Delhi District Court
State vs . (1) Roshan Khan on 26 October, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 115/2012
Unique Case ID No: 02404R0293332012
State Vs. (1) Roshan Khan
S/o Nanhe Khan
R/o House No. N17C/435,
FBlock, JJ Colony, Wazirpur,
Delhi
(Convicted)
(2) Babloo
S/o Roshan Khan
R/o House No. N17C/435,
FBlock, JJ Colony, Wazirpur,
Delhi
(Convicted)
FIR No.: 171/2012
Police Station: Bharat Nagar
Under Sections: 302/307 Indian Penal Code
Date of committal to session court: 7.11.2012
Date on which orders were reserved: 24.9.2013
Date on which judgment pronounced:14.10.2013
JUDGMENT:
(1) As per allegations, on 26.7.2012 at about 8:15 AM at first floor of Jhuggi No. 17C/435, FBlock, Wazirpur JJ Colony, Delhi both the accused St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 1 Roshan Khan and Babloo along with their associate Mohd. Islam @ Bobby (since juvenile) in furtherance of their common intention inflicted knife blows on the chest of Mukhtar S/o Roshan Khan with such intention or knowledge that under such circumstances they by their act caused death of Mukhtar, they would be guilty of murder. Further, as per the allegation on the same day at about 8:30 AM on public road opposite Jhuggi No. N17c/487, FBlock, Wazirpur JJ Colony both the accused along with their associate Mohd. Islam @ Bobby (since juvenile) in furtherance of their common intention committed the murder of Mumtaz the wife of Mukhtar by giving repeated knife blows to her.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 26.7.2012 at about 8:40 AM, an information was received in the Police Station Bharat Nagar regarding a quarrel in front of F237, JJ Colony, near Bari Masjid on which SI Mohinder Singh along with Ct. Sonu reached the spot where they came to know that the PCR officials had taken the injured to BJRM Hospital. In the meantime SHO Police Station Bharat Nagar Inspector Rajender Prashad also reached the spot. On inquiry it was revealed that one injured Mumtaz W/o Mukhtar and her husband Mukhtar have been shifted to BJRM Hospital by PCR officials and the two alleged assailants Babloo and his father Roshan Khan have also been removed to BJRM hospital by another PCR officials.
The eye witness namely Brij Kishore informed the police that he is running St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 2 a grocery shop at Jhuggi No. N17C/426, F Block, Wazirpur JJ Colony, Delhi and at about 8:30 AM one Mumtaz who was residing in the nearby jhuggies came to the shop of Kishan Lal and made a call at 100 number to the effect that her husband was being beaten by her father in law and brother in laws. Brij Kishore further informed the police that after making a call at 100 number Mumtaz started waiting the PCR outside the Jhuggi No. N17C/487, Wazirpur, JJ Colony belonging to Dalip. After some time Roshan Khan (father in law of Mumtaz) and brothers in law i.e. Babloo and Bobby came and started giving beatings to Mumtaz. According to Brij Kishore, Babloo was having a knife in his hand and while Roshan Khan and Bobby caught hold of Mumtaz, Babloo gave knife blows on Mumtaz on which she fell down. He further informed the police that in the meanwhile PCR officials came to the spot on which Roshan Khan, Babloo and Bobby tried to flee away from the spot but the PCR officials apprehended Roshan Khan and Babloo after a short chase. In the meantime Mukhtar husband of Mumtaz also came to the spot and was having injuries. Another PCR Van also came to the spot after which all of them i.e. Mumtaz, Mukhtar, Roshan Khan and Babloo were taken to BJRM Hospital.
(3) Thereafter the Crime Team was called to the spot who inspected the scene of crime and Inspector Rajender Prasad reached BJRM Hospital where he came to know that Mumtaz had been declared brought dead and her husband namely Mukhtar was admitted in the hospital. The Incharge of the PCR Commander19 namely HC Jogender met the Investigating Officer St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 3 in the hospital and handed over to him a blood stained knife which had been recovered from the right hand of Babloo. The said knife was thereafter seized. The Investigating Officer made made endorsement on the statement of Brij Kishore on the basis of which the present FIR was registered. The alleged assailant namely Babloo was found admitted in the BJRM Hospital who was interrogated. Thereafter the Investigating Officer came to the spot where he lifted the various exhibits and also seized the wearing clothes of Babloo after which the accused Babloo was arrested. On the same day evening the accused Bobby (juvenile) was apprehended. (4) On 27.07.2012 brothers of deceased Mumtaz namely Firoz and Mohd. Rafiq identified the dead body of deceased Mumtaz after which the postmortem examination on the dead body of the deceased was got conducted. After the postmortem Autopsy Surgeon handed over the exhibits of the deceased to the Investigating Officer who seized the same. On the same day i.e. 27.7.2012 the accused Roshan Khan was arrested from his house and his clothes which he was wearing at the time of the incident were also taken into possession. After completion of the investigations charge sheet was filed against the accused Roshan Khan and Babloo in the Court whereas the charge sheet against the juvenile Bobby was filed before the Juvenile Justice Board.
CHARGES:
(5) Charges under Sections 302/34 and 307/34 Indian Penal Code were settled against both the accused Roshan Khan and Babloo to which St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 4 they pleaded not guilty and claimed trial.
EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Twenty Eight witnesses as under:
Public / eye witnesses:
(7) PW11 Sh. Dalip has deposed that he is residing at House No. N17C/487, F Block, JJ Colony, Wazirpur, Delhi along with his family members and he used to supply the articles for gym. According to the witness, he knew Mumtaz who was residing in their locality and also knew Kishan Lal who was having a STD shop at a distance of about 1520 paces from their jhuggi. He has further deposed that on 26.07.2012 at about 8:30 AM when he came out of his jhuggi, he saw that Mumtaz was lying in front of gate of their jhuggi and Babloo, Bobby and Roshan Khan were present there and Babloo was having knife in his hand. The witness has testified that Mumtaz was in an injured condition as she received injuries. Meanwhile he rushed inside his house to wrap himself in a towel because at that time he was in underwear and when he came out he found that Mumtaz was still lying there and the above said three persons, Babloo, Bobby and Roshan Khan had gone away from there. He has also deposed that thereafter Kishan Lal made a call at 100 number and after some time police gypsy came there and Mukhtar also reached at the spot St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 5 and then police took Mukhtar and Mumtaz from there in the gypsy.
Witness has correctly identified the accused Roshan Khan and Babloo in the Court whereas Bobby is facing inquiry before the Juvenile Justice Board. (8) Leading questions were put by Ld. APP for the State to the witness wherein he has admitted that Mumtaz was residing near their jhuggi and that Mumtaz came to the STD shop of Kishan Lal for making a call at 100 number. He has initially denied the suggestion that Mumtaz was saying at 100 number that her father in law and two devars were giving beatings to her husband and to send the police immediately but admitted that Mukhtar is the husband of Mumtaz. He denied that Mumtaz was waiting for PCR Van in front of their jhuggi or that meanwhile Roshan Khan, his son Babloo and Bobby came from the gali of inside jhuggies. He has admitted that Babloo was having a knife used for cutting vegetables. He has denied the suggestion that Roshan Khan, Babloo and Bobby started beating Mumtaz and Roshan Khan and Bobby caught hold Mumtaz and Babloo gave knife blows to Mumtaz on which Mumtaz fell down on the road and become unconscious.
(9) The witness was cross examined by Ld. Addl. PP for the State the witness has admitted that police made inquiries from him and recorded his statement on 26.07.2012. He has also admitted that he had stated to the police that on 26.07.2012 at about 8:30 AM when Mumtaz was making call at 100 number from the shop of Kishan Lal she was saying that her St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 6 father in law and two devars were giving beatings to her husband and police be sent immediately. The witness has also admitted that he had stated to the police that after making call Mumtaz was waiting for PCR van in front of his jhuggi. According to him, he had stated to the police that Roshan Khan, his sons Babloo and Bobby came out of the gali from the jhuggies and started beating Mumtaz and thereafter Roshan Khan and his son Bobby caught hold Mumtaz and Babloo gave knife blows to Mumtaz. He has further admitted that Mukhtar husband of Mumtaz also came at the spot at that time and due to knife blows Mumtaz fell down on the road and become unconscious. The witness has also admitted that meanwhile PCR Van came at the spot and after seeing the PCR van Roshan Khan and his sons Babloo and Bobby started started to move away from there. He has further admitted that police from the Police Station Bharat Nagar also reached at the spot and has voluntarily explained that whatever he had seen and heard, he had stated to the police.
(10) In his cross examination by Ld. Defence Counsel the witness has admitted that he did not see the exact incident of stabbing and that in his statement to the police he had mentioned about the incident and has voluntarily explained that when he rushed inside his house at that time Mumtaz was lying outside his house in an injured condition and when he came out he found Roshan Khan and Babloo standing there and St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 7 Babloo with a knife. According to the witness, when he went inside the house and again came out after wrapping himself with a towel, it hardly took him about two minutes and has voluntarily added that people outside were saying that Babloo had stabbed Mumtaz. He has testified that at that time about 100 to 200 public persons gathered there. He has admitted that around the spot where Mumtaz was lying, there are many jhuggies. The witness has further deposed that he was not on visiting terms with the family of Mumtaz and therefore he is unable to tell about the relationship between Mumtaz and Mukhtar. According to the witness PCR Van reached the spot after about ten minutes and the officials of PCR Van did not remain there for a long and took the injured Mumtaz immediately to the hospital. He has further deposed that he did not see the condition of Roshan Khan but he was told that he had received some stab injuries in his hand. He has testified that his statement was recorded by the police at his house itself at around 12.0012.30 PM (afternoon). Witness has also deposed that in his presence no statement of any other person was recorded. He has denied the suggestion that no knife was seen by him in the hands of Babloo. He is not aware if it was Mukhtar who had stabbed Mumtaz nor is he able to tell if accused Roshan Khan and Babloo reached the spot to save Mumtaz. Witness has denied the suggestion that he was deposing falsely on the tutoring of the Investigating Officer.
(11) PW12 Rafiq is the brother of the deceased Mumtaz who has deposed that his sister Mumtaz was married to Mukhtar in the year 2004 and St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 8 Mukhtar was the son of his father's first cousin sister i.e. daughter of his father's mausi. According to the witness, his other sister is married to the younger brother of Mukhtar namely Momin and they are four brothers, apart from Mukhtar and Momin, they are two brothers i.e. Babloo and Bobby. Witness has further deposed that the name of the father in law of his sister Mumtaz is Roshan Khan and after marriage both his sisters Mumtaz and Intaz were subjected to lot of harassment by their father in law, mother in law, brother in laws and husband of Mumtaz namely Mukhtar. According to the witness, his other sister Intaz and her husband Momin had separated out and started staying separately but Mumtaz and her husband Mukhtar continued to stay in the same house. Witness has also deposed that even two to two and a half months prior to her death, Mumtaz had made a complaint to the CAW Cell but the matters/ disputes were compromised and his sister Mumtaz continued to stay there with Mukhtar.
(12) The witness has testified that on 26.07.2012 his younger brother Feroz received a call from his brother in law Momin that Mumtaz had received injuries in a quarrel in the house and when they reached at BJRM Hospital, they found Mumtaz in dead condition after which he came to know that Roshan Khan and Bobby caught hold Mumtaz and Babloo gave knife blows to her. According to the witness, he also came to know that Roshan Khan, Babloo and Bobby gave beatings to Mukhtar and also gave knife blows to him. He has proved having identified the dead body of his sister St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 9 Mumtaz vide his statement which is Ex.PW12/A and after postmortem dead body was handed over to them vide Ex.PW12/B. He has correctly identified the accused Roshan Khan and Babloo in the Court. (13) Leading questions were put by Ld. APP for the State wherein the witness has admitted that in the year 2011 Mumtaz made a complaint in the CAW cell against her husband, Mukhtar and her father in law, mother in law and also against devar Bobby and Babloo. He has further admitted that due to compromise between Mukhtar and Mumtaz, his sister Mumtaz withdrew her complaint from CAW Cell and in month of July 2012, Mumtaz again made a complaint at CAW cell against her husband Mukhtar, her father in law Roshan Khan, her mother in law Haseena and Devar Babloo and Bobby. The witness has further admitted that despite the complaint, Mumtaz and Mukhtar were residing in the same house though she did not compromise her case against her father in law, mother in law and devars.
(14) In his cross examination by Ld. Defence counsel witness has deposed that his statement was recorded on 27.07.2012 in the evening at the Police Station and statement of his brother Feroze Khan was also recorded. According to the witness, he had stated to the police that his sister Intaz was also subjected to lot of harassment by her father in law, mother in law, brother in law and husband of Mumtaz namely Mukhtar; that his sister Intaz and her husband Momin had separated out and started residing separately. However, when confronted with his statement Ex.PW12/DX1 the above St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 10 facts were not found so recorded. He is not aware if his brother in law Mukhtar got married with one Seema also. According to the witness, he used to visit his sister Mumtaz once in a year or two years and Mumtaz used to visit their house after about every threefour months. He has testified that on 26.07.2012 he and his brother Feroz reached BJRM Hospital in the evening and remained there for about one hour and thereafter they went to their house at Tughalakabad, Delhi. The witness has also deposed that on 27.07.2012 he and his brother Feroze reached at BJRM Hospital at about 9.0010.00AM and remained there for about one and a half hour and has clarified that first they went to the police station Bharat Nagar and from there they went to the BJRM Hospital. According to the witness his deceased sister Mumtaz was having two children who are residing with them after death of Mumtaz. He has denied the suggestion that accused Roshan Khan and Babloo have been falsely implicated in this case at the instance of his brother in law Mukhtar Khan.
(15) PW13 Mukhtar is the husband of the deceased Mumtaz and also an injured in the incident. He has deposed that he is residing at N17C, F435, JJ Colony, Wazirpur, Delhi for last number of years with his family, comprising of his parents and six brothers out of which Momin is residing separately, all others are residing at the above mentioned address. According to the witness, he was into electrical business of manufacturing electric parts like choke etc. He has also deposed that he was married with Mumtaz on 02.05.2004 and was having two children from the said wedlock. St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 11 He has testified that about two years before her death, Mumtaz made a complaint at CAW Cell against him, his father, his brothers Bobby and Babloo which complaint was compromised and hence she withdrew the same because of his undertaking that he would take due care of her. Witness has further deposed that Mumtaz again made a complaint either on 09.07.2012 or it was 10.7.2012 in the CAW Cell against him, his father and his brothers Bobby and Babloo. The witness has also deposed that at that time Mumtaz was residing with them in the same house and knowing his financial condition she wanted to reside together with the family but she only wanted that she should be permitted to live peacefully without any violence. Witness has further deposed that at that time he, Mumtaz and their children used to reside on the ground floor portion and his parents and brother Bobby and Babloo resided on the first floor portion. According to him, on 26.07.2012 everything was normal in the morning and after he left the children at school, they had tea together and at about 8:15 AM his wife Mumtaz requested his brother Bobby for a pipe because she wanted to store water in the house from the tap installed in the gali but Bobby straight away started abusing Mumtaz saying " tere baap mein dam ho to tu pani bhar kar dihka de". He has testified that Mumtaz then complained to him that Bobby was not permitting her to fill up water from the tap on which he requested Bobby to permit Mumtaz to fill water but Bobby started abusing him also. However, since he (witness) did not want to aggravate the issues so he went to the first floor and made a complaint to his father Roshan Khan and St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 12 requested him to intervene and asked Bobby to permit him to at least take water but his father Roshan Khan also started abusing him. Witness has further deposed that in the meanwhile, Bobby also joined them and both his father Roshan Khan and brother Bobby started abusing him and then suddenly his other brother Babloo who was already on the first floor with his father brought out a butcher's knife and suddenly gave him a knife blow on his right side chest which stab injury mark has been seen by the Court being still visible.
(16) Witness has further deposed that since he was running a butchers shop after shutting down his shop he normally brought the choppers, knife etc. and kept them on the first floor of his house and it is from there that Babloo had fetched this knife and thereafter Bobby took out his belt from his pant and hit him on his head with the buckkled portion as a result of which he virtually collapsed. He has testified that his wife Mumtaz who was on the ground floor came upstairs on hearing the commotion and noticing his condition, she called out to him saying that she was going to make a telephone call to the police saying "abhi ruko mein police ko phone kar ke aate hu". According to the witness on hearing this his father Roshan Khan exhorted his brother Babloo and Bobby saying that Mumtaz was going to make a call to the police and to see that she does not reach there " Dekho woh ja rahi hai, pakro usko". Witness has also deposed that on this his father Roshan Khan, brothers Babloo and Bobby started following Mumtaz while he was still lying down on the first floor in an injured condition and St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 13 on seeing them following Mumtaz, he somehow gathered strength and dragged himself to the ground floor in the gali to save Mumtaz. Witness has further deposed that from the gali he saw that Mumtaz was standing outside the gali i.e. towards the corner of F Block where he saw his father Roshan Khan and both his brothers Bobby and Babloo out of whom Babloo was carrying a knife in his hand reached Mumtaz and thereafter all three of them started beating his wife. According to the witness his father Roshan Khan caught hold of her hairs while Bobby gave her kicks and fists blows and Babloo repeatedly stabbed her from all sides and when Mumtaz was trying to resist and save herself, she was also giving knife blows on her sides and arms. Witness has testified that she was also stabbed on her chest and by the time he could reach there all three of them ran away while a large number of public persons gathered. The witness has also deposed that in the meanwhile since his wife Mumtaz had already made a PCR call, the police personnel's also reached the spot and he informed them about the entire incident after which he along with some public persons and PCR officials lifted his wife and put her in the PCR Van and they were taken to BJRM hospital where he and his wife Mumtaz were both examined. There his wife Mumtaz was declared brought dead whereas he was admitted in the hospital and provided treatment. The witness has further deposed that after sometime he noticed that the police had also brought his father Roshan Khan and Babloo to the hospital. According to the witness, he remained in the hospital till next day and his blood stained clothes i.e. TShirt and pant had been taken by the St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 14 police after which they had converted into a pullanda and sealed the same which was seized vide memo Ex.PW13/A. He has correctly identified the accused Roshan Khan and Babloo in the Court.
(17) The witness Mukhtar has further deposed that his brother Bobby is not a juvenile since he was born in the year 1990 which age is also mentioned in their ration card but after this case his mother managed a forged certificate of 5th class from some school. According to the witness, he was the one who got Bobby admitted in the school and at that time he was about 89 years but since he wanted him to study he gave his age as 56 years despite the objection of the school authorities that he was a big boy and would beat the younger ones in his class. He has explained that he has information that Bobby is out of the case and is hunting for him (witness) and he was fearful for his life as he and his other family members have openly issued threats that they would kill him.
(18) The witness has correctly identified the case property i.e. one butcher's knife as the knife used by his brother Babloo while causing injuries to him and to his wife Mumtaz which knife is Ex.P1. It was observed by this Court that while seeing the knife the witness Mukhtar became highly emotional and broke down in the court. (19) He has also identified one blood stained Tshirt totally stained with blood from the front side which is torn from the upper portion i.e. towards the chest indicating the use of force as if some body has pulled the same from the chest portion as a result of which it has been torn from there. St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 15 The said T shirt also bear a cut mark, as the same T shirt which he was wearing at the time of incident and the upper portion of the same was torn when it was pulled by accused Babloo which Tshirt is Ex.P2. He further identified a blood stained khakhi pant as the same which he was wearing at the time of the incident which pant is Ex.P3. On a specific Court Question the witness has explained that his clothes became stained with blood when he was injured and also when he carried his wife to the hospital. (20) Leading questions were put by Ld. APP for the State wherein the witness has admitted that by the time he reached near Mumtaz, she called out to him and said that she had made a 100 number call on which his brother Babloo told Bobby and his father Roshan Khan "ise pakro, ise 100 number par phone karne ka maza chakhte hai, isne hamari jindagi kharab kar di hai" (catch her, we have to teach her a lesson for making a call on 100 number. She has spoiled our lives) and it is thereafter that his father Roshan Khan and Bobby caught hold of Mumtaz while Babloo gave knife blows to Mumtaz.
(21) In his cross examination by the Ld. Defence Counsel the witness has deposed that he was married in their native village at Hardoi and after his marriage, his wife stayed with his family whereas he came to Delhi where he was working. According to the witness, his wife Mumtaz stayed at Hardoi for about two months and thereafter her brother brought her to Delhi and after two to three months she joined his company in Delhi and his parents came to Delhi in the year 20052006. He has also deposed that St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 16 initially only he and his family resided on the ground floor and his two sisters and his three brothers resided with him on the first floor and has voluntarily explained that his parents came to Delhi later in 20052006. The witness has admitted that his wife Mumtaz had made a complaint against him in CAW cell on 26.09.2011 wherein she had made allegations against him of physical violence and of his illicit relations with one Seema and has voluntarily explained that these allegations were made on account of misunderstanding which was cleared in the CAW Cell. He has further admitted that on one occasion his wife had also made a PCR call alleging that he had beaten her and she had also received injuries in the said incident and has voluntarily explained that the incident took place at the spur of the moment on account of domestic tension. The witness has further added that the said case was compromised and she again came back to stay with him. He has also admitted that his wife got this complaint reopened on 10.07.2012 but has denied the suggestion that during this period he had got married to Seema in Tis Hazari Courts. He has admitted that that Seema who was a tutor of his children resides at Jaither i.e. near their house. He has denied the suggestion that there was a big quarrel at their house when Seema came there and his wife objected to the same. He has admitted that the complaint which was given by his wife on 10.07.2012 is Ex.PW13/DX1 wherein she had also alleged that he had tried to strangulate her and had beaten her with chappals and has voluntarily explained that the allegations in the said complaint are false. He has further admitted that the said St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 17 complaint was pending for consideration on 20.07.2012 and thereafter it was listed for 06.08.2012. He has denied the suggestion that during this period when the complaint was pending he was not having good relations with his wife Mumtaz on account of issues of Seema.
(22) The witness Mukhtar has admitted that there are large number of jhuggies around the place where he reside. According to him, his father was not doing any work at the time of the incident. He has admitted that he (his father) was having a shop of sale of Gutkas and cigarettes and has voluntarily explained that it was his brother Pappy who was operating the shop but his father used to go there during the late hours. Witness has further deposed that the police did not ask him so he did not inform them that he used to keep the knives and other articles of his shop on the first floor of his house, after he closed his shop. According to the witness, he had stated to the police that his brother Bobby took out his belt from his pant and hit him on his head with the bucckled portion as a result of which he virtually collapsed. However, when confronted with his statement Ex.PW13/DX2 the said fact was not found so recorded. According to him, he raised alarm in the gali but no public person came forward. He has testified that he had stated to the police that his father Roshan Khan exhorted his brother Babloo and Bobby saying that Mumtaz was going to make a call to the police and to see that she does not reached there "Dekho woh ja rahi hai, pakro usko". However, when confronted with her statement Ex.PW13/DX2 the above fact was not found so recorded. According to St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 18 him, about 150200 public persons had gathered there where his wife Mumtaz was found lying in injured condition. He has testified that the distance between his house and the place where Mumtaz was killed is about 120 feet. He has also deposed that two PCR vehicles had come within a gap of threefour minutes and has voluntarily explained that the officials of the first PCR had gone after the accused to apprehend them whereas the officials of the second PCR had taken him and his wife to the hospital. According to the witness at the time he heard the news regarding the death of his wife, he became extremely perturbed and disturbed. He is unable to tell as to what he had told to the doctors or who all were present in the hospital nor is he able to tell if he had told the doctors about the details of the incident including the involvement of his father and brothers. He has voluntarily added that he was extremely disturbed and did not notice anything and he only recollect that they were brought to the hospital by the PCR officials. Witness has further deposed that both his children are now residing with his mother in law at Tugalakabad, Delhi. He has denied the suggestion that on 26.07.2012 a quarrel took place between him and his wife regarding Seema wherein he had given beatings to his wife Mumtaz after which she had gone to make complaint to the police against him. Witness has also denied the suggestion that he followed her with a knife and his father Roshan Khan and brother Babloo also followed and they tried to stop him but he gave knife blows to his father Roshan Khan or that when Babloo stopped him by his hands, he received injuries on his hands. The witness St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 19 has further denied the suggestion that he inflicted injuries to himself or that he gave knife blows to Mumtaz as he was angry with her since she had again made complaint against him in the CAW cell and he wanted to remove Mumtaz because he was already married with Seema. Witness has also denied the suggestion that he had concocted the entire story regarding the incident in order to shift the blame on his family. (23) PW18 Feroze is also the brother of the deceased and has deposed that his sister Mumtaz was married to Mukhtar in the year 2004 who was the son of his father's first cousin sister i.e. daughter of his father's mausi and his other sister Intaz was also married to the younger brother of Mukhtar namely Momin. He has further deposed that name of the father in law of his sister Mumtaz is Roshan Khan and names of her devars' are Momin, Bobby and Babloo. According to the witness, after marriage both his sisters were subjected to a lot of harassments by their father in law, mother in law, brother in laws and husband of Mumtaz. He has also deposed that his sister Intaz and her husband Momin had started staying separately at Mukundpur while Mumtaz and her husband Mukhtar continued to stay in the same house where her other in laws were residing. He has testified that Mumtaz had made complaints on two occasions before her death, Mumtaz had made complaint to CAW Cell but the matters/ disputes were compromised and she continued to stay there with Mukhtiar in the same house.
(24) According to the witness, on 26.07.2012 at about 4:004:30 PM St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 20 he received a call from his brother in law Momin that Mumtaz had received injuries in a quarrel and she was dead on which they reached police station and thereafter at hospital where they came to know that Roshan Khan and Bobby caught hold Mumtaz and Babloo gave knife blows to her and Roshan Khan, Babloo and Bobby also give beating to Mukhtar and also gave knife blows to him. The witness has proved having identified the dead body of his sister Mumtaz vide his statement which is Ex.PW18/A and after postmortem, dead body was handed over to them vide Ex.PW12/B. He has correctly identified the accused Roshan Khan and Babloo. (25) Leading questions were put by Ld. Addl. PP for the State wherein he has admitted that Mumtaz made a complaint in the CAW Cell against her husband Mukhtar, her father in law, mother in law and also against devars/ brother in laws Bobby and Babloo. He has also admitted that due to compromise between Mukhtar and Mumtaz, she withdrew her complaint from CAW Cell and in month of July 2012 Mumtaz again made a complaint at CAW Cell against her husband Mukhtar, her father in law Roshan Khan, her mother in law Haseena and Devar Babloo and Bobby. The witness has also admitted that despite the complaint Mumtaz and Mukhtar were residing in the same house though she did not compromise her case against her father in law, mother in law and devars. (26) In his cross examination by Ld. Defence Counsel the witness has deposed that Investigating Officer recorded his statement in the hospital along with his brother only once and on 27.07.2012 in the evening at the St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 21 Police Station. He is not aware if his brother in law Mukhtar got married with one Seema and whether his sister Mumtaz made a complaint at CAW Cell that Mukhtar was having illicit relationship with Seema. He is also not aware whether a quarrel took place between Mumtaz and Mukhtar regarding Seema and also whether Mumtaz made allegations in her second complaint to CAW Cell that Mukthar tried to strangulate her. According to the witness, he never visited the matrimonial house of his sister Mumtaz and Mumtaz used to visit their house after about every threefour months. He has further deposed that on 26.07.2012 after receiving the information regarding death of his sister Mumtaj he and his brother reached there and remained there for about thirty minutes and thereafter returned back to their house as the police called them on the next day. He has testified that on the next day on 27.07.2012 they reached BJRM Hospital and remained there till they received the dead body of his sister Mumtaz and thereafter they went to their house at Tughalakabad, Delhi. He has denied the suggestion that accused Roshan Khan and Bablu have been falsely implicated in this case at the instance of his brother in law Mukhtar Khan.
(27) PW19 Sh. Brij Kishore has deposed that he is residing at E157, JJ Colony, Wazirpur, Delhi along with his family for the last 35 years and was having a shop of general merchandise and he usually opened his shop at 5 AM. According to him on 26.07.2012 at about 8:30 AM he was sitting at his shop when Mumtaz who is resident of the same area came and made a call at 100 number from the adjoining shop and she St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 22 was telling the police that her father in law and devar/ brother in laws were coming to kill her (phone par keh rahi thi ki mere sasur aur devar mujhe marne ke liye aa rahe hai) and was crying. Witness has further deposed that he then noticed that after making the call while she was going to the same gali where she was residing when her devar (brother in law) and father in law i.e. Bablu and Roshan Khan came and started beating her and he noticed that they were inflicting stab wounds to her (usko chako mar rahe thai) on which she fell down on the ground itself, totally smudged in blood (khoon mein lath path wahi gir gayi). Witness has further deposed that in the meantime, the PCR official reached the spot and Roshan Khan and Babloo started to run at the spot but the PCR officials chased them and apprehended them a little away from the spot near the Masjid "police ko dekh kar yeh log bhagne lage to police ne bhag kar thori dur inko masjid ke pass pakar liya". Witness has also deposed that the local police arrived at that time which include the SHO and senior officers. He has testified that Mumtaz had already expired at the spot and police lifted her body away and they also took Roshan Khan and Babloo along with them. According to him the SHO recorded his statement at the spot itself which is Ex.PW19/A. The witness has correctly identified the accused Roshan Khan and Babloo who are residents of the same area and were known to him prior to the incident.
(28) Leading questions put by Ld. APP for the State wherein he has St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 23 deposed that he did not tell the police that during this incident the husband of Mumtaz also reached at the spot and he noticed that he was injured and has voluntarily explained that he was called to the spot, but he is unable to tell if there was any injury on him because he was ailing person suffering from cancer and he was sitting at his shop at that time. (29) In his cross examination by Ld. Defence counsel, the witness has deposed that his statement was recorded at about 99:30 AM. He has further deposed that fivesix shops are situated near his shop and the distance between his shop and shop of Kishan Lal is about 60 feet. According to him at the time of incident no customer was present at his shop. He has testified that he had told the police that the deceased Mumtaz was telling the police while crying that her father in law and her devar were coming to kill her. He has denied the suggestion that Mumtaz was saying that her husband was going to kill her. Witness has further deposed that the accused are known to him only being the resident of the same area and he is not aware if the deceased had made any complaint against her husband regarding harassment in the CAW Cell. He is also not aware regarding the personal affairs of the family of the deceased nor he was aware if Mumtaz had been complaining that her husband was staying with somebody else or they were having dispute of the same. According to the witness, the incident took place at the distance of 2½ feet from his shop and nobody from the area went to save Mumtaz because the accused were armed with knives and the entire incident hardly lasted about four to six minutes. He is St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 24 unable to tell the exact time because he was very disturbed on seeing the incident. He has denied the suggestion that he had not seen the incident or that he was a planted witness by the police. The witness has also denied the suggestion that he has not seen accused Roshan and accused Bablu while stabbing the deceased or that he has deposed falsely at the instance of the husband of deceased.
(30) PW21 Kishan Lal is a resident of the same area who has deposed that he is residing at N17C/418, Wazirpur JJ Colony, Delhi along with his family for the last 40 years and is running a kiryana/ general merchandise shop from the said shop and also running a STD booth from the said shop. According to him on 26.07.2012 in the morning he was present at his shop when at about 8:308:45 AM Mumtaz a resident of the same area who is residing a little away from his shop came and made a call at 100 number and was telling the police that there was a quarrel going on between her husband and brother in law/ devar and was asking the police to reach the spot immediately. Witness has further explained that at that time she was not even wearing chappals and was extremely scared and perturbed that she was not even to speak properly "ghabrai hui thi ki dhang se bola bhi nahi ja raha tha". Witness has also deposed that after she made a telephone call, she went towards her house and entered in her gali when he saw Roshan Khan and Bablu i.e. the father in law and devar of Mumtaz who came there and caught hold of her and started beating her and there was a hata pai between them. According to the witness, he St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 25 saw that Babloo had a big knife/ chopper in his hand and in the said fight she was given knife blows and then he saw her body lying on the ground with her head down and totally smeared with blood. He has testified that in the meantime the husband of Mumtaz namely Mukhtar also reached the spot and he noticed that even he was having injuries and thereafter he noticed that the police who reached the spot had chased Roshan Khan and Babloo and apprehended them. The witness has also deposed that while police were taking them away, he noticed the knife in the hand of Babloo. He has correctly identified both the accused Roshan Khan and Babloo in the court and also identified the butcher's knife as the same which was in the hand of Babloo with which he had inflicted injuries to Mumtaz, which knife is Ex.P1.
(31) In his cross examination by Ld. Defence counsel, the witness has deposed that his shop is situated after threefour shops of Brij Kishore and twothree public persons were present at his shop when Mumtaz came to his shop for making a call. According to the witness no public persons had gathered at the time of incident. Witness has denied the suggestion that Mumtaz was telling the police while making a call that a quarrel took place between her and her husband. He has admitted that previously there were quarrels between Mumtaz and her husband. According to him, nobody from the area went to save Mumtaz because the accused were armed with knives and the entire incident hardly lasted about five minutes. Witness has denied St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 26 the suggestion that he has not seen the incident or that he was a planted witness by the police. He has further denied the suggestion that Babloo was not having any knife in his hand or that he was deposing falsely at the instance of police officials.
Witnesses of Medical Record:
(32) PW14 Dr. Neeraj Chaudhary has proved that on 26.07.2012 at about 11.50AM Dr. Pankaj medically examined Mukhtar S/o Roshan Khan, male, 30 years with alleged history of physical assault, brought by HC Jaivir of PCR and Dr. Pankaj medically examined above said Mukhtar at the casualty of the hospital and prepared the MLC No. 44565 which is Ex.PW14/A according to which on local examination following injuries were present on the body of the injured:
1. 3.5 x .5 x 1.5 cm CLW on right side of chest near sternum.
2. 1 cm laceration on forehead
3. CLW 1 x 1cm on right shoulder (33) According to the witness, after medical examination, Dr. Pankaj referred the patient to Surgery Department for further examination.
(34) He has further proved that on 26.07.2012 at about 9.20AM Dr. Akhilesh Singh medically examined Mumtaz W/o Mukhtar, female, 26 years old with alleged history of physical assault brought by HC Jaivir of PCR and after her medical examination Dr. Akhilesh Singh prepared the MLC bearing no. 4455 which is Ex.PW14/B according to which the patient St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 27 was declared brought dead and handed over to Investigating Officer for postmortem examination.
(35) The witness has testified that Dr. Akhilesh also medically examined Babloo S/o Roshan Khan, male 25 years old, on 26.07.2012 at about 10.15AM with alleged history of physical assault brought by HC Joginder Singh of PCR and Dr. Akhilesh prepared the MLC No. 44802 which is Ex.PW14/C according to which on the local examination, there was a lacerated wound of size 2 x .5cm on right index finger and the patient was referred to Surgery Department.
(36) He has also proved that Dr. Akhilesh medically examined Roshan Khan S/o Nanuh Khan, male 55 years old on 26.07.2012 at about 10.00AM with alleged history of physical assault brought by HC Joginder Singh of PCR and Dr. Akhilesh prepared the MLC No. 44801 which is Ex.PW14/D according to which on local examination, there were two lacerated wounds of size 3 x .5 cm present on right lower forearm and the patient was referred to Surgery Department.
(37) In his cross examination by Ld. Defence counsel the witness has admitted that he has personally not examined the patient and he has deposed only on the basis of record.
(38) PW15 Dr. Rohit Kumar has deposed that on 26.07.2012 Mukhtar S/o Roshan Khan, male 30 years was examined at Casualty by Dr. Pankaj vide MLC Ex.PW14/A and he gave opinion about nature of St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 28 injury as Simple in nature according to the report of Dr. Shipra Rampal on 12.10.2012 at encircled portion at point X and Y bearing his signatures at point B and C. According to the witness Dr. Atul Aggarwal also medically examined above said patient Mukhtar on 26.07.2012 and gave his observation from point Z to Z1 bearing his signatures at point D. Witness has further deposed that on 26.07.2012 Babloo S/o Roshan Khan, male 25 years was examined at Casualty by Dr. Akhilesh at the casualty of the hospital vide MLC Ex.PW14/C and he gave opinion about nature of injury as Simple in nature according to the surgical notes on 12.10.2012 at encircled portion at point X bearing his signatures at point B. He has further proved that Dr. Atul also medically examined above said patient Babloo on 26.07.2012 and gave his observation from point Y to Y1 bearing his signatures at point C. (39) The witness has also deposed that on 26.07.2012 Roshan Khan S/o Nanuh Khan male 55 years was examined at Casualty by Dr. Akhilesh vide MLC Ex.PW14/D and he gave opinion about nature of injury as Simple in nature according to the report of Dr. Shipra Rampal on 12.10.2012 at encircled portion at point X and at point Y bearing his signatures at point B and C. He has testified that Dr. Atul Aggarwal also medically examined above said patient Roshan Khan on 26.07.2012 and gave his observation from point Z to Z1 bearing his signatures at point D. (40) In his cross examination by Ld. Defence counsel, witness has St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 29 admitted that he has personally not examined the patient and he has deposed only on the basis of record.
(41) PW16 Dr. Shipra Rampal has deposed that on 27.07.2012 she examined the XRay films of Mukhtar, aged 30 years, male who was medically examined vide MLC No. 44565 on 26.07.2012 at the casualty of the hospital and she had not found any injury in the XRay films and gave her report which is Ex.PW16/A and the XRay films are Ex.PW16/B1 to Ex.PW16/B3. According to the witness, she also examined the XRay film of Babloo on 27.07.2012 who was medically examined at the casualty vide MLC 44802 on 26.07.2012 and she had not found any bony injury and gave her report vide Ex.PW16/C and the XRay film is Ex.PW16/D. She has further proved having examined the XRay film of Roshan Khan on 28.07.2012 who was medically examined at the casualty on 27.07.2012 vide MLC 44801 and she had not found any bony injury after which she gave her report which is Ex.PW16/E and the XRay film is Ex.PW16/F. According to her she further examined the XRay film of above said Roshan Khan and could not found any bony injury after which she gave his opinion which is Ex.PW16/G and the XRay film is Ex.PW16/H. This witness has not been cross examined by Ld. Defence counsel, despite opportunity and hence her testimony has gone uncontroverted.
(42) PW17 Dr. V.K. Jha has deposed that on 27.07.2012 at about 12.30PM he conducted postmortem on the dead body of Mumtaz W/o St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 30 Mukhtiyar aged about 26 years which was sent by Inspector Rajender Prasad of Police Station Bharat Nagar and the dead body was identified by HC Rajender Singh. According to the witness, the deceased was wearing Salwar left lower sleeves torn, suitcut mark in the middle on left side of chest (two in numbers). He has also deposed that the body was well built, rigor mortis present all over the body and postmortem staining was present at back. The witness has further proved that he observed following external injuries on the body of deceased:
1. Abrasion of size 3cm x 2 cm on left leg on lower aspect.
2. Incised wound on left arm outer aspect, 8cm below shoulder joint of size 6cm x 1cm x muscle deep.
3. Incised wound on left arm 12 cm below left shoulder joint of size 2cm x 0.5 cm x muscle deep in inner aspect.
4. Incised wound on left forearm 8 cm below left elbow joint 4cm x 1 cm x bone deep.
5. Lacerated wound on chin 8cm x 2 cm x bone deep.
6. Abrasion on right temporal region.
7. Incised wound on sternum between nipples of size 4cm x 1 cm x chest cavity.
8. Incised wound of left abdomen 12cm below left nipple, two incised wound 2cm apart of size 1cm x 1cm and 2cm x 2cm x abdominal cavity deep each.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 31
(43) According to the witness, on internal examination and dissection of Injury No.7 it was cut, skin, muscles, bones, entered the chest cavity, cut the right ventricle, chest cavity contains 1.5 litre of liquid and clotted blood. He has also deposed that after postmortem he opined cause of death as hemorrhagic shock as a result of stab wound inflicted by other party; all injuries were antemortem in nature and Injury No.7 was sufficient to cause death in ordinary course of nature, time since death was approximately same as time of declared brought death i.e. 9.20AM on 26.07.2012. He has further deposed that total number of inquest papers were 13 in number which were returned to the Investigating Officer alongwith the Postmortem report and he preserved clothes and blood gauze piece of the deceased and sealed the same with the seal of hospital and handed over to the police official with sample seal. He has proved his detailed report bearing no.743/12 which is Ex.PW17/A. The witness has testified that on 16.09.2012 he received an application from Inspector Rajender Prasad about the opinion of the weapon of offence along with one sealed packet with the seal of RP and on opening the packet the same it was found containing a Knife. He has proved having prepared the sketch/ diagram of the knife which is Ex.PW17/B and after examination of the knife he was of the opinion that injury no. 2,3,4,7 and 8 mentioned in the PM report No. 743/12 Ex.PW17/A could have been caused by this weapon of offence or similar such weapon and Injury No. 1, 5 and 6 have St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 32 been caused by fall. The witness has proved his detailed subsequent opinion which is Ex.PW17/C and after examination of the knife he again sealed the same with the seal of mortuary and handed over same to the police with sample seal. He has correctly identified the knife examined by him which knife is Ex.P1.
(44) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that he has prepared the postmortem report Ex.PW17/A and subsequent opinion Ex.PW17/C on the asking of the Investigating Officer of the case or that he has given false report. FSL Expert:
(45) PW20 Sh. Indresh Kumar Mishra, Sr. Scientific Officer (Biology), FSL, Rohini has proved that on 18.9.2012, fifteen sealed parcels were received in their office which were marked to him for examination which seals on the parcels were tallied with the sample seals and found to be intact. According to him, on opening the parcels the parcel no.1 was found to contain one knife having brown stains which was marked Ex.1; parcel no.
2 was found to contain cotton wool swab having brown stains which was marked Ex.2; parcel no.3 was found to contain concrete material having dark brown stains which was marked Ex.3; parcel no.4 was found to contain concrete material which was marked Ex.4; parcel no.5 was found to contain cotton wool swab having light brown stains which was marked Ex5; parcel no.6 was found to contain cotton wool swab having light brown stains which St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 33 was marked Ex.6; parcel no.7 was found to contain cotton wool swab having light brown stains which was marked Ex.7; parcel no.8 was found to contain cotton wool swab having light brown stains which was marked Ex. 8; parcel no.9 was found to contain one pair of chappals which was marked Ex.9; parcel no.10 was found to contain one lady's kurta having brown stains which was marked Ex.10a, one brassier having brown stains which was marked as Ex.10b, one chunni having brown stains which was marked as Ex.10c, one salwar having brown stains which was marked as Ex.10d; parcel no.11 was found to contain brown gauze cloth described as blood sample which was marked Ex.11; parcel no.12 was found to contain one T shirt having brown stains which was marked as Ex.12a, one half pants having brown stains which was marked as Ex.12b; parcel no.13 was found to contain one banian having brown stains which was marked as Ex.13a, one underwear having brown stains which was marked as Ex.13b, one gamchcha having brown stains which was marked as Ex.13c; parcel no.14 was found to contain one Tshirt having brown stains was marked as Ex. 14a, one pants having brown stains which was marked as Ex.14b; parcel no.15 was found to contain one Tshirt having light brown stains which was marked as Ex.15a and one jeans pants having brown stains which was marked as Ex.15b. The witness has proved having examined all the above exhibits biologically and on examination blood was detected on exhibits 1, St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 34 2, 3, 5, 6, 7, 8, 9, 10a, 10b, 10c, 10d, 11, 12a, 12b, 13a, 13b, 13c, 14a, 14b, 15a & 15b but blood cold not be detected on exhibit 4. He has proved his detailed biological report in this regard which is Ex.PW20/A. The witness has also deposed that the exhibits were examined Serologically and human blood was detected on all the exhibits except exhibit 4 and human blood of Group AB was detected on Ex.6, 8, 10a, 10b, 10d, 11, 12,a, 12b, 13a, 13b, 14a and 14b. He has proved the detailed Serological Report in this regard which is Ex.PW20/B. According to him, after examination the remnants of the exhibits were sealed with the seal of IKM FSL DELHI. (46) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that he did not follow the standard established practice while examining the exhibits or that the reports have been given on the asking of the Investigating Officer.
Police / Official witnesses:
(47) PW1 Ct. Rajesh Kumar is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 26.7.2012 he delivered the Special Reports to the Joint Commissioner of Police, DCPI & DCPII and the Ld. ACMM. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same.
(48) PW2 HC Mehfooz Khan is also a formal witness being the MHCM who has been examined by way of affidavit (as per the provisions St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 35 of Section 296 Cr.P.C.) wherein he has proved the Entry in Register no.19 vide Sr. No. 725 copy of which is Ex.PW2/A (five pages), Sr. No. 726 copy of which is Ex.PW2/B (two pages), entry in Register No. 21 vide RC No. 78/21/12 copy of which is Ex.PW2/C and receipt issued by FSL copy of which is Ex.PW2/D. He has not been cross examined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.
(49) PW3 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the spot of incident and having prepared the scaled site plan which is Ex.PW3/A. He has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.
(50) PW4 Ct. Subhash is also a formal witness being the Crime Team photographer who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having taken Seventeen photographs of the place of incident which photographs are Ex.PW4/A1 to Ex.PW4/A17 and having prepared the CD containing the photographs which is Ex.PW4/B. He has not been cross examined by Ld. Defence Counsel despite opportunity granted and hence his testimony has gone uncontroverted.
(51) PW5 HC Jai Singh is a formal witness being the Duty Officer St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 36 who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having lodged the DD No. 6A copy of which is Ex.PW5/A; FIR No. 171/12 copy of which is Ex.PW5/B and endorsement on rukka which is Ex.PW5/C. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same.
(52) PW6 Ct. Sonu Kumar is also a formal witness who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the spot along with SI Mohinder Singh and he was deputed to preserve the scene of crime. He has not been cross examined by Ld. Defence Counsel despite opportunity granted and hence his testimony has gone uncontroverted. (53) PW7 SI Sanjeev Verma is again a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having inspected the spot of incident and having prepared the Crime Team Report which is Ex.PW7/A. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same. (54) PW8 HC Jasvir Singh is a formal witness being the PCR Van Incharge who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 26.7.2012 at about 8:35 AM pursuant to the information he reached in front St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 37 of Jhuggi No. N17C/487 Wazirpur JJ Colony and found one woman lying unconscious on which he along with his staff shifted the injured Mumtaj and her husband to BJRM Hospital where Mumtaj was declared brought dead. (55) In his cross examination by Ld. Defence counsel the witness has deposed that when he reached at the spot about 50 person were gathered there and they remained at the spot for about one or two minutes. According to the witness, they immediately shifted the injured Mumtaz and her husband Mukhtar to the BJRM Hospital.
(56) PW9 HC Hanuman is a formal witness being the PCR Official who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the PCR Form which is Ex.PW9/A and the WT messages incorporated at point bracketed A. (57) In his cross examination by Ld. Defence counsel the witness has admitted that he had personally not visited the spot for inquiry and has voluntarily explained that he was deposing on the basis of content of the PCR form filled up on the basis of WT messages.
(58) PW10 HC Rajender Singh is a formal witness who has been examined by way of affidavit which is Ex. PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 26.7.2012 on receipt of DD No. 6A regarding quarrel he along with ASI Devraj reached the spot where SI Mahender Singh and Ct. Sonu were already present and on inquiry it was revealed that the PCR van had already removed the injured to BJRM St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 38 Hospital. According to him, public witness Brij Kishore met at the spot whose statement was recorded by Inspector Rajender Prasad after which he along with other police officers reached BJRM Hospital where the injured Mumtaz was declared brought dead whereas her husband Mukhtar was found admitted in the hospital. He has also deposed that he preserved the dead body of Mumtaj in the Mortuary for postmortem examination and on 27.7.2012 after postmortem examination of the deceased the Autopsy Surgeon handed over two sealed pullandas which were seized vide Inspector Rajender Prasad vide memo Ex.PW10/A. (59) In his cross examination by Ld. Defence Counsel the witness has deposed that when he reached at the spot, about 4050 public persons were present there and he remained at the spot 15 to 20 minutes and thereafter he reached BJRM Hospital. According to the witness, his statement was recorded in the Police Station. He has testified that he had handed over the sealed pullandas to Inspector Rajender Prasad in the BJRM Hopital itself. He has denied the suggestion that statement of Brij Kishore and other eye witnesses were recorded in the Police Station later on. (60) PW22 ASI Geeta Rani has deposed that on 26.9.2011 he was working as ASI in CAW Cell Pitampura and on that day Smt. Mumtaz lodged a complaint bearing No. M42 dated 26.9.2011 at CAW Cell which complaint is Ex.PW22/A. According to her, the said complaint was initially marked to ASI Kripal Singh and she joined the proceedings on 21.12.2011 and 29.12.2011 when ASI Kripal Singh was on leave. She has further St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 39 deposed that the matter was compromised between Smt. Mumtaz and her husband and therefore the matter was closed on 29.12.2011. She has proved the proceedings conducted at CAW Cell including the statements of the parties which are collectively Ex.PW22/B (running into 22 pages). According to the witness, again on 10.7.2012 Smt. Mumtaz lodged another complaint bearing no. AG34 dated 10.7.2012 which was marked to her which complaint is Ex.PW22/C. She has testified that thereafter she conducted the proceedings which are collectively Ex.PW22/D (running into six pages). She has further deposed that on 30.7.2012 Sultana the mother of complainant made a statement that Mumtaz had been murdered by her fatherinlaw Roshan Khan, brothers in law Bobby and Bablu and hence the entire proceedings were sent to the Police Station. (61) In her crossexamination by the Ld. Defence Counsel the witness has deposed that Mumtaz never disclosed to her that her husband Mukhtyar was having an affair with some other lady on which she was aggrieved. She has denied the suggestion that Mumtaz disclosed to her that her husband Mukhtyar was having an affair with some other lady but she counselled and advised her and did not take this fact on record and has voluntarily explained that Mumtaz only made complaints against her father in law, mother in law and brothers in law but not against her husband. (62) On a specific Court Question the witness has deposed that the main allegations made by the deceased Mumtaz was against her mother in law, father in law and brother in law and in so far as the husband is St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 40 concerned she was aggrieved because on their asking he used to harass her. (63) PW23 HC Jogender has deposed that on 26.07.2012 he was posted at PCR Commander 19, Bharat Nagar as Incharge and on that day at about 8:39 AM he received a call from Command Room regarding a incident of stabbing at in front of F239, Bari Masjid on which he reached the spot where he found another PCR Van present there. The witness has further deposed that since the area was very congested he stopped the vehicle at the main gali and while he was going towards the spot of the incident on foot, he saw three persons running in the gali. He has testified that one of the said persons was holding a knife in his hand and his clothes were smeared with blood and the clothes of other two persons were also smeared with blood on which he apprehended two of these persons after a short chase. Witness has further deposed that one of whom was a elderly person and the other person was the one who was having a knife in his hand and on inquiry the name of the elderly person was revealed as Roshan Khan whereas the name of the other person who was having a knife in his hand was revealed as Babloo whereas the third person ran away since he (witness) was alone. According to the witness, he gave the WT message to the Control Room that he had apprehended two persons and was taking them to BJRM Hospital when he also heard the WT message from the other PCR vehicle i.e. C 20 that they had picked up two persons from the spot, i.e. one lady who was unconscious and one man who St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 41 was injured and they were taking to BJRM hospital. He has further deposed that on reaching the BJRM Hospital, he got Roshan Khan and Babloo admitted in the hospital and the SHO also reached the hospital. He has testified that the knife which was in the hand of Babloo and which he had taken into possession was handed over to the SHO. According to him, when he had seen the knife in the hand of Babloo he noticed that it was a meat chopper and was stained with blood. Witness has also deposed that after he handed over the knife to the SHO who prepared the khaka of the same on the white paper and thereafter measured the same and its total length was found to be 19.5 cm and the blade was around 10.5 cm whereas the handle was of 9 cm after which the SHO thereafter converted the same into a pullanda with the help of white cloth and sealed the same with the seal of RP and thereafter seized vide seizure memo. The witness has proved the the sketch of the butcher's knife which is Ex.PW23/A and seizure memo of the same which is Ex.PW23/B. He has testified that thereafter he was revealed from the spot and his statement was recorded later in the police station. He has correctly identified the accused Roshan Khan and Babloo whom he had apprehended. He has also identified the butcher's knife as the same which accused Babloo was holding in his hand at the time of his apprehension which knife is Ex.P1. It has been observed by this Court that the knife was matching with its sketch.
(64) During his cross examination by Ld. Defence counsel, witness has deposed that when he reached near the spot he saw 1520 public persons St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 42 gathered there. According to the witness, he saw the accused Roshan Khan and Babloo at the distance of about 20 steps and Roshan Khan was having injuries on his hand. He has further deposed that he had not seen any injury on the person of accused Babloo and has voluntarily explained that his clothes were smeared with blood. He has testified that he reached at BJRM hospital at about 9:00 AM and seizure memo of knife and sketch of knife were prepared by the Investigating Officer at BJRM hospital. He has denied the suggestion that no knife was recovered from the hands of accused Babloo or that no knife was handed over by him to the Investigating Officer. He has further denied the suggestion that he had signed seizure memo at the instance of the Investigating Officer.
(65) PW24 Ct. Bobby Joseph has deposed that on 26.07.2012 he was posted at PCR North west Zone and on that day at about 8:39 AM Incharge of their vehicle i.e. C19 received a call from Command Room regarding a incident of stabbing at in front of F239, Bari Masjid on which he along with Incharge HC Jogender reached the spot where they found another PCR van already present. According to him since the area was very congested, he stopped the vehicle at the main gali and while they were going towards the spot of the incident on foot, they saw two persons running in the gali. The witness has further deposed that one of them was holding a knife in his hand and his clothes were smeared with blood and the clothes of other two persons were also smeared with blood on which they apprehended these persons after a short chase. According to him one of whom was a elderly St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 43 person which was apprehended by him and the other person was the one who was having a knife in his hand was apprehended by HC Jogender. Witness has further deposed that on inquiry the name of the elderly person was revealed as Roshan Khan whereas the name of the other person who was having a knife in his hand was revealed as Babloo and they also came to know that there was another person also with those two persons, who had ran away. He has also deposed that on reaching BJRM Hospital, Roshan Khan and Babloo were got admitted in the hospital by HC Jogender while he remained outside the hospital and his statement was recorded by the Investigating Officer later on. He has correctly identified the accused Roshan Khan and Babloo in the Court and also identified the butcher's knife which accused Babloo was holding in his hand at the time of his apprehension which knife is Ex.P1.
(66) In his cross examination by Ld. Defence counsel the witness has deposed that he does not remember how many public persons were present there when they reached near the spot. He has further deposed that he saw accused Roshan Khan and Babloo at the distance of about 1520 steps and Roshan Khan was having injuries on his hand. According to him he has not seen any injury on the person of accused Babloo and has voluntarily explained that his clothes were smeared with blood. Witness has also deposed that he reached BJRM hospital after about 20 minutes. He has denied the suggestion that no knife was recovered from the hands of accused Babloo. He has testified that his statement was recorded in the police station St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 44 on 26.07.2012 along with statement of HC Jogender. The witness has denied the suggestion that no knife was handed over by him to the Investigating Officer.
(67) PW25 SI Mohinder Singh has deposed that on 26.07.2012 he was posted at Police Station Bharat Nagar and was on emergency duty from 8AM to 8 PM and on that day at about 8:40 AM the Duty Officer handed over to him DD No. 6A regarding a quarrel in front of F237, JJ Colony, Bari Masjid pursuant to which he along with Ct. Sonu reached the spot where they came to know that the PCR officials had already reached the spot and had taken the injured persons to the BJRM hospital. According to him, from local inquiry they also came to know that Roshan Khan and his sons Babloo and Bobby had quarreled with the wife of their elder son Mukhtar namely Mumtaz and Babloo had inflicted knife injuries on her and all of them had been shifted to BJRM Hospital in two PCR vehicles. Witness has further deposed that in the meanwhile the SHO also reached the spot and started interrogating persons and came to know that one Brij Kishore was an eye witness to the incident on which he recorded the statement of Brij Kishore vide Ex.PW19/A. The witness has also deposed that the SHO also called the Crime Team to the spot after which the Crime Team inspected the spot and took the photographs of the same and thereafter the SHO along with HC Rajender, Ct. Kuldeep, ASI Dev Raj along with the other officials left for BJRM Hospital leaving him along with Ct. Sonu at the spot to preserve the spot of the incident. According to him, till the time he St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 45 remained at the spot of incident where the stabbing had taken place was not tampered and his statement was recorded by the Investigating Officer. (68) Leading questions were put by Ld. APP for the State wherein the witness has admitted that HC Ram Rattan and Ct. Gurjeet had also left with the SHO for the BJRM Hospital and has voluntarily explained that he could not inform about the same because he had forgotten on account of lapse of time.
(69) In his cross examination by Ld. Defence counsel, witness has deposed that he had reached the spot at around 8:45 AM and there were around 200250 public persons present at the spot. He has admitted that the spot of the incident is a highly congested area. Witness has further deposed that the spot of the incident was just adjoining the shop of Brij Kishore i.e. few steps away and has voluntarily explained that it must be hardly five seven steps. Witness has testified that the shop of Kishan was just adjoining the shop of Brij Kishore and the SHO reached the spot after about 57 minutes of his reaching the spot. According to him the crime team reached about half an hour later. Witness has denied the suggestion that the scene of crime had already been disturbed by the time he reached there and has voluntarily explained that public persons were standing away from the scene of crime and not coming near it. He has testified that the SHO left for the hospital at about one hour to one hour 15 minutes and he must have left around 10AM. According to the witness, the statement of Brij Kishore was recorded by the SHO at the spot itself and in his presence he did not St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 46 recorded any others statement. He has further deposed that his statement was recorded at the spot and it was Brij Kishore who informed him about the incident and also the fact that PCR had taken the injured to the hospital. Witness has denied the suggestion that Brij Kishore did not give any information to him or that Brij Kishore is a planted witness. (70) PW26 Ct. Kuldeep Singh has deposed that on 26.07.2012 he was posted at Police Station Bharat Nagar and on that day a call of quarrel had been received in the Police Station on which he along with SHO Inspector Rajender Parshad and other police officers reached at N17C/487, Wazirpur JJ Colony in the gali. According to him on reaching there they came to know that in front of this Jhuggi N17C an incident of stabbing had taken place where one lady by the name of Mumtaz had been stabbed by her devars Babloo, Bobby and her father in law Roshan Khan. Witness has also deposed that they also came to know that two PCR vehicles had come to the spot and had taken the injured to the BJRM Hospital. He has testified that the public witness got recorded his statement after which he along with SHO, ASI Dev Raj, HC Ram Rattan, HC Rajender and Ct. Gurjeet went to BJRM Hospital where they came to know that Mumtaz had already expired and her husband Mukhtiar received injuries. According to the witness, SHO collected the MLC of the injured and the deceased and converted the statement of Brij Kishore into a tehrir by making endorsement on the same and handed over the tehrir to him and directed him to took the tehrir to the police station. He has proved that he took the tehrir at about 12:30 noon and St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 47 handed over the tehrir to Duty Officer HC Jai Singh who after registration of the case handed over to him computerized copy of the FIR and the original tehrir which he brought back to the spot and handed over the same to Inspector Rajender Parshad who recorded his statement. (71) In his cross examination by Ld. Defence Counsel the witness has deposed that he reached the spot along with the SHO at about 9 AM and at that time there were large number of public persons present and there may be around 2030 public persons present there. According to him at the spot they came to know that the PCR officials already took the injured to the hospital and they found SI Mahender and Ct. Sonu at the spot. Witness has further deposed that SHO recorded the statement of Brij Kishore at the spot itself and they remained at the spot till about 1 ½ hours. According to the witness they reached BJRM Hospital at about 11:30 AM and in his presence the SHO did not make any inquiries from any public person. He has also deposed that he left the BJRM hospital at about 12:30 PM and returned to the spot after the registration of the FIR at about 1:45 PM. He has further testified that he had used the public vehicle for commuting when he went for registration of the FIR and then when he returned he took his motorbike and his statement was recorded at the spot itself. He has denied the suggestion that he did not accompany the SHO to the spot or that all documentation was done while sitting in the police station. Witness has also denied the suggestion that he did not take any rukka to the Police Station for registration of the case.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 48 (72) PW27 ASI Dev Raj has deposed that on 26.07.2012 he was posted at Police Station Bharat Nagar and on that day SHO received a call from the control room regarding stabbing by knife to a woman on which he along with SHO, HC Rajender, HC Ram Rattan, Ct. Gurjeet and Ct. Kuldeep reached at the spot i.e. in front of Jhuggie No. N17C487, Wazirpur JJ Colony where they found blood was lying in front of the said Jhuggi. According to him after making inquiries SHO came to know that the injured persons namely Roshan Khan, Babloo, Mumtaz and Mukhtar were shifted to BJRM Hospital by the PCR vehicles and in the inquiries SHO also came to know that the quarrel started in front of Jhuggie No. N17C/435, Wazirpur JJ colony, Delhi. Witness has further deposed that in further inquiries SHO came to know that there is an eye witness namely Brij Mohan and after making inquiries from him SHO recorded his statement vide Ex.PW19/A. He has testified that the SHO also called the Crime Team who inspected the scene of crime and photographer of the crime team took the photographs of the scene of crime. The witness has also deposed that SI Mahender and Ct. Sonu were left at the spot whereas he along with Inspector Rajender Prasad, HC Ram Rattan, HC Rajender, Ct. Kuldeep and Ct. Gurjeet reached at BJRM Hospital where Investigating Officer collected the MLC of the deceased Mumtaj, injured Mukhtar, accused Roshan and Bablu. According to the witness, the Incharge PCR Van namely HC Joginder met them in the hospital and produced a knife before Inspector Rajender allegedly recovered from the possession of the accused Babloo St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 49 who was also present there and was interrogated by the Investigating Officer during which Babloo confessed that the kinife was recovered from his possession. He has proved that the Investigating Officer prepared the sketch of the said knife vide Ex.PW23/A and Investigating Officer took measurements of the knife and mentioned the same in detail in the sketch after which the Investigating Officer sealed the knife in a sealed pullanda with the seal of RP and seized the same vide seizure memo Ex.PW23/B. Witness has further deposed that thereafter Inspector Rajender prepared a rukka and handed over the same to Ct. Kuldeep for registration of FIR on which Ct. Kuldeep went to police station and Ct. Gurjeet and HC Ram Rattan were left at the hospital with accused Babloo as he was receiving medical treatment whereas he (witness) along with Inspector Rajender reached the spot. According to him, blood was found lying in front of the Jhuggi No. N17/C/487 and Jhuggi No. N17/C/435 on which Investigating Officer lifted blood, blood stained earth and earth control from the spot in front of Jhuggi No. N17/C/487 and kept the same in a separate three plastic containers and sealed the same with the seal of RP and seized the same vide seizure memo Ex.PW27/A. Witness has also deposed that the Investigating Officer also lifted blood from four places in front of Jhuggi no. N17/C/435, Wazirpur JJ Colony and kept the same in a separate four plastic containers and sealed the same with the seal of RP and seized the same vide memo Ex.PW27/B. According to him, there was a hawai chappal lying at the spot and the same was taken into possession by the Investigating Officer who St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 50 converted the same into pullanda with a help of cloth and sealed with the seal of RP and thereafter seized vide seizure memo Ex.PW27/C. He has further proved that the Investigating Officer then recorded statements of various police officials at the spot only and relieved them while he accompanied him to BJRM hospital where the accused Babloo was under
treatment. He has testified that after Babloo was discharged from the hospital, he was interrogated and then arrested by the Investigating Officer vide arrest memo Ex.PW27/D; his personal search was conducted vide memo Ex.PW27/E and his disclosure statement was recorded vide Ex.PW27/F. According to him, thereafter the blood stained clothes i.e. T shirt and half pant which were worn by the accused Babloo were sealed by the Investigating Officer with the seal of RP and thereafter seized vide seizure memo Ex.PW27/G. He has testified that Investigating Officer also interrogated injured Mukhtar who was also in BJRM Hospital and his blood stained Tshirt and pant which were worn by the injured was taken into possession by the Investigating Officer with the help of cloth and sealed with the seal of RP and thereafter seized the same vide seizure memo Ex.PW13/A. (73) The witness has proved that on 27.07.2012 he again joined the investigations of the present case along with Investigating Officer Inspector Rajender Parshad when he accompanied him and reached at Jhuggi No. N17C/435, Wazirpur JJ Colony where they found Roshan Khan at his house and after interrogation the Investigating Officer arrested him vide St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 51 memo Ex.PW27/H; his personal search was conducted vide memo Ex.PW27/I and his disclosure statement was also recorded by the Investigating Officer vide Ex.PW27/J. According to the witness the clothes which the accused were wearing were blood stained and therefore the Investigating Officer made him change his clothes and the baniyan, underwear and tehmat (chaddar) of the accused were converted into a pullanda with the help of a white cloth and sealed the same with the seal of RP and thereafter seized the same vide seizure memo Ex.PW27/K. Witness has also deposed that thereafter the accused Roshan Khan pointed out the place of occurrence vide pointing out memo Ex.PW27/L after which they returned to the Police Station where the case property was deposited in the malkhana and accused was put in the lock up after which the Investigating Officer recorded his statement in the Police Station. (74) The witness has correctly identified both the accused Roshan Khan and Babloo in the Court and also identified the case property i.e. one butcher's knife as the same which was handed over to the Investigating Officer by HC Jogender Singh which knife is Ex.P1; one Tshirt totally stained with blood from the front side (belonging to Mukhtar) which was torn from the upper portion i.e. towards the chest indicating the use of force as if some body has pulled the same from the chest portion as a result of which it has been torn from there, which Tshirt is Ex.P2; a blood stained khakhi pant belonging to Mukhtar which is Ex.P3; one pair of chappals of St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 52 grey color as the same as the one which were lifted from the spot by the Investigating Officer which is Ex.P4; one blood stained Tshirt of camel brown color and one blood stained half pant (checkdar) as the same as the one which were worn by accused Babloo which TShirt is Ex.P5A and half pant is Ex.P5B; one blood stained baniyan, one blood stained underwear and one blood stained Tehmat/ Loin cloth as the same which were worn by accused Roshan Khan which baniyan is Ex.P6A, underwear is Ex.P6B and Tehmat which is Ex.P6C.
(75) In his cross examination by Ld. Defence counsel, witness has deposed that on 26.07.2012 he along with Investigating Officer and other police officials reached the spot at about 8:45 AM and 3040 public persons were present there. He has admitted that place of occurrence is thickly populated area. According to him after recording the statement of Brij Mohan they immediately went to BJRM hospital. He does not remember the exact time when Crime Team reached the spot and after inspecting the spot by the crime team, they left for BJRM Hospital. Witness has further deposed that he recorded the statement of Brij Mohan at the instance of Inspector Rajender Parshad. He has denied the suggestion that statement of Brij Mohan was recorded in the Police Station later on to strengthen the case or that Brij Mohan had not made any statement or his statement was manipulated by the Investigating Officer in the police station. (76) Witness has further deposed that they reached BJRM hospital in the noon time but he does not remember the exact time when HC Jogender St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 53 Singh handed over the knife Ex.P1 to the Investigating Officer. According to him, all the writing work regarding knife was conducted while sitting in the room of Duty Constable in the hospital but he does not remember the name of Duty Constable who was deputed in the hospital. The witness has also deposed that the said Duty Constable was not cited as a witness in the present case because he was busy in the Casualty and all the memos regarding knife were prepared by him at the instance of Investigating Officer Inspector Rajender Parshad and all the sealing materials were available in the Investigating Officer bag which of leather and was of brown color. Witness has also deposed that Ct. Kuldeep took rukka to the police station at about 12:30 PM but he does not remember the exact time when they left the BJRM hospital. He does not remember how much time took by the Investigating Officer to collect the exhibits from the spot. According to the witness all the writing work was done while sitting on the chairs which were brought from the nearby shops and all the memos were prepared in his handwriting at the instance of the Investigating Officer Inspector Rajender Parshad and they again reached at BJRM Hospital at about 4:00 PM.
Witness has also deposed that at the time of recording the disclosure statement of Babloo, no public person was joined. He has testified that he had prepared all the memos regarding arrest of accused Babloo at the instance of the Investigating Officer and they left the BJRM hospital in the evening time but he does not recollect the exact time. He has further deposed that on 27.07.2012 they reached the Jhuggie of Roshan Khan at St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 54 about 8:00 PM in official gypsy and departure entry was made by SHO but he does not recollect its number. He has also deposed that they parked their vehicle in the gali and they all were in uniform. He has further deposed that disclosure statement of Roshan Khan was recorded in his house and no independent witness from the neighbor were joined at the time of recording the disclosure statement. He has testified that he had prepared all the memos in respect of accused Roshan Khan at the instance of the Investigating Officer but he does not recollect the exact time when they reached the police station after the arrest of accused Roshan Khan. He has denied the suggestion that all the proceedings were conducted while sitting in the Police Station or that no pointing out memo was prepared at the instance of accused. Witness has also denied the suggestion that no disclosure statements were recorded by the accused persons or that Investigating Officer had recorded the same of his own and he has merely signed the same on the asking of the Investigating Officer. (77) PW28 Inspector Rajendra Prasad is the Investigating Officer of the present case who has deposed that on 26.07.2012 he was posted at Police Station Bharat Nagar as SHO and on that day an information was received through control room wireless North West District regarding quarrel at JJ Colony Wazirpur near Masjid in which one lady was seriously injured vide DD No. 6A which is Ex.PW5/A. According to him on receipt of information he along with ASI Dev Raj, HC Ram Rattan, HC Rajender, Ct. Kuldeep and Ct. Gurjeet reached at the spot i.e. N17C/487 and 437. F St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 55 Block, JJ Colony, Wazirpur, Delhi where SI Mahender Singh along with Ct. Sonu were already present and blood spots were lying in the lane as well as on the main road. Witness has further deposed that on inquiry it was revealed that one injured Mumtaz W/o Mukhtar and her husband Mukhtar have already been shifted to BJRM Hospital by PCR officials and the two alleged assailants Babloo and his father Roshan Khan had also been removed to BJRM hospital by another PCR officials. The witness has further deposed that he made inquiries from the spot regarding the eye witness if anybody from the public had witnessed the incident on which one Brij Kishore resident of the same area in the F Block where he was running a grocery shop came forward and informed him that he had seen the incident on which he recorded his statement vide Ex.PW19/A. According to the witness, he got the scene of crime got preserved through SI Mahender Singh and Ct. Sonu and called the Crime Team at the spot and soon thereafter the Crime Team reached the spot and inspected the spot and photographed the same under the supervision of SI Sanjeev Verma and prepared the report which was handed over to him which report is Ex.PW7/A. Witness has testified that thereafter he left for BJRM hospital and collected the MLC of the victim and came to know that she had been declared brought dead with multiple stab injuries on her and the husband of deceased namely Mukhtar was also admitted in the hospital and he obtained his MLC. According to him, the clothes of Mukhtar which were blood stained were taken by him after which he was asked to change into other clothes which were brought St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 56 by his brother Momin and he converted the same into pullanda and sealed the same with the seal of RP and seized the same vide seizure memo Ex.PW13/A. Witness has further deposed that the Incharge of the PCR Commander 19 HC Jogender handed over to him a blood stained knife which he told him had been recovered from the right hand of Babloo. The witness has proved having prepared the sketch of the said knife vide Ex.PW23/A and then measured the knife which was having total length of 19.5 cm, with an sharp edge/blade measuring 10.5 cm and handle of 9 cm and thereafter converted the same into a pullanda with the help of a cloth and sealed the same with the seal of RP and seized the same vide seizure memo Ex.PW23/B. The witness has proved having made his endorsement on the statement of Brij Kishore vide Ex.PW28/A and handed over the same to Ct. Kuldeep and directed him to take the same to the Police Station for registration of the FIR. Witness has further deposed that he then made a request to CMO mortuary to preserve the dead body of Mumtaz vide Ex.PW28/B through HC Rajender and directed him to ensure that the same is not tampered with till the postmortem was conducted. According to the witness, one of the assailant namely Babloo was also admitted in the BJRM hospital was then discharged from hospital authorities on which he interrogated him and came to the spot of the incident. He has proved having lifted the exhibits from the spot i.e. blood stained earth, earth control and blood lying outside the grocery shop which he lifted with the help of cotton and he put these exhibits in different containers and converted the same into St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 57 pullandas and sealed the same with the seal of RP and seized the same vide memo Ex.PW27/A. The witness has testified that in the meanwhile Ct. Kuldeep had also come to the spot and handed over the copy of the FIR and original rukka to him. According to Inspector Rajender Prasad he then went to the lane leading from the spot to the house of the deceased which was blood stained and lifted the blood from four spots and put the same into different containers and converted the same into pullandas and sealed the same with the seal of RP and seized the same vide seizure memo Ex.PW27/B. Witness has further deposed that he also found one pair of hawai chappals lying in the lane, which Babloo told him belonged to him after which he lifted the same and converted the same into pullanda and sealed the same with the seal of RP and seized the same vide memo Ex.PW27/C. According to him the clothes of Babloo i.e. Tshirt and half pant were blood stained on which he asked him to change the same into the clothes which were brought from his house and Babloo then changed his clothes and then handed over the blood stained T shirt and half pant to him which he converted into pullanda with the help of cloth and sealed the same with the seal of RP and seized the same vide seizure memo Ex.PW27/G. The witness has testified that accused Babloo was then arrested vide memo Ex.PW27/D, his personal search was conducted vide Ex.PW27/E and his disclosure statement was recorded vide Ex.PW27/F. He has proved having recorded the statement of witnesses Kishan Lal and Daleep and other police officials after which they returned to the Police Station and deposited the St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 58 case property in the malkhana and accused Babloo was kept in the police station in the custody of Ct. Gurjeet.
(78) The witness has also deposed that in the evening time he got information that coaccused Bobby is hiding himself inside the primary school, near bari masjid, JJ Colony, Wazirpur on which he along with Ct. Kuldeep, ASI Dev Raj and accused Babloo went in search of coaccused Bobby who was apprehended with the help of ASI Jagbir from the MCD Primary School, JJ Colony, Wazirpur and during his interrogation he came to know that Bobby was Juvenile. According to the witness, he collected the age proof of Bobby from MC Primary School, Tri Nagr, Delhi and ASI Jagbir prepared the apprehension memo, personal search of Juvenile Bobby and also recorded his version and also seized his clothes which were worn by him.
(79) During the examination of the witness, this Court has been informed that the Juvenile accused Bobby has pleaded guilty in the said case.
(80) Witness has further deposed that thereafter they returned to the Police Station and deposited the case property in the malkhana and accused Babloo was put in the lock up of Police Station Ashok Vihar. (81) Witness has further deposed that on 27.07.2012 brothers of deceased Firoz and Mohd. Rafiq came to the Police Station after which they were taken to BJRM hospital mortuary where they identified the dead body of deceased Mumtaz vide memos Ex.PW18/A and Ex.PW12/A St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 59 respectively. He has also proved having made a request to the Autopsy Surgeon for conducting the postmortem on the body of the deceased vide application Ex.PW28/C; having prepared the inquest papers i.e. Form No. 25.35(10(B) which is Ex.PW28/D running into 12 papers which includes brief facts which is Ex.PW28/D1. According to him after postmortem the dead body was handed over to Firoz, brother of deceased vide memo Ex.PW12/B and after postmortem Autopsy Surgeon handed over to him the exhibits containing blood stained clothes of the deceased i.e. suit and salwar, chunni and bra, blood sample in gauze along with one sample seal which were sealed with the seal of FMT BJRM Hospital, Delhi which he took into possession vide seizure memo Ex.PW10/A. He has testified that thereafter he returned to the Police Station and deposited the case property in the malkhana and accused Babloo was produced before the Court and was remanded to Judicial Custody whereas the coaccused Bobby was produced before JJBII and was sent to Observatory Home for boys. (82) The witness has further deposed that on the same day he along with ASI Jagbir, Ct. Gurjeet went in search of coaccused Roshan Khan who was discharged from the BJRM hospital and was found available at his residence i.e. at Jhuggi No. N17C/435, Wazirpur JJ Colony. He has proved that after his interrogation, he arrested him vide arrest memo Ex.PW27/H; his personal search was conducted vide memo Ex.PW27/I and his disclosure statement was recorded vide memo Ex.PW27/J. According to St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 60 him the clothes which the accused was wearing were blood stained and therefore he made him change his clothes and his baniyan, underwear and tehmat (lungi) were converted into a pullanda with the help of a white cloth and sealed the same with the seal of RP and thereafter seized the same vide seizure memo Ex.PW27/K. The witness has testified that the accused Roshan Khan pointed out the place of occurrence vide pointing out memo Ex.PW27/L after which they returned to the Police Station where the case property was deposited in the malkhana and accused was put in the lock up after getting his medical examination conducted from BJRM Hospital and he recorded the statements of witnesses.
(83) According to the Investigating Officer on the next day i.e. on 28.07.2012 accused Roshan Khan was produced before the Hon'ble court and was remanded to Judicial Custody. He has further deposed that he recorded the statement of mother of the deceased namely Sultana W/o Alah Khan and deposited the MLC of Babloo, Mukhtar and Roshan Khan in the BJRM Hospital for obtaining the result. He has testified that on 10.08.2012 W/ASI Geeta Rani, posted at CAWC NW District was examined U/s 161 Cr.P.C. as a complaint regarding demand of dowry and sustained harassment of the deceased by her inlaws and husband was pending under inquiry with her and the details regarding the said complaint is Ex.PW22/B (running into 22 pages), Ex.PW22/C and Ex.PW22/D. According to him, on 16.09.2012 he collected the pullanda of recovered knife from MHC(M) CP duly sealed with the seal of RP for seeking subsequent opinion from St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 61 Autopsy Surgeon and produced the same before autopsy surgeon Dr. V. K. Jha in BJRM hospital mortuary with a request to give subsequent opinion which request is Ex.PW28/E on which which Dr. V.K. Jha gave his subsequent opinion which is Ex.PW17/C and he (Dr. V.K. Jha) also prepared the sketch of the said knife which is Ex.PW17/B. The witness has further deposed that thereafter Dr. V.K. Jha handed over the subsequent opinion report along with the weapon of offence after sealing the same with the seal of FMT, BJRM Hospital Mortuary along with sample seal to him after which he returned to the Police Station and deposited the weapon of offence in the malkhana and recorded the statements of witnesses. The witness has testified that on 18.09.2012 he sent the exhibits to FSL Rohini through Ct. Mohan Lal for expert opinion along with forwarding letter and recorded the statements of witnesses and after completion of investigations, he filed the charge sheet against both the accused persons in the court. According to him, in the month of February, 2013 he filed the supplementary charge sheet on receipt of FSL result against both the accused persons in the court of Ld. ACMM, Rohini.
(84) The witness has correctly identified both the accused Roshan Khan and Babloo in the Court and also identified the case property i.e. one butcher's knife as the same which was handed over to him by HC Jogender Singh which knife is Ex.P1; one Tshirt totally stained with blood from the front side (belonging to Mukhtar) which is torn from the upper portion i.e. towards the chest indicating the use of force as if some body has pulled the St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 62 same from the chest portion as a result of which it has been torn from there, which Tshirt is Ex.P2; a blood stained khakhi pant belonging to Mukhtar which is Ex.P3; one pair of chappals of grey color as the same as the one which were lifted from the spot by the Investigating Officer which is Ex.P4; one blood stained Tshirt of camel brown color and one blood stained half pant (checkdar) as the same as the one which were worn by accused Babloo which TShirt is Ex.P5A and half pant is Ex.P5B; one blood stained baniyan, one blood stained underwear and one blood stained Tehmat/ Loin cloth as the same which were worn by accused Roshan Khan which baniyan is Ex.P6A, underwear is Ex.P6B, Tehmat is Ex.P6C; cotton wool swab as the same lifted by him from the road in front of jhuggi No. N17C/437, JJ Colony, Wazirpur, Delhi which is Ex.P7; blood stained concrete lifted by him from the road in front of jhuggi No. N17C/437, JJ Colony, Wazirpur, Delhi which is Ex.P8; earth control lifted by him from the road in front of jhuggi No. N17C/437, JJ Colony, Wazirpur, Delhi which is Ex.P9; cotton swab having blood stains lifted by him from the lane leading towards the house of deceased i.e jhuggi No. N17C/487, JJ Colony, Wazirpur, Delhi which is Ex.P10; cotton swab having blood stains lifted by him from the lane leading towards the house of deceased i.e jhuggi No. N17C/487, JJ Colony, Wazirpur, Delhi which is Ex.P11; cotton swab having blood stains along lifted by him from the lane leading towards the house of deceased i.e jhuggi No. N17C/487, JJ Colony, Wazirpur, Delhi St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 63 which is Ex.P12; cotton swab having blood stains lifted by him from the lane leading towards the house of deceased i.e jhuggi No. N17C/487, JJ Colony, Wazirpur, Delhi which is Ex.P13 and one lady's kurta having blood stains, one brassier having blood stains and one salwar having blood stains as the same as handed over to him by Autopsy Surgeon which were clothes of the deceased which he had seen at the time of preservation of the dead body, which are collectively Ex.P14.
(85) In his cross examination by the Ld. Defece Counsel the witness has deposed that on 26.07.2012 he reached the spot at about 8:45 AM and 3040 public persons were present there. He has admitted that the place of occurrence is thickly populated area. According to him after recording the statement of Brij Mohan, they immediately went to BJRM hospital and the Crime Team reached the spot at about 9:30 AM and after inspecting the spot by the Crime Team, they left for BJRM Hospital. He has further deposed that the statement of Brij Mohan was recorded by ASI Dev Raj on his dictation. He has denied the suggestion that statement of Brij Mohan was recorded in the police station later on to strengthen the case or that Brij Mohan had not made any statement or his statement was manipulated by him in the police station. The witness has further deposed that they reached BJRM hospital at about 11:00 AM and HC Jogender Singh handed over the knife Ex.P1 to him immediately after their reaching there and all the writing work regarding knife was conducted while sitting in the room of Duty Constable in the hospital. He does not remember the name of Duty St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 64 Constable who was deputed in the hospital and states that he was not cited as a witness in the present case because he was busy in the Casualty. According to the witness, all the memos regarding knife were written by ASI Dev Raj on his dictation and all the sealing materials were available with him in the Investigating Officer kit which was of blue color but he does not recollect the material with which it was made. Witness has also deposed that Ct. Kuldeep took rukka to the Police Station at about 12:30 PM and they left BJRM Hospital at around 1:00 PM. He has further deposed that they reached the spot by 1:30 PM and it took him about one hour to lift the exhibits from the spot and he did writing work while sitting outside the shop of Brij Mohan. Witness has also deposed that all the memos are in the handwriting of ASI Dev Raj which were prepared at his instance and they remained at the spot till about 4:00 PM and reached at BJRM Hospital at about 4:30 PM. He has also deposed that at the time of recording the disclosure statement of Babloo, no public person was joined and they left the BJRM hospital in the evening time but he does not recollect the exact time. He has further deposed that on 27.07.2012 they reached at the jhuggi of Roshan Khan at about 7:45 PM in official gypsy and made the departure entry but he does not recollect its number. According to him, they parked their vehicle in the gali and they all were in uniform. He has also deposed that disclosure statement of Roshan Khan was recorded at the spot and no independent witness from the neighbor were joined at the time of recording the disclosure statement and has voluntarily explained that they had refused St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 65 despite his request, he did not give any notice to any neighbors for their refusal. He has admitted that ASI Dev Raj prepared all the memos regarding accused Roshan Khan and has voluntarily explained that they were on his directions. The witness has also admitted that Roshan Khan had received injuries but he did not register any cross case and has voluntarily explained that the injuries were superficial.
(86) The witness has also deposed that he only collected the material from CAW Cell but did not make any inquiries with regard to the correctness of allegations made in the complaint of the deceased on the date when he collected the documents i.e. on 10.08.2012 and therefore he was not aware if the last date was 06.08.2012 and what transpired thereafter. According to the witness, he made no inquiries from the neighborhood with regard to the relations between deceased and her husband, nor he made any inquiries from the mother and brother of the deceased and has voluntarily explained that the mother and brother of the deceased made no such complaint regarding any previous harassment by husband. He has denied the suggestion that on the day of the incident also there was a dispute between deceased and her husband Mukhtar and has voluntarily explained that his investigations revealed that there was no such dispute/ jhagrra between two. According to him, he was not aware if Mukhtiar was running a meat shop. He has denied the suggestion that the weapon of offence i.e. knife with which the deceased was killed was belong to Mukhtiar or that it was the Mukhtar who had killed his wife. The witness has denied the St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 66 suggestion that Roshan Khan and Babloo had come to save the deceased from Mukhtar and had even received injuries in this process or that he has deliberately diverted the investigations on the accused persons to save Mukhtar. He has also denied the suggestion that he did not investigate the case fairly and independently or that both the accused have falsely implicated. The witness has also denied the suggestion that he has recorded the disclosure of both the accused of his own or that they did not make any disclosure. He has further denied the suggestion that all the proceedings were conducted while sitting in the Police Station. STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(87) After completion of prosecution evidence the statement of both the accused persons are recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. The accused Roshan Khan has stated that he is innocent and has been falsely implicated. According to him, his elder son Mukhtar was giving beatings to his younger son Bobby which was objected to his wife. The accused has further stated that he was not at home and a large number of neighbours gathered and saved Bobby. He has also stated that meanwhile Mukhtar brought a knife from somewhere and inflicted a knife blow on himself.
According to the accused he tried to snatch the knife from him but he become desperate. He has further stated that while the brothers were fighting with each other the deceased came in between to save them and in St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 67 the process received stab injuries from the hands of Mukhtar itself. He has stated that the allegations against him are incorrect and he did not commit any offence as alleged.
(88) Similarly, the accused Babloo has stated that he is innocent and has been falsely implicated. According to him, his elder son Mukhtar was giving beatings to his younger son Bobby in the gali near Nehat which was objected to by his mother. The accused has further stated that he was sleeping in the house and he heard noise on which he came out in the gali where a large number of neighbours gathered. He has also stated that meanwhile Mukhtar brought a knife from somewhere and inflicted a knife blow on himself on which he and his father tried to snatch the knife from him but he become desperate. He has further stated that in the said process / fighting the deceased came in between to intervene and received stab injuries. He has stated that the allegations against him are incorrect and he did not commit any offence as alleged. However, both the accused did not examine any witness in their defence.
FINDINGS:
(89) 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. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under
and later on comprehensively.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 68
Sr. Name of the Details of deposition No. witness Public / Eye witnesses: 1. Dalip (PW11) This witness is a resident of the same area and the incident
had taken place just in front of his jhuggi. He has deposed on the following aspects:
1. That he knew Mumtaz who was residing in near his jhuggi and also knew Kishan Lal who was having a STD shop at a distance of about 1520 paces from their jhuggi.
2. That Mumtaz was residing near their jhuggi and that Mumtaz came to the STD shop of Kishan Lal for making a call at 100 number.
3. That on 26.07.2012 at about 8:30 AM when Mumtaz was making call at 100 number from the shop of Kishan Lal she was saying that her father in law and two devars were giving beatings to her husband and police be sent immediately.
4. That after making call Mumtaz was waiting for PCR van in front of his jhuggi.
5. That Roshan Khan, his sons Babloo and Bobby came out of the gali from the jhuggies and started beating Mumtaz.
6. That thereafter Roshan Khan and his son Bobby caught hold Mumtaz and Babloo gave knife blows to Mumtaz.
7. That Mukhtar husband of Mumtaz also came at the spot at that time and due to knife blows Mumtaz fell down on the road and become unconscious.
8. That in the meanwhile PCR Van came at the spot and after seeing the PCR van Roshan Khan and his sons Babloo and Bobby started started to move away from there.
9. That thereafter Kishan Lal made a call at 100 number and after some time police gypsy came there and Mukhtar also reached at the spot and St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 69 then police took Mukhtar and Mumtaz from there in the gypsy.
10. That that police from the Police Station Bharat Nagar also reached at the spot
2. Rafiq (PW12) He is the brother of the deceased Mumtaz who has deposed on the following aspects:
1. That his sister Mumtaz was married to Mukhtar in the year 2004 and Mukhtar was the son of his father's first cousin sister i.e. daughter of his father's mausi.
2. That his other sister namely Intaz is married to the younger brother of Mukhtar namely Momin.
3. That the name of the father in law of his sister Mumtaz is Roshan Khan and after marriage both his sisters Mumtaz and Intaz were subjected to lot of harassment by their father in law, mother in law, brother in laws and husband of Mumtaz namely Mukhtar.
4. That his other sister Intaz and her husband Momin had separated out and started staying separately but Mumtaz and her husband Mukhtar continued to stay in the same house.
5. That even two to two and a half months prior to her death, Mumtaz had made a complaint to the CAW Cell but the matters/ disputes were compromised and his sister Mumtaz continued to stay there with Mukhtar.
6. That in the year 2011 Mumtaz made a complaint in the CAW cell against her husband, Mukhtar and her father in law, mother in law and also against devar Bobby and Babloo.
7. That due to compromise between Mukhtar and Mumtaz, his sister Mumtaz withdrew her complaint from CAW Cell and in month of July 2012, Mumtaz again made a complaint at CAW cell against her husband Mukhtar, her father in law Roshan Khan, her mother in law Haseena and Devar Babloo and Bobby.St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 70
8. That despite the complaint, Mumtaz and Mukhtar were residing in the same house though she did not compromise her case against her father in law, mother in law and devars.
9. That on 26.07.2012 his younger brother Feroz received a call from his brother in law Momin that Mumtaz had received injuries in a quarrel in the house and when they reached at BJRM Hospital, they found Mumtaz in dead condition after which he came to know that Roshan Khan and Bobby caught hold Mumtaz and Babloo gave knife blows to her.
10. That he also came to know that Roshan Khan, Babloo and Bobby gave beatings to Mukhtar and also gave knife blows to him.
11. That he identified the dead body of his sister Mumtaz vide his statement which is Ex.PW12/A and after postmortem dead body was handed over to them vide Ex.PW12/B.
3. Mukhtar (PW13) He is the husband of the deceased Mumtaz and also an injured in the incident. He has deposed on the following aspects:
1. That he was married with Mumtaz on 02.05.2004 and was having two children from the said wedlock.
2. That about two years before her death, Mumtaz made a complaint at CAW Cell against him, his father, his brothers Bobby and Babloo which complaint was compromised and hence she withdrew the same because of his undertaking that he would take due care of her.
3. That Mumtaz again made a complaint either on 09.07.2012 or it was 10.7.2012 in the CAW Cell against him, his father and his brothers Bobby and Babloo.
4. That at that time Mumtaz was residing with them in the same house and knowing his financial condition she wanted to reside together with the family but she only wanted that she should be permitted to live St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 71 peacefully without any violence.
5. That at that time he, Mumtaz and their children used to reside on the ground floor portion and his parents and brother Bobby and Babloo resided on the first floor portion.
6. That on 26.07.2012 everything was normal in the morning and after he left the children at school, they had tea together and at about 8:15 AM his wife Mumtaz requested his brother Bobby for a pipe because she wanted to store water in the house from the tap installed in the gali but Bobby straight away started abusing Mumtaz saying "tere baap mein dam ho to tu pani bhar kar dihka de".
7. That Mumtaz then complained to him that Bobby was not permitting her to fill up water from the tap on which he requested Bobby to permit Mumtaz to fill water but Bobby started abusing him also.
8. That since he (witness) did not want to aggravate the issues so he went to the first floor and made a complaint to his father Roshan Khan and requested him to intervene and asked Bobby to permit him to at least take water but his father Roshan Khan also started abusing him.
9. That in the meanwhile, Bobby also joined them and both his father Roshan Khan and brother Bobby started abusing him and then suddenly his other brother Babloo who was already on the first floor with his father brought out a butcher's knife and suddenly gave him a knife blow on his right side chest which stab injury mark has been seen by the Court being still visible.
10. That since he was running a butchers shop after shutting down his shop he normally brought the choppers, knife etc. and kept them on the first floor of his house and it is from there that Babloo had fetched this knife and thereafter Bobby took out his belt from his pant and hit him on his head with the buckkled portion as a result of which he virtually collapsed.St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 72
11. That his wife Mumtaz who was on the ground floor came upstairs on hearing the commotion and noticing his condition, she called out to him saying that she was going to make a telephone call to the police saying "abhi ruko mein police ko phone kar ke aate hu".
12. That on hearing this his father Roshan Khan exhorted his brother Babloo and Bobby saying that Mumtaz was going to make a call to the police and to see that she does not reach there "Dekho woh ja rahi hai, pakro usko".
13. That on this his father Roshan Khan, brothers Babloo and Bobby started following Mumtaz while he was still lying down on the first floor in an injured condition and on seeing them following Mumtaz, he somehow gathered strength and dragged himself to the ground floor in the gali to save Mumtaz.
14. That from the gali he saw that Mumtaz was standing outside the gali i.e. towards the corner of F Block where he saw his father Roshan Khan and both his brothers Bobby and Babloo out of whom Babloo was carrying a knife in his hand reached Mumtaz and thereafter all three of them started beating his wife.
15. That by the time he reached near Mumtaz, she called out to him and said that she had made a 100 number call on which his brother Babloo told Bobby and his father Roshan Khan "ise pakro, ise 100 number par phone karne ka maza chakhte hai, isne hamari jindagi kharab kar di hai" (catch her, we have to teach her a lesson for making a call on 100 number. She has spoiled our lives).
16. That his father Roshan Khan caught hold of her hairs while Bobby gave her kicks and fists blows and Babloo repeatedly stabbed her from all sides and when Mumtaz was trying to resist and save herself, she was also giving knife blows on her sides and arms.St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 73
17. That she was also stabbed on her chest and by the time he could reach there all three of them ran away while a large number of public persons gathered.
18. That in the meanwhile since his wife Mumtaz had already made a PCR call, the police personnel's also reached the spot and he informed them about the entire incident after which he along with some public persons and PCR officials lifted his wife and put her in the PCR Van and they were taken to BJRM hospital where he and his wife Mumtaz were both examined.
19. That there his wife Mumtaz was declared brought dead whereas he was admitted in the hospital and provided treatment.
20. That after sometime he noticed that the police had also brought his father Roshan Khan and Babloo to the hospital.
21. That he remained in the hospital till next day and his blood stained clothes i.e. TShirt and pant had been taken by the police after which they had converted into a pullanda and sealed the same which was seized vide memo Ex.PW13/A.
4. Feroz (PW18) He is also the brother of the deceased and has deposed on the following aspects:
1. That his sister Mumtaz was married to Mukhtar in the year 2004 who was the son of his father's first cousin sister i.e. daughter of his father's mausi and his other sister Intaz was also married to the younger brother of Mukhtar namely Momin.
2. That after marriage both his sisters were subjected to a lot of harassments by their father in law, mother in law, brother in laws and husband of Mumtaz.
3. That his sister Intaz and her husband Momin had started staying separately at Mukundpur while Mumtaz and her husband Mukhtar continued to stay in the same house where her other in laws were residing.St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 74
4. That Mumtaz made a complaint in the CAW Cell against her husband Mukhtar, her father in law, mother in law and also against devars/ brother in laws Bobby and Babloo.
5. That due to compromise between Mukhtar and Mumtaz, she withdrew her complaint from CAW Cell and in month of July 2012 Mumtaz again made a complaint at CAW Cell against her husband Mukhtar, her father in law Roshan Khan, her mother in law Haseena and Devar Babloo and Bobby.
6. That despite the complaint Mumtaz and Mukhtar were residing in the same house though she did not compromise her case against her father in law, mother in law and devars.
7. That on 26.07.2012 at about 4:004:30 PM he received a call from his brother in law Momin that Mumtaz had received injuries in a quarrel and she was dead on which they reached police station and thereafter at hospital.
8. That they came to know that Roshan Khan and Bobby caught hold Mumtaz and Babloo gave knife blows to her and Roshan Khan, Babloo and Bobby also give beating to Mukhtar and also gave knife blows to him.
9. That he identified the dead body of his sister Mumtaz vide his statement which is Ex.PW18/A and after postmortem, dead body was handed over to them vide Ex.PW12/B. 5 Brij Kishore He is the complainant in the present case and an eye (PW19) witness to the incident. He has deposed on the following aspects:
1. That he is residing at E157, JJ Colony, Wazirpur, Delhi along with his family for the last 35 years and was having a shop of general merchandise and he usually opened his shop at 5 AM.
2. That on 26.07.2012 at about 8:30 AM he was sitting at his shop when Mumtaz who is resident of the same area came and made a call at 100 St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 75 number from the adjoining shop and she was telling the police that her father in law and devar/ brother in laws were coming to kill her (phone par keh rahi thi ki mere sasur aur devar mujhe marne ke liye aa rahe hai) and was crying.
3. That he then noticed that after making the call while she was going to the same gali where she was residing when her devar (brother in law) and father in law i.e. Bablu and Roshan Khan came and started beating her and he noticed that they were inflicting stab wounds to her (usko chako mar rahe thai) on which she fell down on the ground itself, totally smudged in blood (khoon mein lath path wahi gir gayi).
4. That in the meantime, the PCR official reached the spot and Roshan Khan and Babloo started to run at the spot but the PCR officials chased them and apprehended them a little away from the spot near the Masjid "police ko dekh kar yeh log bhagne lage to police ne bhag kar thori dur inko masjid ke pass pakar liya".
5. That the local police arrived at that time which include the SHO and senior officers.
6. That Mumtaz had already expired at the spot and police lifted her body away and they also took Roshan Khan and Babloo along with them.
7. That the SHO recorded his statement at the spot itself which is Ex.PW19/A.
6. Kishan Lal He is a resident of the same area and is an eye witness to (PW21) the incident. He has deposed on the following aspects:
1. That he is residing at N17C/418, Wazirpur JJ Colony, Delhi along with his family for the last 40 years and is running a kiryana/ general merchandise shop from the said shop and also running a STD booth from the said shop.
2. That 26.07.2012 in the morning he was present at his shop when at about 8:308:45 AM Mumtaz a resident of the same area who is residing a little St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 76 away from his shop came and made a call at 100 number.
3. That Mumtaz was telling the police that there was a quarrel going on between her husband and brother in law/ devar and was asking the police to reach the spot immediately.
4. That at that time she was not even wearing chappals and was extremely scared and perturbed that she was not even to speak properly "ghabrai hui thi ki dhang se bola bhi nahi ja raha tha".
5. That after she made a telephone call, she went towards her house and entered in her gali when he saw Roshan Khan and Bablu i.e. the father in law and devar of Mumtaz who came there and caught hold of her and started beating her and there was a hata pai between them.
6. That he saw Babloo having a big knife/ chopper in his hand and in the said fight Mumtaz was given knife blows.
7. That then he saw her body lying on the ground with her head down and totally smeared with blood.
8. That in the meantime the husband of Mumtaz namely Mukhtar also reached the spot and he noticed that even he was having injuries and thereafter he noticed that the police who reached the spot had chased Roshan Khan and Babloo and apprehended them.
9. That while police were taking them away, he noticed the knife in the hand of Babloo. Witnesses of Medical Record:
7. Dr. Neeraj He has proved the MLC of Mukhtar S/o Roshan Khan, Chaudhary which is Ex.PW14/A according to which on local (PW14) examination following injuries were present on the body of the injured:
1. 3.5 x .5 x 1.5 cm CLW on right side of chest near sternum.
2. 1 cm laceration on forehead St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 77
3. CLW 1 x 1cm on right shoulder He has further proved the MLC of Mumtaz W/o Mukhtar which is Ex.PW14/B according to which the patient was declared brought dead and handed over to Investigating Officer for postmortem examination.
He has also proved the MLC of Babloo S/o Roshan Khan which is Ex.PW14/C according to which on the local examination, there was a lacerated wound of size 2 x .5cm on right index finger and the patient was referred to Surgery Department.
The witness has further proved the MLC of Roshan Khan S/o Nanuh Khan which is Ex.PW14/D according to which on local examination, there were two lacerated wounds of size 3 x .5 cm present on right lower forearm and the patient was referred to Surgery Department.
8. Dr. Rohit Kumar This witness has proved that Dr. Pankaj had opined the (PW15) nature of injuries on the person of Mukhtar S/o Roshan Khan, Babloo S/o Roshan Khan and Roshan Khan S/o Nanuh Khan as Simple in nature.
9. Dr. Shipra She is the Radiologist who has proved her report in respect Rampal (PW16) of Mukhtar which is Ex.PW16/A and the XRay films are Ex.PW16/B1 to Ex.PW16/B3; report in respect of Babloo which is Ex.PW16/C and the XRay film Ex.PW16/D; reports in respect of Roshan Kahn which are Ex.PW16/E & Ex.PW16/G and the XRay films Ex.PW16/F & Ex.PW16/H according to which no bony injury was found on any of the injured
10. Dr. V.K. Jha He is the Autopsy Surgeon who has proved that on (PW17) 27.07.2012 at about 12.30PM he conducted postmortem on the dead body of Mumtaz W/o Mukhtiyar vide postmortem report which is Ex.PW17/A according to which there were following external injuries on the body of deceased:
1. Abrasion of size 3cm x 2 cm on left leg on lower aspect.
2. Incised wound on left arm outer aspect, 8cm below shoulder joint of size 6cm x 1cm x muscle deep. St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 78
3. Incised wound on left arm 12 cm below left shoulder joint of size 2cm x 0.5 cm x muscle deep in inner aspect.
4. Incised wound on left forearm 8 cm below left elbow joint 4cm x 1 cm x bone deep.
5. Lacerated wound on chin 8cm x 2 cm x bone deep.
6. Abrasion on right temporal region.
7. Incised wound on sternum between nipples of size 4cm x 1 cm x chest cavity.
8. Incised wound of left abdomen 12cm below left nipple, two incised wound 2cm apart of size 1cm x 1cm and 2cm x 2cm x abdominal cavity deep each.
He has proved having opined that the cause of death was hemorrhagic shock as a result of stab wound inflicted by other party; all injuries were antemortem in nature and Injury No.7 was sufficient to cause death in ordinary course of nature, time since death was approximately same as time of declared brought death i.e. 9.20AM on 26.07.2012.
The witness has also proved having examined the weapon of offence i.e. Knife, having prepared its sketch/ diagram which is Ex.PW17/B and having opined that the injury no. 2, 3, 4, 7 and 8 mentioned in the PM report could have been caused by this weapon of offence or similar such weapon and Injury No. 1, 5 and 6 have been caused by fall, which subsequent opinion is Ex.PW17/C .
FSL Expert:
11. Sh. Indresh This witness has proved the Biological Report in respect of Kumar Mishra the exhibits examined by him which is Ex.PW20/A (PW20) according to which blood was detected on exhibits 1, 2, 3, 5, 6, 7, 8, 9, 10a, 10b, 10c, 10d, 11, 12a, 12b, 13a, 13b, 13c, 14a, 14b, 15a & 15b but blood cold not be detected on exhibit 4. He has also proved the Serological Report which is Ex.PW20/B according to which human blood of Group AB was detected on Ex.6, 8, 10a, 10b, 10d, 11, 12,a, 12b, 13a, 13b, 14a and 14b.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 79
Police/ Official witnesses:
12. Ct. Rajesh Kumar He is formal witness being the Special Messenger who has (PW1) proved that on 26.7.2012 he delivered the Special Reports to the Joint Commissioner of Police, DCPI & DCPII and the Ld. ACMM.
13. HC Mehfooz He is also a formal witness being the MHCM who has Khan (PW2) proved the Entry in Register no.19 vide Sr. No. 725 copy of which is Ex.PW2/A (five pages), Sr. No. 726 copy of which is Ex.PW2/B (two pages), entry in Register No. 21 vide RC No. 78/21/12 copy of which is Ex.PW2/C and receipt issued by FSL copy of which is Ex.PW2/D.
14. SI Manohar Lal He is a formal witness being the Draftsman who has (PW3) proved having visited the spot of incident and having prepared the scaled site plan which is Ex.PW3/A.
15. Ct. Subhash He is also a formal witness being the Crime Team (PW4) photographer who has proved having taken Seventeen photographs of the place of incident which photographs are Ex.PW4/A1 to Ex.PW4/A17 and having prepared the CD containing the photographs which is Ex.PW4/B.
16. HC Jai Singh He is a formal witness being the Duty Officer who has (PW5) proved having lodged the DD No. 6A copy of which is Ex.PW5/A; FIR No. 171/12 copy of which is Ex.PW5/B and endorsement on rukka which is Ex.PW5/C.
17. Ct. Sonu Kumar He is also a formal witness who has proved having visited (PW6) the spot along with SI Mohinder Singh and he was deputed to preserve the scene of crime.
18. SI Sanjeev Verma He is a formal witness being the Crime Team Incharge (PW7) who has proved having inspected the spot of incident and having prepared the Crime Team Report which is Ex.PW7/A.
19. HC Jasvir Singh He is a formal witness being the PCR Van Incharge who (PW8) has proved that on 26.7.2012 at about 8:35 AM pursuant to the information he reached in front of Jhuggi No. N17C/487 Wazirpur JJ Colony and found one woman lying unconscious on which he along with his staff shifted St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 80 the injured Mumtaj and her husband to BJRM Hospital where Mumtaj was declared brought dead.
20. HC Hanuman He is a formal witness being the CPCR Official who has (PW9) proved the PCR Form which is Ex.PW9/A and the WT messages incorporated at point bracketed A.
21. HC Rajender He is a formal witness who has proved the following Singh (PW10) aspects:
1. That on 26.7.2012 on receipt of DD No. 6A regarding quarrel he along with ASI Devraj reached the spot where SI Mahender Singh and Ct.
Sonu were already present and on inquiry it was revealed that the PCR van had already removed the injured to BJRM Hospital.
2. That public witness Brij Kishore met at the spot whose statement was recorded by Inspector Rajender Prasad after which he along with other police officers reached BJRM Hospital where the injured Mumtaz was declared brought dead whereas her husband Mukhtar was found admitted in the hospital.
3. That he preserved the dead body of Mumtaj in the Mortuary for postmortem examination and on 27.7.2012 after postmortem examination of the deceased the Autopsy Surgeon handed over two sealed pullandas which were seized vide Inspector Rajender Prasad vide memo Ex.PW10/A.
22. ASI Geeta Rani This witness has proved the following aspects:
(PW22) 1. That on 26.9.2011 he was working as ASI in CAW Cell Pitampura and on that day Smt. Mumtaz lodged a complaint bearing No. M42 dated 26.9.2011 at CAW Cell which complaint is Ex.PW22/A.
2. That the said complaint was initially marked to ASI Kripal Singh and she joined the proceedings on 21.12.2011 and 29.12.2011 when ASI Kripal Singh was on leave.
3. That the matter was compromised between Smt. Mumtaz and her husband and therefore the matter St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 81 was closed on 29.12.2011.
4. That the proceedings conducted at CAW Cell including the statements of the parties which are collectively Ex.PW22/B (running into 22 pages).
5. That again on 10.7.2012 Smt. Mumtaz lodged another complaint bearing no. AG34 dated 10.7.2012 which was marked to her which complaint is Ex.PW22/C.
6. That thereafter she conducted the proceedings which are collectively Ex.PW22/D (running into six pages).
7. That on 30.7.2012 Sultana the mother of complainant made a statement that Mumtaz had been murdered by her fatherinlaw Roshan Khan, brothers in law Bobby and Bablu and hence the entire proceedings were sent to the Police Station.
23. HC Jogender He is the Incharge of PCR Van CMD19 and has proved (PW23) the apprehension of both the accused Roshan Khan and Babloo along with the knife from the hands of Babloo. He was the one who had apprehended the accused persons and got them admitted in the hospital. This witness has deposed on the following aspects:
1. That on 26.07.2012 he was posted at PCR Commander 19, Bharat Nagar as Incharge and on that day at about 8:39 AM he received a call from Command Room regarding a incident of stabbing at in front of F239, Bari Masjid on which he reached the spot where he found another PCR Van present there.
2. That since the area was very congested he stopped the vehicle at the main gali and while he was going towards the spot of the incident on foot, he saw three persons running in the gali.
3. That one of the said persons was holding a knife in his hand and his clothes were smeared with blood and the clothes of other two persons were also smeared with blood on which he apprehended two of these persons after a short chase.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 82
4. That one of whom was a elderly person and the other person was the one who was having a knife in his hand and on inquiry the name of the elderly person was revealed as Roshan Khan whereas the name of the other person who was having a knife in his hand was revealed as Babloo whereas the third person ran away since he (witness) was alone.
5. That he gave the WT message to the Control Room that he had apprehended two persons and was taking them to BJRM Hospital when he also heard the WT message from the other PCR vehicle i.e. C 20 that they had picked up two persons from the spot, i.e. one lady who was unconscious and one man who was injured and they were taking to BJRM hospital.
6. That on reaching the BJRM Hospital, he got Roshan Khan and Babloo admitted in the hospital and the SHO also reached the hospital.
7. That the knife which was in the hand of Babloo and which he had taken into possession was handed over to the SHO.
8. That when he had seen the knife in the hand of Babloo he noticed that it was a meat chopper and was stained with blood.
9. That after he handed over the knife to the SHO who prepared the khaka of the same on the white paper and thereafter measured the same and its total length was found to be 19.5 cm and the blade was around 10.5 cm whereas the handle was of 9 cm after which the SHO thereafter converted the same into a pullanda with the help of white cloth and sealed the same with the seal of RP and thereafter seized vide seizure memo.
10. That the Investigating Officer proved the the sketch of the butcher's knife which is Ex.PW23/A and seized the same vide Ex.PW23/B. He has correctly identified the accused Roshan Khan and Babloo whom he had apprehended. He has also identified St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 83 the butcher's knife as the same which accused Babloo was holding in his hand at the time of his apprehension which knife is Ex.P1.
24. Ct. Bobby Joseph He has corroborated the testimony of HC Jogender (PW24) (PW23) in toto and has proved the following aspects:
1. That on 26.07.2012 he was posted at PCR North west Zone and on that day at about 8:39 AM Incharge of their vehicle i.e. C19 received a call from Command Room regarding a incident of stabbing at in front of F239, Bari Masjid on which he along with Incharge HC Jogender reached the spot where they found another PCR van already present.
2. That since the area was very congested, he stopped the vehicle at the main gali and while they were going towards the spot of the incident on foot, they saw two persons running in the gali.
3. That one of them was holding a knife in his hand and his clothes were smeared with blood and the clothes of other two persons were also smeared with blood on which they apprehended these persons after a short chase.
4. That one of whom was a elderly person which was apprehended by him and the other person was the one who was having a knife in his hand was apprehended by HC Jogender.
5. That on inquiry the name of the elderly person was revealed as Roshan Khan whereas the name of the other person who was having a knife in his hand was revealed as Babloo and they also came to know that there was another person also with those two persons, who had ran away.
6. That on reaching BJRM Hospital, Roshan Khan and Babloo were got admitted in the hospital by HC Jogender while he remained outside the hospital and his statement was recorded by the Investigating Officer later on.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 84
He has correctly identified the accused Roshan Khan and Babloo in the Court and also identified the butcher's knife which accused Babloo was holding in his hand at the time of his apprehension which knife is Ex.P1.
25. SI Mohinder This witness was on emergency duty and had visited the Singh (PW25) spot of incident. He has proved that he along with Ct.
Sonu reached the spot where they came to know that the PCR officials had already reached the spot and had taken the injured persons to the BJRM hospital and from local inquiry they also came to know that Roshan Khan and his sons Babloo and Bobby had quarreled with the wife of their elder son Mukhtar namely Mumtaz and Babloo had inflicted knife injuries on her and all of them had been shifted to BJRM Hospital in two PCR vehicles.
He has proved that in the meanwhile the SHO also reached the spot and started interrogating persons and came to know that one Brij Kishore was an eye witness to the incident on which he recorded the statement of Brij Kishore vide Ex.PW19/A. Thereafter the SHO along with HC Rajender, Ct. Kuldeep, ASI Dev Raj along with the other officials left for BJRM Hospital leaving him along with Ct. Sonu at the spot to preserve the spot of the incident.
26. Ct. Kuldeep Singh This witness had gone to the spot along with SHO (PW26) Inspector Rajender Parshad and other police officers. He has proved having taken the tehrir at about 12:30 noon and handed over the tehrir to Duty Officer HC Jai Singh who after registration of the case handed over to him computerized copy of the FIR and the original tehrir which he brought back to the spot and handed over the same to Inspector Rajender Parshad.
27 ASI Dev Raj This witness has joined investigations with Investigating (PW27) Officer Inspector Rajender Prashad and has proved the following documents:
Ex.PW27/A Seizure memo of blood, blood stained
earth and earth control from the spot in
front of Jhuggi No. N17/C/487
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 85
Ex.PW27/B Seizure memo of blood from four places in
front of Jhuggi no. N17/C/435, Wazirpur
JJ Colony
Ex.PW27/C Seizure memo of Hawai Chappal
Ex.PW27/D Arrest memo of Babloo
Ex.PW27/E Personal search memo of accused Babloo
Ex.PW27/F Disclosure statement of accused Babloo
Ex.PW27/G Seizure memo of clothes of Babloo
Ex.PW27/H Arrest memo of accused Roshan Khan
Ex.PW27/I Personal search memo of accused Roshan
Khan
Ex.PW27/J Disclosure statement of accused Roshan
Khan
Ex.PW27/K Seizure memo of clothes of accused
Roshan Khan
Ex.PW27/L Pointing out memo
Ex.PW27/M
28. Inspector He is the Investigating Officer of the present case and
Rajender Prashad apart from the documents proved by various witnesses he (PW28) has proved the following documents:
Ex.PW28/A Endorsement on rukka
Ex.PW28/B Request for preserving the dead body of
Mumtaz
Ex.PW28/C Application for conducting postmortem on
the dead body of the deceased
Ex.PW28/D Form 25:35
Ex.PW28/D1 Brief Facts
Ex.PW28/E Application for subsequent opinion
(90) Coming now to the microscopic evaluation of the evidence
against the accused.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 86
Medical Evidence:
(91) Dr. Neeraj Chaudhary (PW14) has proved the MLC of Mukhtar
S/o Roshan Khan which is Ex.PW14/A according to which on local examination following injuries were present on the body of the injured:
1. 3.5 x .5 x 1.5 cm CLW on right side of chest near sternum.
2. 1 cm laceration on forehead
3. CLW 1 x 1cm on right shoulder (92) He has also proved the MLC of Mumtaz W/o Mukhtar which is Ex.PW14/B according to which after examination the patient was declared 'Brought Dead'. Dr. Neeraj Chaudhary has further proved the MLC of accused Babloo S/o Roshan Khan which is Ex.PW14/C according to which there was a lacerated wound of size 2 x .5cm on right index finger of the accused. He has also proved the MLC of accused Roshan Khan S/o Nanuh Khan which is Ex.PW14/D according to which there were two lacerated wounds of size 3 x .5 cm present on right lower forearm.
(93) Dr. Rohit Kumar (PW15) has proved that on the basis of the reports Ex.PW16/A, Ex.PW16/C, Ex.PW16/E and Ex.PW16/G given by Dr. Shipra Rampal (PW16) the injuries on the person of Mukhtar, Roshan Khan and Babloo were opined to be Simple in nature.
(94) The case of the defence is that the injuries i.e. Cut Lacerated Wound on right side of chest near sternum; Laceration on forehead and Cut Lacerated Wound on right shoulder of Mukhtar were self inflicted. In this St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 87 regard I may observe that the position of the injuries (chest, forehead and shoulder) and their length of the injuries on the person of Mukhtar show that they cannot be self inflicted. However, the injuries present on the body of Roshan Khan and Babloo are concerned they are superficial lacerations and appear to be self inflicted. There was one lacerated wound on right index finger of accused Babloo which could have been caused on account of holding the knife since the evidence on record show that Babloo was the actual person who was holding the knife and was apprehended along with the knife. Further, there were two lacerated wounds on right lower forearm of accused Roshan Khan and hence the possibility of both the injuries being self inflicted cannot be ruled out.
(95) Coming next to the postmortem report of deceased Mumtaz, Dr. V.K. Jha (PW17) has proved having conducted the postmortem examination on the body of deceased Mumtaz vide postmortem report Ex.PW17/A according to which there were as many as eight injuries on her person which injuries are as under:
1. Abrasion of size 3cm x 2 cm on left leg on lower aspect.
2. Incised wound on left arm outer aspect, 8cm below shoulder joint of size 6cm x 1cm x muscle deep.
3. Incised wound on left arm 12 cm below left shoulder joint of size 2cm x 0.5 cm x muscle deep in inner aspect.
4. Incised wound on left forearm 8 cm below left elbow joint 4cm x 1 cm x bone deep.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 88
5. Lacerated wound on chin 8cm x 2 cm x bone deep.
6. Abrasion on right temporal region.
7. Incised wound on sternum between nipples of size 4cm x 1 cm x chest cavity.
8. Incised wound of left abdomen 12cm below left nipple, two incised wound 2cm apart of size 1cm x 1cm and 2cm x 2cm x abdominal cavity deep each.
(96) Dr. V.K. Jha (PW17) has proved having opined that the cause of death was hemorrhagic shock as a result of stab wound inflicted by other party; all injuries were antemortem in nature and Injury No.7 (Incised wound on sternum between nipples of size 4cm x 1 cm x chest cavity) was sufficient to cause death in ordinary course of nature, time since death was approximately same as time of declared brought death i.e. 9.20AM on 26.07.2012.
(97) Further, with regard to the weapon of offence i.e. knife is concerned, Dr. V.K. Jha has proved his subsequent opinion which is Ex.PW17/C showing the injuries No. 2,3,4,7 and 8 mentioned in the Postmortem report could have been caused by this weapon of offence i.e. knife Ex.P1 or similar such weapon and Injury No. 1, 5 and 6 have been caused by fall. The knife recovered from the hands of Babloo had been put to the witness Dr. V.K. Jha (PW17) in the Court and he identified the same as the same which was produced before him when he gave the St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 89 opinion. Dr. V.K. Jha has also proved having prepared the sketch of the knife which is Ex.PW17/B and this Court has observed the same to be matching and tallying with the knife Ex.P1 (produced in the Court). There is no reason to disbelieve the opinions given by Dr. V.K. Jha. (98) In view of the above, I hereby hold that the medical evidence on record is compatible to the prosecution case that the death of the deceased Mumtaz was homicidal on account of the injuries inflicted upon her with the knife Ex.P1 and the injury no.7 i.e. Incised wound on sternum between nipples of size 4cm x 1 cm x chest cavity was sufficient to cause death in ordinary course of nature.
Forensic Evidence:
(99) Sh. Indresh Kumar Mishra (PW20) Sr. Scientific Officer (Biology), FSL, Rohini has proved the Biological and Serological Reports which are Ex.PW20/A and Ex.PW20/B respectively showing that blood was detected on Ex.1 (Knife), Ex.2 (Cotton wool swab), Ex.3 (Blood stained concrete material), Ex.4 (Concrete material), Ex.5 (Cotton wool swab), Ex.6 (Cotton wool swab), Ex.7 (Cotton wool swab), Ex.8 (Cotton wool swab), Ex.9 (Pair of Chappal), Ex.10a (Lady's shirt), Ex.10b (Brassier), Ex.10c (Chuuni), Ex.10d (Salwar). Ex.11 (Blood stained gauze cloth piece), Ex.12a (TShirt), Ex.12b (Half pant), Ex.13a (Baniyan), Ex.13b (Underwear), Ex.
13c (Gamchcha), Ex.14a (Tshirt), Ex.14b (Pants), Ex.15a (TShirt) and Ex. 15b (Jeans pant).
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 90 (100) It is also evident from the Serological Report Ex.PW20/B that Blood Group 'AB' was found on Ex.6 (Cotton wool swab), Ex.8 (Cotton wool swab), Ex.10a (Lady's shirt), Ex.10b (Brassier), Ex.10d (Salwar). Ex. 11 (Blood stained gauze cloth piece), Ex.12a (TShirt), Ex.12b (Half pant), Ex.13a (Baniyan), Ex.13b (Underwear), Ex.14a (Tshirt) and Ex.14b (Pants).
(101) It is writ large that the blood group of the deceased was 'AB' which blood group of the deceased was found on the clothes of the clothes of the accused. Even the Knife Ex.P1 recovered from the hands of accused Babloo when he was caught was confirmed to be having human blood. This being so, I hereby hold that the Forensic Evidence is compatible to the prosecution evidence and connects the accused with the offence.
Apprehension and Arrest of the accused at the spot itself and recovery of the Weapon of offence:
(102) The case of the prosecution is that there was a domestic quarrel between the parties. Initially there was a quarrel between the husband of the deceased and her brother in law which aggravated and when her husband Mukhtar intervened, his brother i.e. accused Babloo attacked him on which the deceased Mumtaz seeing her husband being attacked, immediately went to the shop of Kishan Lal and made a call at 100 Number and started waiting for police in the corner of the street in front of the house of Dalip. While St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 91 Mumtaz was still waiting for the police, the accused Roshan Khan, Babloo and Bobby (juvenile) cornered her in the same gali and first gave her a thrashing and thereafter Roshan Khan and Bobby (juvenile) caught hold of her and Babloo who was having a knife in his hand inflicted as many as five knife blows on her vital organs. However, since she had already made a call at 100 number, the PCR officials reached the spot and on seeing them both the accused started running away but the PCR officials chased them and were able to apprehend them in the area itself after a short chase. The accused Roshan Khan was apprehended by Ct. Bobby Joseph and accused Babloo who was having a knife in his hand was apprehended by Incharge of PCR Van namely HC Jogender whereas Bobby (juvenile) managed to escape.
(103) In this regard the prosecution has placed its reliance on the testimonies of the PCR Van officials i.e. HC Jogender (PW23) and Ct.
Bobby Joseph (PW24) and also on the testimonies of public witnesses Brij Kishore (PW19) and Kishan Lal (PW21). It is evident from the evidence on record that in fact Two PCR Vans i.e. Commander 19 and Commander 20 had reached the spot pursuant to the information and when they reached the spot of the incident Mumtaz had died at the spot whereas her husband Mukhtar was injured. On seeing the police both the accused Babloo and Roshan Khan tried to escape but they were apprehended in the area are a short chase by HC Jogender and Ct. Bobby Joseph an aspect which is confirmed by the public persons present at the spot. Both these witnesses St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 92 have proved that at the time of his apprehension the accused Babloo was carrying the same knife in his hand which knife is Ex.P1. In fact HC Jogender (PW23) has proved that he handed over the said knife to the Investigating Officer in the hospital where the Investigating Officer prepared its sketch vide Ex.PW23/A and thereafter seized the same vide memo Ex.PW23/B. I may observe that the oral testimonies of these witnesses find due corroboration not only from the testimonies of public witnesses Brij Kishore (PW19) and Kishan Lal (PW21) but also from the WT messages sent to the Control Room. The various WT Messages along with the date and time as reflected in the PCR form Ex.PW9/A confirming the incident and arrest of the accused at the spot are reproduced as under:
"..... C20 = Ek lady to jhagde me chaku laga hai. Serious behosh hai. Hospital le ja rahe hain. Do injured rikshe se ja rahe the (26/7/2012 08:56:10).
C19 = Do injured thane ki taraf gaye hain check kar rahe hain. (26/7/2012 08:57:17).
C19 = Do injured ko lekar hospital ja rahe hain. (26/7/2012 09:09:43).
C20 = Mumtaz w/o mukhtar age 26 years, R/o N17C 435, JJ colony Wazirpur ko behoshi ki halat mein duty Constable ke hawale kiya. Lady ka husband bhi sath hai jisko bhi chaku laga hai. Mukhtar S/o Roshan age 30 years R/o Same ke baju me chaku laga hai. Hosh mein Duty Constable ke hawale kiya. Pariwarik jagda hai. (26/07/2012 09:28:22).
C20 = Lady ko doctor sahab ne check karne ke baad Brought Dead ghoshit kar diya hai jiste pet aur baju mein chaku lage the. (26/07/2012 09:31:45).
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 93 C19 = Dono injured to Duty Constable ke hawale BJRM Hospital me hosh me kiya 1. Roshan Khan S/o Nanu Khan age 55 ko baju me chaku laga hai. 2. Bablu S/o Roshan Lal age 30 years ko ungliyon me chaku laga hai. Dono injured to Duty constable ke hawale BJRM Hospital me hosh me kiya. (26/07/2012 09:44:42). C20 = Lady Mumtaz ke pati Mukhtar ne bataya ke meri wife ko baap aur bhaiyon ne mil kar hame chaku mare hain jo meri wife ko ghar me rakhna nahi chahte the. (26/07/2012 09:50:52).
C19 = Addl. SHO with staff hospital me pahunch gaye hain puch tach kar rahe hain (26/07/2012 10:10:11). C19 = ACP Sahab aur Addl. SHO Sahab Hospital me detail le rahe hain. I/C Van sath hi hai. (26/07/2012 10:20:30).
C19 = ACP Addl. SHO Sahab detail le rahe hain.
Property ko lekar pariwarik jhagda bata rahe hain jisme Roshan Khan aur uske bete Babloo Khan ne apne dusre bete Mukhtar aur bahu Mumtaz of chaku mare hain..."
(104) The above WT messages confirm that the call was received by Central Control Room and transmitted at 8:36 AM and the PCR Van CMD20 immediately reached the spot at 8:38 AM i.e. within two minutes and the second PCR Van i.e. CMD19 reached the spot at 8:41 AM i.e. within five minutes. While the victims Mumtaz and Mukhtar were rushed to BJRM Hospital by PCR CMD20, the accused Roshan Khan and Babloo were apprehended by the officials of PCR CMD19 who reached the spot after three minutes of the first PCR Van reaching the spot and it was the officials of PCR CMD19 who also rushed Roshan Khan and Babloo to St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 94 BJRM Hospital.
(105) When this entire material including their apprehension by the officials of PCR was put to the accused Roshan Khan and Babloo they did not deny the same. They have both admitted the incident of quarrel but have desperately tried to shift the blame on Mukhtar the husband of the deceased stating that it was Mukhtar who became desperate and inflicted knife blows on them pursuant to which they received injuries. This defence of the accused is not convincing. The testimonies of the independent eye witnesses of the area establish that Mumtaz was standing at the corner of the street adjoining the shop of Kishan Lal in front of house of Dalip when Roshan Khan and Babloo along with the juvenile accused Bobby came to the spot and started giving her a beating after which Roshan Khan caught hold of her and Babloo repeatedly stabbed her as a result of which she died at the spot itself and thereafter they tried to flee from the area but were apprehended by the police officials. This fact also finds an independent corroboration from the MLCs of both Roshan Khan and Babloo which are Ex.PW14/D and Ex.PW14/C respectively which show that the they were brought by PCR officials and admitted in the hospital by HC Jogender C19 PCR. (106) This being the background, I hereby hold that the apprehension of both the accused Roshan Khan and Babloo near the spot of incident itself by the PCR officials stands established. It also stands established that at the time of his apprehension the accused Babloo was carrying a knife in his hand which HC Jogender took from his hands and handed over to the St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 95 Investigating Officer who thereafter seized the same which seizure has been duly proved in accordance with law.
Ocular Evidence/ Eye witness account:
(107) 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 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. (108) The entire case of the prosecution rests upon the eye witness account the most important being the complainant Brij Kishore who had made a call to the police at 100 numbers and informed the police of the incident and also made first statement to the police to the extent what was seen by him and of the husband of the deceased who himself was an injured in the incident. The prosecution in support of their case have also placed their reliance on the testimony of Dalip (PW11), Mukhtar (PW13), Brij Kishore (PW19) and Kishan Lal (PW21).
(109) Since the prosecution is placing its heavy reliance on the testimonies of Dalip, Mukhtar, Brij Kishore and Kishan Lal hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 96 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 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).
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 97 (110) 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).
(111) Applying the settled principles of law to the facts of the present case, coming first to the testimony of husband of the deceased namely Mukhtar (PW13) who was also injured in the incident and was taken to the Hospital by the PCR officials. The relevant portion of his testimony is as under:
".......... I am staying at the aforementioned address for last number of years with my family, comprising of my parents and other brothers. We are six brothers out of which Momin is residing separately, all others are residing at the above mentioned address. I am into St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 98 electrical business and I manufactured electric parts like choke etc. I was married with Mumtaz on 02.05.2004. I am having two children from the said wedlock. About 2 years before her death, Mumtaz had made a complaint at CAW cell against me, my father, my brothers Bobby and Babloo. The said complaint was compromised and she withdrew the same because of my undertaking that I would take due care of her. She again made a complaint on either 09.07.2012 or it was 10.7.2012 in the CAW cell, exact date I do not recollect against me and my father and my brothers Bobby and Babloo. At that time, Mumtaz was residing with us in the same house. Mumtaz knew my financial condition and wanted to reside together with the family but she only wanted that she should be permitted to live peacefully without any violence. At that time I, Mumtaz and our children used to reside on the ground floor portion and my parents and brother Bobby and Babloo resided on the first floor portion.
On 26.07.2012 everything was normal in the morning. After I left the children at school, we have tea together. At about 8:15 AM my wife Mumtaz requested my brother Bobby for a pipe because she wanted to store water in the house from the tap installed in the gali. Bobby straight away started abusing Mumtaz saying "tere baap mein dam ho to tu pani bhar kar dihka de".
Mumtaz then complaint to me that Bobby was not permitting her to fill up water from the tap, I requested Bobby to permit Mumtaz to fill water but Bobby started abusing me also. I did not want to aggravate the issues so I went to the first floor and made a complaint to my father Roshan Khan and requested him to intervene and asked Bobby to permit me to atleast take water but my father Roshan Khan also started abusing me. In the St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 99 meanwhile, Bobby also joined them and both my father Roshan Khan and brother Bobby started abusing me and then suddenly my other brother Babloo who was already on the first floor with my father brought out a butcher's knife and suddenly gave me a knife blow on my right side chest. At this stage, the witness has shown the stab mark to the court.
Since I am running a butchers shop after shutting down my shop I normally bring all the things i.e. choppers, knife etc and keep them on the first floor, it is from there that Babloo had fetched this knife. Thereafter Bobby took out his belt from his pant and hit me on my head with the buckkled portion as a result of which I virtually collapsed. My wife Mumtaz was on the ground floor and on hearing the commotions upstairs and noticing my condition, she called out to me saying that she is going to make a telephone call to the police saying "abhi ruko mein police ko phone kar ke aate hu". On hearing this my father Roshan Khan exorted my brother Babloo and Bobby saying that Mumtaz was going to make a call to the police and to see that she does not reach there. " Dekho woh ja rahi hai, pakro usko". On this my father Roshan Khan, brother Babloo and Bobby started following Mumtaz while I was still lying down on the first floor in an injured condition. On seeing them following Mumtaz I some how gathered strength and dragged myself to the ground floor in the gali to save Mumtaz. From the gali I saw that Mumtaz was standing outside the gali i.e. towards the corner of F Block, when I saw my father Roshan Khan and both my brothers Bobby and Babloo, of which Babloo was carrying a knife in his hand reached Mumtaz and St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 100 thereafter all three of them started beating my wife. My father Roshan Khan caught hold of her hairs while Bobby gave her kicks and fists blows and Babloo repeatedly stabbed her from all sides. When Mumtaz was trying to resist and save herself, she was also giving knife blows on her sides and arms. She was also stabbed on her chest. By the time I could reach there all three of them ran away while a large number of public persons gathered. In the meanwhile since my wife Mumtaz had already made a PCR call, the police personnels reached the spot and I informed them about the entire incident. Thereafter I along with some public persons and PCR officials lifted my wife and put her in the PCR Van and I accompanied them to the BJRM hospital where I and my wife Mumtaz were both admitted in the BJRM Hospital. My wife Mumtaz was declared brought dead whereas I was admitted in the hospital and provided treatment. After some time I noticed that the police had also brought my father Roshan Khan and Babloo to the hospital. I remained in the hospital till next day. My blood stained clothes had been taken by the police in the hospital. I had handed over to them my Tshirt and pant which they had converted into a pullanda and sealed the same. After which they prepared the memo vide EX PW 13/A bearing my signatures at point A. Accused Roshan Khan and accused Babloo are present in the court today. Witness has correctly identified the accused Roshan Khan and accused Babloo. My another Brother Bobby is not present in the court today (Bobby is facing trial in JJB). I want to state that my brother Bobby is not a juvenile. We was born in the year 1990 which age is also mentioned in our ration card but after this case my St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 101 mother managed some forged certificate of 5th class from some school. I was the one who got Bobby admitted in the school and at that time he was about 89 years but since I wanted him to study I gave his age as 56 years despite the objection of the school authorities that he was a big boy and would beat the younger ones in his class. At present I am informed that Bobby is out of the case and is hunting for me. I am fearful for my life as he and my other family members have openly issue threats that they would kill me.
At this stage, the IO/ SHO PS Bharat Nagar who is present in the case is called inside the court room and apprised of the apprehensions and fears of the witness. He is also apprised of this fact that probably an incorrect age certificate has been procured and provided to the JJB on the basis of which the possibility of his being declared the Juvenile cannot be ruled out. This fact regarding the genuineness of age certificate be again probed and in case if found to be false be placed before this court as well as before the JJB by the next date of hearing. Also immediate steps be taken for protection of the witnesses.
I can identify the knife and my clothes if shown to me.
At this stage, MHC(M) has produced one sealed parcel, duly sealed with the seal of IKM FSL, DELHI.
Same is opened after breaking the seal and one butcher's knife is taken out and same is shown to the witness who correctly identified the knife used by his brother Babloo while causing injuries to him and to his wife Mumtaz. The said knife is EX P1.
Court observations : At this stage while seeing the knife the witness has become highly emotional and has St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 102 broken down in the court. He is given a glass of water and his further examination is continued only after he has become composed.
At this stage, MHC(M) has also produced another parcel No. 14 in sealed condition with the seal of IKM,FSL, Delhi and same is opened after breaking the seal and one blood stained Tshirt totally stained with blood from the front side which is torn from the upper portion i.e. towards the chest indicating the use of force as if some body has pulled the same from the chest portion as a result of which it has been torn from there. The said T shirt also bears a cut mark( There is an indication by the FSL as marked B + which shows that piece of cloth has been taken as an exhibit for examination by the FSL). The witness has identified the same as the T shirt which he was wearing at the time of incident and the upper portion of the same was torn when it was pulled by accused Babloo. The said Tshirt is EX P2. The same pullanda is also found to containing a khakhi color pant which is blood stained both from the front side and back side. There is a cut mark B+ which has been put by the FSL indicating that it is the exhibit which has been taken by the FSL. The witness has identified the said pant which he was wearing at the time of the incident. The same is EX P3.
On court question : My clothes became stained with blood when I was injured and also when I carried my wife to the hospital.
At this stage Ld. APP for the state seeks permission to put leading questions to the witness regarding what was told by Mumtaz.
Heard, Permission granted.
It is correct that by the time I reached near St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 103 Mumtaz, she called out to me and said that she had made a 100 number call on which my brother Babloo told Bobby and my father Roshan Khan "ise pakro, ise 100 number par phone karne ka maza chakhte hai, isne hamari jindagi kharab kar di hai" and it is thereafter that my father Roshan Khan and Bobby caught hold of Mumtaz while Babloo gave knife blows to Mumtaz....." (112) Mukhtar has been crossexamined at length. He has admitted that prior to this incident his wife had made a complaint at CAW Cell on two occasions against his father, mother and both his brother in the year 2011 and also in 2012. He has also admitted that in her complaint deceased had made an allegations against him that he was having an illicit relationship with one Seema and has voluntarily explained that it was on account of some misunderstanding and was later on sorted out as a result of which she withdrew the said complaint. This fact finds due corroboration from the testimony of ASI Geeta Rani (PW22) who has proved the complaint filed by Mumtaz on 26.9.2011 which is Ex.PW22/A. In her crossexamination she has denied the suggestion that Mumtaz disclosed to her that her husband Mukhtyar was having an affair with some other lady but she counseled and advised her and did not take this fact on record and has voluntarily explained that Mumtaz only made complaints against her father in law, mother in law and brothers in law but not against her husband. She has specifically deposed that the main allegations made by the deceased Mumtaz was against her mother in law, father in law and brother in law and in so far St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 104 as the husband is concerned she was aggrieved because on their asking he used to harass her. The witness ASI Geeta Rani (PW22) has proved that the earlier complaint of the year 2011 was compromised and closed on 29.12.2011 after recording the statement of the parties vide Ex.PW22/B. She has also proved that in respect of the second complainant, she had sent the entire proceedings to the Police Station after coming to know about the death of the complainant Mumtaz.
(113) Coming next to the testimony of Brij Kishore (PW19) who is a resident of the area and is running a shop. He has proved that on 26.7.2012 at about 8:30 AM he was sitting at his shop when he noticed that Mumtaz had come to the shop of Kishan Lal and made a call at 100 number and had informed them that her father in law and devar were coming to kill her. According to Brij Kishore, after making the call while Mumtaz was still present in the street, Roshan Khan and Babloo came and started beating her and thereafter inflicted knife blows on her due to which reason she fell down and become unconscious. He is a material eye witness and I reproduced the relevant portion of his testimony as under:
"......... I am residing at the aforementioned address along with my family for the last 35 years and I am having a shop of general merchandise. I usually open my shop at 5 AM. On 26.07.2012 at about 8:30 AM I was sitting at my shop Mumtaz who is resident of the same area came and made a call at 100 number from the adjoining shop and she was telling the police that her father in law and devar were coming to kill her " phone St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 105 par keh rahi thi ki mere sasur aur devar mujhe marne ke liye aa rahe hai" and telling she was crying. I then noticed that after making the call she was going to the same gali where she was residing, her devar (brother in law) and father in law i.e. Bablu and Roshan Khan came and started beating her and I noticed that they were inflicting stab wounds to her "usko chako mar rahe thai". She fell down on the ground itself, totally smudged in blood"khoon mein lath path wahi gir gayi".
In the meantime, the PCR official reached the spot and Roshan Khan and Babloo started to run at the spot but the PCR officials chased them and apprehended them a little away from the spot near the masjid " police ko dekh kar yeh log bhagne lage to police ne bhag kar thori dur inko masjid ke pass pakar liya". The local police had also arrived at that time which include the SHO and senior officers. Mumtaz had already expired at the spot and police lifted her body away. They also took Roshan Khan and Babloo along with them. The SHO recorded my statement at the spot itself which statement is EX PW 19/A bearing my signatures at point A. Accused Roshan Khan and Babloo are residents of the same area and were known to me prior to the incident as such. I can identify them.
At this stage, witness has correctly identified both the accused Roshan Khan and accused Babloo by pointing out towards them and also by their names.
At this stage, Ld. APP for the state seeks permission to put leading questions to the witness who is not giving the complete details.
Heard, Permission granted.
I did not tell the police that during this incident, the husband of Mumtaz also reached at the spot and I St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 106 noticed that he was injured. Vol. he was called to the spot, but I cannot tell if there was any injury on him because I am ailing person suffering from cancer and I was sitting at my shop at that time.
(114) He has been exhaustively crossexamined wherein he has denied that Mmumtaz was saying to the police that her husband was coming to kill her. He has also deposed that being a resident of the same area he knew the accused persons but he is not aware if Mumtaz had any dispute with her husband as he was staying with somebody else. He has explained that nobody from the area went to save Mumtaz because the accused were armed with knives and the entire incident hardly lasted about foursix minutes. Though he is unable to give the exact time but has explained that he become extremely perturbed and extremely disturbed. The testimony of Brij Kishore finds due corroboration from the testimony of Kishan Lal (PW21) who is the person from whose telephone Mumtaz had made a telephone call. The relevant portion of his testimony is reproduced as under:
"........ I am resident of the aforementioned address along with my family for the last 40 years and I am running a kiryana/ general merchandise shop from the said shop and I am also running a STD booth from the said shop. On 26.07.2012 in the morning I was present at my shop when at about 8:308:45 AM Mumtaz a resident of the same area who is residing a little away from my shop came and made a call at 100 number and was telling the police that there was a quarrel going on St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 107 between her husband and brother in law/devar and was asking the police to reach the spot immediately. At that time, she was not even wearing chappals and was extremely scared and perturbed that she was not even to speak properly "ghabrai hui thi ki dhang se bola bhi nahi ja raha tha". After she made a telephone call, she went towards her house and entered in her gali when I saw Roshan Khan and Bablu i.e. the father in law and devar of Mumtaz who came there and caught hold of her and started beating her and there was a hata pai between them. I saw that Babloo had a big knife/ chopper in his hand and in the said fight she was given knife blows and then I saw her body she was lying on the ground with her head down and totally smeared with blood. In the mean time the husband of Mumtaz namely Mukhtar also reached the spot and I noticed that even he was having injuries. Thereafter I noticed that the police who reached the spot had chased Roshan Khan and Babloo and apprehended them and while they were taking them away, I noticed the knife in the hand of Babloo. Accused Roshan Khan and accused Bablu are present in the court today (correctly identified by the witness). I can identify the said knife if shown to me.
At this stage, MHC(M) has produced one sealed pullanda duly sealed with the seal of the court. Same is open after breaking the seal and one butcher's knife is taken out and same is shown to the witness who correctly identifies the same which was in the hand of Babloo with which he had inflicted injuries to Mumtaz. Same is already EX P1....."
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 108
(115) He has also been exhaustively crossexamined at length wherein he has admitted that previously there were quarrels between Mumtaz and her husband but has denied the suggestion that Mumtaz was telling the police while making a call that a quarrel took place between her and her husband.
(116) There is another independent eye witness to the incident i.e. Dalip (PW11) who is a resident of Jhuggi No. N17C/487, F Block, JJ Colony, Wazirpur, Delhi and the actual killing took place in front of his jhuggi. He has proved the presence of Babloo and Roshan Khan at the spot and also proved that he had seen Babloo with a knife in his hand. Initially he did not support the prosecution case but during the crossexamination by the Ld. Addl. PP for the State he has admitted having made a statement to the Police and having told them that on 26.07.2012 at about 8:30 AM when Mumtaz was making call at 100 number from the shop of Kishan Lal she was saying that her father in law and two devars were giving beatings to her husband and police be sent immediately; that after making call Mumtaz was waiting for PCR van in front of his jhuggi; that Roshan Khan, his sons Babloo and Bobby came out of the gali from the jhuggies and started beating Mumtaz and thereafter Roshan Khan and his son Bobby caught hold Mumtaz and Babloo gave knife blows to Mumtaz; that Mukhtar husband of Mumtaz also came at the spot at that time and due to knife blows Mumtaz fell down on the road and become unconscious; that meanwhile PCR Van came at the spot and after seeing the PCR van Roshan Khan and St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 109 his sons Babloo and Bobby started started to move away from there. (117) All the witnesses Dalip (PW11), Mukhtar (PW13), Brij Kishore (PW19) and Kishan Lal (PW21) have corroborated each other on material particulars and their statements find due corroboration from the circumstantial and documentary evidence on record. The scaled site plan which is Ex.PW3/A and is duly proved by SI Manohar Lal (PW3) confirms that the spot of the incident is the street just in front of jhuggi of Dalip i.e. N17C/487 where Mumtaz was standing after making a call at 100 number from the adjoining shop of Kishan Lal. The scaled site plan also shows that the Jhuggi of Dalip and of Kishan Lal were adjoining and the shop of Kishan Lal is situated at a distance of 1050 cms. Further, it is evident that the spot of incident is visible from the shop of Kishan Lal there being no obstruction in between and hence it was possible for him to have witnessed the incident as claimed by him and his statement cannot be doubted. There is no reason to disbelieve the testimonies of these public witnesses i.e. Dalip (PW11), Mukhtar (PW13), Brij Kishore (PW19) and Kishan Lal (PW21). They are not related either to the deceased or to the accused and have no history of animosity. They are residents of the same area and Kishan Lal is also running a shop from where the deceased made a 100 number call to the police (also confirmed from the PCR Form and from the testimony of the complainant Brij Kishore and Dalip). They are independent witnesses whose presence at the spot is natural and probable being the residents of the area in front of whose house the gruesome incident had taken place. They have St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 110 supported each other on material particulars and the discrepancies in their statement with regard to the place where deceased was standing, roles attributed to the individual accused, the manner of infliction of injuries, the time for which the entire incident lasted and the manner of apprehension of the accused are not material. They are all people belonging to the lower strata of the society and residing in slum clusters and the incident as it transpired took them by surprise and they have by and large supported the prosecution case. The incident in question took place in quick succession and the manner of attack and killing in full public view was most brutal and left everyone shocked. The witnesses have explained that they could not intervene to save Mumtaz as being terrified since the accused were carrying knives and were highly aggressive. In this regard the Hon'ble Supreme Court in the case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) had observed that ordinarily on account of the occurrence of the events which could not have been anticipated there is an element of surprise and the mental faculties cannot be expected to be attuned to absorb the details. Also, the powers of observation may differ from person to person and what one may notice, another may not. It was also observed that the exact time of an incident or the time duration of an occurrence in such a case usually people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters which sense of time of individuals may vary from St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 111 one person to another. Hence , under the given circumstances I hereby hold that the incident having occurred without any anticipation where a large number of events took place in quick sequence, took everybody by surprise including the public witnesses Dalip (PW11), Mukhtar (PW13), Brij Kishore (PW19) and Kishan Lal (PW21) who are residents of the area. They are all persons who belong to the lower strata of the society residing in a slum cluster which not much education and the discrepancies which has occurred in their testimonies as pointed out by the Ld. Defence Counsel is attributed to the same and even otherwise are not material. They have supported each other on the aspects of identity of the accused, the manner in which the incident has taken place, the role attributed to each accused and also on the arrest of the accused persons along with the weapon of offence (Babloo). Their testimonies of these witnesses are reliable, credible and truthful and find independent corroboration from the circumstantial evidence on record. From the combined reading of the testimonies of all the above eye witnesses namely Dalip (PW11), Mukhtar (PW13), Brij Kishore (PW19) and Kishan Lal (PW21) the following aspects stand established:
➢ That the deceased Mumtaz was residing along with her husband Mukhtar on the ground floor of Jhuggi No. N17C, F435, JJ Colony, Wazirpur, Delhi.
➢ That Roshan Lal the father in law of the deceased Mumtaz and Babloo and Bobby the brothers in law (devars) of the deceased were residing on the first floor of the same Jhuggi. St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 112 ➢ That in the morning of 26.7.2012 there was a family dispute on taking of water which got aggravated in which Mukhtar was given beatings by his father Roshan Khan and brothers Babloo & Bobby. ➢ That in this quarrel the accused Roshan Khan the father of Mukhtar, Babloo and Bobby (juvenile) the brother of Mukhtar caught him and gave sever beatings with legs and fists and also with buckles of the belt.
➢ That thereafter Babloo brought a knife which was kept in the room on the first floor with which he inflicted injuries on Mukhtar who fell down on account of being stabbed on his chest. ➢ That on hearing the cries Mumtaz (deceased) the wife of Mukhtar came to the first floor and on seeing the condition of her husband called out to Mukhtar and said " abhi ruko mein police ko phone kar ke aate hu".
➢ That on seeing that Mumtaz was going to make a call to the police, Roshan Khan called out to Babloo by saying "Dekho woh ja rahi hai, pakro usko".
➢ That thereafter Mumtaz without wasting any time ran to the shop of Kishan Lal barefooted, absolutely distorted so much so that she could not even speak properly and made a call on 100 number to the police and informed them about the quarrel between her husband and brothers in law (devars).
➢ That after making the call at 100 number Mumtaz started waiting for St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 113 the police in the street / gali outside the Jhuggi of Dalip and adjoining the jhuggi of Brij Kishore.
➢ That Mumtaz was still waiting for the police at the corner of the street where her jhuggi was situated, accused Roshan Khan, Babloo and Bobby (juvenile) came to the spot.
➢ That Babloo exhorted "ise pakro, ise 100 number par phone karne ka maza chakhte hai, isne hamari jindagi kharab kar di hai" (catch her, we have to teach her a lesson for making a call on 100 number. She has ruined our lives) after which both Roshan Khan and Babloo started giving beatings to Mumtaz.
➢ That Babloo was having a knife in his hand and while Roshan Khan caught hold of her, Babloo gave repeated knife blows on vital parts of Mumtaz on account of which she collapsed.
➢ That in the meanwhile Mukhtar the husband of Mumtaz who was also injured in the incident also reached the spot and a large number of public persons gathered out of whom Kishan Lal made a PCR Call. ➢ That in the meanwhile pursuant to the first PCR call which had been made by Mumtaz, two PCR vans reached the spot reached the spot i.e. CMD19 and CMD20 within a span of two minutes and five minutes from the call.
➢ That the officials of PCR Van CMD20 immediately shifted the injured Mumtaz and Mukhtar to BJRM Hospital and in the meanwhile also informed the officials of CMD19 who had reached the spot St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 114 regarding the incident.
➢ That the officials of PCR Van CMD19 who had also reached the spot while the injured were being shifted to BJRM Hospital went in the direction in which they were told that the accused had gone and within a span of two to three minutes they noticed three persons amongst the public persons in the street wearing clothes smeared with blood out of whom one boy was holding a knife in his hand and the said persons were trying to flee in the street. ➢ That noticing this suspicious behaviour the officials of PCR Van CMD19 immediately chased and apprehended two of the said persons including the boy with the knife in his hand while one boy managed to escape and on inquiry their names were revealed as Roshan Khan and Babloo (i.e. accused before this Court) whereas the boy who has escaped was Bobby (juvenile accused who has pleaded guilty).
➢ That the officials of PCR Van CMD19 noticed that the said persons i.e. Roshan Khan and Babloo were also having injuries, hence both of them were also immediately shifted to BJRM Hospital. ➢ That in the BJRM Hospital Mumtaz was declared 'Brought Dead' while Mukhtar was admitted in the hospital and provided treatment. ➢ That both Roshan Khan and Babloo were also provided medical treatment. Their MLCs which have been placed on record show that the injuries present on their hands appear to be self inflicted. St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 115 ➢ That after the injured were shifted to the hospital by the PCR, the local police of Police Statiopn Bharat Nagar also reached the spot and found a huge gathering and on inquiry they met the eye witnesses and recorded the statement of Brij Kishore a resident of the area in fount of whose Jhuggi the incident had taken place. ➢ That Brij Kishore told the police about the entire incident specifically naming the accused Roshan Khan, Babloo and Bobby (juvenile) as the assailants on which his statement was recorded and on the basis of the same the present FIR was registered.
(118) Apart from the aforesaid eye witnesses, the prosecution has also placed its reliance on the testimonies of Rafiq (PW12) and Firoz (PW18) the brothers of the deceased Mumtaz who have proved that their other sister namely Intaz was married to the younger brother of Mukhtar namely Momin and soon after the marriage both Mumtaz and Intaz were subjected to harassment by her in laws on which Intaz and Momin started residing separately but Mumtaz continued to reside with her in laws. They have also proved that Mumtaz had even previously made a complaint to the CAW Cell but the matter was compromised and Mumtaz continued to stay with Mukhtar. They are not the eye witnesses to the incident but have proved the history of harassment caused to the deceased Mumtaz by her in laws i.e. father in law, mother in law and brothers in law. In so far as Mukhtar is concerned, they do not allege harassment but admitted that there St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 116 were misunderstanding which was cleared. Hence, it is evident from the aforesaid that the Ocular Evidence is compatible to the prosecution version.
Not only have the eye witnesses identified the accused Roshan Khan (father in law of the deceased Mumtaz) and Babloo (brother in law/ Devar) but they have also proved the manner in which the offence has been committed, the role attributed to each of the accused and their subsequent apprehension along with the weapon of offence. It hereby stands established that the accused Roshan Khan and Babloo were the ones who were responsible for killing Mumtaz.
(119) Further, the testimony of Mukhtar with regard to what transpired prior to the incident leading to the killing of Mumtaz, is very clear. He has proved that there was a verbal altercation between his wife Mumtaz and brother Bobby on storing of water and when he (Mukhtar) tried to intervene, he was abused and assaulted by his brothers Bobby and Babloo and the matter got aggravated on which his Bobby started hitting him on his head with buckles of his belt and Babloo brought out a knife from the room on the first floor where he used to keep his knives and choppers (as he was running a butcher's shop in the area) and thereafter stabbed him on his chest with the same. On hearing his cries his wife Mumtaz came to the first floor and on seeing his condition hopelessly ran to seek police help by making a call on 100 number from the shop of Kishan Lal on account of which his father Roshan Khan then intervened and asked Bobby and Babloo to stop Mumtaz from making a call. The medical evidence supports the oral St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 117 testimony of Mukhtar and confirms the stab injuries and also the buckle blows on his head. The defence offered by the accused that they were self inflicted injuries is without any merit. The nature of the injuries and the place where it is found present demolishes this defence of the accused and confirms that the injury was not self inflicted. The ocular evidence in the form of testimony of Kishan Lal corroborates the version of Mukhtar when Kishan Lal has explained that Mumtaz was absolutely distorted while making the PCR call so much so that she was not even able to speak properly when she told the police that there was a jhagra between her husband and brothers in law / devars. He has further explained that she was not even wearing her chappals at that time, indicating that Mumtaz wasted no time in rushing to the PCO Booth and making a call. Further, the eye witnesses Brij Kishore, Dalip and Kishan Lal have all confirmed that after Mumtaz was repeatedly stabbed by the accused and she collapsed, her husband Mukhtar who was also injured reached the spot virtually at the same time when the police had come and that is how he and Mumtaz were shifted to BJRM Hospital together. The knife injury inflicted on Mukhtar by Babloo is on the chest i.e. a vital part and in case if Mukhtar had died Babloo would have been guilty of culpable homicide amounting to murder. I, therefore, hold that the Ocular Evidence is also compatible to the prosecution version regarding the injuries caused to Mukhtar the husband of the deceased Mumtaz.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 118 Whether the provisions of Section 302 or 304 IPC would apply:
(120) The Ld. Defence Counsel has argued that the case of the accused falls within the provisions of PartI of Section 304 Indian Penal Code in view of the fact that there was no premeditation and preplanning.
She has pointed out that the weapon of offence was a knife which was available in the house. She has also pointed out that it is an admitted case of the prosecution fact there were frequent quarrels between the accused and the deceased and even on the date of incident there was a quarrel between them and hence the case would either falls within the Exception (1) or (4) of Section 300 of the Indian Penal Code.
(121) The Ld. Addl. PP for the State on the other hand has argued that the medical evidence reflects the extent of brutality in as much as Five knife blows were given to the deceased by the accused Babloo while the accused Roshan Khan caught hold of her which reflects the intent and knowledge of the accused to commit the murder of deceased and hence they are liable to be punished under Section 302 Indian Penal Code. (122) I have considered the rival contentions and 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 St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 119 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 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 St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 120 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 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].
(123) 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).
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 121 (124) 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 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). St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 122 (125) For bringing in operation of Section 304 IPC 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 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 St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 123 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.
(126) 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 undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage.
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 124 (127) 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] (128) 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 unpre meditated 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 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 St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 125 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]. (129) Applying the settled principles of law to the facts of the present case, it is writ large that the deceased Mumtaz was having a dispute with her inlaws and even prior to the incident on two occasions she had filed a complaint before the CAW Cell. On the day of incident while the accused gave beatings to Mukhtar, Babloo also brought a knife and inflicted a blow on his chest. On seeing the condition of her husband, Mumtaz immediately called out to Mukhtar and told him that she was going to made a call at 100 number "abhi ruko mein police ko phone kar ke aate hu". She probably announced this aloud thinking that in case if she is able to instill the fear of law and the police into the accused they would spare her husband Mukhtar and little did she realize that the accused would instead divert all their anger towards her. It is at this point of time when Mumtaz announced that she was going to make a call to the police that the accused Roshan Khan, the father of Mukhtar along with Babloo and Bobby developed a common intention which was to stop Mumtaz from making a call to the police. This is borne out from the fact that on hearing what Mumtaz said it was Roshan Khan exhorted to his sons Babloo and Bobby to catch hold of Mumtaz so that she is not able to go "Dekho woh ja rahi hai, pakro usko".
(130) However, as luck would have it, Mumtaz managed to reach to the shop of Kishan Lal barefooted, scared and distorted and was able to make a 100 number call within the hearing of the shopkeeper Kishan Lal St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 126 that "there was a jhagra between her husband and devars". By the time the accused Roshan Khan, Babloo and Bobby (juvenile) came to the spot she had already made a call and was waiting at the corner of the street for them. Having realized what she had done they then, decided to teach her a lesson for daring to do so and this is evident from the fact that Babloo exhorted to his father Roshan Khan to catch hold of Mumtaz so that they can teach her a lesson for calling the police as she had ruined their lives "ise pakro, ise 100 number par phone karne ka maza chakhte hai, isne hamari jindagi kharab kar di hai". Here, I may note that even previously Mumtaz had been making complaints to the CAW Cell against her father in law, mother in law and brothers in law and hence in the light of this background the above statement of Babloo confirms the formation of a common intention on the part of the accused persons to teach a lesson to Mumtaz, which they did by publicly killing her. Initially she was beaten and dragged and while Roshan Khan caught hold of her, it was Babloo who repeatedly stabbed her till she collapsed.
(131) This intention and knowledge so contemplated under Section 300 of IPC is borne out from the fact that both the accused Roshan Khan and Babloo followed Mumtaz and cornered her while she was waiting for the police in front of jhuggi of Dalip and adjoining the jhuggi of Brij Kishore which is ahead of the shop of Kishan Lal. While the accused Roshan Khan caught hold of her, the accused Babloo inflicted as many as five blows with a knife on the vital parts of Mumtaz which proved fatal to her and she St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 127 expired at the spot itself. Assuming for a moment that there did exist a dispute or quarrel between the accused and the deceased before the incident on the issue of taking water in which Mukhtar intervened resulting into a fight (physical altercation) yet there was no instigation forthcoming from the side of the deceased justifying use of brutal force by the accused. There is no evidence to show that the provocation was from the side of deceased Mumtaz or that the accused Roshan Khan and Babloo were deprived of the power of selfcontrol by grave and sudden provocation. Further, the extent of brutality is writ large from the nature of injuries caused to the deceased (five in number and all on vital parts) which they caused in broad day light in full public view. The multiple injuries inflicted upon the vital parts of the deceased which resulted into loss of blood and immediate death on account of the hemorrhagic shock which was sufficient to cause death in ordinary course of nature, speak for itself. These injuries on the body of the deceased are a conclusive evidence of the extent of brutality involved and takes the case of the accused out of the purview of either of the Exceptions i.e. (1) or (4) of Section 300 Indian Penal Code.
(132) This being the background, I hereby hold that the prosecution has been able to prove the necessary intent and knowledge (as contemplated under Section 300 Indian Penal Code) of the accused Roshan Khan and Babloo to commit the murder of Mumtaz for which they are held guilty of the offence punishable under Section 302/34 Indian Penal Code. St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 128 Allegations against the accused under Section 307 IPC:
(133) In so far as the provisions of Section 307 Indian Penal Code is concerned, I may observe that as per the provisions of Section 307 Indian Penal Code whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (134) To constitute an offence under Section 307 IPC, it is sufficient if there is present an intent coupled with some overt act in execution thereof.
It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof [Ref.: Vipin Bihari Vs. State of MP reported in 2006 (8) SCC 799; Bappa @ Bapu Vs. State of Maharastra reported in 2004 (6) SCC 485; State of Maharastra Vs. Kashi Rao & Ors. reported in 2003 (10) SCC 434; Hari Mohan Mandal St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 129 Vs. State of Jharkhand reported in 2004 (12) SCC 220 and Surender Kumar Sharma Vs. State reported in 2010 (III) AD (Delhi) 198]. This being the legal position, intention can be deduced not only from the nature of injuries caused but also from other circumstances. (135) In the present case the knowledge and the intention of both the accused Babloo is reflected from the fact that a knife blow was given on right side of his chest near sternum which could have cause death in the ordinary course of nature. Repeated injuries were inflicted upon Mukhtar by Babloo and Bobby (juvenile accused who has pleaded guilty). No overt act has been attributed to accused Roshan Khan in so far as the injuries inflicted upon the victim Mukhtar is concerned and benefit of doubt is being given to him i.e. Roshan Khan who is acquitted of the charge under Section 307 Indian Penal Code. However, in so far as accused Babloo is concerned as already discussed herein above (under the head Ocular Evidence) the allegations against Babloo of giving knife blows on the chest of Mukhtar S/o Roshan Khan with such intention or knowledge that under such circumstances he by his act caused death of Mukhtar, he would be guilty of murder stands substantiated and proved. The accused Babloo is hereby held guilty of the offence under Section 307 Indian Penal Code. FINAL CONCLUSIONS:
(136) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 130 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.
(137) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the testimonies of the various prosecution witnesses, the following aspects stands established:
➢ That the deceased Mumtaz was residing along with her husband Mukhtar on the ground floor of Jhuggi No. N17C, F435, JJ Colony, St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 131 Wazirpur, Delhi.
➢ That Roshan Lal the father in law of the deceased Mumtaz and Babloo and Bobby the brothers in law (devars) of the deceased were residing on the first floor of the same Jhuggi. ➢ That in the morning of 26.7.2012 there was a family dispute on taking of water which got aggravated in which Mukhtar was given beatings by his father Roshan Khan and brothers Babloo & Bobby. ➢ That in this quarrel the accused Roshan Khan the father of Mukhtar, Babloo and Bobby (juvenile) the brother of Mukhtar caught him and gave sever beatings with legs and fists and also with buckles of the belt.
➢ That thereafter Babloo brought a knife which was kept in the room on the first floor with which he inflicted injuries on Mukhtar who fell down on account of being stabbed on his chest. ➢ That on hearing the cries Mumtaz (deceased) the wife of Mukhtar came to the first floor and on seeing the condition of her husband called out to Mukhtar and said " abhi ruko mein police ko phone kar ke aate hu".
➢ That on seeing that Mumtaz was going to make a call to the police, Roshan Khan called out to Babloo by saying "Dekho woh ja rahi hai, pakro usko".
➢ That thereafter Mumtaz without wasting any time ran to the shop of Kishan Lal barefooted, absolutely distorted so much so that she could St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 132 not even speak properly and made a call on 100 number to the police and informed them about the quarrel between her husband and brothers in law (devars).
➢ That after making the call at 100 number Mumtaz started waiting for the police in the street / gali outside the Jhuggi of Dalip and adjoining the jhuggi of Brij Kishore.
➢ That Mumtaz was still waiting for the police at the corner of the street where her jhuggi was situated, accused Roshan Khan, Babloo and Bobby (juvenile) came to the spot.
➢ That Babloo exhorted "ise pakro, ise 100 number par phone karne ka maza chakhte hai, isne hamari jindagi kharab kar di hai" (catch her, we have to teach her a lesson for making a call on 100 number. She has ruined our lives) after which both Roshan Khan and Babloo started giving beatings to Mumtaz.
➢ That Babloo was having a knife in his hand and while Roshan Khan caught hold of her, Babloo gave repeated knife blows on vital parts of Mumtaz on account of which she collapsed.
➢ That in the meanwhile Mukhtar the husband of Mumtaz who was also injured in the incident also reached the spot and a large number of public persons gathered out of whom Kishan Lal made a PCR Call. ➢ That in the meanwhile pursuant to the first PCR call which had been made by Mumtaz, two PCR vans reached the spot reached the spot i.e. CMD19 and CMD20 within a span of two minutes and five minutes St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 133 from the call.
➢ That the officials of PCR Van CMD20 immediately shifted the injured Mumtaz and Mukhtar to BJRM Hospital and in the meanwhile also informed the officials of CMD19 who had reached the spot regarding the incident.
➢ That the officials of PCR Van CMD19 who had also reached the spot while the injured were being shifted to BJRM Hospital went in the direction in which they were told that the accused had gone and within a span of two to three minutes they noticed three persons amongst the public persons in the street wearing clothes smeared with blood out of whom one boy was holding a knife in his hand and the said persons were trying to flee in the street. ➢ That noticing this suspicious behaviour the officials of PCR Van CMD19 immediately chased and apprehended two of the said persons including the boy with the knife in his hand while one boy managed to escape and on inquiry their names were revealed as Roshan Khan and Babloo (i.e. accused before this Court) whereas the boy who has escaped was Bobby (juvenile accused who has pleaded guilty).
➢ That the officials of PCR Van CMD19 noticed that the said persons i.e. Roshan Khan and Babloo were also having injuries, hence both of them were also immediately shifted to BJRM Hospital. ➢ That in the BJRM Hospital Mumtaz was declared 'Brought Dead' St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 134 while Mukhtar was admitted in the hospital and provided treatment. ➢ That both Roshan Khan and Babloo were also provided medical treatment. Their MLCs which have been placed on record show that the injuries present on their hands appear to be self inflicted. ➢ That after the injured were shifted to the hospital by the PCR, the local police of Police Statiopn Bharat Nagar also reached the spot and found a huge gathering and on inquiry they met the eye witnesses and recorded the statement of Brij Kishore a resident of the area in fount of whose Jhuggi the incident had taken place. ➢ That Brij Kishore told the police about the entire incident specifically naming the accused Roshan Khan, Babloo and Bobby (juvenile) as the assailants on which his statement was recorded and on the basis of the same the present FIR was registered.
(138) The medical evidence on record conclusively establishes that the cause of death of Mumtaz was hemorrhagic shock as a result of stab wound inflicted by other party and the Injury No.7 i.e. Incised wound on sternum between nipples of size 4cm x 1 cm x chest cavity was sufficient to cause death in ordinary course of nature. Further, the Forensic Evidence on record establishes that the blood group of the deceased was 'AB' which blood group of the deceased was found on the clothes of the clothes of the accused and even the Knife Ex.P1 recovered from the hands of accused Babloo when he was caught minutes after the St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 135 incident is confirmed to be having human blood. (139) The Ocular Evidence is also compatible to the prosecution version. Not only have the eye witnesses namely Brij Kishore, Dalip and Kishan Lal identified the accused Roshan Khan (father in law of the deceased Mumtaz) and Babloo (brother in law/ Devar) but they have also proved the manner in which the offence has been committed, the role attributed to each of the accused and their subsequent apprehension along with the weapon of offence. The oral testimonies of the eye witnesses and of the witnesses of apprehension and arrest of the accused finds due corroboration from circumstantial, medical, forensic and electronic (in the form of WT messages) evidence on record.
(140) 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 lapse on the part of the investigation does not negate the offence.
(141) 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 St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 136 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. (142) In view of the above, I hereby hold that the prosecution has been able to prove the necessary intent and knowledge (as contemplated under Section 300 Indian Penal Code) of the accused Roshan Khan and Babloo to commit the murder of Mumtaz for which they are held guilty of the offence punishable under Section 302/34 Indian Penal Code for which they are accordingly convicted.
(143) Further, it stands established that repeated injuries were inflicted upon Mukhtar by Babloo and Bobby (juvenile accused who has pleaded guilty). No overt act has been attributed to accused Roshan Khan in so far as the injuries inflicted upon the victim Mukhtar is concerned and benefit of doubt is being given to him i.e. Roshan Khan who is acquitted of the charge under Section 307 Indian Penal Code. (144) However, in so far as accused Babloo is concerned, the allegations against Babloo of giving knife blows on the chest of Mukhtar S/o Roshan Khan with such intention or knowledge that under such circumstances he by his act caused death of Mukhtar, he would be guilty of murder stands substantiated and proved. Therefore, the accused Babloo is St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 137 hereby held guilty of the offence under Section 307 Indian Penal Code and accordingly convicted.
(145) Be listed for arguments on sentence on 22.10.2013.
Announced in the open court (Dr. KAMINI LAU)
Dated: 14.10.2013 ASJIINW)/ ROHINI
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 138
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 115/2012 Unique Case ID No: 02404R0293332012 State Vs. (1) Roshan Khan S/o Nanhe Khan R/o House No. N17C/435, FBlock, JJ Colony, Wazirpur, Delhi (Convicted) (2) Babloo S/o Roshan Khan R/o House No. N17C/435, FBlock, JJ Colony, Wazirpur, Delhi (Convicted) FIR No.: 171/2012 Police Station: Bharat Nagar Under Sections: 302/307 Indian Penal Code Date of conviction: 14.10.2013 Arguments concluded on: 22.10.2013 Date of Sentence: 26.10.2013 APPEARANCE:
Present: Sh. Shiv Kumar, Addl. Public Prosecutor for the State.
Convicts Roshan Khan and Babloo are in Judicial Custody with Ms. Sadhna Bhatia Advocate / Amicus Curiae.St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 139
ORDER ON SENTENCE:
As per allegations, on 26.7.2012 at about 8:15 AM at first floor of Jhuggi No. 17C/435, FBlock, Wazirpur JJ Colony, Delhi both the accused Roshan Khan and Babloo along with their associate Mohd. Islam @ Bobby (since juvenile) in furtherance of their common intention gave knife blows on the chest of Mukhtar S/o Roshan Khan with such intention or knowledge that under such circumstances they by their act caused death of Mukhtar, they would be guilty of murder. Further, as per the allegation on the same day at about 8:30 AM on public road opposite Jhuggi No. N17C/487, FBlock, Wazirpur JJ Colony both the accused along with their associate Mohd. Islam @ Bobby (since juvenile) in furtherance of their common intention committed the murder of Mumtaz W/o Mukhtar by giving knife blows to her.
On the basis of the testimonies of the various prosecution witnesses particularly the independent public witnesses Dalip, Brij Kishore and Kishan Lal who are the residents of the area and also on the basis of the medical, forensic and other circumstantial evidence on record, this Court vide a detail judgment dated 14.10.2013 held the accused Roshan Khan and Babloo guilty of the offence under Section 302/34 for causing death of Mumtaz. Further, the accused Babloo has also been held guilty for the offence under Section 307 Indian Penal Code (for attempt to fill Mukhtar) for which he has been accordingly convicted.St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 140
Heard arguments on the point of sentence. The convict Roshan Khan who is totally illiterate is stated to be aged about 65 years having a family comprising of aged wife, six sons including the coconvict Babloo and four daughters (three of whom have been married and one is of marriageable age). The convict Babloo a tailor by profession is stated to be a young boy of 22 years who had studied upto 6 th class. Ld. Amicus Curiae has vehemently argued that both the convicts are first time offenders having no other criminal case against them. She submits that keeping in view the family background of the convicts a lenient view be taken against them.
The Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts Roshan Khan and Babloo. It is also stated that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 141 any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 142 and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 143 followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation.
Now I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factors in the present case are that the convict Roshan Khan is a senior citizen aged about 65 years and the convict Babloo is a young boy of 22 years and both of them are first time offenders. The aggravating factors are that even before her death Mumtaz was being subjected to harassment by her in laws i.e. parents in law and brothers in law (Devars) and had made complaints to the CAW Cell on two occasions and the first complaint she did not press on account of family settlement and she continued to stay with her in laws. In so far as the present incident is concerned, the deceased Mumtaz was killed only because she dared to call St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 144 the police on 100 number when her father in law and brothers in law were mercilessly beating her husband and had inflicted knife blows on him. Being greatly aggrieved by this act they wanted to teach her a lesson for daring to stand up against them and for making this 100 number call for seeking police intervention every now and then (since even earlier Mumtaz had complained to the police against them). The killing of Mumtaz took place in full public view after she was beaten and then repeatedly slashed. So great was the impact of the repeated knife blows given to her that she could not survive the same and immediately collapsed and expired at the spot. The incident left the residents of the area shocked and nobody dared to intervene to save Mumtaz since accused were armed with knives and public display of their aggression scared the public.
I may observe that offences against women are raising by the day and is a cause for great concern for the courts. Courts cannot permit the main United Nation Theme "A promise is a Promise" "End violence against Women" to be a hollow. It takes more than laws to change peoples attitude about women. There is a need to change the parochial, patriarchal mind set which plagues the Country. Women are vulnerable and unsafe everywhere and there is a sense of despair and disgust in the society. Worst thing one can do is to tolerate or turn a blind eye to any crime against women. In the present case the only fault of Mumtaz was that she stood up against the harassment caused to her by her in laws and approached the Law Enforcement Agencies for redressal of her grievances which annoyed her in St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 145 laws immensely. So great was the anger against her that after she made a 100 number call to the police in order to save the life of her husband who had been given knife blows by his brothers, that in order to teach her a lesson and being fedup of Mumtaz approaching the police every now and then the convicts decided to silence her forever and hence in full public view they caught hold of the helpless woman and initially beat her up and thereafter repeatedly slashed her by inflicting knife blows on her vital parts, impact of which she could not endure and she (Mumtaz) collapsed at the spot itself. It was a cold blooded murder of a hapless woman in full public view which left everyone who witnessed the incident shocked and terrified.
In this background, I am of a considered view that the case in hand certainly does not fall within the category of Rarest of Rare category and hence I proceed to award the following sentences to the convicts.
In so far as convict Roshan Khan is concerned, I award the following sentence to him:
1. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.
Further, in so far as the convict Babloo is concerned, I award the following sentences to him:
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 146
1. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/ (Rs. Ten Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.
2. For the offence under Section 307 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) years and fine to the tune of Rs.5,000/ (Rs. Five Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
Both the above sentences shall run CONSECUTIVELY (not concurrent).
Benefit of Section 428 Cr.P.C. shall be given to both the convicts for the period undergone by them during the trial, as per rules.
The convicts are informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they 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.
Copy of the judgment and order of sentence be given to the convicts free of costs and another be attached with their jail warrants. St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 147
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 26.10.2013 ASJII(NW)/ ROHINI
St. Vs. Roshan Khan & Anr, FIR No. 171/12, PS Bharat Nagar Page No. 148