informer met PW15 and HC Arvind had informed that accused Arjun, wanted in this case, was present in front of Aggarwal Sweets, Shop Corner, Munirka, New Delhi. At about 2.40 pm, secret informer pointed out towards a person who FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 24 of 36 was standing in front of Aggarwal Sweets, Shop Corner, Munirka and he was apprehended with the help of HC Arvind and other staff. PW15 further stated that they came to know his name as Arjun (correctly identified) and he was interrogated. Accused Arjun was arrested and his personal search was conducted and thereafter, he was produced before Ld. ACMM, South District with kalandra u/s 41.1 Cr.P.C. During crossexamination, PW15 stated that he knew accused Arjun personally. However, PW15 further volunteered that accused Arjun was the son of declared BC of the area where he was posted as I/C PP in the year 2001. PW15 denied the suggestion that Arjun was lifted from his house and falsely implicated in this case.
21. PW17 SI Vipin Kumar, in his crossexamination, stated that the accused Shiv Kumar was arrested from the room. The room was locked from outside by Maya Ram and same was got opened after obtaining keys from Maya Ram. PW17 denied the suggestion that Shiv Kumar was not arrested from Gurgaon but from Delhi. PW17 arrested accused Raju and recorded his statement. PW17 requested neighbours of accused Raju to join the investigation but they refused. PW17 denied the suggestion that he did not visit the house of Raju or that he had surrendered in the PS himself. PW17 FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 25 of 36 also stated that no eyewitness met him inside the park when he visited there. PW17 also stated in his crossexamination that he had made departure entry in the Rojnamcha before leaving the PP. PW17 also stated that he received the secret information regarding presence of accused Arjun and Shiv Kumar at the residence of Maya Ram on 16012005 at around 10 am. Accused Shiv Kumar was found locked inside a room and accused Maya Ram was found standing outside the said building. However, PW17 stated again that he met him in the premises outside the room. PW17 further stated that there was no family member of the accused Maya Ram at the time of raid in the premises. PW17 denied the suggestion that he had manufactured the disclosure statement of accused Maya Ram and Shiv Kumar. PW17 further denied the suggestion that he had prepared the arrest memo and personal search memo while sitting in the PS. During crossexamination, PW23 Ct. Balram stated that secret information was received by SI Balihar Singh. Secret informer did not disclose about the description of the accused. However, the accused was apprehended on his pointing out. PW23 denied the suggestion that accused was apprehended on the identification of SI Balihar Singh where accused was working or that in a manner as stated by him in his testimony. PW24 Inspector Jai FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 26 of 36 Singh also correctly identified the accused Arjun who was arrested and during police custody, he pointed out the place of occurrence. PW25 HC Arvind Kumar correctly identified accused Arjun and stated that on the pointing out of informer, accused Arjun was arrested and his personal search was conducted.
22. DW1 Mrs. Urmila, bhabhi/ sister in law of accused Raju stated that his devar (Raju) had gone to Punjab on 31122004. After 10 to 15 days, police came to her house and made inquiries about Raju and she told the police that Raju had already gone to Punjab to attend function. Police further told DW1 that as and when Raju came in the house, he should be brought to the PS. DW1 asked the police regarding the reason and they told her that they had to make inquiries from him. DW1 told police that as and when Raju come to their house, she would bring him at PS. Thereafter, after one or two dates, accused Raju came to their house and she took him to PP Matiala and she was asked to leave the PP. In the evening, DW1 again visited the PP and inquired about her devar and police told her that Raju had left the PP. Then, she came to know that Raju was arrested in this case. DW2 Smt. Asha stated that on 12012005, on the day of date of birth of her son, her brother Shiv Kumar came to her house. On 13012005 at about 4:30 am, police FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 27 of 36 came to her house and took Shiv Kumar with them. When DW2 asked police whey they were taking her brother, police told her that they left her brother Shiv Kumar after making inquiries for about 15 minutes. Thereafter, DW2 came to know that her brother Shiv Kumar had been arrested by the police.
23. It has emerged from the evidence discussed above that PW2 was firstly examined on 30112006 and after arrest of accused Arjun, PW2 was recalled for his examination on 12092012. Meaning thereby, there is a difference of about six years. In this regard, a reliance can be held upon the judgement reported in the case of Abdul Murasalin Vs. State 2005 (84) DRJ 430, therein witness identified the appellants during examination in chief. Cross examination held after a gap of two months but witness did not identify the appellant during crossexamination. The question arose whether the appellant could be acquitted in such situations. It was held by the Hon'ble High Court of Delhi that appellant could not be acquitted as the possibility that the witness was influenced by the appellant in the gap could not be ruled out.
24. PW3 and PW5 were the eyewitnesses in this case and they had identified the accused persons who caused injuries to Manoj (since deceased) as discussed above. During trial of the FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 28 of 36 case, PW5 expired, therefore, he was not subjected to cross examination by the Ld. defence counsel. However, PW3 categorically stated that accused Raju had caught hold of Manoj and accused Shibu and Arjun were giving beating with a bat to Manoj. Accused Arjun snatched the bat from the hand of Shibu @ Shiv and uttered the words that "ki aaj tu hamari mukhbari karega, tujhe hum jaan se mar dalenge" and after uttering the aforesaid words, accused Arjun also gave beating to Manoj with the bat on his head. In this regard, I would place a reliance upon the judgement reported in the case of Gulshan Vs. State through Govt. of NCT of Delhi, 2010 (1) JCC 562, it was held that identification in a court is a substantive piece of evidence. In State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is wellknown principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 29 of 36 that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted. In the present case, the testimony of PW3 has not only inspired the confidence but he is also trustworthy. The clear and consistent stand of PW3 about the presence of the accused persons at the time of incident and their identification by PW3 creates no doubt.
25. PW13 Dr. L. K. Barua (Retd.) in his examinationin chief stated that on 13.01.2005, he was posted at DDU Hospital and he conducted postmortem examination on the body of deceased Manoj, 21 years. The body was sent by SI Ramesh Singh of PS Uttam Nagar. On examination of the body, he observed the following injuries:
1. Stitched wound 2.5 cms over lateral aspect of left eye.
2. Stitched wound size 4 cms over left temperoparietal area.
3. Abrasion size 3.5 x 2.5 cms over left side of the forehead. No other external injury was seen.
On internal examination, left frontal bone was found fractured, brain showed massive subdural and subarachnoid haemorrhage over both temporal and parietal area. Brain also showed Oedema. FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 30 of 36 On examination of the chest, wind pipe contained blood. On examination of the abdomen, stomach contained about 150 ml of digested food. No abnormal smell. PW13 opined that all injuries were antemortem in nature. The injuries to head caused by blunt object and was sufficient to cause death in the ordinary course of nature and this was due to head injury. PW13 proved the postmortem report as Ex. PW13/A. PW13 also received an application from SI Balihar Singh of PS Uttam Nagar for opinion regarding weapon of offence and he submitted one sealed packet sealed with the seal of UK and after opening the sealed packet, PW13 observed a cricket bat and he made an initial bat on the bat. After examining the bat and the injuries on the postmortem report, PW13 opined that injuries to the body of the deceased could be possible by the bat. PW13 proved his detailed opinion in this regard as Exbt. PW13/B. PW15 SI Balihar Singh also proved on record that he also obtained the subsequent opinion regarding the cricket bat on 16032010 by moving an application Ex. PW15/A. PW16 Dr. Uday Kumar Singh also proved the MLC Ex. PW16/A of injured Yogesh @ Joga with alleged history of assault. PW18 Dr. L. N. Gupta, Consultant & Head of Neuro Surgery, RML Hospital also proved death summary of deceased Manoj vide Ex PW18/A which FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 31 of 36 was prepared by Dr. Pankaj Kumar Singh.
26. PW20 Sh. Naresh Kumar, SR. Scientific Officer (Biology) FSL, Rohini, Delhi prepared his detailed report as Ex. PW20/A and stated that on examination, blood was found on exhibits 1a (one jeans pant brown stains), 1b (one baniyan having brown stains), 1c (one underwear), 2 (one cricket bat), 3 (loose and lumps of earth described as bloodstained earth) and 5 (dark brown gauze cloth piece described as blood sample). PW20 also stated that on serological examination, human blood was found on Ex. 1a to 1c, 2, 3 & 5. Blood of A group was found on exhibits 1a, 1b and 5. PW20 also proved serological report as Ex. PW20/B.
27. In the present case, I have found that there are some contradictions in the testimonies of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this regard, a reliance can be placed upon the judgement reported in the case of State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety.
28. It is also relevant to mention here that if the investigation is defective or faulty, the accused persons cannot be acquitted solely FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 32 of 36 on account of defective or faulty investigation. In this regard, I would place reliance upon the judgement reported in the case of State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective.
29. DW1 was the sister in law of accused Raju and and DW2 was the sister of accused Shiv Kumar. They were not the summoned witnesses. During crossexamination, DW1 & DW2 admitted that they came to the court at the instance of accused Raju and Shiv Kumar. Meaning thereby, both the witnesses are the interested witnesses and they did not bring any evidence to support the case of accused persons.
30. The hurt caused may sometimes result in death. In order to determine whether the offence committed is murder or culpable homicide not amounting to murder or grievous hurt or simple hurt, it is the intention of the accused that serves as the guideline or the FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 33 of 36 knowledge which can be imputed to the accused with reference to his acts. In cases where more than one person is attacked and it is not possible on evidence to infer any common intention as contemplated by section 34 of the IPC, each of them will be responsible for his individual act only. In Asu Vs. State of Rajasthan, 2000 Cr.L.J. 207 (Raj.), it was held that where the accused, who inflicted fatal injury on head of deceased which caused his death, without intention to kill him is liable to be convicted u/s 304 Part II while other accused who inflicted sword injury liable to be convicted u/s 324 IPC. In the case of Ramesh Vs. State of Madhya Pradesh 2009 Criminal Law Journal 3268, the facts were that on the eve of Raksha Bandhan, coconuts were offered to Lord Bajrang Bali by the villagers. Some of the coconuts were eaten by one Shankar Singh. He was admonished by Chowkidar Shri Ram but Shankar Singh took up a quarrel with Shri Ram and Kamal Singh. The appellant told Kamal Singh that he was behaving like bullie and that he would finish him. When verbal altercation was going on, deceased Kire Singh also reached there and asked the appellant not to quarrel. Appellant while delivering the threat to see them, went to his house and along with two other appellants returned back with lathis and inflicted a lathi blow on the head of Kire FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 34 of 36 Singh because of which he fell unconscious at the spot. Appellant No. 2 and one Chhajju assaulted the deceased with kicks and fists. Kire Singh died next day. The Hon'ble Court found that there was no enmity between the appellants and the deceased and the incident occurred all of a sudden on a very trivial issue of eating four coconuts by Shankar Singh. The Hon'ble Court held that it cannot be said that appellant No. 1 had any intention to commit the murder of Kire Singh or to cause any injury likely to cause his death but at the same time, he can be attributed knowledge that because of causing lathi blow, there is likelihood of death of the deceased which falls within the purview of commission of culpable homicide not amounting to murder, punishable under Section 304 (Part II) of the IPC. Conviction of the appellants under Section 302/34 IPC was set aside and appellant No. 1 was convicted under Section 304 (Part II) IPC.
31. In the present case, in view of the testimony of PW3, it cannot be said that all the accused persons shared any common intention. Though the accused persons did not have any common intention to cause the death of deceased Manoj but the accused Shiv Kumar @ Shibu and Arjun had got the knowledge that causing such injuries on the head by the cricket bat would likely to cause FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 35 of 36 death. It is a settled law that Section 304 (PartII) comes into play when the death is caused by doing an act with the knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. Therefore, the act of accused Shiv Kumar @ Shibu and Arjun Kumar falls u/s 304 (Part II) of IPC; the act of accused Raju is covered u/s 325 IPC and the act of accused Maya Ram comes within the ambit of section 212 IPC.
32. In view of the my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I, therefore, hold the accused Shiv Kumar @ Shibu and Arjun Kumar guilty for the offence u/s 304 (Part II) IPC; accused Raju is held guilty for the offence u/s 325 IPC and accused Maya Ram is held guilty for the offence u/s 212 IPC and they are convicted accordingly. Copy of the judgement be given to the convicts free of cost.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 28032014 FIR No. 22/05; State Vs. Shiv Kumar @ Shibu & Ors. Page 36 of 36