Delhi District Court
State vs . Sunny @ Katu on 14 October, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 59/2013
Unique Case ID No. 02404R0123332011
State Vs. Sunny @ Katu
S/o Amar Singh
R/o Jhuggi E516,
SS Nagar WPIA, Delhi
(Convicted)
FIR No.: 34/2011
Police Station: Ashok Vihar
Under Sections: 302/325/323/34 IPC
Date of committal to session court: 18.5.2011
Date on which orders were reserved: 12.9.2013
Date on which judgment pronounced:28.9.2013
JUDGMENT:
(1) As per allegations on 2.2.2011 between 6:20 to 6:35 PM near Railway Line, Jhuggi No. E88, SS Nagar, Wazirpur Industrial Area the accused Sunny @ Katu along with his coaccused Sanjeev, Anuj, Hemant @ Hemu and Hardesh (all juvenile) in furtherance of their common intention caused death of Surender by giving him beatings with dandas and baseball bats. Further, it is alleged that the accused Sunny @ Katu along with his above coaccused assaulted Guddu and caused St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 1 grievous hurt to him and also assaulted Kamlawati, Pradeep and Ram Gyan and caused simple hurt to them.
BRIEF FACTS / CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 2.2.2011 at about 6:30 PM DD No. 32A regarding quarrel was lodged at Police Station Ashok Vihar pursuant to which HC Jetha Ram along with Ct. Veer Singh reached the spot i.e. E88, SS Nagar, Near Railway Line, WPIA where they came to know that the injured was removed to BJRM Hospital by the PCR Van. No eye witness was found at the spot and hence the police went to BJRM Hospital where HC Jetha Ram obtained the MLC of the injured Pradeep, Surender, Kalawati, Ram Gyan S/o Swami Nath and Guddu but neither the injured nor any witness were found at the hospital.
Thereafter HC Jetha Ram he came to know that the injured Surender was shifted to Trauma Center, Civil Lines on which he along with Ct. Veer Singh reached Trauma Center and on the MLC of Surender doctor endorsed unfit for statement. One Guddu was also found there and HC Jetha Ram recorded the statement of Guddu.
(3) In his statement to the police Guddu informed the police that on 02.02.2011 at about 6:00 or 6:30 PM he was present near his jhuggi and at that time Sunny, Jitu Rana, Hemu, Hardesh and Anay Kumar came to his house duly armed with Dandas and started beating him and his brother Surender Rai with the Dandas. He further told the police that St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 2 Surender sustained head injuries and fell after which the assailants started beating him. According to Guddu, he tried to save himself with his arm in which process he sustained injury on his left hand and they raised an alarm on which his mother Kalawati, brother Pradeep and neighbour Ram Gyan reached there and the assailants gave beatings to his mother Kalawati, Pardeep and Ram Gyan with the dandas. He further told to the police that his mother sustained injuries on her head and hand, Pardeep sustained injuries on his head and Ram Gyan sustained injuries on his forehead and thereafter he made a call at 100 number on which PCR van on which local police reached the spot and they all were removed to BJRM Hospital.
(4) On the basis of the statement of Guddu the present FIR was initially registered under Sections 325/323/34 IPC after which the investigations were handed over to SI Naval Singh. During investigations on 3.2.2011 SI Vaval Singh along with Ct. Babu Lal and the complainant Guddu went in search of the accused persons and at about 7:15 PM when they reached near Shri Ram Chowk, on the pointing out of complainant Guddu, the accused Sunny @ Kattu was apprehended and arrested in this case. Pursuant to his disclosure statement the accused Sunny @ Katu got recovered one danda from inside his jhuggi. (5) On 5.2.2011 at the instance of injured Pradeep the other assailants namely Annu Kumar, Hardesh, Hemant and Sanjeev were apprehended who were all juveniles. Pursuant to his version juvenile St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 3 Sanjeev @ Rana took got recovered one danda of baint from his jhuggi bearing No. E518, SS Nagar, WPIA which danda was seized. (6) On 7.2.2011 information was received from Trauma Center that the injured Surender had expired on which provisions of Section 302 IPC were added and investigations were marked to Inspector Dharmender Kumar. After completion of investigations charge sheet was filed before the Court against the accused Sunny @ Katu whereas the charge sheet against the juveniles were filed before the Juvenile Justice Board.
CHARGES:
(7) Charges under Sections 302/34, 325/34 and 323/34 Indian Penal Code were settled against the accused Sunny @ Katu to which he pleaded not guilty and claimed trial.
(8) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses:
Sr. PW No. Name of the witness Details
No.
1. PW1 Indresh Kumar FSL Expert
Mishra
2. PW2 Sabhapati Rai Public witness - father of the deceased
3. PW3 Ct. Satender Kumar Police witness who has deposited the
pullandas in the FSL
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 4
4. PW4 Guddu Public witness - brother of the deceased
who had also received injuries in the
incident
5. PW5 SI Manohar Lal Police witness Draftsman
6. PW6 Ram Dayal Public witness - grandfather of the
deceased who had identified the dead body
of the deceased
7. PW7 ASI Raj Devi Police witness - Duty Officer
8. PW8 ASI Prem Chand Police witness - Duty Officer
9. PW9 Dr. Bhim Singh Autopsy Surgeon
10. PW10 Dr. Manoj Witness from BJRM Hospital who had
examined the injured Guddu, Kamlawati
and Pradeep.
11. PW11 Dr. Shpra Rampal Radiologist who has proved her report in
respect of injured Pradeep
12. PW12 Ct. Sandeep Kumar Police witness who had joined
investigations
13. PW13 Ct. Shishu Pal Police witness who had joined
investigations
14. PW14 Pradeep Public witness - brother of the deceased
who had also received injuries in the
incident
15. PW15 Govardhan Witness to the handing over of the dead
body
16. PW16 Bhupender Public witness - neighbour/ relative of the
deceased
17. PW17 Ct. Babu Lal Police witness who had joined
investigations
18. PW18 HC Mukesh Police witness MHCM
19. PW19 Ct. Veer Singh Police witness who had reached the spot on
receiving the PCR Call
20. PW20 Ct. Gajraj Singh Police witness
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 5
21. PW21 Ram Gyan Public witness - neighbour/ relative of the
deceased who had also received injuries in
the incident
22. PW22 ASI Dharam Singh Police witness - PCR Van Incharge
23. PW23 Dr. R.S. Mishra Witness from BJRM Hospital who has
proved the MLC of Ram Gyan
24. PW24 Smt. Kamlawati Public witness - mother of the deceased
who had also received injuries in the
incident
25. PW25 Rajesh Kumar Record Clerk from Sushrut Trauma Center
26. PW26 HC Jetha Ram Police witness who had reached the spot on
receipt of information
27. PW27 SI Naval Singh Initial Investigating Officer
28. PW28 Inspector Dharmender Subsequent Investigating Officer
Kumar
List of documents exhibited:
Sr. Exhibit Details of document Proved by
No. No.
1. PW 1/A FSI Report biological Sh. Indresh Kumar
2. PW 1/B Serological Report
3. PW 1/C Forwarding letter
4. PW 2/A Statement of Sabhapati Sabhapati Rai
5. PW 4/A Statement of Guddu Guddu
6. PW 4/B Arrest memo of accused Sunny
7. PW 4/C Personal search memo
8. PW 4/D Seizure memo of Danda
9. PW 4/D1 Statement of Guddu
10. PW 5/A Site plan SI Manohar Lal
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 6
11. PW 6/A Dead body identification statement Ram Gyan
12. PW 7/A DD No. 32A ASI Raj Devi
13. PW 7/B FIR
14. PW 7/C Endorsement on Rukka
15. PW 8/A DD NO 19A ASI Prem chand
16. PW 9/A Postmortem Report Dr. Bhim Singh
17. PW 9/B Subsequent Opinion
18. PW 9/C Application of Autopsy
19. PW 9/C1 Brief Facts
20. PW 9/C2 Application for preservation of dead
body
21. PW 9/C3 Death Summary
22. PW 9/C4 MLC
23. PW 9/C5 Form 25:35
24. PW 9/C6 Application for subsequent opinion
25. PW 10/A MLC of Guddu Dr. Manoj
26. PW 10/B MLC of Kamlawati
27. PW 10/C MLC of Pradeep
28. PW 11/A X ray Report Dr. Shipra Rampal
29. PW 13/A Seizure memo of clothes of the Ct. Shishu Pal
deceased
30. PW14/DX1 Statement of Pradeep before Juvenile Pradeep Justice Board
31. PW 15/A Dead body handing over memo Govardhan
32. PW17/A Disclosure statement of the accused Ct. Babu Lal St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 7
33. PW18/1 Affidavit of evidence of HC Mukesh HC Mukesh
34. PW18/A Entry in Register No. 16 at serial No. 3326/11
35. PW18/B Entry in Register No. 16 at serial No. 3329/11
36. PW18/C Entry in Register No. 16 at serial No. 3333/11
37. PW18/D RC No. 103/21/10
38. PW18/E RC No. 104/21/10
39. PW18/F Receipt of FSL
40. PW19/1 Affidavit of evidence of Ct. Veer Ct. Veer Singh Singh
41. PW20/1 Affidavit of evidence of Ct. Gajraj Ct. Gajraj Singh Singh
42. PW20/A Seizure memo of the blood sample of the deceased and sample seal
43. PW21/DX1 Statement of Ram Gyan before Ram Gyan Juvenile Justice Board
44. PW22/1 Affidavit of evidence of ASI Dharam ASI Dharam Singh Singh
45. PW23/A MLC of Ram Gyan Dr. R.S. Mishra
46. PW24/DX1 Statement of Kamlawati before Kamlawati Juvenile Justice Board
47. PW27/A Site plan SI Naval Singh
48. PW27/B Seizure memo of the danda / Baint recovered at the instance of juvenile Sanjeev @ Rana EVIDENCE:
(9) In order to prove its case the prosecution has examined as many as Twenty Eight witnesses as under:
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 8
Eye witnesses/ Public witnesses:
(10) PW2 Sabhapati Rai is the father of the deceased who has proved that on 08.02.2011 he was called to BJRM Hospital Mortuary where he identified the dead body of his son Surender vide his statement Ex.PW2/A. He has also proved that after the postmortem he received the dead body of his son. This witness has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.
(11) PW4 Sh. Guddu is the brother of the deceased and also an injured in the incident. He has deposed that on 02.02.2011 at about 6:00 or 6:30 PM he was present near his jhuggi and at that time, Sunny, Jitu Rana, Hemu, Hardesh and Anay Kumar came to his house duly armed with Dandas and started beating him and his brother Surender Rai him with the Dandas. According to him, Surender sustained head injury, became unconscious and fell down and thereafter, they (assailants) started beating him (witness). He has further deposed that he tried to save himself with his arm in which process he sustained injury on his left hand. The witness has testified that they raised an alarm on which his mother Kalawati, Pradeep, Ram Gyan reached there and thereafter all the accused persons started giving beatings to his mother Kalawati, Pardeep and Ram Gyan with the dandas. He has testified that his mother sustained injuries on her head and hand, Pardeep sustained injuries on his head and Ram Gyan sustained injuries on his forehead. According to St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 9 the witness, they (Kalawati, Pradeep and Ram Gyan) came there to save them on hearing their screams and thereafter, all the accused persons had fled away. He has also deposed that he made a call at 100 number on which the PCR van and local police reached the spot and they all were removed to Govt. Hospital at Jahangir Puri by the police. According to him, Surender was serious and hence he was referred by the doctor to the Trauma Center. He has further deposed that doctor also gave them first aid treatment and his statement was recorded by the police at Trauma Center vide Ex.PW4/A. He has correctly identified the accused Sunny in the Court whereas all other accused are juvenile, facing trial before Juvenile Justice Board. The witness has testified that 07.02.2011, his brother Surender expired in the Trauma Center. (12) The witness Guddu has further deposed that on 03.02.2011, accused Sunny was arrested by the police vide arrest memo Ex.PW4/B, his personal search was conducted vide memo Ex.PW4/C and the accused Sunny got recovered danda, which was seized by the Investigating Officer vide seizure memo Ex.PW4/D. According to him, prior to the occurrence, another quarrel had taken place, but at that time, he was in village. He has testified that he received a telephone call from his house but he is unable to tell the reason as to why the accused persons inflicted injuries to them. He has also deposed that on one occasion, a quarrel took place with his brother Surender, since deceased, prior to this incident. According to him, his Jhuggi is situated in front of St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 10 railway track and he had shown the place of incident to the police as well as the Draftsman who took rough notes and measurements of the scene of crime. He has identified the weapon of offence i.e. the danda with which accused Sunny inflicted injuries on him and his brother Surender, which danda is Ex.5. The witness has further explained that the incident in question took place because there was a railway track in front of their house and accused with fourfive other boys used to sit there and whenever, they objected, they were annoyed with them and due to this reason, accused persons inflicted injuries to all of them and his brother Surender died due to the injuries.
(13) In his cross examination by the Ld. Defence Counsel the witness has admitted that his statement was recorded in the Court of Principal Magistrate Ms. Twinkle Wadhwa, J.J. Board, Kingsway Camp on 08.08.2011, true copy of which is Ex.PW4/D1. According to the witness, his family members i.e his mother, his wife and his children were inside the jhuggi, whereas he alongwith Surender Rai were present outside. He has testified that his jhuggi is comprising of two rooms but he is unable to tell its size and states that the rooms were small. He has testified that Hemant was one of the associate of the accused Sunny who was also arrested in this case. The witness has also deposed that he knew the accused prior to the incident since he already had a quarrel with them. He has also deposed that his statement was recorded by the Police four times and his signatures were taken on some of the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 11 statements. According to him, his statement was recorded on 27.04.2011, when the site plan was prepared. He does not remember, if he signed any document in the presence of SI Nawal Singh. According to him, his statements were read over and explained to him and he signed the statements only after the same were read over and explained to him. He has testified that he was illiterate and he signed only two statements. He does not remember, how many documents were signed by him. The witness has also deposed that his signatures were obtained at BJRM Hospital also, but he does not remember, who obtained his signatures, whether by doctor or by the police. He has denied the suggestion that police obtained his signatures on the blank papers, or that nothing was explained to him.
(14) The witness has admitted that in his statement before the JJ Board which is Ex.PW4/D1 name of Sunny has not been mentioned. He has also admitted that in the said statement he had mentioned that the quarrel took place inside the jhuggi whereas in his examination in chief he told that the quarrel took place outside the jhuggi. When a specific question was put to him as to which of the version was correct whether the quarrel took place inside the jhuggi or outside the jhuggi, to which he replied that the quarrel took place outside the jhuggi was the correct version. He has admitted that in his statement Ex.PW4/D1, it is not mentioned that Sunny inflicted danda blow on the person of his brother Surender. According to him, the blood was oozing out from the back St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 12 side of the head of his brother Surender. He has also deposed that the police had sealed the blood stained clothes of his brother Surender. He has denied the suggestion that the accused Sunny did not inflict any injury to his brother, Surender or that he received injuries at his own. He has also denied the suggestion that the accused Sunny was not present at the spot or that nothing was recovered at the instance of Sunny. The witness has further denied the suggestion that he falsely implicated the accused Sunny or that his signatures were obtained by the police on the blank papers.
(15) PW6 Ram Dayal is the grandfather of the deceased who has proved that on 08.02.11 he was called to BJRM Hospital Mortuary where he identified the dead body of his grandson Surender vide his statement Ex.PW6/A. According to the witness, after postmortem, they received the dead body of his grandson. This witness has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.
(16) PW14 Pardeep is the brother of the deceased and had also received injuries in the incident. He has deposed that he was working as a tailor and on 2.2.2011 at about 6:30 PM he was present at his jhuggi when he heard a hue and cry of his brother Surender and Guddu who were saying Bachao Bachao on which he along with his mother Kamlawati came out from their Jhuggi. According to the witness, he saw that his brother Surender was bleeding from head and his brother St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 13 Guddu was having injuries on his hand. He has testified that Sanjeev and Rana along with three others were giving beatings with saria and danda. The witness has further deposed that he tried to rescue his brothers but Sanjeev and Rana inflicted iron rod blow on his head and also inflicted injuries to him with the leg and fist blows. According to him, he received injuries on his head and became unconscious. The witness has identified the accused Sunny @ Katu in the Court as the person who was having a saria danda in his hand. He has further deposed that after receiving the injury on his head, he saw that his brother Surender was lying on the floor and the accused Sunny @ Katu and his other associates namely Anuj, Hemant and Hardesh (all juveniles) were inflicting injuries on the person of Surender. The witness has testified that they (assailants) inflicted injuries on the person of his elder brother Guddu, his mother Kamlawati and neighbour Ram Gyan. The witness has also deposed that his brother Guddu made a call to the police on which PCR reached the spot and they removed them to BJRM Hospital whereas his brother Surender was referred to Trauma Center. According to him, on 5.2.2011 he accompanied the police in search of the accused and at about 11:30 AM when they reached in front of Fire Station, WPIA all the five accused persons were present there and police arrested them after which inquiries were made from the accused persons. The witness has also deposed that during the incident accused Sunny and his associates i.e. Sanjeev, Hemant, Anuj and Hardev St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 14 (all juveniles) were saying "Aaj inko sabak sikha ke rahenge, aaj inko jaan se maar denge, jisse aage se hamare saamne bolne ki himmat na karen." However, the witness has not been able to identify the weapons of offence i.e. one wooden stick of baseball, one leg of cot (wooden paya of charpai).
(17) In his crossexamination the witness has admitted that he reached at the spot along with his mother Kamlawati after hearing the noise " bachao bachao". He has denied the suggestion that the incident had already occurred when he reached the spot. He has stated that when they reached the spot, Ram Gyan and other neighbours also came there and after the incident the accused and other assailants ran away from the spot. He does not remember as to how many times, police recorded his statement and states that police obtained his signatures on his statement.
According to the witness, his no other statement was recorded by the police. The witness has testified that his statements which were signed by him were recorded on separate dates. He has admitted that his statement was recorded in this case before the JJB which statement is Ex.PW14/DX1 (5 pages). According to the witness, he himself, his brother or his family member had no enmity with anybody. He has testified that accused Sunny was not arrested in his presence. The witness has also deposed that he was not unconscious after receiving the injuries with danda in the incident. However, when confronted with statement Ex.PW14/DX1 the above fact found so recorded. He has St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 15 admitted that assailants were five persons and they were six persons. The witness has admitted that he has not stated in his statement before JJB that at the time of incident accused along with assailants were saying that "Aaj inko sabak sikha ke rahenge, aaj inko jaan se maar denge, jisse aage se hamare saamne bolne ki himmat na karen." He denied the suggestion that he was not present at the time of incident or that he did not hear the above said words told by the accused persons. He has also denied the suggestion that he has stated about the said words by the accused persons at the instance of Investigating Officer. The witness has further denied the suggestion that there is no enmity between his family and the family of accused or there was no previous dispute between them.
(18) PW15 Govardhan has deposed that on 08.02.2011, he went to Mortuary, BJRM Hospital where the dead body of Surender was handed over to his father Sabhapat Rai after postmortem and police prepared handing over memo of the dead body, which is Ex.PW15/A. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted.
(19) PW16 Bhupender has deposed that on 02.02.2011 he had gone to purchase vegetable at around 6:00 PM and at about 6:30 PM when he along with his father was present in his jhuggi, they heard the screams of "Bachao Bachao" being raised by Pradeep. According to the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 16 witness, they came out of their jhuggi and noticed that Surender was lying on the ground and was having injury on his head and one Guddu was also there having injury on his left hand. He has testified that he asked Guddu, elder brother of Surender (since deceased), as to who had given beatings to them on which Guddu told him that they were given beatings by the accused Sunny, whom the witness has correctly identified in the Court and also by Hemant, Sanjeev, Anuj and Hardev (all juveniles). He has further deposed that thereafter Guddu made a call at 100 number on which PCR van arrived at the spot and shifted the injured namely, Guddu, Surender and Pradeep to the BJRM Hospital, from there they were referred to Trauma Center. According to him, during treatment, Surender succumbed to injuries. (20) Since the witness was resiling from his previous statement, therefore he was examined by the Ld. Addl. PP for the State, where the witness has deposed that he was interrogated by the Investigating Officer and his statement was recorded but he had not stated to the Police in his statement that accused Sunny alongwith his associates had assaulting Surender and Guddu, elder brother of deceased. According to the witness, he had also not stated to the police in his statement that when he alongwith his father tried to intervene in the scuffle between Surender, Guddu and accused persons, accused Sunny gave a Danda blow on the head of his father or that accused Sanjeev@ Rana gave the danda blow on the head of Pradeep. However, when confronted with his statement St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 17 Mark A the above facts were not found so recorded. He has denied the suggestion that he had witnessed the incident while the accused Sunny alongwith his associates were giving beatings to Guddu, Surender and Pradeep. He has further denied the suggestion that as he was not told by the Guddu about the incident, rather, he had seen the incident. (21) This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted.
(22) PW21 Ram Gyan is the neighbour of the deceased and had also received injuries in the incident. He has deposed that on 2.2.2011, at about 6.00 PM, he was present at his jhuggi and on hearing the noise of maar peet, he came out of his jhuggi where he saw that fourfive boys namely Sunny, Rana, Hema, Anu and Hardev were giving beating to Surender with lathis. He has also deposed that he tried to save Surender from the aforesaid persons in which process they (assailants) also caused beating to him as a result of which he received injuries along with Guddu, Kamlawati, Pardeep who also received injuries while intervening between them. According to the witness, many other persons from neighbouring jhuggies also came there and saw the incident. He has testified that Guddu made a call to the police which came at the spot and took him, Guddu, Kamlawati and Pardeep and Surender to BJRM hospital, Jahangir Puri where he was given medical treatment and discharged. He has further deposed that the above said assailants ran St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 18 away from the spot after causing injuries to them. He has identified the accused Sunny in the Court as the person who gave lathi blows on his head.
(23) In his cross examination by the Ld. Defence Counsel the witness has deposed that police recorded his statement at his house after three days of the incident. According to him, the dandas were about 34 feet in length. He has admitted that his statement was recorded before the Juvenile Justice Board, Kingsway Camp, Delhi, certified copy of which is Ex.PW21/DX1. The witness has further deposed that he had not stated in his statement before the Juvenile Justice Board that the assailants used the baseball sticks. However, when confronted with his statement Ex.PW21/DX1 the above fact was found recorded. He has also admitted that in his said statement he had not stated anything against accused Sunny and has voluntarily explained that he has not been asked anything about accused Sunny before that Court. According to the witness, he has not stated before the JJB that he was present at the jhuggi of Surender at about 6.00 PM. However, when confronted with his statement Ex.PW21/DX1 it was found so recorded. He has testified that the incident took place in front of jhuggi of Surender near railway line. The witness has also admitted that the incident did not start in his presence and states that when he reached the spot, he saw that accused Sunny along with his associates were giving beating to the Surender, Guddu and Kamlawati. He is unable to specify as to which of the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 19 accused was beating whom (injured / deceased). According to the witness, police recovered 23 dandas / sticks from the spot. (24) PW24 Kamlawati is the mother of the deceased Surender. She has deposed that Guddu and Surender are her sons out of which, Surender had died. According to the witness, her son Surender called him to Delhi at his house at Wazirpur Indl. Area for her medical treatment. She has further deposed that on 2nd February, approximately two years back (from the date of his deposition), at about 6.30 PM, she was present in the jhuggi of Surender and on hearing the noise of "bachao bachao", she came outside the jhuggi and saw that accused Sunny along with four associates were giving beating to her son Surender with danda having an iron cap, in front of the jhuggi of Ram Gyan who is her relative. The witness has also deposed that they (assailants) also gave beatings to her and her sons Pardeep and Guddu as they tried to intervene between them. According to her, after causing injuries to them, the assailants ran away from the spot after which police came to the spot. She has testified that they were taken to hospital where they got medically examined. She has correctly identified the accused Sunny in the Court.
(25) Leading questions were put to the witness wherein she has admitted that after hearing the noise of "bachao bachao" she along with her son Pardeep reached at the spot. She has also admitted that Ram Gyan and his son Bhupender also reached at the spot. According to her, St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 20 on reaching the spot, she found her son Surender bleeding from his head and lying on the ground and Sunny @ Katu and Sanjeev @ Rana were having dandas in their hands and Hemant @ Hemu, Hardesh and Anuj @ Anu kumar were giving beatings to Surender and Guddu with leg and fist blows and with dandas. She has also admitted that the above said assailants also gave beatings to her by danda and leg and fist blows when she tried to save her sons. She has further admitted that Sanjeev @ Rana gave danda blow on the head of Pardeep and accused Sunny gave danda blow on the head of Ram Gyan. The witness has also admitted that after seeing the other public persons at the spot, accused persons ran away from the spot and it was Guddu who made call at number 100. (26) In her crossexamination by the Ld. Defence Counsel the witness has deposed that her statement was also recorded before the JJB in this case. She has denied the suggestion that she had stated before the JJB that on 1st Wednesday of February, around 6:007:00pm accused with adult boy forcibly entered in her jhuggi and assaulted them and that they were not taken to the hospital. However, when confronted with her statement Ex.PW24/DX1 the above facts were found so recorded. According to her, she had seen the dandas in the hand of all the assailants along with accused. She is unable to tell who was having the danda with iron cap and has again clarified that it was the accused Sunny who was having the said danda and can identify the said danda if shown to her. The two dandas Ex.P5 and Ex.P6 were shown to the witness St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 21 who stated that these dandas were not used by accused Sunny and has voluntarily explained that accused Sunny ran away from the spot along with danda. According to her, she did not pay any attention if the other persons also ran away with the dandas.
Witnesses of Medical Record:
(27) PW9 Dr. Bhim Singh has deposed that on 08.02.2011, he had conducted postmortem examination of the body of deceased Surender S/o Sabhapat Rai, vide postmortem report No. 145/11, brought by Inspector Dharmender Kumar. According to the witness, on examination he found following external injuries.
1. Stitched wound over left occipital region Y shaped with swelling.
2. Infected wound over right lower lip of 1 cm x 0.5 cm.
3. Scabbed brownish abrasion of 1 c x 1 c over left shoulder. (28) He has further deposed that on internal examination of HeadExtra Vasation of blood was present in the left occipital region, bones intact, brain shows right fronto temporal SDH and SAH present with contusion necrosis and edema of brain. He has proved having opined that the death was due to coma consequent upon head injury via injury no.1, all injuries were antemortem and could be caused by blunt object and Injury no.1 was sufficient to cause death in ordinary course of nature. The witness has proved prepared his detailed report which is Ex.PW9/A. According to the witness on 22.02.2011 he St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 22 received application from Inspector Dharmender Kumar, PS Ashok Vihar alongwith two parcels sealed with seal of NS. He has testified that on opening the parcel No.1, he found one wooden stick measuring length 29 inch circumference was 1½ inch, slightly bent, as shown in Figure 1 and on opening the parcel no.2 he found one wooden stick measuring 2 feet 4 inch, circumference 1½ inch, as shown in Figure 2. He has proved having opined that the injuries mentioned in PM report No.145/11 dated 08.02.2011 on the body of Surender the injury No.1 could be possible by above examined weapons and his Report in this regard is Ex.PW9/B. According to him, after examination, the weapon was again sealed with the seal of hospital. The witness has testified that he received eight inquest papers which were perused and signed by him, application of Autopsy which is Ex.PW9/C, brief facts which are Ex.PW9/C1, application for preservation of dead body which is Ex.PW9/C2, death summary is Ex.PW9/C3, MLC which is Ex.PW9/C4, Form No. 25(35) which is Ex.PW9/C5, identification statement which is Ex.PW2/A and Ex.PW6/A. He has proved that blood in gauze piece in sealed parcel was handed over to police. He has also proved the application for subsequent opinion which is Ex.PW9/C6. (29) In his cross examination the witness has deposed that if a person falls on a blunt object, then he can sustain the injury mentioned at point 1 on PM report Ex.PW9/A. St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 23 (30) PW10 Dr. Manoj has deposed that on 02.02.2011 he examined patient Guddu vide MLC no. 21001 (E9393), who was referred to him with alleged history of physical assault and after examination, he advised Xray of left forearm AP and Lateral. He has proved the MLC of Guddu which is Ex.PW10/A. The witness has also deposed that on 19.02.2011 according to the report of radiologist Dr. Shipra Rampal, Xray no.325 dated 2.2.11 showing the fracture of ulna he opined the nature of injury as Grievous which opinion is at point X on MLC Ex.PW10/A. The witness has also deposed that on the same day, he also examined patient Kamlawati vide MLC no. 21007, who was referred to him with alleged history of physical assault and after examination, he advised Xray of right hand AP oblique and Xray of left forearm AP Lateral. He has proved the MLC of Kamlawati which is Ex.PW10/B. According to the witness on 19.02.2011, according to the report of radiologist Dr. Shipra Rampal, Xray no. 329 dated 2.2.11 showing no bone injury, he opined the nature of injury as Simple vide his opinion at point X on the MLC Ex.PW10/B. The witness has testified that on the same day, he also examined patient Pradeep vide MLC no.21002 (E9401) who was referred to him with alleged history of physical assault and after examination, he advised Xray of pelvis with both hips AP view and Xray of right thigh AP and Lateral and Xray of left shoulder, AP view. He has proved the MLC of Pradeep vide MLC St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 24 which is Ex.PW10/C. He has testified that on 19.02.2011, as per to the report of radiologist Dr. Shipra Rampal, Xray no.327 dated 2.2.11 showing no bone injury, he opined the nature of injury as 'Simple' from ortho side which opinion is at point X on the MLC Ex.PW10/C. (31) In his crossexamination by the Ld. Defence Counsel the witness has deposed that the injuries mentioned in Ex.PW10/A could be caused due to fall or assault or even in Road Traffic Accident. (32) PW11 Dr. Shipra Rampal has proved that on 03.02.2011 she examined Xray plates of patient Pradeep vide MLC No. 21002 and after examination, he opined "No bone injury" in Xray of pelvis, chest, left shoulder, left thigh and skull. She has proved her detailed report in this regard vide Ex.PW11/A. This witness has not been crossexamined by the Ld. Defence Counsel and hence her testimony has gone uncontroverted.
(33) PW23 Dr. R.S. Mishra has proved the MLC of Ram Gyan S/o Swaminath 50 years who was examined by Dr. Sanesh on 2.2.2011, which MLC is Ex.PW23/A according to which Ram Gyan was brought at hospital by ASI Dharam Singh with alleged history of physical assault and on local examination, following injuries were found:
1. Abrasions over left forehead just above left eye brow.
2. Abrasions over left cheek just lateral and below left eye. St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 25
(34) He has proved that the said injuries are Simple in nature. (35) The witness has also proved the MLC of Kamlawati w/o Sabhapati 40 years, who was examined by Dr. Sanesh at casualty on 2.2.2011 at 9.50 PM with alleged history of physical assault brought by ASI Dharam Singh, which MLC of Kamlawati is Ex.PW23/B according to which on local examination, swelling over left hand and swelling over left forearm was found on which the patient was referred to Ortho department for further management. He has proved that the nature of injury was Simple.
(36) The witness has further proved the MLC of Pardeep S/o Sabhapati 17 years who was medically examined by Dr. Diwakar at about 8:10 PM at the Casualty which MLC is Ex.PW10/C according to which the patient was brought with the alleged history of physical assault. According to the witness Dr. Diwakar found the following injuries on local examination on the person of Pardeep:
1. Tenderness present over chest.
2. Laceration wound present over parietal region.
3. Tenderness present over right shoulder.
4. Tenderness present over left thigh
5. Laceration over right parietal region 3cm x .5 cm approximately.
(37) He has testified that Dr. Diwakar referred the patient to Ortho and Surgery department for further treatment and management St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 26 and in surgery department, Dr. Ashish medically examined Pardeep and gave his observation from portion D to D1 on Ex.PW10/C. (38) The witness has further proved that Dr. Diwakar also medically examined Surender S/o Sabhapati, 19 years at the Casualty on 2.2.2011 at about 7:45 PM vide MLC Ex.PW9/C4 according to which the patient was brought with alleged history of physical assault and on local examination, a lacerated wound was present at occipital region (Y shaped 2 cm x 1cm x 2cm). According to him, the patient was referred to Surgery Department for further examination where Dr. Ashish medically examined Surender and gave his observation from portion X to X 1 He has also deposed that after medical examination, the patient was admitted and referred to the higher center for NCCT (Chest and Head). (39) In his crossexamination the witness has admitted that injuries on the person of Ram Gyan and Kamlawati are possible due to fall on hard surface. He has also admitted that date is not mentioned on the MLC Ex.PW23/A. (40) PW25 Rajesh Kumar, Record Clerk from Sushrut Trauma Center, Delhi has proved the Death Summary bearing CR No. 57827 in respect of Surender S/o Sabhapati, which is in the handwriting of Dr. Suresh which is Ex.PW9/C3 bearing signatures of Dr. Suresh at point A and of Dr. Kuldeep at point B. St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 27 (41) This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted.
FSL Expert:
(42) PW1 Sh. Indresh Kumar Mishra, Senior Scientific Officer, Biology, Rohini, Delhi has deposed that on 23.02.2011, four sealed parcels were received in the office of FSL which were assigned to him for biological and serological analysis. According to the witness the seals were intact as per forwarding letter and the parcels were having no.
1, 3, 5 & 6. He has further deposed that on opening the Parcel No.1 he found one shirt, one baniyan, one jeans pant which were marked as Ex. 1a, 1b & 1c; Parcel no.3 was found to contain greenish brown gauze cloth piece describe as blood sample and was marked as Ex.3; Parcel no. 5 was containing one wooden danda which was marked as Ex.5; Parcel no.6 was containing one wooden danda which was marked as Ex.6. The witness has proved that he examined all the exhibits biologically and prepared his report which is Ex.PW1/A and also examined the serologically after which he prepared the Serological Report which is Ex.PW1/B. He has testified that after examination of the exhibits the remnants were sealed with the seal of 'IKM FSL DELHI' and the parcels alongwith the report were sent through forwarding letter Ex.PW1/C. St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 28 (43) He has correctly identified the case property i.e. one shirt, one baniyan and one jeans pant with belt (i.e. Ex.1a, 1b & 1c) which were examined by him and the three tags bearing the signature of the witness and the exhibits and FSL number etc. which tags are Ex.PW1/D1, Ex.PW1/D2 & Ex.PW1/D3; blood gauze piece (Ex.3) and the tag is Ex.PW1/D4; one wooden danda (Ex.5) and the tag which is Ex.PW1/D5 and one wooden danda (Ex.6) and the tag is Ex.PW1/D6. This witness has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.
Police / official witnesses:
(44) PW3 Ct. Satender Kumar is a formal witness who has deposed that on 23.2.2011 as per instructions of the Investigating Officer he he collected the sealed parcels and FSL Form from the MHCM vide RC No. 104/21 and deposited the same at FSL Rohini and after depositing the same he handed over the receipt of deposit to MHCM. He has also proved that case property was not tampered with, till it remained in his custody. This witness has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted. (45) PW5 SI Manohar Lal is a formal witness being the Draftsman who has proved that on 08.03.2011 he was called by the Investigating Officer for inspection of scene of crime for the purpose of preparation of scaled site plan. He has deposed that he along with the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 29 Investigating Officer and SI Nawal Singh reached the spot i.e near Railway Line, Shahid Sukhdev Nagar, Jhuggi Colony, near jhuggi no.
E88, EBlock, Wazirpur Industrial Area, Ashok Vihar, Delhi where complainant was also present. He has further deposed that he took the measurement and rough notes on the place of occurrence at the instance of complainant Guddu on the basis of which measurement and rough notes, he prepared the scaled site plan Ex.PW5/A. According to him, after preparation of the scaled site plan, he destroyed the rough notes. This witness has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.
(46) PW7 ASI Raj Devi is a formal witness being the Duty Officer who has proved that on 02.02.2011 at about 6:35 PM from Control Room, an information through intercom was received about quarrel at near Shiv Mandir, Wazirpur Industrial Area, A7 Jhuggies on which she recorded the information vide DD No.32A copy of which is Ex.PW7/A which DD was given HC Jetha Ram for taking necessary action who alongwith Ct. Bir Singh left the Police Station for spot. According to her, on the same day she received rukka at 11:30 PM through HC Jetha Ram and on the basis of which rukka, she recorded FIR No.34/11 under section 308/34 IPC on computer through computer operator, computerized copy of FIR which is Ex.PW7/B and also made an endorsement on the rukka, which is Ex.PW7/C. She has further deposed that on directions of the SHO, further investigation of the case St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 30 was marked to SI Naval Singh and copy of FIR alogwith original rukka sent to SI Naval Singh through Ct. Mukum Javed. This witness has not been crossexamined by the Ld. Defence Counsel and hence her testimony has gone uncontroverted.
(47) PW8 ASI Prem Chand has deposed that on 7.2.2011 he was working as Duty Officer when at about 2:20 PM Ct. Shishupal informed him from Trauma center that the injured Surender @ Sabhapati who was referred from BJRM Hospital to Trauma center was declared brought dead by the doctor at 12:10 PM. He has proved that on the basis of the said information he recorded DD No. 19A copy of which is Ex.PW8/A. (48) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that DD No. 19A has been manipulated at the instance of the Investigating Officer.
(49) PW12 Ct. Sandeep Kumar has deposed that on 22.02.2011, he was posted at Police Station Ashok Vihar and on that day, as per instructions of the Investigating Officer, he collected the sealed parcel, containing the weapon of offence, from the MHCM vide RC no. 103/21 and the same was taken to BJRM Hospital Mortuary. According to the witness, the Investigating Officer moved an application regarding the subsequent opinion to the Autopsy Surgeon Dr. Bhim Singh. The witness has also deposed that he handed over the parcel to the doctor after examining the weapon of offence, doctor handed over the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 31 subsequent opinion to the Investigating Officer and the weapon of offence was resealed in the hospital with the seal of BJRM Hospital and handed over the same to him after which he deposited the same with MHCM. He has proved that the case property was not tampered by anybody till it remained in his custody.
(50) In his crossexamination, the witness has denied the suggestion that the case property was tampered with prior to producing the same before the doctor.
(51) PW13 Ct. Shishu Pal has deposed that in the year 2011 in the month of February, he was posted as Duty Constable at Sushrut Trauma Center and on that day, patient Surender S/o Sabhapati was got admitted in Trauma Center, referred from BJRM Hospital and was declared dead by the doctor on which he informed to the Police Station Ashok Vihar accordingly. The witness has also deposed that the clothes of the deceased were seized and sealed and handed over to the Investigating Officer who prepared the seizure memo vide Ex.PW13/A. According to the witness, the dead body with death certificate were handed over to the Investigating Officer by the doctor. (52) A leading question was put to the witness by the Ld. Addl. PP for the State wherein he has admitted that the date was 02.02.2011. (53) In his crossexamination by the Ld. Defence Counsel, the witness has deposed that the seal was affixed by the doctor and the particulars were of Dr. Satender, CMO. According to the witness, when St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 32 the injured was brought to the hospital, the doctor declared him brought dead.
(54) PW17 Ct. Babu Lal has deposed that on 03.02.2011, he joined the investigation of this case alongwith SI Nawal Singh when they had gone to the house of complainant Guddu after which they alongwith Guddu, left in search of accused persons in the vicinity of the area, at about 6.00 PM. According to the witness, during the search of accused persons at about 7.007.15 PM, they reached at Shri Ram Chowk, Wazirpur Industrial Area on foot and there the complainant Guddu pointed out towards accused Sunny standing at Shri Ram Chowk, WPIL. He has proved that the accused Sunny was apprehended and was interrogated after which he made his disclosure statement which is Ex.PW17/A. The witness has proved that the accused was arrested vide memo Ex.PW4/B and his personal search was carried out vide memo Ex.PW4/C after which the accused led them to his jhuggi, at SS Nagar, Industrial Area, Wazir Pur, from where he got recovered one Danda. According to him, SI Nawal singh converted the said Danda into a pulanda and sealed with the seal of NS and it was taken into possession vide memo Ex.PW4/D. He has testified that thereafter he along with the Investigating Officer and the accused returned to the Police Station where the Investigating Officer deposited the case property with MHCM. He has correctly identified the accused Sunny @ Katu in the Court and also identified the case property i.e. wooden Danda which was St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 33 got recovered by accused Sunny from his jhuggi, which Danda is Ex.P5. (55) In his crossexamination by the Ld. Defence Counsel the witness has deposed that accused Sunny was standing alone at Shri Ram Chowk. He has admitted that accused Sunny was facing towards them and he could easily see them. During the examination of the witness, a Baint Danda was shown to the witness who stated that both the Dandas which were shown to him are of wood/ Baint. According to him, prior to apprehending the accused, no independent public person was asked to join the investigation. He has testified that they simultaneously apprehended the accused and initially the accused tried to run away, but he was overpowered. The witness has also deposed that at the time of interrogating the accused, Investigating Officer did not ask any public person to join the proceedings. He has further deposed that the Investigating Officer did not ask any public persons, or neighbour to join the recovery proceedings, as mentioned in the disclosure of the accused and has voluntarily explained that since the complainant was with them, therefore, there was no need to join any independent witness. According to him, the accused was living with his family members and the accused himself had taken out the Danda from his jhuggi and handed over to the Investigating Officer. He is unable to tell if the Danda shown to him in the Court, is easily available in the market, or not. He has admitted that family members of accused were present at the time of their arrival there. He has denied the suggestion that he did not join the investigation St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 34 of this case.
(56) PW18 HC Mukesh is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW18/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entries in register no.19 vide Mad No. 3326/11, 3329/11, 3333/11 copies of which are Ex.PW18/A, Ex.PW18/B and Ex.PW18/C respectively. He has also proved the RC No. 103/21/10 which is Ex.PW18/D; RC No. 104/21/10 which is Ex.PW18/E and receipt of FSL which is Ex.PW18/F. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same.
(57) PW19 Ct. Veer Singh is also a formal witness who has been examined by way of affidavit which is Ex.PW19/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 2.2.2011 at 6:35 PM on receipt of DD No. 32A he along with HC Jetha Ram reached the spot and thereafter reached at BJRM Hospital where they came to know that the injured Surender was shifted to Trauma Center. According to him, thereafter they reached Trauma Center where the brother of injured Surender namely Guddu was found present whose statement was recorded by HC Jetha Ram.
(58) This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted.
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 35 (59) PW20 Ct. Gajraj Singh is also a formal witness has been examined by way of affidavit which is Ex.PW20/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 8.2.2011 after postmortem of the deceased the doctor handed over the blood sample and sample seal to him when he handed over to the Investigating Officer who seized the same vide memo Ex.PW20/A. This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted. (60) PW22 ASI Dharam Singh is a formal witness being a PCR Official who has been examined by way of affidavit which is Ex.PW22/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 2.2.2011 on receipt of call from Control Room He reached the spot and had shifted the injured persons namely Guddu, Smt. Kamlawati, Ram Gyan, Pradeep and Surender to BJRM Hospital. (61) This witness has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted.
(62) PW26 HC Jetha Ram has deposed that on 2.2.2011 he was posted as HC in Polie Station Ashok Vihar and was on Emergency Duty and at about 6:30 PM DD No. 32A was received on which he along with Ct. Veer Singh reached the spot i.e. E88, SS Nagar, Near Railway Line, WPIA where they came to know that the injured was removed to BJRM Hospital by the PCR Van. According to the witness, no eye witness was St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 36 found at the spot and thereafter they went to BJRM Hospital where he obtained the MLC of the injured Pradeep, Surender, Kalawati, Ram Gyan S/o Swami Nath and Guddu but neither the injured nor any witness were found at the hospital. He has testified that later he came to know that the injured Surender was shifted to Trauma Center, Civil Lines on which he along with Ct. Veer Singh reached Trauma Center and on the MLC of Surender doctor endorsed unfit for statement. He has also deposed that one Guddu was also found there and he recorded his statement which is Ex.PW4/A, which was attested by him at point B and converted the same into rukka which is Ex.PW26/A. He has testified that thereafter he reached the Police Station and handed over the rukka to Duty Officer for getting the case registered. According to him, after registration of the case further investigations were transferred to SI Naval Singh on which he handed over the case file to SI Naval Singh. (63) In his crossexamination by the Ld. Defence Counsel the witness has deposed that they reached the spot on their private motorcycle at about 6:45 PM and at BJRM hospital at about 7:40 PM and thereafter at Trauma center at about 10:30 PM.
(64) PW27 SI Naval Singh is the initial Investigating Officer who has deposed that on 03.02.2011 he was handed over the original Tehrir and copy of the FIR in the present case by Ct. Javed on which he reached the spot i.e. Jhuggi No. E88, SS Nagar, WPIA where he met the complainant Guddu. He has proved that on the pointing out and at the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 37 instance of Guddu he prepared the site plan which is Ex.PW27/A. According to the witness, Guddu also informed him that the accused were residing in the neighboring jhuggi on which he went to said jhuggi i.e. E516 but nobody found there except the father of Sunny Katu. The witness has further deposed that thereafter he went to the Trauma Center Civil Line along with Guddu where the injured Surender was admitted and he obtained the MLC of Surender from the doctor but Surender was still unfit for statement and hence he could not interrogate him. The witness has also deposed that Duty Constable Shishu Pal had produced before him a sealed pullanda duly sealed with the seal of Sushutra Trauma Center containing the clothes of the Surender which he seized vide Ex.PW13/A and thereafter he recorded the supplementary statement of Guddu and also the Duty Constable. He has testified that he returned to the Police Station and deposited the case property in the Malkhana and recorded the statement of Ct. Bir Singh who had accompanied him to the spot and to the hospital for investigations. According to the witness, in the evening again he took Ct. Babu Lal and went in search of accused at his house and also in the area along with Guddu. He has further deposed that at about 7:15 PM when they reached near Shri Ram Chowk, on the pointing out of complainant Guddu, one boy who was standing at Shri Ram chowk was apprehended who was identified by complainant Guddu as accused Sunny @ Kattu whom the witness correctly identified in the Court. He has proved St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 38 having interrogated the accused after which he prepared the arrest memo of accused Sunny @ Kattu which is Ex.PW4/B; conducted his personal search vide Ex.PW4/C and recorded his disclosure statement vide Ex.PW17/A. He has also deposed that the accused then took them to his jhuggi from where he got recovered one danda from inside his jhuggi and informed that it was the same danda from which injuries had been caused to Surender and Guddu. The witness has testified that on measuring the danda with the help of scale, its total length was found to be 29 inch after which he converted the same into a pullanda with the help of cloth and sealed the same with the seal of NS and thereafter seized the said danda vide seizure vide memo Ex.PW4/D. According to the witness, he thereafter went to BJRM hospital from where he got the medical examination of accused Sunny conducted and thereafter took him to the police station where he was put in the lock up. The witness has testified that on 04.02.2011 the accused was produced before the Ld. Illaka Magistrate from where he was sent to Judicial Custody. (65) According to the witness, on 05.02.2011 he along with HC Surender Dutt again went to jhuggi of Guddu where they recorded the statements of other witnesses after which Pardeep, one of the injured accompanied them for the search of the other Juvenile accused. He has further deposed that they reached the fire station WPIA while searching for the accused persons where he requested one public person Habib to join proceedings, a resident of the local jhuggi cluster agreed to join the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 39 proceedings and accompanied them. Witness has further deposed that when they reached near the Fire Station, they found four boys coming from the computer market towards the fire station and Pardeep informed that the said boys were the same who along with Sunny @ Kattu had done maar pitai with Guddu, himself, Surender, Kamlawati, Ram Gyan and Bhupender on which the said boys were apprehended and their names were revealed as Annu Kumar, Hardesh, Hemant and Sanjeev. He has also deposed that on noticing that the said boys were all Juveniles, he immediately called the Juvenile officer SI Haroon Ahmed and inquiries were made from these boys and the documents regarding apprehension memo, undertaking, seizure memos were prepared. According to him, the Guardians of the said boys were called and three boys i.e. Annu Kumar, Hardesh and Hemant were handed over to their Guardians whereas Sanjeev @ Rana remained with him because they had disclosed that he could get recover the danda used in the incident from his jhuggi where he had hidden the same. He has also deposed that thereafter the juvenile accused Sanjeev @ Rana took them to his jhuggi bearing No. E518, SS Nagar, WPIA from where he got recovered one danda of baint. According to the witness, he measured the said danda and it found to be 2 feet 3 inch long and was 1 ½ inch wide after which he converted the danda into a pullanda and sealed the same with the seal of NS and thereafter seized the same vide seizure memo Ex.PW27/B after which Sanjeev was then handed over to his father. He has proved having St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 40 recorded the statements of various witnesses and relived them from the spot and returned to the police station where he deposited the case property in the malkhana after which he recorded the statement of HC Surender and relieved him.
(66) The witness has testified that on 07.02.2011 all the four juvenile accused were produced before the Juvenile board, Kingsway Camp along with their Guardians from where Hardesh was enlarged on bail and other three boys Sanjeev, Hemant and Annu Kumar were sent to observation home for boys. According to him, while he was still present at JJB Kingsway Camp, Ct. Gajraj came to him and informed that the injured Surender had expired which information he gave to him vide DD No. 19A which is Ex.PW8/A. He has further deposed that he then reached Trauma Center along with Ct. Gajraj and obtained the Death Summary, Death Certificate and Death Slip of Surender and received the dead body of Surender and took the same to the BJRM hospital and got the same deposited there after handing over the same in the custody of Ct. Gajraj. According to him, he also made a request to the CMO BJRM hospital to preserve the body after which he returned to the police station and informed the SHO regarding the developments relating to the death of Surender on which the SHO handed over the investigations to Inspector Dharmender Kumar. He has testified that on 08.03.2011 he along with Insp. Dharmender and SI Manohar Lal went to the jhuggi cluster at jhuggi No. E88, SS Nagar, WPIA where on the pointing out St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 41 and instance of complainant Guddu, scaled site plan was got prepared by SI Manohar Lal. The witness has also deposed that Investigating Officer Inspector Dharmender recorded his statement and relieved him. (67) The witness has correctly identified the accused Sunny @ Katu in the Court and also the case property i.e. a danda recovered at the instance of accused Sunny which danda was found slightly peeled off (chila hua) from one end which danda is Ex.5 and another danda which was got recovered by Juvenile Sanjeev which is Ex.6. (68) In his crossexamination the witness has deposed that he knew the difference between baint, bamboo and wooden danda and has voluntarily explained that baint is slightly flexible whereas wooden danda would be hard. According to the witness, he requested so many neighbors to join the investigations but as the dispute was within the neighbors none of them came forward to join investigations as such he could not found any public witness at the time of recovery of dandas. He has also deposed that accused Sunny took out himself the danda from his jhuggi and he was present inside the jhuggie at that time. He has denied the suggestion that danda was lying open and has voluntarily explained that it was lying inside the jhuggi along the wall near the door. He has admitted correct that accused Sunny was living in the jhuggi along with his parents and siblings and female members were present in the jhuggi at that time. According to the witness the jhuggi was around 10 x 12 feet having house hold articles. He has testified that he did not prepare the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 42 sketch of the dandas and states that the danda which had been got recovered by Sunny was bend from one end (thora mura hua tha aur phata hua tha). The witness has also deposed that he did not send these dandas to the autopsy surgeon/doctor for opinion.
(69) According to the witness, Shri Ram Chowk is at a distance of about 500 yards from the place of occurrence. He has admitted that Shri Ram Chowk is a crossing and has voluntarily explained that there is factory area on one side and jhuggies on the other side. The witness has also deposed that if somebody comes from the side of the jhuggie, he would not be visible from Shri Ram Chowk but if one comes from the side of factory area, he would be visible. He has also admitted that it one comes from the side of the jhuggie the person standing on the Shri Ram Chowk would not be visible. According to him, accused Sunny was standing near the liquor wend/theka which is in front of Shri Ram Chowk and has voluntarily explained that he was having his back towards the jhuggies and was facing the factory area. The witness has testified that he along with Ct. Babu Lal had apprehended Sunny and he got no chance to run away. He has also admitted that even after he was apprehended, Sunny did not offer any resistance nor he tried to escape. According to the witness, he did not stop any public witness or join any public person in the proceedings of arrest of Sunny. He has also deposed that the quarrel which took place between the accused and the complainant party was a dispute between the neighbors which took place St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 43 outside the jhuggi in the open. He has admitted that there is a railway track adjoining the jhuggi cluster and states that the distance between the railway track and the jhuggi cluster is hardly about 810 feet. According to him, the dispute/ jhagra had taken place in front of the jhuggi of the injured. The witness has also deposed that he could not find the motive of the jhagra/ dispute and has voluntarily explained that the juvenile offenders are having the history of involving themselves into such kind of local mar pitai and it appeared that even prior to his date, there was some kind of incident and hence on the date of the incident these juvenile boys along with the accused had come and started beating Guddu and when he shouted for help, who ever came to his help, they thrashed them. The witness has further deposed that he is not confirmed if Sunny has any criminal record and has voluntarily explained that accused Sunny is the friend of other juvenile who are having a criminal record. He is unable to tell if Sunny is involved in no case but has admitted that till he posted in the police station for 2 ½ years there was no complaint against Sunny to his knowledge. He has denied the suggestion that he has not investigated the case properly and fairly or that he has falsely implicated Sunny only because he was known to the juvenile accused.
(70) PW28 Inspector Dharmender Kumar is the subsequent Investigating Officer of the present case who has deposed that on 08.02.2011 further investigations of the present case was marked to him St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 44 and he recorded the statement of brother of deceased namely Pardeep and added Section 302 IPC in the present case. He has proved having prepared the inquest papers which are Ex.PW9/C, Ex.PW9/C1, Ex.PW9/C2, Ex.PW9/C3, Ex.PW9/C4 and Ex.PW9/C5 . According to the witness he recorded the statement of relatives of the deceased which are Ex.PW2/A and Ex.PW6/A and after postmortem dead body was handed over to the relative of the deceased. He has testified that Ct. Gajraj handed over the blood sample and sample seal of the deceased to him which was given by autopsy surgeon and he seized the same vide seizure memo Ex.PW20/A and same were deposited in the malkhana and he recorded the statements of the witnesses. According to him, on 14.02.2011 he deposited the MLC of the remaining injured persons in BJRM Hospital for opinion. He has deposed that on 22.02.2011 he moved an application which is Ex.PW9/C6 for obtaining the opinion on the weapon of offence and collected the opinion from the Autopsy Surgeon which is Ex.PW9/B after which he recorded the statement of Ct. Sandeep who had taken the weapon of offence to Autopsy Surgeon. According to him, on 23.02.2011 the exhibits of this case were got deposited at FSL Rohini through Ct. Satender after which he recorded the statement of Ct. Satender and MHC(M) HC Mukesh. He has also deposed that on 08.03.2011 he got prepared the scaled site plan which is Ex.PW5/A through draftsman SI Manohar Lal at the instance of SI St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 45 Naval Singh and complainant Guddu. According to the witness, thereafter he collected the results of MLC from BJRM hospital and also collected the scaled site plan and prepared the charge sheet and filed the same in the court.
(71) In his crossexamination by the Ld. Defence Counsel the witness has deposed that that the weapon of offence i.e. dandas were in a sealed condition when the investigations were marked to him. He has admitted that no sketch of the dandas were prepared by the first Investigating Officer nor any sketch was handed over to him. He has denied the suggestion that he did not send the weapon of offence i.e. dandas Ex.5 and Ex.6 to the Autopsy Surgeon for opinion. It has been observed by this Court that Ex.PW9/B which is the opinion of weapon of offences shows that one of the danda containing in parcel No. 1 was slightly bend as shown in figure 1 but the figure drawn by the doctor is neither scaled nor accurate as per the weapon and is only a rough sketch and the cut marks/scraped end has not been shown.
(72) He has denied the suggestion that the dandas produced in the court are different to the ones which were sent to Autopsy surgeon for opinion. According to the witness, he had filed the challan before the JJB against the juvenile offenders but he is not aware of the fate of the case. He is not aware whether the juvenile offenders have been convicted or acquitted. He has denied the suggestion that he has not properly investigated the case or he just follow up the investigations of SI St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 46 Naval Singh and not applied his own mind.
STATEMENT OF THE ACCUSED / DEFENCE EVIDENCE:
(73) After completion of prosecution evidence the statement of the accused Sunny @ Katu was recorded under Section 313 Cr.P.C.
wherein all the incriminating evidence was put to him which he has denied. He has stated that he is innocent and has been falsely implicated. According to him, he was not arrested in the manner as given in the memos. He has further stated that he did not make any disclosure statement and the alleged danda has been planted upon him to falsely implicate him since he was friendly terms with Hemu, Hirdesh, Anuj Rana who are the ones who had committed the offence. The accused has examined three witnesses in his defence.
(74) DW1 Smt. Sushma W/o Kali Charan has deposed that in the month of February, 2011, month he does not recollect, at about 6:00 to 7:00 PM, she along with other neighbours were sitting outside their jhuggies in front of railway track and were cooking the food, when she saw Guddu and his brother quarreling with each other. According to her, both of them were previously involved in theft of railway property and whenever anybody objected to the same they used to threaten them. She has testified that on the day of incident there was quarrel between Hemant, Rana, Hirdesh, Ann Kumar, Guddu and his brother who are all known to her being neighbours and they had seen the fight St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 47 between them and in this quarrel the brother of Guddu fell on the railway tracks after which he was shifted to the hospital and the father of accused Sunny was falsely implicated. She has testified that the police came to the area and took away father of Sunny, father of Hemant, father of Hirdesh, father of Rana and later on these boys went themselves to the police station and surrendered before the police. (75) In her crossexamination by the Ld. Addl. PP for the State the witness has deposed that she is a housewife not being employed anywhere and is residing in the area for the last about ten years with her husband. According to her, she was married when she was 16 years of age and belongs to District Etah. She has stated that the accused do not belong to her area and has explained that she knew him as neighbours and has voluntarily added that Sunny is from Aligarh, Rana is from Etah and others are from Gorahkpur and Bihar. She has admitted that she is having family relations with all these boys and has explained that she is on visiting terms with their families. The witness has also deposed that she had never made any complaint to the police with regard to the involvement of Guddu and his brother in theft of Railway properties and has admitted that even her jhuggi is also constructed on the railway land. According to the witness, her husband is involved in the job of furniture painting at Kirti Nagar in a factory. The witness has further deposed that in so far as she recollects the incident was of first but the details regarding month and year she does not recollect. She has testified that St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 48 police came to the spot at about 8 PM but she is unable to tell the number of police officials who had come to the spot. The witness has also deposed that PCR officials had only taken the family of Guddu and Guddu to the hospital but she is unable to tell the name of the hospital and has voluntarily explained that it is the same hospital where police usually takes the injured. She has admitted that she neither went to the hospital along with them nor she had ever been taken to any hospital by the police and whatever she had said is on the basis of the hear say in the area. She has also deposed that she was sitting outside her jhuggi and cooking her meals and the distance between her and the place of quarrel was about twothree jhuggies. She has admitted that at the time of incident there was no electricity and has voluntarily explained that now there is electricity in the area but at that time there was no electricity. The witness has also admitted that there is no electricity pole around the railway track. According to her, the houses of Guddu, Ann Kumar, Hemant and Hirdesh are very far away from her house i.e. the same distance from this court to road outside this court whereas the house of Rana is situated after two houses of her house. She has testified that she could only see the house of Rana from her jhuggi as it is situated two jhuggis away and in so far as the Jhuggi of Guddu is concerned in case they come to Railway line, the same is visible and not the jhuggies of Ann Kumar, Hemant and Hirdesh. According to her, only the father of Sunny was lifted in her presence but not the family members of the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 49 others i.e. Guddu, Ann Kumar, Hemant Hirdesh, and Rana and has voluntarily explained that father of Sunny had made a telephone call from the police chowki and informed at his house that other had also been lifted and that is how she came to know about the same. She has admitted that she has no personal knowledge about the same and she has stated on the basis of what was told to her. She has also admitted that she personally did not see the telephone call being received from the father of Sunny at his house and has voluntarily explained that she was told about it when she was sitting outside her jhuggi which is near the jhuggi of Sunny. According to her, Sunny, Hemant, Hirdesh and Rana did not surrender in the police station in her presence and has voluntarily explained that she only came to know of it. She has testified that she made no complaint to any senior police officer or to any authority regarding the lifting of the family members of the accused or regarding surrender of the accused in the police station or their false implication by Guddu and his family. She has denied the suggestion that being closely associated with the accused and their family members she has deposed falsely to save them from penal consequences.
(76) DW2 Sh. Netrapal is also a resident of the area who has deposed that in the month of February, 2011, date he does not remember, there was a quarrel between Guddu, Ann Kumar, Hirdesh, Hemant and Surender and they were having a physical altercation at the railway St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 50 lines. According to the witness they were not carrying any arms and during the quarrel Surender fell down on the railway line and was rushed to his jhuggi after which he is not aware what happened. He has also deposed that the said boys were involved in theft of railway property and Sunny used to stop them and objected to the same due to which they were inimical to him as he used to threaten them to inform the police and they in turn used to threaten him.
(77) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he is a shopkeeper having a beeri cigarette khokha which he had put in the jhuggi cluster only. According to the witness he is residing in the area for about 20 to 22 years and is known to the family of Sunny for the 1012 years being a neighbour but he is not on visiting terms with them. He has testified that the jhuggi of Sunny is at a little distance from her house and at the time of incident he was going to attend the call of nature on the railway lines and that is why he could see the quarrel at a distance of 20 to 25 feet. According to him, he did not stop these boys from quarreling. He has testified that there were other persons only who were present at the spot but he is unable to tell their names. The witness has also deposed that he had never gone to the police station to inform any senior officer regarding false implication of Sunny by these boys on account of their inimical background with him as he used to object to their illegal behaviour of committing the theft of railway property. He has further deposed that he had come to the court St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 51 with the family of Sunny and at their instance but has denied the suggestion that he has deposed falsely on their tutoring and has voluntarily explained that whatever he had seen, he had stated. (78) DW3 Smt. Shakuntala is a resident of the same area. She has deposed that Guddu and his brother Surender along with three four other boys were involved in theft of railway property to which they all including Sunny used to object on which these boys became inimical to him. According to her, on 2.2.2011 it was a Wednesday when at about 7 PM these boys were quarreling with each other on the railway lines and were having physical altercation without any weapons. She has testified that there was a train coming and in this process Surender fell down on the railway track and sustained injuries. The witness has further deposed that at that time Sunny and his father were not at home and she was sitting outside her jhuggi situated on the railway line at that time and could see the quarrel which was taking place at the railway line. She has also deposed that Sunny was later on falsely implicated in the present case and father of Sunny had been taken by the police and Sunny surrendered later.
(79) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that she was at a distance about 4050 feet from the spot where the quarrel was taking place and has voluntarily explained that her jhuggi is situated near the railway line. She has St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 52 further deposed that nobody stopped these boys from quarreling from each other. According to her, the Jhuggi of Sunny is situated one juggi away of her jhuggi and jhuggi of Rana is also one jhuggi away of her jhuggi whereas the jhuggi of Guddu and his deceased brother is situated after four five jhuggies. She has testified that initially she was working in the kothis and at the time of incident she was working in a factory. The witness has also deposed that she used to go in the morning at 9 AM and returned 9 PM but Wednesday was a holiday and has voluntarily explained that the date of incident was also a Wednesday and hence she was at home. According to her, father of Sunny had been taken by the police in her presence and Sunny was taken by the police later on the same day on which his father was taken. She has testified that she had never gone to the police station to inform any senior officer regarding false implication of Sunny by these boys on account of their inimical background with him as he used to object to their illegal behaviour of committing the theft of railway property. She has denied the suggestion that she was not present at Railway lines as claimed by her. FINDINGS:
(80) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the memorandum of arguments filed by the parties and the evidence on record. My findings are as under:
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 53
Medical Evidence:
(81) Dr. R.S. Mishra (PW23) has proved the MLC of Surender (deceased) which is MLC Ex.PW9/C4 according to which on local examination, a lacerated wound was present at occipital region (Y shaped 2 cm x 1cm x 2cm).
(82) Dr. Bhim Singh (PW9) has proved having conducted the postmortem examination on the dead body of the deceased Surender on 08.02.2011 vide report Ex.PW9/A according to which there were following external injuries on the body of the deceased:
1. Stitched wound over left occipital region Y shaped with swelling.
2. Infected wound over right lower lip of 1 cm x 0.5 cm.
3. Scabbed brownish abrasion of 1 c x 1 c over left shoulder.
(83) He has proved having opined that the death was due to coma consequent upon head injury via injury no.1, all injuries were antemortem and could be caused by blunt object and Injury no.1 was sufficient to cause death in ordinary course of nature. The witness Dr. Bhim Singh has proved having given his subsequent opinion on the weapons of offence which opinion is Ex.PW9/B according to which the injuries mentioned in PM report No.145/11 dated 08.02.2011 on the body of Surender the injury No.1 could be possible by the weapons i.e. wooden dandas. In his cross examination Dr. Bhim St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 54 Singh has deposed that the Injury No.1 could be on account of fall on a blunt object.
(84) Dr. Manoj (PW10) has proved the MLC of injured Guddu which is Ex.PW10/A according to which there was a swelling on left forearm and after examining the report of radiologist Dr. Shipra Rampal, Xray no.325 dated 2.2.11 showing the fracture ulna, he opined the nature of injury as Grievous. The witness has also proved the MLC of injured Kamlawati which is Ex.PW10/B according to which there was swelling over right hand and swelling over left forearm and after examining the report of the Radiologist Dr. Shipra Rampal, Xray no. 329 dated 2.2.11 showing no bone injury, he opined the nature of injury as Simple. Dr. Manoj has further proved the MLC of injured Pradeep which is Ex.PW10/C and after examining the report of radiologist Dr. Shipra Rampal, Xray No.327 dated 2.2.11 showing no bone injury, he opined the nature of injury as Simple. In his crossexamination the witness Dr. Manoj has explained that the injuries received by Guddu vide Ex.PW10/A could be caused due to fall or assault or even in Road Traffic Accident.
(85) Further, Dr. R.S. Mishra (PW23) has proved the MLC of Ram Gyan S/o Swaminath which is Ex.PW23/A according to which on local examination abrasions over left forehead just above left eye brow and abrasions over left cheek just lateral and below left eye were found, St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 55 which injuries were opined as Simple in nature. He has also proved the MLC of Kamlawati w/o Sabhapati which MLC is Ex.PW23/B according to which on local examination, swelling over left hand and swelling over left forearm was found which injuries were Simple in nature. Dr. R.S. Mishra has proved the MLC of Pardeep S/o Sabhapati which MLC is Ex.PW10/C according to which there were following injuries on the person of Pardeep:
1. Tenderness present over chest.
2. Laceration wound present over parietal region.
3. Tenderness present over right shoulder.
4. Tenderness present over left thigh
5. Laceration over right parietal region 3cm x .5 cm approximately.
(86) In his crossexamination Dr. R.S. Mishra has deposed that the injures on the person of Ram Gyan and Kamlawati are possible due to fall on hard surface.
(87) The above medical evidence on record confirms the presence of witnesses Guddu, Pradeep, Kamlawati and Ram Gyan at the spot of the incident. The evidence on record also shows that four of the accused in the present case are juveniles and are facing separate trial before Juvenile Justice Board. Before the Juvenile Justice Board and even before the Court the public witnesses have confirmed that they were six in number whereas the accused persons were five in numbers out of St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 56 which four are juveniles (who had even received injuries). Before the Juvenile Justice Board a specific suggestion has been put to the witness Pradeep with regard to the fact that even the juveniles had received injuries in the incident. The medical evidence confirms the quarrel at the spot a fact which even the Defence Witnesses i.e. Smt. Sushma (DW1), Netrapal (DW2) and Smt. Shakuntala (DW3) have admitted. (88) In so far as the medical evidence on record is concerned, firstly it establishes that there are only three wounds on the body of the deceased Surender one of which was a lacerated wound on the occipital region, other is a cut on the lip and third is an abrasion over left shoulder and as per the opinion of the doctors all the three injuries are possible on account of a fall on the hard surface thereby defeating the claims made by the family of the deceased of the use of cane/ Baint on the deceased Surender by the accused Sunny @ Katu. Secondly the fatal injury received by deceased Surender is a Y shaped lacerated wound at occipital region 2 cm x 1cm x 2cm, confirming that this injury was not on account of the blow by a baint / Cane Ex.5. Rather, the nature of injury particularly its shape i.e. Y Shape confirms that it was on account of a fall on the Railway Track (as claimed by defence witnesses). Thirdly both Dr. Manoj (PW10) and Dr. R.S. Mishra (PW23) have proved that the injuries on the body of Guddu were Grievous (i.e. Fracture of Ulna), on the bodies of Kamlawati, Pradeep and Ram Gyan were Simple and Dr. Manoj does not rule that the injuries received by St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 57 Guddu could be on account of fall or even a Road Traffic Accident and Dr. R.S. Mishra has explained that the injures on the person Ram Gyan and Kamlawati are possible on account of a fall on a hard surface. Lastly, the Autopsy Surgeon Dr. Bhim Singh has also conceded that the injuries present on the body of the deceased Surender (including the fatal injury no.1) could have been caused on account of a fall on a blunt object.
(89) This being the background, I hereby hold that the medical evidence on record is not compatible to the case of the prosecution in so far as the allegations made against the accused Sunny @ Katu is concerned. It does not confirm that the injuries received by Guddu, Pradeep, Ram Gyan and Kamlawati and also the death of Surender caused on account of the injuries present on his body, was on account of the danda blows inflicted upon them. The nature of the injuries and their positioning on the various parts of the bodies as discussed herein above are not compatible to the prosecution version. Rather, on the other hand they are compatible to the version put forward by the defence that during the quarrel and fight which took place between both the parties Surender had fallen down on the railway tracks and become unconscious and this stands confirmed from the medical evidence which has come on record. I further hold that the medical evidence also does not rule out that the injuries present over the bodies of Kamlawati, Ram Gyan and Guddu could be possible on account of a fall on the hard surface. St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 58 (90) Hence under the given circumstances the medical evidence does not conclusively establish that the injuries present on the body of the deceased Surender and on the bodies of the injured Kamlawati, Ram Gyan, Pradeep and Guddu could have been caused by the weapon of offence i.e. cane / Baint Ex.5.
Forensic Evidence:
(91) Sh. Indresh Kumar Mishra (PW1) Senior Scientific Officer, Biology, FSL Rohini has proved the Biological and Serological Reports which are Ex.PW1/A and Ex.PW1/B respectively according to which blood of 'B' Group was found on Ex.1a (shirt of the deceased) and Ex.1b (Baniyan of the deceased) and human blood was detected on Ex.1c (jeans pants of the deceased) and Ex.3 (blood gauze). However, blood was not detected on the weapons of offence i.e. the danda / cane Ex.5 (recovered at the instance of accused Sunny @ Katu) and does not connect the said weapon i.e. cane / Baint to the alleged offence.
(92) This being the background I hereby hold that the Forensic Evidence on record does not help the prosecution in any manner.
Ocular Evidence / Allegations against the accused:
(93) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 59 truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies. (94) The case of the prosecution is that 02.02.2011 at about 6:00 or 6:30 PM the accused Sunny along with his associates Sanjeev, Anuj, Hemant @ Hemu and Hardesh (all juveniles) came to the jhuggi of Surender (deceased) i.e. Jhuggi No. E88, SS Nagar, Wazirpur Industrial Area near Railway Lines duly armed with Dandas and started beating Surender and Guddu with the Dandas as a result of which Surender sustained head injuries. Guddi tried to save himself with his arm in which process he sustained injury on his left hand and his mother Kalawati, brother Pradeep and neighbour Ram Gyan also tried to save them but they were also given beatings by the accused Sunny @ Katu and his associates as a result of which Kamlawati sustained injuries on her head and hand, Pardeep sustained injuries on his head and Ram Gyan sustained injuries on his forehead. The entire case of the prosecution is based upon the testimonies of the injured / complainant Guddu (PW4) who is the brother of the deceased Surender; Ram Gyan (PW21) a neighbour and related to the deceased; Pradeep (PW14) brother of the deceased Surender and Smt. Kamlawati (PW24) the mother of the deceased who had also received injuries in the incident of quarrel. St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 60 (95) Since the prosecution is placing its heavy reliance on the testimonies of Guddu, Ram Gyan, Pradeep and Kamlawati hence it is necessary for this Court to determine whether what they have stated in the Court is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care.
Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 61 performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(96) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965). (97) Applying the settled principles of law to the facts of the present case, at the very Outset I may observe that the accused Sunny has been specifically named in the first complaint made by Guddu which is Ex.PW4/A on the basis of which the FIR was registered and his name finds a mention in the FIR. It is this which lends authenticity to the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 62 claims of the complainant / prosecution and there is no reason to doubt his presence at the spot at the time of the incident.
(98) Secondly Sunny has also been correctly identified in the court by Guddu, Kamlawati, Pradeep and Ram Gyan all injured in the incident as one of the assailant who had come to the house of Guddu and inflicted injuries on Guddu, Pradeep, Surender, Kamlawati and neighbour / relative Ram Gyan. The fact that witnesses Guddu (PW4), Ram Gyan (PW21), Pradeep (PW14) and Smt. Kamlawati (PW24) have all received injuries in the quarrel not only establishes their presence at the spot but also there is no reason to disbelieve their testimonies. In this regard, I may observe that the testimony of an injured witness has its own efficacy and relevancy. The fact that the witnesses sustained injuries on their bodies would establish their presence at the place of occurrence and the fact that they have seen the occurrence by themselves [Ref.: Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual attack. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eyewitness are natural witnesses and they could not have concocted baseless case against accused. Merely because injured eyewitnesses are members of one family and close relatives of the deceased there is no ground to reject their evidence. (Ref.: AIR 2003 SC 344). Further, in the case of State St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 63 of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness have greater evidentiary value, unless compelling reasons exist.
(99) Thirdly in so far as the incident of quarrel is concerned the same has not been disputed. Even the accused Sunny @ Katu in his statement under Section 313 Cr.P.C. admits the same but stated that the quarrel had taken place between the juvenile accused and the family of the complainant in which he has nothing to do and he has been falsely named and implicated on account of the fact that the family of the deceased was inimical to him as Guddu and his brother Surender used to indulge into theft of Railway property about which he (accused Sunny) frequently objected and made complaints to various authorities. This defence however does not appear probable. The accused Sunny has not placed on record any evidence in the form of documents to show that he has been making a complaint to the police against the complainant and his family previously on account of which they became inimical to him. (100) Fourthly the Ld. Defence Counsel has tried to raise a defence that the accused Sunny @ Katu was not present at the spot and has been falsely implicated on account of the fact that he was having a previous dispute with the complainant who was involved in the incident of theft of railway property and accused Sunny had been making complaints to the police as a result of the complainant became inimical St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 64 to him. In this regard, I may observe, that the only evidence on record is the oral testimonies of neighbours i.e. Sushma (DW1), Netrapal (DW2) and Shakuntala (DW3) who have came up with this story for the first time in the Court. Not even one of them have at any point of time made any complaint regarding the false implication of the accused Sunny in the present case either to the police or to the Court or to any other authority. However, it is evident that they are all having their Jhuggies adjoining the spot of the incident and near the Railway Lines. Hence, it is only natural that in the evening they would have witnessed the incident of quarrel which they have proved. Even otherwise, the accused Sunny @ Katu does not dispute the incident when the incriminating evidence was put to him while recording his statement under Section 313 Cr.P.C. and his only defence is that the incident had taken place with the juvenile accused i.e. Hemu, Hardesh, Anuj and Rana and he was apprehended because he was friendly to these boys. The relevant portion of his reply to Question 53 is as under:
"..... I am innocent. I have been falsely implicated. I was not arrested in the manner as given in the memos. I did not make any disclosure statement. The alleged danda has been planted upon me to falsely implicate me. I was friendly with Hemu, Hirdesh, Anuj and Rana and they were the one's who had committed the offence. The police apprehended and involved me in the present case only because I was friendly with those persons...."
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 65
(101) Fifthly Bhupender (PW16) the son of injured Ram Gyan has not supported the case of the prosecution. He is a witness who has deposed on the basis of hearsay and has claimed that he reached the spot much later when he heard the noise of 'Bachao Bachao' and it was Guddu who told him that accused Sunny and his other associates had given beatings to them and the deceased.
(102) Sixthly there are material contradictions in the testimonies of the various eye witnesses. In so far as witness Pradeep (PW14) is concerned before the Juvenile Justice Board vide his statement Ex.PW14/DX1 and also in his first statement given to the police, he claimed that he became unconscious on account of being hit by dandas and regained his consciousness much later and therefore he has not been able to tell the details regarding the incident and how much time the incident had taken place whereas before the Court he made material improvement in his testimony to the effect that Sanjeev and Rana inflicted iron blow on his head whereas the accused Sunny @ Katu was having a saria in his hand. This is totally contradictory to the testimonies of the other eye witnesses / injured namely Guddu (PW4), Ram Gyan (PW21) and Smt. Kamlawati (PW24) who claimed that all the boys / assailants were armed with dandas and as per the case of the prosecution what has been got recovered by the accused Sunny @ Katu is a wooden danda i.e. a Baint and not a saria danda. Therefore, not much reliance can be placed on his testimony. In so far as St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 66 Ram Gyan (PW21) and Kamlawati (PW24) are concerned they have both sustained injuries in the incident thereby establishing their presence at the spot at the time of the incident. They have claimed that the boys who had come to the spot were five in number out of which four were juveniles whereas they were six in number, showing that there was a sudden quarrel and a free fight which took place between both the parties as a result of which they sustained injuries (as confirmed from the medical record).
(103) Lastly I may observe that the Investigating Officer has not placed on record the PCR Form which would have confirm the nature of call received by the police at the first instance. However, DD No.32A which is Ex.PW7/A shows that a call received by the Control Room was relating to a quarrel at A7, WPIA Near Shiv Mandir Jhuggies and hence the possibility of the defence version that there was a free fight between both the parties cannot be ruled out.
(104) This being the background, I hereby hold that it is not disputed that there was a quarrel between the juveniles and injured/ deceased and fight between them which is also the admitted case of the accused Sunny @ Katu who is only disputing his presence at the spot. Further, the Ocular Evidence on record conclusively establishes the presence of accused Sunny @ Katu at the spot of the incident at the time of the incident which is the Jhuggi cluster adjoining the railway lines where the accused and also the injured and deceased reside. The St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 67 evidence on record confirms the presence of the accused Sunny at the spot and from the evidence on record it has emerged that this quarrel was between the family of the deceased i.e. Guddu (PW4), Ram Gyan (PW21), Pradeep (PW14), Smt. Kamlawati (PW24) and Surender (deceased) on the one side and Sunny @ Katu and some other boys on the other side in which Guddu, Ram Gyan, Pradeep, Kamlawati and Surender received injuries.
(105) Coming now to the aspect whether the provisions of Section 302 or 304 IPC would apply. In this regard, I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 68 selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 69 in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported in 2008 (11) SCC 97].
(106) The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 Indian Penal Code. (Ref.: Daya Nand Vs. State of Haryana reported in AIR 2008 SC 1823).
(107) Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 70 accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Indian Penal Code. Note: All murders are culpable homicide but not viceaversa. (Ref.: State of A.P. Vs. Rayavarapu Punnayya reported in AIR 1977 SC 45). (108) It is submitted by the Ld. Defence Counsel that the neither the provisions of Section 302 IPC nor 304 IPC would apply since the deceased Surender had received the fatal injury on account of the fall whereas the plea of the Ld. Addl. Public Prosecutor is that the manner in which the accused Sunny @ Katu and his Juvenile associates had come to the jhuggi of the deceased duly armed with dandas, is indicative of his St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 71 intent to cause death of the deceased Surender.
(109) In this regard I may observe that for bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. While in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 72 more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 73 undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage. (110) Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. [Ref.: Golla Yelugu Govindu Vs. State of Andhra Pradesh reported in 16 (2008) SCC 769]. (111) To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of selfcontrol but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by courts that a fight is not perse palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 74 gap is not sufficient, the accused may be held entitled to the benefit of this exception. [Ref.: Sukhbir Singh Vs. State of Haryana reported in 2000 (3) SCC 327: AIR 2002 SC 1168 followed by our own High Court in the case of Manoj Kumar & Ors. Vs. The State in Criminal Appeal No. 638/2009 decided on 27.3.2012].
(112) Applying the settled principles of law to the facts of the present case, it is evident that the medical evidence shows that only one injury had been caused to the deceased i.e. lacerated wound at occipital region (Y shaped 2 cm x 1cm x 2cm) which proved fatal to him. The deceased had expired after five days of the incident and remained in Coma throughout. It has been established that the incident of quarrel took place in front of the Jhuggi of the deceased which is hardly a few feet away from the Railway Lines. Rather, the entire Jhuggi cluster where the accused including Juveniles are residing, is an unauthorized cluster situated on the land of the Railways. Further, it is evident from the site plan that the Jhuggi of both the deceased Surender and also the accused Sunny @ Katu are just in front of the Railway Lines though at a little distance from each other. Witnesses of the prosecution and also of the defence have admitted this fact and most of the time the residents of the Jhuggi's which include both the injured/ deceased and also the accused used to be present around the railway lines. The Autopsy Surgeon Dr. Bhim Singh (PW9) does not rule out the injury to have been caused on account of a fall on blunt object. I may note that the fatal St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 75 injury which is Injury No.1 is a Y Shape injury and if it had been caused by a danda (Ex.5) blow the same would not have been Y shaped. Rather the shape of the injury suggests that it was caused when the deceased fell on some blunt surface probably a corner confirming that during the quarrel / fight which took place between the injured (six in numbers) on one side and the accused and his juvenile associates on the other side, the deceased Surender fell down on the railway tracks as a result of which he received a Y shaped injury on the occipital region being hit by the corner of the wooden plank of the railway track because there are corresponding injury on the lift shoulder and right lip with no other injuries on the entire body. If what had been stated by the eye witnesses that the deceased Surender was being repeatedly hit by the dandas on his head was correct, the medial record should have reflected such injuries, which is not the case. Rather, on the contrary the theory of the deceased having received the fatal injury on account of fall on blunt surface during the sudden quarrel which took place between the parties wherein the mother, brothers and neighbour of the deceased received injuries, appears to be probable and convincing. It is settled law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted [Ref.: Bhagwan Singh & Anr. Vs. State of MP reported in 2002 (4) SCC 85; State of Rajasthan Vs. Raja Ram reported in 2003 (8) SCC 180; State of Goa vs. Sanjay St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 76 Thakran reported in 2007 (3) SCC 755].
(113) This being the background, I hereby hold that it is apparent from the evidence on record that the accused Sunny @ Katu had not taken any undue advantage nor he acted in a cruel manner. There is only one injury on the forehead of the deceased with no other corresponding injury showing the use of danda on him. It also does not conclusively establish that the fatal head injury could have resulted upon the deceased Surender after being hit by the accused Sunny @ Katu with a Baint / Cane Ex.5. It also does not stand conclusively established that the death of the deceased was a direct result of the act of the accused Sunny @ Katu. However, it does stand established that the accused Sunny @ Katu was present at the spot at the time of the incident along with his other associates (alleged juveniles).
(114) This being the background, I hereby hold that the prosecution has not been able to prove and substantiate the necessary intent and knowledge as provided under Section 299 Indian Penal Code to commit the murder of Surender and hence the accused Sunny @ Katu is acquitted of the charge under Section 302 Indian Penal Code but hold him guilty of lesser charge under Section 325 Indian Penal Code (being covered under Clause Eighthly of Section 320 IPC) for causing Grievous injuries upon the deceased Surender which injuries were received by him when he fell on the tracks in the fight which took place outside his house with the accused Sunny and other assailants on one St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 77 side and the deceased and his family (i.e. Six persons) on the other side. He is also held guilty of causing Grievous hurt to the injured Guddu (the injured Guddu having identified him as the assailant) and I hold that the charge against him under Section 325 Indian Penal Code stand established. Further, in respect of the Simple injuries caused to injured Kamlawati, Pradeep and Ram Gyan the accused Sunny @ Katu is hereby held guilty of the offence under Section 323 Indian Penal Code. Common Intention / Motive not established beyond reasonable doubt:
(115) The case of the prosecution is that the accused Sunny @ Katu along with others in furtherance of their common intention caused death of Surender by giving him beatings with dandas and baseball bats.
Further, it has been alleged that the accused Sunny @ Katu along with others assaulted Guddu and caused grievous hurt to him and also assaulted Kamlawati, Pradeep and Ram Gyan and caused simple hurt to them. The Ld. Defence Counsel has vehemently argued that there is nothing on record to show the common intention shared by the accused Sunny @ Katu along with others. However, in so far as the Motive of the crime is concerned, the prosecution does not attribute any motive to the accused.
(116) Now, it has to be seen whether Section 34 Indian Penal Code is attracted or not. In this regard I may observe that Section 34 has been enacted on the principal of joint liability in the doing of a criminal St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 78 act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 79 have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793 and reference in this regard is also being made to the case of decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna. St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 80 (117) Applying the settled principles of law to the facts of the present case it is evident that there is ample material on record to prove that all the accused Sunny @ Katu shared common intention with others. It is evident from the testimonies of the various eye witnesses / injured Guddu (PW4), Ram Gyan (PW21), Pradeep (PW14) and Smt. Kamlawati (PW24) that the accused had come to the spot along with others duly armed with wooden dandas / Baints (Canes). I may observe that as already discussed herein above, the deceased Surender had not received any injury by the danda. Rather, it has been established that during the quarrel Surender fell down on the corner of the wooden plank of the railway track on account of which he received a Y shaped lacerated wound on his occipital region. Even otherwise, no fatal injuries could have been caused by the wooden Baint / cane though in a free fight, injuries i.e. either Simple or Grievous could be caused by the said wooden cane / baint Ex.5 depending upon the manner and the place where it is inflicted.
(118) The evidence on record confirms that both the deceased / injured and so also the accused Sunny @ Katu are residents of the same area and their presence at the spot together at the same time is natural and probable. The place of incident is not inside the Jhuggi of the deceased but outside which is just about a few feet away from the railway track. The evidence on record only confirms the presence of the accused Sunny @ Katu with his associates and the nature of injuries the various St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 81 injured i.e. Surender, Guddu, Kamlawati, Pradeep and Ram Gyan do not indicate that there was any intent to cause death of any person nor any knowledge can be attributed to them. Rather, the evidence on record as it unfolds only shows that in the fight which took place none of the injuries were on the vital parts of the victims and except for Guddu and Surender all others had sustained only Simple injuries. Dr. R.S. Mishra has also in his deposition before the Court does not conclusively confirm that injury on the body of Guddu or even Pradeep and Ram Gyan were possible due to a fall. I am sure in case if dandas and baseball bats would have been used as alleged by the victims, the injuries could have been worse. The nature of injuries as reflected in the MLCs and the part of the body where they are found to be present do not confirm the use of the dandas, baseball bats and iron sarias as alleged. It is natural for the witnesses being aggrieved by the death of a near one to aggravate the charges against the accused but the Court is not required to be swayed by emotions and has to be lead by the evidence which has come on record. Hence, I hereby conclude that the prosecution has not been able to establish a prior meeting of mind or that the accused had acted in consortium with others beyond reasonable doubt. Also, neither the prosecution nor any of the witnesses have attributed any Motive for the crime nor any evidence in this regard has been adduced in the Court. (119) This being the background, I hereby hold that the prosecution has not been able to prove and establish that the accused St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 82 Sunny @ Katu along with his other associates had shared common intention and acted in consortium while inflicting injuries to Guddu, Pradeep, Ram Gyan and Kamlawati and Surender.
Discrepancies and Contradictions:
(120) Ld. Defence Counsel has pointed out the various discrepancies and contradictions in the testimonies of the prosecution witnesses which are as under:
➢ That initially the case of the prosecution was that the accused Sunny @ Katu along with his associates (juveniles) went inside the Jhuggi of the deceased Surender and caused injuries to him, his mother Kamlawati, his brothers Guddu & Pradeep and Ram Gyan who is their next door neighbour and also related to Kamlawati (as admitted by Kamlawati).
➢ However, before the Juvenile Justice Board none of the eye witnesses i.e. Guddu, Pradeep, Ram Gyan and Kamlawati have named the accused Suuny @ Katu as the person who had caused injuries to the deceased.
➢ That different roles have been attributed to the accused and his juvenile associates since Pradeep (PW14) in the deposition before the Court has stated that Sanjeev and Rana (Juveniles) inflicted iron blow on his head whereas the accused Sunny @ Katu was having a saria danda in his hand whereas Ram Gyan (PW21) has St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 83 stated that Sunny, Rana, Hema, Anu and Hardev had given beatings to him and Surender with lathis. On the contrary according to Kamlwati (PW24) has stated that accused Sunny @ Katu and Sanjeev @ Rana (juvenile) were having dandas in their hands and Hemant @ Hemu, Hardesh and Anuj @ Anu Kumar (juveniles) were giving beatings to Surender and Guddu with leg and fist blows and with dandas and also gave beatings to her by danda and leg and fist blows.
➢ That according to Ram Gyan (PW21) the police recovered two three dandas / sticks from the spot whereas none of the other witness has stated in this regard.
(121) Apart from the above contradictions in the testimony of the eye witnesses, Ld. Defence Counsel has also pointed out the discrepancies in the testimonies of the police witnesses with regard to the time and place.
(122) On the other hand, the Ld. Addl. PP for the State has argued that the contradictions and discrepancies pointed out by the Ld. Defence Counsel are minor and will not be fatal to the prosecution case. (123) I have considered the rival contentions and I may observe that in the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Hon'ble Supreme Court that: ".....In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 84 may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial......"
(124) Further, in the case of Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : ".......It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...."
(125) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 85 Also, in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(126) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(127) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 86 AIR 2009 SC 3690).
(128) Applying the settled principles of law to the facts of the present case, coming first to the contradiction with regard to the place of incident. It stands established from the testimonies of all the eye witnesses i.e. Guddu (PW4), Ram Gyan (PW21), Pradeep (PW14) and Kamlawati (PW24) that the incident had taken place outside the Jhuggi which is hardly about a few feet in front of the railway lines. Further, in so far as the presence of the accused Sunny @ Katu at the time of the incident is concerned, the same stands established. All the eye witnesses have specifically stated before the Juvenile Justice Board that there was an adult boy with the juveniles and the accused Sunny has been duly identified by them in the Court. The accused has been named in the FIR. All the eye witnesses are the family members / related to the deceased Surender and had also received injuries in the incident and hence as already observed herein above, their testimonies with regard to the presence of accused Sunny @ Katu at the time of the incident cannot be disbelieved. The discrepancies so pointed out by the Ld. Defence Counsel qua the statement of the witnesses before the Juvenile Justice Board are not material and even otherwise, there is an explanation forthcoming to the same. The witnesses before the Juvenile Justice Board were not asked to specify the role of the accused and therefore they did not name the accused Sunny @ Katu.
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 87 (129) Coming next to the aspect of weapons of offence, of course, there exists some material contradictions, yet I may mention that no observation is required to be made by this Court in so far as the juveniles are concerned. In so far as the accused Sunny @ Katu is concerned the witnesses Guddu (PW4), Ram Gyan (PW21) and Kamlawati (PW24) who had all sustained injuries are unanimous and claimed that he was carrying a danda in his hand. It is only Pradeep (PW14) who claimed that it was a saria danda whereas others claimed that it was a wooden danda. The case of the prosecution is that pursuant to his disclosure statement Ex.PW17/A the accused Sunny @ Katu got recovered a wooden danda from inside his jhuggi which danda was found to be 29 inch in length after which it was seized vide memo Ex.PW4/D. The said danda Ex.5 has been identified by the various eye witnesses i.e. Kamlawati, Ram Gyan and Guddu (as the same danda with which Sunny was causing injuries at the time of the incident). The police witnesses in whose presence the recovery was effected have also proved the recovery. I may note that though it is claimed that the injuries had been caused upon the deceased and Guddu with the help of this danda Ex.5 which is actually a cane i.e. a Baint and under no circumstances this weapon can be terms as dangerous or capable of causing injuries resulting into death of the deceased but could have caused Grievous injuries. Also, no blood stains have been found on the same and the Forensic Evidence does not support the prosecution case in any manner. St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 88 Even the medical evidence does not support the prosecution case. Dr. Bhim Singh (PW9) has specifically opined that the injury on the occipital region of the deceased on account of which death has been caused, can be possible on account of fall on blunt surface. Further, in so far as the Grievous injury (i.e. fracture ulna) caused to Guddu the same can also be on account of fall or even a Road Traffic Accident but the possibility of assault also has not been ruled out. (130) In so far as the other discrepancies as pointed out by the Ld. Defence Counsel in the testimonies of the various public witnesses are concerned, I may mention that the powers of observation differ from person to person and what one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. They were so overtaken by the sudden events which they could never have anticipated, that it is not expected of them to have remembered the exact details of the spot or of the sequence of events. Under these circumstances, it is difficult to expect their mental faculties to be attuned to absorb minute details. It is also evident that the witnesses have been subjected to a sustained and exhaustive crossexamination. Given the mental conditions of the witnesses and the piercing crossexamination made by Ld. Defence counsels and the Court atmosphere, the possibility of their getting mixedup with facts, get confused regarding sequence of events out of nervousness and anxiety cannot be ruled out [Ref.: Bharwada St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 89 Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1)].
(131) Further, in so far as the discrepancies in the testimonies of the various police witnesses are concerned with regard to the timings, presence of a particular police official at a particular time, storeys of the house of the accused etc., I am of the considered view that the same are too immaterial and irrelevant as it is the evidence of the witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigation including going of the police officials to the house of the accused etc. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same do not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation (Ref. Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436). I may note that the accused does not dispute the incident of quarrel and his only defence is that the said incident had taken place between the victims and the other juvenile accused but he has been falsely implicated only on account of his intimacy with the juveniles which argument and defence has not found favour with this Court as already discussed herein above. This being the background, I hereby hold that the contradictions and St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 90 discrepancies in the testimonies of the police officers in the investigating team so pointed out by the Ld. Defence Counsels would not be fatal to the prosecution case.
FINAL CONCLUSIONS:
(132) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 91
(133) Applying the settled principles of law to the facts of the present case, on the basis of the testimonies of the witnesses and other evidence on record the following aspects stand established:
➢ That the complainant Guddu was residing at E88, Shahid Sukhdev Nagar, Wazirpur Industrial Area, Delhi along with his brothers Surender and Pradeep and their mother Smt. Kamlawati. ➢ That the said jhuggi cluster is situated just near (about few feet) the Railway Track.
➢ That Ram Gyan a relative to Smt. Kamlawati was also residing in the adjoining jhuggi.
➢ That on 2.2.2011 at about 6:006:30 PM when accused Sunny along with his juvenile associates (Jitu Rana, Hemu, Hardesh and Anay Kumar) came to his jhuggi duly armed with Dandas. ➢ That there was a quarrel / free fight between the accused and his four associates on the one side and Surender, Guddu, Pradeep, Ram Gyan and Kamlawati (total six in number) on the other side. ➢ That in the quarrel and fight which followed Guddu received Grievous (fracture of ulna) and Pradeep, Ram Gyan and Kamlawati received simple injuries.
➢ That during the quarrel Surender fell down on the railway track and was hit by the wooden plank of the railway track on which he received a Y Shaped lacerated wound on his occipital region and became unconscious.
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 92 ➢ That thereafter the assailants ran away from the spot. ➢ That Guddu made a PCR Call on which police came to the spot and removed all the injured to BJRM Hospital.
➢ That injured Surender was referred to Trauma Center whereas the other injured were medically examined at BJRM Hospital. ➢ That HC Jetha Ram reached Trauma Center where he met Guddu and recorded his statement on the basis of which the present case was registered.
➢ That during investigations on 3.2.2011 the accused Sunny @ Katu was apprehended from Shri Ram Chowk on the pointing out of complainant Guddu after which the accused was arrested. ➢ That pursuant to his disclosure statement the accused Sunny @ Katu got recovered a wooden danda from inside his jhuggi which danda was seized.
➢ That during investigations on 5.2.2011 on the pointing out of injured Pradeep the other assailants namely Annu Kumar, Hardesh, Hemant and Sanjeev were apprehended who all were juveniles.
➢ That during treatment on 7.2.2011 the injured Surender expired. (134) The medical evidence on record is not compatible to the case of the prosecution in so far as the allegations made against the accused Sunny @ Katu is concerned. The nature of the injuries and their positioning on the various parts of the bodies as discussed herein above St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 93 are not compatible to the prosecution version. Rather, on the other hand they are compatible to the version put forward by the defence that during the quarrel and fight which took place between both the parties Surender had fallen down on the railway tracks and become unconscious and this stands confirmed from the medical evidence which has come on record.
I further hold that the medical evidence also does not rule out that the injuries present over the bodies of Kamlawati, Ram Gyan and Guddu could be possible on account of a fall on the hard surface. Hence under the given circumstances the medical evidence does not conclusively establish that the injuries present on the body of the deceased Surender and on the bodies of the injured Kamlawati, Ram Gyan, Pradeep and Guddu could have been caused by the weapon of offence i.e. cane / Baint Ex.5. It also does not stand conclusively established that the death of the deceased was a direct result of the act of the accused Sunny @ Katu. The Forensic Evidence also does not support the prosecution version since no blood stains were found on the weapon of offence i.e. danda got recovered by the accused Sunny @ Katu.
(135) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 94 lapse on the part of the investigation does not negate the offence. (136) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link in so far as causing injuries to Guddu, Ram Gyan, Pradeep and Kamlawati is concerned.
(137) This being the background, I hereby hold that the prosecution has not been able to prove and substantiate the necessary intent and knowledge as provided under Section 299 Indian Penal Code to commit the murder of Surender and hence the accused Sunny @ Katu is acquitted of the charge under Section 302 Indian Penal Code but hold him guilty of lesser charge under Section 325 Indian Penal Code (being covered under Clause Eighthly of Section 320 IPC) for causing Grievous injuries upon the deceased Surender which injuries were received by him when he fell on the tracks in the fight which took place St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 95 outside his house with the accused Sunny and other assailants on one side and the deceased and his family (i.e. Six persons) on the other side. He is also held guilty of causing Grievous hurt to the injured Guddu (the injured Guddu having identified him as the assailant) and I hold that the charge against him under Section 325 Indian Penal Code stand established. Further, in respect of the Simple injuries caused to injured Kamlawati, Pradeep and Ram Gyan the accused Sunny @ Katu is hereby held guilty of the offence under Section 323 Indian Penal Code and accordingly convicted.
(138) Be listed for arguments on sentence on 4.10.2013.
Announced in the open court (Dr. KAMINI LAU) Dated: 28.9.2013 ASJII(NW)/ ROHINI St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 96 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 59/2013 Unique Case ID No. 02404R0123332011 State Vs. Sunny @ Katu S/o Amar Singh R/o Jhuggi E516, SS Nagar WPIA, Delhi (Convicted) FIR No.: 34/2011 Police Station: Ashok Vihar Under Sections: 302/325/323/34 IPC Date of Conviction: 28.9.2013 Arguments concluded on: 9.10.2013 Date of sentence: 14.10.2013 APPEARANCE: Present: Sh. Harvinder Kumar, Addl. Public Prosecutor for the State.
Convict in Judicial Custody with Sh. Girish Chander, Advocate, proxy on behalf of RCBA.
ORDER ON SENTENCE:
As per allegations on 2.2.2011 between 6:20 to 6:35 PM near Railway Line, Jhuggi No. E88, SS Nagar, Wazirpur Industrial Area St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 97 the accused Sunny @ Katu along with his coaccused Sanjeev, Anuj, Hemant @ Hemu and Hardesh (all juveniles) in furtherance of their common intention caused death of Surender by giving him beatings with dandas and baseball bats. Further, it is alleged that the accused Sunny @ Katu along with his above coaccused assaulted Guddu and caused grievous hurt to him and also assaulted Kamlawati, Pradeep and Ram Gyan and caused simple hurt to them.
However, on the basis of the testimonies of the various prosecution witnesses particuarly Guddu, Pradeep, Ram Gyan and Kamlawati and also on the basis of the medical and other circumstantial evidence on record this Court has acquitted the accused of the charge under Section 302 IPC and held guilty of lesser offence under Section 325 IPC qua the victim Surender. Further, he has been held guilty of the offence under Section 323 IPC (for causing Simple injuries to Pradeep, Kamlawati and Ram Gyan) and Section 325 IPC (for causing Grievous injuries to Guddu).
I have heard arguments on the point of sentence. The convict Sunny @ Katu is a young boy aged about 21 years having a family comprising of aged parents, one married sister, one elder and one younger brother. He is third class pass and is doing the welding work. Ld. Counsel for the convict has vehemently argued that the convict is having clean antecedents and is not involved in any other case. He prays that a lenient view be taken against the convicts. The Ld. Addl. PP for St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 98 the State on the other hand has prayed for a stern view against the convict.
I have considered the rival contentions. The maximum punishment prescribed for the offence under Section 325 IPC is imprisonment for a term which my extent to seven year and fine. Further, the maximum punishment prescribed for the offence under Section 323 IPC is either description for a terms which may extend to one year or with fine which may extend to one thousand rupees or with both. In the present case the convict is a young boy and is not involved in any other case. What has happened is most unfortunate but not intended and neither premeditated nor preplanned. In view of the above a lenient view is taken against the convict Sunny @ Katu and I award the following sentence to him:
1. For the offence under Section 323 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment for a period of One Year.
2. For the offence under Section 325 Indian Penal Code (for causing Grievous injuries to deceased Surender), the convict is sentenced to Rigorous Imprisonment for a period of Four (4) Years and fine to the tune of Rs.5,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two months.
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 99
3. For the offence under Section 325 Indian Penal Code (for causing Grievous injuries to Guddu), the convict is sentenced to Rigorous Imprisonment for a period of Four (4) Years and fine to the tune of Rs.5,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two months.
All the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him, as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one copy of order on sentence be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 14.10.2013 ASJ (NW)II: ROHIN
St. Vs. Sunny @ Katu, FIR No. 34/2011, PS Ashok Vihar Page No. 100