Delhi District Court
State vs . Mohit @ Toti Etc. Fir 320/15 ... on 30 January, 2019
State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016)
IN THE COURT OF MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 57622/16
FIR No. 320/15
PS Anand Parbat
U/s 307/34 IPC
STATE
VERSUS
(1) MOHIT @ TOTI
S/O SH.RAJ KUMAR
R/O H.NO. RC22, RAJASTHAN COLONY
BABA FARID PURI,
DELHI.
(2) PARVEEN @ CALVIN @ MUNSHI
S/O SH.NARESH KUMAR
R/O RC4, RAJASTHAN COLONY,
BABA FARID PURI,
DELHI.
(3) JITNEDER @ SATU
S/O SH.RAMESH KUMAR
R/O RC22, RAJASTHAN COLONY,
Result: Convicted Page 1 of 39
State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016)
BABA FARID PURI,
DELHI.
Date of Institution : 27.08.2015
Date of Reserving Judgment : 16.01.2019
Date of Judgment : 29.01.2019
JUDGMENT
1. The accused persons namely Mohit @ Toti, Praveen @ Calvin @ Munshi and Jitender @ Satu have been facing trial for the offence Punishable U/s 307/34 IPC.
FACTS :
2. Facts leading to the Prosecution's case are as under :
2.1. On 03.05.2015, on receipt of DD no. 6A, SI Karan Pal Singh alongwith Ct.Om Prakash reached the spot i.e. Tansit Camp, near the Toilet where they found blood near Toilet. It was informed that the injured was taken to Lady Harding hospital by the PCR officials. SI Karan Pal Singh left Ct.Om Prakash and reached Lady Harding hospital after giving message to Crime Team. He then collected the MLC no. 51192 of an unknown injured whom doctor had declared "unfit for statement". The IO found the injured in an Result: Convicted Page 2 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) unconscious state who sustained multiple Sharp injury on his stomach and Waist. There was swelling on his eyes and face. No eye witness was found in the hospital. IO returned to the spot.
2.2. The place of incident was got inspected and photographed by the Crime team officials. IO met witness Konej S/o Mohd.Jamil met at the spot and recorded his statement. This witness stated that on the night of incident, there was a Jagran in Taali wali Basti and his friend had also come from Rajasthan Colony. At about 02:30 - 03:00 AM, when he was going with his friend to drop him in Rajasthan Colony, four boys namely Mohit @ Toti, Calvin @ Munshi, Satu @ Jitender and Lalit @ Kancha were going ahead of them. They were under the influence of liquor. Lalit @ Kancha was abusing Calvin @ Munshi and all the three persons were asking him to not to do so. When they reached near Transit Camp Toilet, accused Calvin @ Munshi said that, "इसस बहहत दसर गगललयगय दसतस हहए हह गयय इसकग कगम तमगम कर दसतस हह ह ". Upon this, accused Mohit @ Toti and Jitender @ Satu caught hold of Lalit @ Kancha and accused Calvin @ Munshi gave several Knife blows to him. After sustaining Knife injuries, Lalit @ Kancha fell down and thereafter they all gave Fist Result: Convicted Page 3 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) and Kick blows to him. Blood was oozing from the body of Lalit @ Kancha. All the three accused persons then fled away from the spot.
2.3 Case was registered U/s 307/34 IPC. During investigation, Site Plan was prepared at the instance of witness Konej. Blood Gauze, two Stones, Earth control having blood Tile, another Earth control Tile, were lifted and sealed with the seal of APRVTIII and seized.
2.4. During investigation, all the three accused persons were arrested. Pointing out memo was prepared at the instance of accused persons. Their disclosure statements were recorded. Accused Praveen @ Calvin disclosed that he can get the Knife recovered however, the same could not be recovered.
2.5. Upon regaining consciousness, the injured disclosed his name as Lalit Singh Rawat @ Kancha. The examining Doctor handedover blood sample of the injured to IO. Final opinion on nature of injuries was also collected which is as "Grievous". Crime team's Inspection report and Photographs of Crime scene were also collected by the IO. On completion of investigation, Chargesheet for the offence Punishable U/s 307/34 IPC was filed.Result: Convicted Page 4 of 39
State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) CHARGE :
3. Thereafter, the case was committed to the Court of Sessions. On 13.10.2015, Charge for the offence Punishable U/s 307/34 IPC was framed against all the three accused persons to which they pleaded not guilty and claimed trial.
EVIDENCE :
4. To prove its case, the prosecution, in total, has examined 13 witnesses.
5.PW1/ASI Jai Chand proved the DD no.6 dt. 03.05.2015 as Ex.PW1/A which is regarding information through Wireless operator of the PS that one person was stabbed near Faridpuri Sauchalaya in front of Ramjas Gate, Transit Camp, Kathputli Colony.
6. PW2 ASI Shiv Charan, Duty officer proved the computer generated copy of present case FIR as Ex.PW2/B and his endorsement on the rukka as Ex.PW2/A.
7. PW3 Ct.Deepak, Photographer, Mobile Crime team proved the photographs Ex.PW3/A.1 to Ex.PW3/A.10 and Negatives Ex.PW 3/B.1 to Ex.PW3/B.10, which he had clicked on 03.05.2015 on the spot i.e. in front of H.No. 2235, Transit Camp, Anand Parbat, Delhi, Result: Convicted Page 5 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) on the instructions of IO.
8. PW4 Lalit Singh Rawat @ Kancha deposed that on the intervening night of 2/3.05.2015, he alongwith accused Satu, Toti and Munshi, who were known to him being resident of same locality, had consumed liquor in Baba Faridpuri around 12:30 or 01:00 AM.
They exchanged harsh abusive words with each other (हमगरस बयच गगलय गलहच हहनस लगय). There was Jagran in Tali Basti. At about 02:30 or 03:00 AM, they reached Tali Basti, where Jagran was going on. All the accused persons started abusing him there also. Accused Munshi uttered "इसकग कगम तमगम कर दसतस हह ह " . He was caught hold by accused Toti and Satu and accused Toti, Satu & Munshi assaulted him with bricks. Accused Munshi gave him Knife blow on his Stomach and Hip. He fell on the ground due to injury sustained by him and became unconscious. He regained consciousness in Lady Harding hospital. His blood sample was taken in the hospital. On 07.05.2015, he was discharged from the hospital.
9. PW5 SI Rupesh Kumar, Crime team Incharge proved the Crime Team Report as Ex.PW5/A.
10. PW6 Mohd.Konej, eye witness deposed that on 03.05.2015, at Result: Convicted Page 6 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) around 12 or 01:00 AM, he was going to drop his friend Annu at Farid Puri, who had come to attend Jagran which was going on in Tali Wali Basti. He saw that four persons namely Toti (Mohit), Satu (Jitender), Kancha (Lalit Rawat) and one other person whose name he did not recollect were going ahead of them. When they reached near the shop of Kabari, then all the four started quarreling each other. He stopped there and watched the quarrel. Toti (Mohit) noticed his presence and gave a danda blow to him. Due to fear, he ran to his house. He did not know what happened to Kancha. Police examined him on next day and obtained his signatures on a plain paper.
10.1. This witness has correctly identified accused persons namely Toti (Mohit), and Satu (Jitender). He also pointed out towards accused Praveen @ Munshi before the Court but was unable to recollect his name.
10.2. This witness was crossexamined by the Ld.Chief PP wherein he identified his signatures at point A on document Ex.PW 6/A (Complaint). He admitted that the name of forth person was Calvin @ Munshi and all the four persons were in drunken condition. He admitted that Lalit @ Kancha was abusing Calvin @ Munshi repeatedly by sister's name and remaining three accused persons were Result: Convicted Page 7 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) preventing Lalit @ Kancha to do so. He denied the suggestions put to him by the Ld.Chief PP in his crossexamination. He denied that a small Knife was recovered from the possession of accused Mohit @ Toti beside a Mobile Phone.
11. PW7 Ct.Om Prakash joined the investigation of this case. He proved the Seizure memo Ex.PW7/A qua lifting of Blood lying on the road marked as Srl.No.1, Piece of brick having blood stains marked as Srl.No.2, Earth control having blood stains marked as Srl.No.3 and other portion of Earth control marked as Srl.No.4. He also proved the Arrest memos of accused Jitender, Mohit and Calvin Ex.PW7/B, Ex.PW7/C and Ex.PW7/D respectively.
11.1. This witness could not identify any of the accused persons. (due to lapse of time).
11.2. He has identified the case property i.e. Blood on gauze Ex.P.1 and the remnants of Pullanda Ex.P.1/1; Two Bricks Ex.P.2 (colly) and remnants of Pullanda Ex.P.2/2; Earth control having blood stains Ex.P.3 and the remnants of Pullanda Ex.P.3/3 and Earth Control Tile Ex.P.4 and remnants of Pullanda Ex.P.4/4.
12. PW8 Dr.Nikunj Jain proved the handwriting of Dr.Sunny Result: Convicted Page 8 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Bherwani on the MLC no. 51192 dt. 03.05.2015 Ex.PW8/A. He has deposed that the Opinion at the foot of MLC bearing dt. 04.07.2015, which is in the handwriting of Sr.Resident, Surgery. However he was not acquainted with the handwriting of Sr.Resident Surgery. He also deposed that the Discharge Summary Mark PW8/B is also in the handwriting of concerned Sr.Resident, Surgery Unit C with whom he was not acquainted.
13. PW9 Ct.Narender Kumar handedover the copy of DD no.6A dt.
03.05.2015 to SI Karan Pal Singh as per directions of duty officer. He also proved its copy as Ex.PW1/A.
14. PW10 Dr.Hari Singh proved the endorsement in red encircled portion Mark 'X' and signatures of Dr.Prashant at Point Y on the MLC Ex.PW8/A. After perusal the MLC Ex.PW8/A, he deposed that the Patient had undergone Surgery for stab injury in his abdomen and nature of injury was endangering life and opined as "Grievous".
15. PW11 ASI Raj Kumar, MHC(M) proved the copy of entry at Srl.No.2253 in register no.19 as Ex.PW11/A vide which SI K.P.Singh deposited one Sealed Pullanda, stated to contain one Mobile Phone and four other Sealed Pullandas stated to contain Result: Convicted Page 9 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) exhibits lifted from the spot on 03.05.2015. He also proved the copy of entry at Srl.No. 2255 in register no.19 as Ex.PW11/B vide which IO had also deposited one Pullanda stated to contain blood sample of one Lalit. He also proved the photocopy of RC no. 41/21/15 Ex.PW 11/C and copy of acknowledgement received from FSL Ex.PW11/D.
16. PW12 Ms.Amita Raghav, Jr.Forensic, Chemical Examiner (Biology), FSL, Rohini proved her report Ex.PW12/A qua examination of one Gauge Cloth Piece Ex.1; Two pieces of Brick Ex.2; Pieces having few brown stains described as Earth Control having blood stained Tile Ex.3; Concrete material described as Earth Control Tile Ex.4; One dirty Jeans having fungal growth and one dirty underwear stated to be clothes of injured, Ex.5a (Jeans) & Ex.5B (underwear); dark brown liquid kept in blood vial described as blood sample of injured, Ex.6.
16.1. She deposed that during Biological examination, blood was detected on Ex.1,2,3,5a,5b and 6. No blood was detected on Ex.4. For the purpose of DNA Finger printing examination, DNA was isolated from the source of Ex.2, 3, 5b and 6. However, no DNA could be isolated from the source of exhibits 1 and 5a. She also Result: Convicted Page 10 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) identified the case property before the Court i.e. Ex.P.1 (blood on gauge); Ex.P.14/1 and the remnants of Pullanda Ex.P.14/2 (one Vial having blood); Ex.P.2 (Colly)(Two pieces of Brick); Ex.P.3 (Tile) and remnants of Pullanda Ex.P.3/3; Ex.P.14/3 (Underwear) & Ex.P.14/4 (Jeans) & remnants of Parcel Ex.P.14/5.
17.PW13 Retired SI Karan Pal Singh, IO of this case deposed about all the investigation/proceedings conducted by him in this case. He proved copy of DD no.6A Ex.PW1/A; his endorsement on the rukka Ex.PW13/A; Site Plan Ex.PW13/B; Seizure memo of 04 Parcels i.e. Blood, Two Bricks having blood stains, Earth control Tiles and Earth Control from the spot Ex.PW7/A; Seizure memo of clothes of injured alongwith one Wrist Watch Ex.PW13/C. 17.1. He also proved the Arrest memos of accused persons namely Mohit @ Toti and Satu @ Jitender Ex.PW7/B and Ex.PW7/C, their Personal search memos Ex.PW13/D and Ex.PW 13/E; their disclosure statements Ex.PW13/F and Ex.PW13/G; Pointing out memos Ex.PW13/H and Ex.PW13/I. He also proved Arrest memo of accused Calvin Ex.PW7/D; his personal Search memo Ex.PW13/J and his disclosure statement Ex.PW13/K. He Result: Convicted Page 11 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) also proved Pointing out memo Ex.PW13/L and Seizure memo of blood sample handedover to him by the doctor Ex.PW13/M; Crime team report Ex.PW5/A and Photographs Ex.PW3/B.1 to Ex.PW 3/B.10. This witness also identified the case property as Ex.P.1 (blood on gauze); Ex.P.2 (Bricks); Ex.P.3 (Tile) and Ex.P.4 (Earth Control).
18. All the incriminating circumstances were put to all the three accused persons in their statements U/s 313 Cr.P.C. wherein they denied all the allegations against them. Accused Jitender @ Satu stated that he was not present at the spot. On 04.05.2015, when he was present in his home, Police came and took him on the pretext of some inquiry and thereafter falsely implicated him in this case at the instance of Police and complainant.
18.1. Accused Praveen @ Calvin @ Munshi and Mohit @ Toti stated that they were also not present at the spot and have been falsely implicated in this case at the instance of Police and Complainant. All the accused persons did not produce any witness in their defence.
19. I have heard Ms.Nimmi Sisodia, Ld.Addl.P.P.for the State and Result: Convicted Page 12 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Sh.Shanti Prakash, ld. Counsel for all the accused persons and perused the record carefully.
ARGUMENTS OF LD.PROSECUTOR :
20. The Ld.Prosecutor has urged that the testimonies of all the witnesses are consistent throughout and none of the witness can be discarded on account of minor contradictions regarding the description about the time when the actual offence was committed and the manner of arrest. It is submitted that the main witness of the prosecution i.e. injured Lalit Singh Rawat (PW4) has supported the Prosecution's case and his testimony is sufficient to establish the presence of all the accused persons at the time of incident as also the manner in which the offence was committed. Likewise, the Prosecution urges that PW6/Mohd.Konej was crossexamined by the Prosecution only because he was resiling from his previous statement but, it is further urged that despite the same, PW6/Mohd.Konej establishes presence of the Victim and the accused persons at the spot of incident and also the fact that he made positive identification of the accused persons in his Sworn testimony. Further, attention of the Court is drawn to his crossexamination by Prosecution wherein Ex.PW6/A i.e. the statement upon which case was registered, has Result: Convicted Page 13 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) been proved as made by the witness soon after the incident establishing that he is indeed, an eye witness. It is urged that regarding the aspect of time when the witness saw the accused persons in company with the Victim, wherein the witness deposes it to be 12 or 01:00 AM as against his initial statement wherein he provided the time as 02:30 or 03:00 AM; that a conjoint reading of the testimonies of the injured, this witness, PW8/Dr.Nikunj Jain, the case IO/PW13/SI Karan Pal Singh and the MLC Ex.PW8/A establishes that the actual time of occurrence is as per the original time mentioned in Ex.PW6/A.
21. It is urged that though the Knife with which the accused Calvin @ Munshi gave several Knife blows to Victim Lalit has not been recovered but this fact stands corroborated in view of the Four Stab injuries in the MLC. It is also contended that the Victim has consistently stated in his statement U/s 161 Cr.P.C. and also in his Court testimony that accused Parveen @ Calvin @ Munshi had, before inflicting Knife injuries, uttered that, "इसकक ककम तमकम कर ददतद हह". It is therefore contended that considering the same and also the fact that as per the MLC, the injuries sustained were 'Grievous' in Result: Convicted Page 14 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) nature and further that as per PW10/Dr.Hari Singh, the nature of injury was endangering life clearly establish that the accused persons had an intention to commit the offence complained of which was actually committed under the circumstances (as above) cogently proven by the Prosecution.
22. It is also submitted that the accused persons were arrested in the evening of 04.05.2015 at the instance of eye witness PW 6/Mohd.Konej and even though the PW6/Mohd.Konej claimed otherwise that the accused persons were brought by the Police, in his presence to the PS one by one; the fact remains that the accused were indeed arrested from the respective place as mentioned in their Arrest Memos in view of the corresponding testimony of PW8/Dr.Nikunj Jain and PW13/SI Karan Pal Singh.
ARGUMENTS OF LD.DEFENCE COUNSEL :
23. On the contrary, the defence counsel has refuted the contentions of the Prosecution submitting that the accused persons were present at their respective houses on 04.05.2015 when they were taken away from their houses by the Police in connivance with the Complainant. It is argued that the accused were not present in the 'Jagran' or at the Result: Convicted Page 15 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) place of incident. It is contended that Prosecution has not proved any motive. It is further contended that the testimony of eye witness is liable to be ignored completely in view of the fact that he is a hostile witness and has been constantly changing his version as evident on record. It is also contended that the testimony of the Victim is also liable to be ignored completely in view of the fact that the witness has not clarified the sequence of evidence in sync with his statement U/s 161 Cr.P.C. It is submitted that the version of the Victim is highly doubtful and also for the reason that the Victim himself stands convicted U/s 302/34 IPC in an FIR registered at PS Patel Nagar. It is highlighted that the Victim has remained in J.C. in the said case for 07 years. It is submitted that admittedly the Victim was under
influence of Alcohol and has further admitted of having no enmity with them. It is urged that the Victim was attacked by someone else and not the accused persons.
FINDINGS :
24. The case of the Prosecution suffers from various infirmities on account of improper investigation. The case IO responded to DD no.6A which was recorded at the PS on 03.05.2015 at 02:42 AM. The Result: Convicted Page 16 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) information was given by one Ct.Dharmender from PCR who is not a witness. Copy of this DD was handedover to PW13/SI Karan Pal Singh outside of PS as PW9/Ct.Narender Kumar states that the Duty officer handedover this DD to PW9 at 02:45 AM with directions to hand it over to PW13/SI Karan Pal Singh and he did so by travelling to a distance of 400 Mtrs. on his personal Motorcycle. Reading crossexamination of PW9/Ct.Narender Kumar gives an impression that he handedover the said DD Ex.PW1/A to IO at the place of incident. The following excerpt is important viz :
"I do not remember how many public persons were present at the spot, when I reached there".
25. When this testimony is compared in the light of Tehrir of the IO Ex.PW13/A, it becomes clarified that the IO and PW18 reached the place of incident only after receiving DD no.6A. There is no mention at all of the fact that when they received the DD, they were already at the spot of incident. If the Duty officer informed about the incident telephonically to the IO then, the record is silent. Nevertheless, the IO was on emergency duty on the said night and this fact is not even disputed by the defence.
Result: Convicted Page 17 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016)
26. As per PW7/Ct.Om Prakash, 02 or 03 public persons were present and the IO left for the hospital in a couple of minutes. On the contrary, IO states that he stayed at the place of incident for about 15 minutes before leaving for the hospital. He also mentions about presence of some public persons but clarified that none of them disclosed to be an eye witness.
27. PW7/Ct.Om Prakash was left to guard the place of incident. IO returned from the hospital after some time and on his second visit, he noticed presence of eye witness PW6/Mohd.Konej who made over the Statement Ex.PW6/A which the IO recorded at some point of time during the early morning hours and dispatched the statement with Tehrir to the PS for registration of the FIR at 07:50 AM through PW7/Ct.Om Prakash.
28. Surprisingly, PW7/Ct.Om Prakash is completely silent that the IO, during his second visit at the place of incident met PW 6/Mohd.Konej. He merely states that Crime team arrived, the IO prepared Tehrir and gave it to him. The Prosecution did not lead the witness to clarify on the above aspect. Further, even the defence preferred to ignore any crossexamination on the above.
29. As a matter of fact, no arguments was put forth by the defence Result: Convicted Page 18 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) regarding the above anomaly.
30. PW6/Mohd.Konej left the 'Jagran' to drop his friend whose name is missing in Ex.PW6/A. However, this witness provides the name of his friend as Annu. The IO did not examine this witness. He also did not make any inquiry from the residents of nearby houses. The Prosecution urged that the same does not affect its case as PW 6/Mohd.Konej himself is an eye witness.
31. The Court also observes that multiple stab wounds were inflicted on PW4/Lalit Singh Rawat. When he fell down, he was assaulted with Fists, legs and bricks. The Brick piece is Ex.P2. It is blood stained and can be identified in the photographs of the place of incident clicked by the Crime Team Photographer. This Brick Piece was seized at the place of incident itself besides other blood stained exhibits as per their respective Seizure memos signed by the case IO and PW7. This investigation was done after the PW7 arrived at the scene of occurrence alongwith copy of FIR and original rukka. FIR was registered vide DD no.11A at 08:10 AM. It is only after this that PW7 reached back at the place of incident. Prosecution does not clarified as to whether eye witness PW6/Mohd.Konej was still Result: Convicted Page 19 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) present at the place of incident or stood discharged from the investigation by PW13/SI Karan Pal Singh at the time when he proceeded to lift the exhibits. The same might be the reason for not obtaining his signatures on the Seizure memos of the case exhibits.
32. Regarding the arrest of the accused persons, the Complainant was called on 04.05.2015 from his house and the Police team comprising of the IO and PW7 left the PS. They reached Baba Farid Puri. When they reached near a Street, Complainant pointed out towards Mohit @ Toti and Jitender @ Satu . They were interrogated and arrested. Place of arrest corresponds with the place of arrest mentioned in the respective Arrest Memos. From Ramjas ground, accused Parveen @ Calvin @ Munshi was arrested at the instance of the Complainant. Same also corresponds with the place of arrest mentioned in his Arrest memo. As per PW6, he was contacted by the Police on the following day of the incident only. His brother Mohd.Janim produced the witness before the IO at about 12 noon where he was made to sit till it became dark outside. According to the witness, his statement was then recorded by the IO. After that accused persons had come to PS one by one. They were brought to the PS by Police on their Motorcycle after half an hour of his arrival Result: Convicted Page 20 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) which would be 12:30 PM.
33. I shall discuss these aspects in the hitherto below part of this Judgment while mentioning brief arguments of both the sides on the above aspect.
34. As pointed out earlier, the Prosecution was enjoined to prove that the accused persons had attempted to commit murder of PW4 Lalit Singh Rawat in as much as the act committed by them was in furtherance of their common intention coupled with a definitive intention or knowledge that the said act would cause death. Overall circumstances attending to the said act are also to be taken into consideration. In the instant case, ocular, oral and documentary evidence (medial record as well as Forensic Experts) has been produced by the Prosecution.
35. In the preceding Paragraphs, I have pointed out the lacunae in the investigation. However, these lacunae are not of such magnitude that will completely offset or derail the case of the Prosecution. At best, these investigation lapses which are attributable to the Investigating Officer, can not be said to be affecting the Prosecution's case in its totality in view of the fact that the Victim PW4 is consistent in his testimony and as I would demonstrate in this Judgment - even the eye Result: Convicted Page 21 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) witness PW6 has also ended up in support of the Prosecution's case on its material particulars.
36. It is held in Judgment titled as V.K.Mishra & another Vs. State of Uttarakhand & Another, (2015) 9 Supreme Court Cases 588 :
"26. It cannot be held as a rule of universal application that the testimony of a witness becomes unreliable merely because there is delay in examination of a particular witness. In Sunil Kumar Vs. state of Rajasthan, it was held that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a core of witness to falsely support the prosecution case. As such there was no delay in recording the statement of PW2 and even assuming that there was delay in questioning PW2, that by itself cannot amount to any infirmity in the prosecution case".
"xxxxx xxxxx
34. Refuting the contention of the appellants on the lapses in the investigation and contending that any lapse in the investigation does not affect the core of the prosecution case, the respondents have placed reliance upon the Judgment of this Court in State of Karnataka V. K.Yarappa Reddy, wherein this Court held as under : (SCC P.720, Para 19) "19. ....It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the Result: Convicted Page 22 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) probity of investigation. It is wellnigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."
"xxxxxxx xxxxxx
38. The investigating Officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions.
37. Site Plan is Ex.PW13/B. It records that it is prepared at the instance of the Complainant/PW6. Point A in the Site Plan is located at a place where the road passing through the Transit Camp Colony on its either side divides into two smaller roads, one of which Result: Convicted Page 23 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) is leading towards Tali Basti where the Jagran was taking place. In the middle of the Road division is the place of incident marked at Point A. Public Toilet is shown therein.
38. Ex.PW1/A records about the incident having taken place near the Public toilet in front of Ramjas Gate, Transit Camp, Katputli Colony . Ex.PW6/A which is statement of Mohd.Konej (PW6) also records that the incident took place near the Public Toilet in the Transit Camp. PW4 has stated nothing about Public Toilet but he states that the incident took place in Transit Camp. Nearby to it, there was a Jagran in Tali Basti.
39. Why this Court has made mention of exact place of incident assumes importance in view of the time variation introduced by PW6. I have earlier pointed out that as per PW6, he left to drop his friend at around 12 or 01:00 AM when the incident took place. Although PW6 in his crossexamination by the Prosecution stated that "I cannot comment if it was 02:30 or 03:00 AM when I was going to drop my friend" . On the other hand, DD Ex.PW1/A was recorded at the PS at 02:42 AM. PW6 also stated in Statement Ex.PW6/A that he left Jagran with his friend to drop him at Result: Convicted Page 24 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Rajasthan Colony at about 02:30 - 03:00 AM.
40. The time variation seems to be on account of some confusion in the mind of PW6. The time of incident recorded in rukka is 02:30 AM. PCR Van had shifted the Victim PW4 to the hospital. The MLC of 'unknown person' is Ex.PW8/A. The said person was brought by Ct.Harender (not examined). PCR Van call sign is recorded as 'O55 PCR Central Zone' in the brief history. MLC No. is 51192. Name of relative or friend of 'unknown person' examined on this MLC is written as SI Lalit Mohan 3775/D (not examined) . The time of arrival is 03:20 AM on 03.05.2015 . Defence contended that MLC has not been connected with the injured of this case i.e. PW4. Report of Mobile Crime team Ex.PW5/A is also silent on the name of the Victim. Treatment Sheet of the Victim also does not name him. Mark PW8/B is photocopy of Discharge Summary on basis of MLC no.51192 which corresponds to the MLC Ex.PW8/A. However, this document cannot be read in evidence as original was not proved.
41. The defence seems to have however forgotten the fact that the Victim can be connected with MLC Ex.PW8/A from another duly Result: Convicted Page 25 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) proven piece of evidence which is the FSL Result Ex.PW12/A. The Victim examined on the MLC was found "Unfit for statement" by the IO and his statement was recorded subsequently. Nevertheless, the IO seized blood sample of the 'unknown person' examined on this MLC on 05.05.2015 vide Memo Ex.PW13/M and the blood Sample was produced by the attending doctor. On this sample Bottle, the IO noted that the name of the Victim and other details were already written which are "Lalit 30 years/M CR470093 MLC No. 51192" . This Pullanda was sealed with the Seal of APRVT15. MHC(M) was examined and there is nothing to suggest tampering with seal either at the time of its deposit with the MHC(M) or subsequent handing over and deposit in the FSL.
42. The IO had also lifted samples from the place of incident vide Memo Ex.PW7/A on 03.05.2015 which includes Brick Ex.P.2 and other exhibits which were blood smeared.
43. I have already pointed out that place of incident is duly proven as in front of the Public Toilet, Transit Camp shown at Point A in the Site Plan. The blood lying there it to be the Victim's. The FSL Report Ex.PW12/A comprises of following exhibits :Result: Convicted Page 26 of 39
State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) (1) Ex.1 Gauge cloth Piece having greenish/brownish stains.
(2) Ex.2 Two pieces of Brick having dirty stains. (3) Ex.3 Concrete Pieces having few brown stains described as Earth Control having blood Tile.
(4) Ex.4 Concrete material i.e. Earth Control Tile. (5) Ex.5a Dirty Jeans having fungal growth.
(6) Ex.5b Dirty Underwear.
(7) Ex.6 Dark brown liquid kept in blood vial
described as blood sample of injured.
44. As per result, blood was detected on Ex.1,2,3,5a, 5b and 6.
45. The DNA examination was also carried out. Male DNA profile was generated from the source of Ex.2 (Brick Pieces), '3' (Concrete Pieces), '5b' (Underwear of injured) & '6' (Blood sample of injured). These were found to be similar with each other.
46. Accordingly, blood was found on the Brick Pieces and other exhibits lifted from the spot. Sample of blood of Victim was collected Result: Convicted Page 27 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) from the hospital. Both of them tallied in terms of DNA Report thereby establishing that the Victim who sustained injuries at the place of incident and the Victim whose blood sample was taken at the hospital is the same person who was examined on the MLC Ex.PW 8/A i.e. Prosecution Witness no.4 Lalit Singh Rawat.
47. I will return back to the time aspect. It is in testimony of PW4 that he left the Vehicle which he used to ply i.e. Mahendra Champion with one Mr.Hari at Gaffar Market, Delhi around 11:00 PM - 11:30 PM on 02.05.2015 . He was going back to his house on foot and his house was situated at a distance of 4045 minutes walk.
48. It is in his crossexamination that accused persons met him at Baba Farid Puri around 12:30 AM or 01:00 AM by chance.
49. This time factor would establish that after leaving the Vehicle at 11:00 11:30 PM, the Victim would have arrived in the Colony in 40 45 minutes i.e. by 11:40 PM to 12:15 AM. Soon thereafter, he met with accused between 12:30 or 01:00 AM. At 02:30 or 03:00 AM, they reached Tali Basti where the quarrel took place resulting into the incident complained of. In his crossexamination, Victim states that abuses were given to him by accused persons between 01:30 or 02:00 Result: Convicted Page 28 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) AM. He was under the influence of alcohol. In his Chiefexamination, he clarified that all of them consumed liquor at Baba Farid Puri around 12:30 or 01:00 AM. The liquor was brought by the accused persons.
50. What is therefore forthcoming is that after meeting the accused, everybody including PW4 consumed liquor and proceeded towards place of Jagran at Tali Basti. This witness consumed liquor with accused persons for the first time although he knew them since last 6 7 months and had met them on 2 or 3 occasions. They consumed liquor for about half an hour. Witness has clarified that they went to see the Jagran only after consuming liquor and that they had not gone inside the Tent. They took 01 or 1½ hours to reach Jagran place. Accordingly, if all these persons consumed liquor for 30 minutes after around at 12:30 AM or 01:00 AM, they would have reached the Jagran place by 02:00 or 02:30 AM. This testimony is therefore consistent throughout regarding time.
51. PW6 has again introduced confusion on the time factor. It is so as in his crossexamination by defence, he has submitted that, "accused persons had attended the Jagran prior to the incident at Result: Convicted Page 29 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) 12 mid night. I had seen the accused persons and the injured Lalit @ Kancha in the Jagran prior to the quarrel. The Jagran commenced around 10 PM. I have seen the accused persons there for 23 hours after commencing of Jagran. I was present in the Jagran since 05:00 PM. Accused persons had come in the Jagran first time around 08:00 or 08:30 PM. Lalit @ Kancha had not come at that time. Lalit @ Kancha had come there after about one hour of arrival of the accused persons. None of the accused persons had consumed liquor in my presence. Accused persons and Lalit @ Kancha had not left Jagran in my presence. I had seen them outside the Jagran when I was going to drop my friend".
52. The entire deposition as quoted above smacks of a state of utter confusion in mind of the witness. The defence claims their presence in their houses on 04.05.2015 and also claims that they never went to Jagran. On the contrary, PW6 marks their presence in the Jagran and even outside it. Evidence has established that PW4 could not have go to the place of Jagran as he did not go inside it and arrived near the Jagran Venue at 02:00 to 02:30 AM only. He could not have been present inside the Jagran place. This fact stands Result: Convicted Page 30 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) established in view of the part of the above testimony where PW6 claimed that accused persons and Lalit @ Kancha had not left in his presence and that he had seen them outside the Jagran when he was going to drop his friend.
53. As per Ex.PW6/A, he left Jagran Pandaal to drop his friend at about 02:30 AM. If he saw all the accused persons and Lalit together outside the Jagran Pandaal, then he could not have seen PW4 inside the Jagran Pandaal.
54. The witness is hostile and has claimed that he had ran away after the danda blow given to him by Mohit @ Toti due to fear. He was still found present at the place of incident later in the night when IO returned there after visiting the hospital. He then made the statement Ex.PW6/A and it is on this statement that Tehrir was prepared and FIR was registered without any delay. The witness is therefore trying to wriggle out of his previous statement in Ex.PW6/A and has been suggested the reasons for the same in the crossexamination offered to him by the Prosecution. He claims that he did not lodge any complaint that Mohit @ Toti had given him danda blow due to fear of the accused persons. Thus, there is a strong probability that the Result: Convicted Page 31 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) witness is intending to disown his statement due to such fear which he still had while deposing in the Court. Nevertheless in the process, he ended up mixing the facts. I am not inclined to discard his entire testimony for various reasons including his state of mind and that improvements in few material particularly cannot lead to rejection of entire testimony. In this context, it is held in :
(1) State of UP Vs. Naresh (2011) 4 SCC 324 that :
"Discrepancies are bound to occur in the deposition of witness due to normal error of observation, error of memory, due to lapse of time or due to mental condition such as shock and horror at the time of occurrence".
(2) In 1983 Crl.L.J.1096 (SC), it is held that :
"Much importance should not be given to minor discrepancies. They can overlooked unless discrepancies go to the root of the matter to impeach basic version".
(3) In 1980 Crl.L.J. 958, it is held that :
"Improvement of the story at the trial in one material particular. Entire evidence cannot be rejected".
Reliance can also be placed in this regard in the Judgment Result: Convicted Page 32 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) titled as (4) Inder Singh Vs. State (1978) 4 SCC 161, wherein it is held that :
"Proof beyond reasonable doubt is a guideline and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes".
55. Likewise, in Kans Raj Vs. State of Punjab and others, AIR 2000 SC 2324, it is held that merely because the witness turned hostile, his entire testimony cannot be effaced from the record.
56. The court is therefore inclined to accept the testimony of PW6 regarding presence of accused persons at the spot and ignore the anomaly regarding time factors for reasons as explained above.
57. Having said so, I have already held that testimony of PW4 is consistent throughout. He names the accused persons in his testimony claiming that they were known to him being residents of same locality. He supports the Prosecution on all material particulars. There is no confusion regarding the actual time of incident and his activities after having left Mahendra Champion with Mr.Hari till the time of incident are duly explained. There are minor contradictions in his Result: Convicted Page 33 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) testimony which are trivial in nature and it cannot be said lost sight of that as per his own accord, the witness was under influence of alcohol.
58. He clearly deposes on oath that accused Munshi @ Calvin uttered, "इसकक ककम तमकम कर ददतद हह". then Toti, Satu and Munshi assaulted him with Bricks. After it, accused Munshi gave him Knife Blow on his Stomach and Hip. At that time, he was held by Toti and Satu. His statement to the Police reveals that he was first given Knife blows and when he fell down, he was assaulted with Bricks etc. This minor contradiction does not go against the Prosecution.
59. The MLC of the Victim records following injuries which were noted in unconscious state of the Victim i.e. :
(1) Lacerated wound over lumber region;
(2) Over thoracic region (dorsum);
(3) Over left Illiac Chest; and (4) Over Abdomen.
Besides above, Nasal bleed was present with Bruises over back of neck. Nature of injury is "Grievous" and the doctor concerned has deposed the same to be "dangerous to life". The kind of weapon used is 'Sharp' and the injuries were found to be 'fresh'.
Result: Convicted Page 34 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016)
60. The Victim therefore establishes that before he was injured, one of the accused had clearly stated that, "इसकक ककम तमकम कर ददतद हह". PW6 has tried to demolish this case by stating that four of them were quarreling near the Toilet. He was spotted by them and Mohit gave him the danda blow due to which he ran away and did not know as to what happened thereafter. But he has clearly seen that these persons started quarreling with each other. He has identified these accused persons correctly in the Court. The witness identified his signatures on his Statement Ex.PW6/A. The witness even tried to say in the crossexamination by accused Mohit @ Toti that his statement was recorded by the IO on the next day. He volunteered that police official was first questioning him on facts and then writing, after which he signed on the statement. He denied the suggestion that the document he signed was blank. There is only one document of this nature which is Ex.PW6/A. It was recorded at the place of incident in the early hours of 03.05.2015. The said statement is therefore duly proven by the Prosecution and affirmed by PW6. His testimony that he was called on the next day in the PS is a departure from Ex.PW 6/A which is liable to be ignored in view of the discussion made Result: Convicted Page 35 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) herein above. Thus the ocular, documentary and oral evidence show presence of common intention amongst the accused persons and describes over all circumstances in which the offence was allegedly committed. Merely because the witness himself has been convicted in a murder case, it cannot be implied as a general rule that his testimony would be false.
61. I shall next take up the issue regarding arrest of the accused persons.
62. It is the Prosecution's case that during the day time of 03.05.2015, PW7 and the IO/PW13 went to RC22, Rajasthan Colony where they met Jitender and Mohit. They were arrested. Then the Police team left for RC4, Baba Farid Puri, from where Calvin was also arrested. No crossexamination has been offered to this witness regarding arrest of the accused persons.
63. IO/PW13 also deposes that on 03.05.2015, he with Ct.Om Prakash left PS and the Complainant was called from his house. PW 6 has claimed that he was called to PS at around 12 Noon. He does not claim his presence at the time of arrest. Arrest memos do not bear his signatures. I have already pointed out that the place of Arrest on the Arrest memo corresponds with the respective residential addresses Result: Convicted Page 36 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) of the accused persons. Merely because signatures of the PW6 have not been obtained, it cannot be said that he was not present at the spots of Arrest particularly when it has been found by the Court that PW6 is not a completely reliable witness and his testimony has been accepted only on material particulars as found to be consistent with other evidence on record. There is no reason to doubt the testimonies of PW7 and the IO.
64. Only one suggestion has been given to the IO to the effect that when public persons approached IO to make complaint to the effect that some public persons have beaten the injured, the IO involved them in the present case. The suggestion dt. 18.08.2018 is absolutely unclear and is against the defence disclosed in the statement U/s 313 Cr.P.C. They have claimed absence from place of incident which is a plea of alibi and being so, it is a 'specific plea'. No evidence is adduced. The crossexamination of material witnesses has been found to be wanting.
65. There is nothing on record to show that PW6 was made to wait in the PS for the entire day. Defence did not call brother of PW6 as a defence witness particularly when PW6 claims that when Police Result: Convicted Page 37 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) called him the next day morning, his brother Mohd.Janim accompanied him. There is nothing to suggest that accused were brought by the Police on their Motorcycle one by in the PS. There is nothing to show that the accused persons were arrested in the PS and not from the places mentioned in the Arrest Memos.
66. Having answered of the aspects regarding the arguments presented before this Court, I find that the Prosecution has established the case for this Court to believe the testimony of PW4 completely and also believe material particulars from the testimony of PW6. The testimony of Police witnesses is consistent throughout. The manner and circumstances in which stab injuries and beatings were given to the Victim PW4 establishes presence of common intention amongst the accused persons as it is preceded by call of one of the accused namely Calvin that, "इसकक ककम तमकम कर ददतद हह". The circumstances under which the offence is committed speak clearly about the intention of the accused persons to the effect that they intended to cause death of PW4. As many as four Stab injuries have been given. Victim was beaten with Bricks Ex.P.2 on which blood of Victim was found.
Result: Convicted Page 38 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016)
67. Moreover, the Medical evidence has proven the fact that injuries on the person of PW4 are "Grievous". As per Dr.Hari Singh/PW 10, these were found to be "dangerous to the life of the Victim". CONCLUSION :
68. Consequently, case of the Prosecution against all the accused persons is proved beyond all reasonable doubts. All the Accused persons namely Mohit @ Toti and Parveen @ Calvin @ Munshi and Jitender @ Satu are hereby Convicted for the Charges U/s 307/34 IPC.
69. Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
ANNOUNCED IN THE OPEN (MANISH YADUVANSHI) COURT ON: 29.01.2019 ASJ05 (West), THC, Delhi.
Result: Convicted Page 39 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) IN THE COURT OF MANISH YADUVANSHI, ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
IN THE MATTER OF Case No. 57622/16 FIR No. 320/15 PS Anand Parbat U/s 307/34 IPC STATE VERSUS (1) MOHIT @ TOTI S/O SH.RAJ KUMAR R/O H.NO. RC22, RAJASTHAN COLONY BABA FARID PURI, DELHI.
(2) PARVEEN @ CALVIN @ MUNSHI S/O SH.NARESH KUMAR R/O RC4, RAJASTHAN COLONY, BABA FARID PURI, DELHI.
Result: Convicted Page 40 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) (3) JITNEDER @ SATU S/O SH.RAMESH KUMAR R/O RC22, RAJASTHAN COLONY, BABA FARID PURI, DELHI.
ORDER ON SENTENCE :
30.01.2019 :
Present : Ms.Nimmi Sisodia, Ld. Addl.P.P.for the State.
All the Convicts produced from J.C. Sh.Shanti Prakash, ld. Counsel for all the convicts.
Arguments on the point of Sentence have been advanced. Record perused.
Ms.Nimmi Sisodia, Ld.Prosecutor has submitted that the Victim was only 30 years old at the time of commission of offence and was hospitalized for considerable period of time and also undergone Surgery on account of multiple Stab Wounds inflicted on him which have been proven to be "dangerous to his life". It is Result: Convicted Page 41 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) urged that against the Convict Parveen @ Calvin, it has been proved as the convict that is he who had inflicted Four Stab injuries on the Victim and before that he had clearly uttered the words " इसकग कगम तमगम कर दसतस हह ह ". Attention of the Court is drawn to the fact that the other two Convicts Mohit @ Toti and Jitender @ Satu caught hold of the Victim/PW4.
The attention of the Court is drawn to the fact that when the Victim fell down while bleeding from his wounds, the Convicts repeatedly hit him with Legs, Fists and Brick. Hence, Ld.Prosecutor urges that considering the depravity with which the offence was committed and considering the individual roles of the Convicts, the Court may award Maximum Sentence of Imprisonment for Life to all the Convicts and in the alternative to award the Life Sentence at least to Parveen @ Calvin considering the fact that his role in the offence is most prominent. Request is also made to award of Compensation to the Victim by referring the matter to the DLSA.
Conversely, Counsel for all the Convicts has presented following mitigating Circumstances :Result: Convicted Page 42 of 39
State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Accused Mohit :
He is previously not convicted. He has one more brother and two unmarried Sisters. He is eldest sibling in his family. His mother is 50 years old while his father is 55 years old who is suffering from Tuberculosis. The other Siblings are stated to be minor.
Accused Praveen @ Calvin @ Munshi :
He has two more brothers out of whom the Convict is the eldest. His other brothers are stated to be School going and minors. His father is stated to have died 08 years ago. His mother is stated to be 45 years old. He is sole bread earner in the family. Accused Jitender @ Satu :
It is urged that besides him, there are two more brothers, one being elder who is married and residing separately with his family in Yamuna Nagar, Haryana while youngest is still a minor and School going. It is submitted that the Convict has 03 Sisters out of whom 02 Sisters are married while third is still studying. It is informed that father of this Convict is about 55 years old while mother is 52 years old.Result: Convicted Page 43 of 39
State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Accordingly, leniency is prayed in sentencing submitting that the Convicts are first time offenders who are aged about 25 Years (Mohit); 26 years (Praveen @ Calvin) and 32 years (Jitender @ Satu). It is submitted that Convict Mohit has already spent a period of 05 months and 11 days in J.C. His Bail Bonds were accepted on 14.10.2015. As a matter of fact, this Convict is on bail since 14.10.2015 but produced continuously from J.C. as required in three other FIRs mentioned in his Nominal Roll.
Likewise, it is contended for Convict Parveen @ Calvin that he has spent period of 06 months and 04 days in J.C. It is also contended that Convict Jitender @ Satu has also spent period of 05 months and 21 days in J.C. The Court finds following aggravating and mitigating circumstances : Convict Mohit @ Toti S.No. Mitigating Factors Aggravating Factors Circumstances personal to the offender Result: Convicted Page 44 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) 01 At present, accused is 25 years old The Convict was known to and at the time of commission of the Victim and before the offence, he was 22 years old. offence complained of, all of Accused is unmarried and having them had consumed liquor.
old aged Parents. He is eldest They formed common
amongst Siblings and therefore, intention to kill the Victim
has responsibility to be earning and with that intention, the
member in the family. Convict caught hold of the
Victim while Convict
Parveen @ Calvin inflicted
multiple Knife injuries. The
Victim fell down bleeding
from his wounds but he was
not spared. This Convict is
proven to have further
beaten up the Victim who
lay helpless on the ground
due to stab injuries and his
incapacitated physical state
as he had also consumed
alcohol.
Result: Convicted Page 45 of 39
State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016)
02. Not previously convicted. Though not convicted, he faces trial in three different FIRs i.e. (1) FIR 274/2017 U/s 363/366/509/34 IPC PS Anand Parbat; (2) FIR No. 06/2016 U/s 397/34 IPC PS Anand Parbat and (3) FIR No. 125/15 U/s 323/341/34 IPC PS Anand Parbat.
70. The present FIR no.
320/15 is also registered at PS Anand Parbat. This shows the tendency of the Convict to have gotten involved in various FIRs between the period from 2015 to 2017 when he was only 22 years old.
Result: Convicted Page 46 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) PreOffence Conduct of the Offender and in Particular the Motive.
03. Nil. The offence was not committed in a premeditated manner. Prior to the offence, the Victim and the offenders shared Alcohol for a considerable period of time. As per PW4, he had met all the offenders 2 or 3 times prior to the offence and hence, known to all of them. Offence appears to have been committed on the spur of moment. One of the Convict namely Parveen @ Calvin was already having a Knife in his possession. This Convict used the brick Ex.P.2 which was recovered from the spot and was blood stained. Motive is quarrel.
Result: Convicted Page 47 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Contemporaneous Conduct of the Offender while committing the Offence
04. Nil The offender caught hold of PW4 even while PW6 stood an eye witness. He facilitated the commission of offence. He helped and assisted Parveen @ Calvin to inflict multiple stab wounds on PW4. This convict himself gave beatings to PW4 even when he was lying on the ground.
Post offence Conduct of the Offender
05. Nil After committing the offence, the Convict absconded from the spot.
06. Nil No lack of remorse.
Role of the Victim in commission of the Crime
07. Nil Being known to the Convicts, the Victim PW4 accepted their offer to consume Alcohol. The argument taking place between Parveen & PW4 perpetuated the commission of offence.
Result: Convicted Page 48 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Nature of the Evidence
08. Nil Eye witness account in testimony of PW4 who is himself the Victim is available. It has been believed by the Court to be a true version of the Incident.
09. Nil Testimony of PW6 establishing presence of the Convict on the spot alongwith the Victim. PW6 categorically identified all the accused persons in the Court.
10. Nil Medical & Forensic evidence.
Result: Convicted Page 49 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Convict Jitender @ Satu S.No. Mitigating Factors Aggravating Factors Circumstances personal to the offender
01. At present, accused is 32 years old The Convict was known to the and at the time of commission of Victim and before the offence offence, he was 29 years old. complained of, all of them had Accused is unmarried and having consumed liquor. They formed old aged Parents. He is second common intention to kill the eldest amongst Siblings. His elder Victim and with that intention, brother is residing separately and the Convict caught hold of the therefore, has responsibility to be Victim while Convict Parveen earning member in the family. @ Calvin inflicted multiple Knife injuries. The Victim fell down bleeding from his wounds but he was not spared.
This Convict is proven to have further beaten up the Victim who lay helpless on the ground due to stab injuries and his incapacitated physical state as he had also consumed alcohol.
02. Not previously convicted. As per Nil.
Nominal Roll, no other Crl. case is stated to be pending against the accused. His overall conduct in the Jail has been satisfactory.
PreOffence Conduct of the Offender and in Particular the Result: Convicted Page 50 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Motive.
03. Nil. The offence was not committed in a premeditated manner. Prior to the offence, the Victim and the offenders shared Alcohol for a considerable period of time. As per PW4, he had met all the offenders 2 or 3 times prior to the offence and hence, known to all of them. Offence appears to have been committed on the spur of moment. One of the Convict namely Praveen @ Calvin was already having a Knife in his possession. This Convict used the brick Ex.P.2 which was recovered from the spot and was blood stained. Motive is quarrel.
Result: Convicted Page 51 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Contemporaneous Conduct of the Offender while committing the Offence
04. Nil The offender caught hold of PW4 even while PW6 stood an eye witness. He facilitated the commission of offence. He helped and assisted Parveen @ Calvin to inflict multiple stab wounds on PW4. This convict himself gave beatings to PW4 even when he was lying on the ground.
Post offence Conduct of the Offender
05. Nil After committing the offence, the Convict absconded from the spot.
06. Nil No lack of remorse.
Role of the Victim in commission of the Crime
07. Nil Being known to the Convicts, the Victim PW4 accepted their offer to consume Alcohol. The argument taking place between Parveen & PW4 perpetuated the commission of offence.
Result: Convicted Page 52 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Nature of the Evidence
08. Nil Eye witness account in testimony of PW4 who is himself the Victim is available. It has been believed by the Court to be a true version of the Incident.
09. Nil Testimony of PW6 establishing presence of the Convict on the spot alongwith the Victim. PW6 categorically identified all the accused persons in the Court.
10. Nil Medical & Forensic evidence.
Result: Convicted Page 53 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Convict Parveen @ Calvin @ Munshi S.No. Mitigating Factors Aggravating Factors Circumstances personal to the offender 01 At present, accused is 26 years old The Convict was known to and at the time of commission of the Victim and before the offence, he was 23 years old. offence complained of, all of Accused is unmarried and his them had consumed liquor. father has expired and having old They formed common aged mother. He is eldest amongst intention to kill the Victim Siblings and therefore, has and with that intention, the responsibility to be earning Convict inflicted as many as member in the family. four Stab injuries to the Victim . The Victim fell down bleeding from his wounds but he was not spared. This Convict is proven to have further beaten up the Victim who lay helpless on the ground due to stab injuries and his incapacitated physical state as he had also consumed alcohol.
Result: Convicted Page 54 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016)
02. Not previously convicted. Nil.
As per Nominal Roll, no other Crl.case is stated to be pending against the accused.
His overall conduct in the Jail has been satisfactory.
PreOffence Conduct of the Offender and in Particular the Motive.
03. Nil. The offence was not committed in a premeditated manner. Prior to the offence, the Victim and the offenders shared Alcohol for a considerable period of time. As per PW4, he had met all the offenders 2 or 3 times prior to the offence and hence, known to all of them. Offence appears to have been committed on the spur of moment. One of the Convict namely Parveen @ Calvin was already having a Knife in his possession. This Convict used the brick Ex.P.2 which was recovered from the spot and was blood stained. Motive is quarrel.
Result: Convicted Page 55 of 39State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) Contemporaneous Conduct of the Offender while committing the Offence
04. Nil The offender stabbed PW4 even while PW6 stood an eye witness.
He facilitated the commission of offence. He was helped and assisted by Convicts Mohit & Jitender to inflict multiple stab wounds on PW4. This convict himself gave beatings to PW4 even when he was lying on the ground.
Post offence Conduct of the Offender
05. Nil After committing the offence, the Convict absconded from the spot.
06. Nil No lack of remorse.
Role of the Victim in commission of the Crime
07. Nil Being known to the Convicts, the Victim PW4 accepted their offer to consume Alcohol. The argument taking place between Praveen & PW4 perpetuated the commission of offence.
Nature of the Evidence Result: Convicted Page 56 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016)
08. Nil Eye witness account in testimony of PW4 who is himself the Victim is available. It has been believed by the Court to be a true version of the Incident.
09. Nil Testimony of PW6 establishing presence of the Convict on the spot alongwith the Victim. PW6 categorically identified all the accused persons in the Court.
10. Nil Medical & Forensic evidence.
I have considered the above Aggravating and Mitigating circumstances. Nothing has come on record to indicate that there is no possibility to reclaim the Convicts in the main Stream/Society. There is a strong possibility of Reformation and Rehabilitation of the Convicts. None of them is previously convicted. Though Convict Mohit @ Toti is involved in three other FIRs however, Prosecution has not proven any previous Conviction against him.
I am of the considered view that all these Convicts deserves to be dealt with leniency. Considering the role of Parveen @ Calvin @ Munshi in the offence, he is sentenced to R.I. for 10 years under Part 2 of Section 307 IPC considering that 'hurt' has been caused on PW4 in the attempt to murder him. A fine of Rs.10,000/ is also imposed and in default of payment of fine, to further undergo RI for Six Result: Convicted Page 57 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) months for the offence U/s 307/34 IPC.
Likewise, Convicts Mohit @ Toti and Jitender @ Satu are sentenced to undergo R.I. for 07 years each and fine of Rs.10,000/ each and in default of payment of fine, to further undergo RI for Six months each for the offence U/s 307/34 IPC (PartII).
Fine not paid.
Benefit of Section 428 Cr.P.C. be given to all the convicts.
As far as referral of the matter for awarding Compensation under Delhi Victim Compensation Scheme, 2015 notifying in Delhi Gazette vide Notification of Delhi Govt. dt. 23.12.2015, I am of the considered view that the Prosecution has not placed anything on record to show that the Victim/PW4 had undergone Surgery on account of Stab injuries or required a considerable long period of hospitalization. The State has already represented him in the present Prosecution. The Victim himself has not attended any of the Court hearings except for the dates on which his testimony was recorded in this Court. Further, it is in evidence Result: Convicted Page 58 of 39 State Vs. Mohit @ Toti etc. FIR 320/15 (57622/2016) that Victim is himself a murder convict and his Appeal is pending in the Hon'ble Delhi High Court . I do not find it a fit case for referral to either DSLSA for Compensation or to award Compensation to him U/s 357 Cr.P.C.
Copy of Judgment has already been supplied to ld.defence counsel on 29.01.2019 against receipt.
Let Order on Sentence be given to all the convicts free of cost.
File be consigned to record room.
ANNOUNCED IN THE OPEN (MANISH YADUVANSHI) COURT ON:30.01.2019. ASJ05 (West), THC, Delhi.
Digitally
signed by
MANISH
MANISH YADUVANSHI
YADUVANSHI Date:
2019.02.02
11:25:29
+0530
Result: Convicted Page 59 of 39