Delhi District Court
State vs . Yogesh @ Matru & Ors. on 31 August, 2020
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IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL SESSIONS
JUDGE03, (WEST), TIS HAZARI COURTS, DELHI
UID No. 56922/2016
FIR No. 146/2013
U/S 302/307/323/324/34 IPC
PS Anand Parbat
State Vs. Yogesh @ Matru & Ors.
: J U D G M E N T :
1. Sr. No. of the case : 56922/2016
2. Date of Committal to Sessions : 22.11.2013
3. Date of Transfer : 24.01.2014
4. Name of the complainant : Sh. Sanjay
5. Date of Commission of Offence : 15.08.2013
6. Name and Parentage of Accused :1. Yogesh @ Matru S/o Sh.
Surendera Kumar, R/o H. No. 254,
Gali No. 12, Than Singh Nagar,
Anand Parbat, Delhi.
2. Gaurav S/o Sh. Krishan Kumar,
R/o H. No. 254, Gali No. 12, Than
FIR No. 146/2013
PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 1/64
2
Singh Nagar, Anand Parbat, Delhi.
3. Kamlesh W/o Late Sh. Puran
Mal, R/o H. No. 268/14, Gali No.
12, Than Singh Nagar, Anand Par
bat, Delhi
4. Sunil Kumar S/o Sh. Rajender,
R/o Mohalla Sundal, Village Jat
wara, PS City Sonipat, Haryana
7. Offence complained of : U/S 302/307/323/324/34 IPC
8. Offence Charged : U/S 302/307/323/34 IPC
9. Plea of Guilt : Not guilty.
10. Final Order :Accused Yogesh, Sunil, Gaurav
and Kamlesh are convicted for the
offence under Section 304 (Part
I)/308/325/34 IPC.
Accused Gaurav is additionally
convicted for the offence u/s 323
IPC.
The accused persons are acquitted
of the offence under section 307/34
FIR No. 146/2013
PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 2/64
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IPC.
Accused Yogesh, Sunil and Kam
lesh are acquitted of the offence
u/s 323/34 IPC.
11. Date on which Order Reserved : 10.07.2020
12. Date on which Order Announced : 31.08.2020
BRIEF FACTS AND REASONS FOR DECISION :
1. The accused persons are facing trial for murdering victim Umesh Kumar and attempting to murder victims Sunil and Vikas Anand, and causing simple hurt to victims Sanjay and Aman in furtherance of their common intention on 15/08/2013 at about 02:05 PM in the gali in front of House No. 253, Gali No. 13, Mann Singh Nagar, Anand Parbat, Delhi.
2. The charge sheet was filed by IO for the offence under Section 302/307/323/324/34 IPC against accused persons. Upon completion of necessary formalities, the chargesheet was committed to this Court. After hearing detailed arguments, the court charged all the accused persons for the offence under Section 302/307/323/34 IPC. In answer to charge, the FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 3/64 4 accused persons pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined total 29 witnesses. PW1 Dr. Yogender Kumar, SR, Lady Harding Medical College deposed that on 15.08.2013 he examined injured Umesh vide MLC No. 41159 and on examination, GCS (Glassgow Coma Scale)E1 V1 M1, breath sounds were decreased on right side of chest. Pulse was weak and thready with tachycardia. BP was not recordable. There was penetrating wound present over right lower chest 4x1 cm, omentum was protruding through the wound. There was incised wound over left forearm (dorsolateral aspect) 5x0.5x0.3 cm approximately 12 cm proximal to left wrist joint. Condition of patient was critical. After emergency resuscitation, patient was referred to Unit SR Dr. Anand Yadav for further management. On the back side of the MLC Ex.PW1/A, observations were made from point X to X.
4. PW2 Dr. Mukta Rani Associate Professor, Lady Harding Medical College and Hospital deposed that on 16.08.2013, she conducted post mortem examination on the male body of Umesh brought dead by Inspector Dalbir Singh in connection of FIR No. 146/2013 dated FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 4/64 5 15.08.2013. She started postmortem examination at 11:55AM and concluded at 12:15 PM. There was alleged history of injuries in an assault, being stabbed on 15.08.2013 at about 2:30 PM. She deposed that it was brought at Lady Harding Medical College and Smt. S. K. Hospital at 3.00 PM on the same day where he was declared dead at 3:00 PM. On external examination, injuries were opined as :
1. Abrasion 2.5 x 0.5 cm. Reddish over right cheek placed 4 cm inner to right ear.
2. Bruised abrasion 3 x 2 cm with abrasion of size 0.5 x 0.5 cm in its middle, reddish over outer back of right hand.
3. Incised stab wound of size 3.2 x 1 x 12 cm over inner lower front of right side of chest placed horizontally 9.5 cm to right of midline and 12.5 cm below right nipple and 110 cm above heel of right foot. The lower and outer end of the wound was more acute than the upper and inner end. The wound was directed downwards, backwards and medially. The wound penetrated through the skin, subcutaneous tissue, 8th intercostal pace muscle FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 5/64 6 on right side where an incised wound of 3.1 x 0.8 cm was present and then cutting through the anterior surface of right lobe of liver where an incised wound of size 3.1 x 1 cm was present and coming out of posterior surface of right lobe of liver where incised wound of size 3.1 x 1 cm was present.
4. Abrasion reddish 1 x0.5 cm over left jaw placed 3 cm to left of left angle of mouth.
5. Abrasion, reddish 5.5 x 0.3 cm over outer back of middle 1/3 of left arm 11 cm below tip of shoulder.
6. Incised would 6.3 x 1 x 1.5 cm over inner middle 1/3 back of left forearm placed 7 cm above wrist joint placed obliquely. On internal examination, injuries were opined as :
1. Abdominal about 2500 ml of fluid and clotted blood was present in peritoneal cavity.
2. All internal organs were pale.
3. Peri nephric fat had effusion of blood.
FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 6/64 7
Cause of death was haemorrhage and shock consequent upon stab wound of abdominal organ via injury No. 3 that was sufficient to cause death in ordinary course of nature and could be produced by some sharp cutting and stabbing single edged weapon. Injuries No. 1, 2, 4 and 5 could be produced by blunt force / weapon /object and injury No. 6 could be produced by some sharp cutting weapon.
After examination, she preserved, (1) blood on gauze and (2) black and white check shorts (blood stained). The detailed post mortem report Ex.PW2/A is in her own handwriting. She had also given subsequent opinion Ex.PW2/B regarding weapon and clothing on request of IO. She identified the knife as Ex.P1. Green colour shirt Ex.P2 and vest and torn shirt Ex.P5 (colly.).
5. (a) PW3 Sh. Sanjay deposed that on 15.08.2013 at around 2:00 PM, he gave hundred rupees to his son Aman to buy kite. After ten minutes Aman came back crying and told that Gaurav had snatched his 100 rupees. He accompanied his son and saw Gaurav was standing in between Gali No.12 FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 7/64 8 and 13 alongwith his brotherinlaw (Jija) Sunil and his brother Yogesh @ Matru. He asked Gaurav as to why he snatched 100 rupees from his son, all the three persons started abusing him. On hearing noise of quarrel, his cousin Umesh and Vikas came downstairs. His younger brother Sunil also came downstairs and all the accused persons started scuffling with them, took out knives and attacked them due to which Vikas, Umesh and younger brother of this witness received injuries. He deposed that due to injuries caused by accused persons, his cousin Umesh died. Thereafter, all the accused persons fled from the spot. Somebody called police at 100 number, however, before arrival of police, he took injured Sunil and Umesh to Sucheta Kriplani Hospital where police also reached and recorded his statement Ex.PW3/A. He deposed that after recording of his statement, he came to know that his cousin Umesh had expired. He identified dead body of Umesh at Sucheta Kriplani hospital mortuary. At his instance, police had prepared site plan Ex.PW3/B.
5. (b) During examination, leading question was put to the witness to which he admitted that phone number 9811170087 belonged to him but FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 8/64 9 he could not say whether this number was used to call at 100 number. Witness identified all the accused persons as assailants who inflicted injuries on deceased Umesh.
5. (c) In cross examination conducted by accused Yogesh, he admitted that he did not sustain any injury in the incident. He replied that he did not know who called police at the spot. He replied that he along with injured persons reached hospital in half an hour by autorickshaw. He replied that he met police officials in the hospital. He denied that on 15/08/2013 the fight took place between him and some other persons when he and his brother misbehaved with some girls. He replied that deceased Umesh sustained injuries in his abdomen, whereas, enjoy Sunil sustained injuries on his chest at the left side. He denied that he gave a knife blow to deceased Umesh under the influence of liquor.
5. (d) In cross examination conducted by accused Gaurav and Kamlesh, he denied the suggestion that on 15/08/2013, his son Aman was wandering in the gali under the influence of liquor, with a bat in his hand. He denied the suggestion that his son Aman was involved in eveteasing FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 9/64 10 regarding which he suspected that accused Gaurav had made a complaint. For this reason Aman had beaten accused Gaurav with bat in public presence. It denied the suggestion that when he and Aman were beating Gaurav, he raised the alarm and public persons gathered at the spot. He denied that his cousin brothers came to the spot with knife. He denied that his brothers sustained injuries in quarrel with other public persons who were trying to save Gaurav. He denied that he falsely implicated the accused persons because of previous enmity with them. He denied that accused Gaurav was emptyhanded at the time of incident.
5. (e) In cross examination conducted by accused Sunil, he denied that his brothers Sunil, Umesh and Vikas came at the spot along with a knife. He denied that the fight started on the issue of misbehaviour with some girls. He denied that during the scuffle, his brother Sunil gave a knife blow to Umesh and injured himself too. He denied the suggestion that accused Sunil was not present at Anand Parbat on 15/08/2013. He denied that accused Sunil had been falsely implicated because of previous enmity with the family of accused Gaurav.
FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 10/64 11
6. (a) PW4 Dr. Anand Kumar Yadav deposed that on 15.08.2013, he was posted at Lady Harding Medical College as SR Surgery and one of the member in the unit of O. P. Pathania. Patient Sunil was referred to him. The patient had stab injury on left side of his chest and he inserted a chest tube. He deposed that injury sustained by patient Sunil was dangerous to life. MLC is Ex.PW4/A.
6. (b) In crossexamination, PW4 replied that the injuries sustained by patient Sunil was dangerous in nature as, due to trauma, 1200 ml blood was collected in his left pleural cavity.
7. (a) PW5 Vikas deposed that on 15.08.2013 at about 2.10 PM, upon hearing loud voices and abuses from the street, he and his brother Umesh looked out from their house and noticed that Yogesh, Gaurav and Sunil were fighting with Sanjay and his son Aman. Thereafter, he alongwith his brother went outside to pacify Yogesh, Gaurav and Sunil. His cousin Sunil also came there. He deposed that when they tried to intervene, accused persons started quarrelling with them. In the meanwhile, accused Kamlesh also reached there and started abusing and scuffling with them. FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 11/64 12 Accused Kamlesh caught hold of Umesh from behind whereas accused Gaurav exhorted "Sabko sabak sikha do" (teach lesson to all of them) upon which all accused persons took out knife from their possession and started inflicting injuries on Umesh indiscriminately (Tabadtod chakuon se hamla dar diya). He deposed that when he alongwith his brother Sunil tried to rescue his brother Umesh, accused Yogesh and Sunil also attacked them with knife due to which he sustained injuries on his right abdomen and left shoulder. The incident took place within seconds and before they could realize, the accused persons fled from the spot. He deposed that his cousin Sanjay took all of them to Lady Harding Hospital in an auto and during treatment he came to know that his brother Umesh had expired. He identified all the accused persons being his neighbours. Police made inquiries from them in the hospital.
7. (b) In cross examination conducted by accused Gaurav and Kamlesh, PW6 denied the suggestion that victims Sanjay and Aman were fighting with neighbours as well as with accused persons. He denied the suggestion that Aman misbehaved with one girl due to which Aman and FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 12/64 13 Sanjay had a fight with neighbours as well as with the accused persons. He denied the suggestion that accused Kamlesh reached at the spot just to pacify the fight between Aman, Sanjay, their neighbours and accused persons. He denied the suggestion that victim Sunil s/o Laxman Das also reached at the spot with a knife with which he inflicted knife injuries upon accused Kamlesh. He explained that accused Kamlesh sustained injuries as she was holding deceased Umesh from behind when other accused persons gave knife blows to Umesh. Umesh was trying hard to release himself from hold of Kamlesh during which process she sustained injury from indiscriminate knife blows given by coaccused persons. He denied the suggestion that Kamlesh did not hold Umesh from behind and she was injured by complainant Sunil, Sanjay and Aman.
7. (c) In cross examination conducted by accused Yogesh, PW5 replied that he had no prior civil or criminal litigation with family of accused Yogesh. He denied that his cousins used to stand outside the house and misbehaved with the passing girls, which was main reason for the quarrel. He stated that he reached the hospital at around 3:00 PM. He was FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 13/64 14 discharged from the hospital on 16/08/2013. He stated that he did not know the size of knife used by accused Yogesh. He denied the suggestion that accused Yogesh was not present at the spot.
7. (d) In cross examination conducted by accused Sunil, PW5 replied that accused Sunil was soninlaw of accused Kamlesh. He admitted that accused Sunil resided with accused Kamlesh. He replied that police reached the hospital around 30-40 minutes after them. He denied the suggestion that accused Sunil was not present at the spot at the time of incident. He denied the suggestion that accused Sunil was falsely implicated because of enmity with the family of accused Gaurav.
8. PW6 Sarju deposed that on 16.08.2013, he reached at Lady Harding hospital mortuary and identified the dead body of his cousin Umesh vide statement Ex.PW6/A recorded by police.
9. PW7 SI Dhan Singh, Incharge, Mobile Crime Team, deposed that on 15.08.2013 at about 5.30 PM, on receipt of information from Control Room, he went to PS Anand Parbat and from there he reached at the spot, i.e., H. No. 253254, Street No. 13, Than Singh Nagar, Anand Parbat, FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 14/64 15 Delhi where he found SHO, Insp. Dalbir Singh present alongwith other staff members. He noticed some blood stains in the street at the spot. Ct. Ravinder (photographer) clicked photographs of the spot from different angles. HC Ajay Kumar (finger print proficient) tried to develop the chance prints on the spot but in vain. He examined the scene of crime and prepared report Ex.PW7/A and thereafter, IO recorded his statement.
10.PW8 Dr. Azaz A. Siddiqui, Associate Professor, Lady Harding Medical College, deposed that on 15.08.2013, one injured Sunil was brought to casualty with alleged history of assault on the left side of the chest. The injured had injuries on his chest, measuring 5 x 0.5 x 0.3 cm. The patient was administered emergency treatment and his chest xray and ultrasound of abdomen was done. After evaluation, patient was diagnosed as hemothorax (left side). Intercostal drainage was done to drain out the blood. Patient at that time was stable, daily monitoring of vital organs was advised and was discharged on 19.08.2013.
11. (a) PW9 Sunil deposed that on 15.08.2013 he was present at his house and at about 2.052.10 PM he heard noise from the street, of people FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 15/64 16 shouting and abusing. On hearing the shout, he came out and saw in the Gali that Gaurav, Yogesh and their brother in law Sunil were beating his brother Sanjay and nephew Aman with fist and leg blows. He deposed that when he reached there, his cousin brother Vikas and Umesh also reached there. They intervened but, in the meanwhile, parental aunt (Bua) of Yogesh and Gaurav also reached there and started abusing them and also started fisticuffs. He further deposed in corroboration with PW5 Vikas. He deposed that accused Kamlesh caught hold of Umesh from behind whereas accused Gaurav exhorted "aaj in sabko sabak sikhate hain" (today we will teach lesson to all of them) upon which accused Yogesh, Gaurav and Sunil took out knife and started inflicting injuries on Umesh. He deposed that when he and his brother tried to rescue Umesh, accused Yogesh and Sunil attacked him with knife on his chest. Then accused persons fled from the spot. His elder brother on seeing their medical condition, took them to Lady Harding hospital in auto where, after sometime, he came to know that Umesh had expired. Police reached at hospital and recorded his statement. He deposed that in the incident, he, his brother Vikas and Umesh sustained FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 16/64 17 injuries. He identified the weapon of offence, i.e., knife as Ex.P1 and his blood stained green colour shirt as Ex.P2.
11. (b) In cross examination conducted by accused Yogesh @ Matru, PW9 replied that on hearing the distress calls of his brother and nephew Aman, he rushed to the spot. In the meantime, his cousin brothers Vikas and Umesh, and accused Kamlesh also reached there. He replied that he saw knife in the hand of accused Yogesh but he did not remember its specifics. He replied that the police showed him a recovered knife but he could not say if it was recovered from possession of accused Yogesh. He denied that he injured himself on his chest with a knife. He replied that he and other injured persons reached hospital within 30-45 minutes through a TCR. He replied that his statement was recorded by police in the emergency medical room at Lady Harding Hospital on 15/08/2013. He denied that injured Vikas and his friends used to stand in the gali and teased the passing girls. He denied the suggestion that he inflicted knife injuries upon Umesh and falsely implicated the accused persons.
11. (c) In cross examination conducted by accused Gaurav and FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 17/64 18 Kamlesh, PW9 replied that accused Yogesh, Gaurav and Sunil were already present at the spot when he reached there. Within a minute thereafter, accused Kamlesh also reached there. He denied the suggestion that he was carrying a knife with which he attempted to kill accused Gaurav and Yogesh, whereas, when accused Kamlesh tried to rescue them he stabbed her too. He denied the suggestion that main reason for the fight was that deceased Umesh was misbehaving with some girls in the street and accused Yogesh, Gaurav and Kamlesh objected to it. He denied that he along with his brothers Sanjay and Vikas came at the spot armed with knife and started inflicting injuries to the accused persons during which deceased Umesh and accused Kamlesh sustained knife injuries.
11. (d) In crossexamination conducted by accused Sunil he denied that at the time of incident he and his cousin brothers were armed with knives. He denied that he sustained injuries in the scuffle from his own weapon. He denied the suggestion that accused Sunil was not present at the spot at the time of incident. He denied the suggestion that accused Sunil was falsely implicated because of enmity with the family of accused FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 18/64 19 Gaurav.
12. (a) PW10 Aman deposed that on 15.08.2013, his father gave him Rs.100/ to purchase kites and when he was on the way to market, one boy namely Gaurav (his neighbour) stopped him in the Gali and asked him where he was going. Then, Gaurav demanded money from him for liquor and on refusal slapped him 23 times on his face and snatched the money. He came back home crying and narrated the incident to his father. Further he deposed in corroboration with PW3 Sanjay, PW5 Vikas and PW9 Sunil, about the incident. He also identified the weapon of offence, i.e., knife Ex.P1.
12. (b) In cross examination, PW 10 replied that when his father asked Gaurav, Yogesh and Sunil why they snatched money from him they misbehaved with him. First of all, accused Gaurav started abusing them and then accused Sunil and Yogesh joined in. He identified the knife Ex. P1 that Yogesh carried at the time of incident. He denied that accused Yogesh was not present at the spot at the time of incident neither did he carry the knife Ex. P1. He denied that his father Sanjay and uncles Sunil, FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 19/64 20 Umesh and Vikas inflicted injuries upon each other and falsely implicated the accused persons. He replied that accused Kamlesh caught hold of his uncle Umesh. He stated that before his uncles Umesh, Sunil and Vikas reached at the spot, the accused persons were beating him and his father. He replied that his father and uncle took injured Sunil and Umesh to hospital in TSR. He replied that he did not remember since when accused Sunil had been residing with accused Kamlesh. He denied the suggestion that accused Sunil was not present at the spot on 15/08/2013. He denied the suggestion that accused persons had been falsely implicated because of personal enmity of his family with the family of accused Gaurav.
13.PW11 ASI Ajit Singh deposed that on 16.08.2013, he alongwith Inspector Dalbir Singh, SI Kamal, WCt. Sangita, driver Ct. Jasvinder and wireless operator Ct. Sovinder went to Lady Harding hospital to get post mortem examination conducted on the dead body of deceased Umesh. After postmortem, dead body was handed over to the relatives of deceased. He deposed that blood in gauze and sample seal were handed over to Inspector Dalbir Singh by concerned doctor and they left the FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 20/64 21 hospital for PS but on the way near Military Road, a secret informer met Insp. Dalbir Singh and informed that accused Kamlesh was hiding herself in her own house. He deposed that thereafter, they went to the house of Kamlesh from where at the instance of secret informer, accused Kamlesh was arrested vide arrest memo Ex.PW11/A, personally searched by WCt. Sangita vide Ex.PW11/B, interrogated vide her disclosure statement Ex.PW11/C and at her instance, pointing out memo Ex.PW11/D was prepared. During that period, another secret information was received qua accused Gaurav and Yogesh @ Matru, who were wanted in present case, were hiding by the side wall of office of Delhi Jal Board. After reaching at the office of Delhi Jal Board, at the instance of secret informer, accused Gaurav and Yogesh @ Matru were apprehended and interrogated vide their disclosure statements Ex.PW11/E and Ex.PW11/F. He deposed that in pursuance of disclosure statement of accused Gaurav Ex.PW11/F, accused Gaurav got recovered the weapon of offence, i.e., knife from under the stone lying in the park, near CNG pump, Military Road. Sketch of knife Ex.PW11/G was prepared by Inspector Dalbir Singh. A pullanda of knife FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 21/64 22 was prepared vide pointing outcumseizure memo Ex.PW11/H. Both the accused Gaurav and Yogesh were arrested and personally searched vide memos Ex.PW11/J1 to Ex.PW11/J4 and at their pointed out of place of incident, pointing out memo Ex.PW11/K1 and Ex.PW11/K2 were prepared. Site plan of place of recovery of knife Ex.PW11/L was prepared. During interrogation, accused Yogesh disclosed that he threw the knife, i.e., weapon of offence near Garbage house, Military Road. They went there but in vain and Fard Ex.PW11/M in this regard was made. After medical examination, accused persons were put in lockup of PS and case property was deposited in Malkhana.
14.PW12 Ct. Ravinder Kumar deposed that 15.08.2013, he accompanied the Crime Team Incharge SI Dhan Singh alongiwth other members to H. No.253254, Gali No. 12/13, Than Singh Nagar, Anand Parbat, Delhi where he clicked 14 photographs Ex.PW12/A1 to Ex.PW12/A13 of the scene of occurrence from different angles. Negatives of the same were Ex.PW12/B1 to Ex.PW12/B13.
15.PW13 Ct. Rakesh Kumar deposed that on 15.08.2013, he delivered the FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 22/64 23 copy of FIR to Ld.ACMM, Joint CP and Addl. CP after receiving the same from DO.
16.PW14 Ct. Mahesh Kumar deposed that on 15.08.2013 on receipt of call at about 2.05 PM regarding quarrel, he alongwith SI Kamal went to the spot, i.e., at the corner of street No. 12 and 13, Than Singh Nagar where they came to know that the injured was already shifted to Lady Harding hospital by PCR official. He deposed that on the spot, he observed blood lying on the road and crime team was called. SI Kamal left him at the spot, went to hospital, and after sometime returned to the spot and handed over a Rukka to him for registration of FIR. He got the FIR registered and returned to the spot alongwith SHO. He deposed that he did not remember if anything was lifted from the spot by the IO.
PW14 was cross examined by Ld. Addl. PP as he omitted to state some vital details of investigation. In cross examination, PW14 stated that earth control Ex.PW14/A and blood stained earth control Ex.PW14/B were lifted from the spot. He deposed that he did not remember if the blood stained earth control and blood in gauze piece were handed over to IO by FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 23/64 24 the Crime Team but on being shown seizure memo Ex.PW14/C, he admitted the same and stated that he forgot the said facts due to lapse of memory with the passage of time.
17.PW15 Ct. Rajiv Kumar deposed that on 23.10.2013, he collected 05 exhibits from Malkhana of PS Anand Parbat vide RC No.101/21/13 and deposited the same in the office of FSL, Rohini. He obtained receipt for deposit of exhibits and handed over the same to Malkhana Incharge. He deposed that the exhibits remained intact and no tampering took place till the time it remained in his custody. In cross examination, he replied that he did not remember about the mark on the seal impression affixed on the pullandas.
18.PW16 HC Bharat Bhushan deposed that on 15.08.2013 at about 6.10 PM, Ct. Mahesh Kumar came to him with a rukka sent by SI Kamal, on the basis of which he registered the present case FIR Ex.PW16/A through computer operator and made endorsement Ex.PW16/B on the rukka. Thereafter, he issued certificate Ex.PW16/C under Section 65B of Indian Evidence Act. After registration of FIR, copy of FIR and original rukka FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 24/64 25 was handed over to Ct. Mahesh Kumar to dispatch the same to Inspector / SHO Dalbir Singh.
19.PW17 HC Priyavart deposed that on 09.10.2013, he alongwith Ct. Sanjay, SI Kamal and secret informer, went to village Jatwara, Sonipat, Haryana in a private vehicle to apprehend accused Sunil. Firstly, they went to PS City where SI Kamal discussed the matter with the Incharge of PS City who provided them local police with whom they went to Sandal Mohalla, Village Jatwara where, on pointing of secret informer to the house of accused Sunil, SI Kamal knocked the door of the house which was opened by accused Sunil and secret informer identified him. He deposed that on seeing them, accused Sunil pushed them and tried to flee from there but he was chased and overpowered. PW17 deposed that during the process of chasing accused Sunil, he sustained injury on his left leg. In the meantime, father of accused Sunil namely Rajender Mistri also reached there. Accused Sunil was interrogated and arrested. Accused Sunil made disclosure statement Ex.PW17/A and was personally searched vide memo Ex.PW17/B. Thereafter, secret informer and local police official FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 25/64 26 were relieved and they returned to Delhi with accused Sunil. In pursuant of his disclosure statement, accused Sunil led the police team to many places for recovery of the weapon of offence, i.e., knife but it could not be recovered and memo in this regard was Ex.PW17C. Accused Sunil pointed out the place of occurrence vide pointing out memo Ex.PW17/D and his arrest memo was Ex.PW17/E.
20.PW18 WCt. Sangeeta deposed that on 16.08.2013 upon PCR call regarding stab injury intimated by DO, she alongwith Ct. Jaswinder and Ct. Sanjay (Operator) went to Gali No. 12, Than Singh Nagar, Anand Parbat, Delhi at the house of Kamlesh where accused Kamlesh was found sitting in a room. Yogesh, nephew of accused Kamlesh was not present there. Accused Kamlesh was brought to PS. During personal search of accused Kamlesh, a pair of ear rings, nose pin and ring were recovered which were seized vide seizure memo Ex. PW11/D1. Further PW18 deposed in corroboration to PW11 ASI Ajit Singh qua arrest of accused Yogesh and his associate, and recovery of knife from accused Yogesh. Regarding identity of the accused persons, witness stated that she was confused about FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 26/64 27 their names. While pointing out towards accused Yogesh and Sunil, witness stated that they were apprehended from Khandar, however on being asked again, witness pointed out towards accused Yogesh and Gaurav and stated that they were accused who were apprehended from the Khandar. She deposed that knife was recovered from the possession of accused Gaurav.
On being asked a leading question by Ld. Addl.PP, PW18 deposed that Ct. Savinder was the operator on the government vehicle which was used to go to hospital. She deposed that she alongwith Inspector Dalbir Singh, SI Kamal, ASI Ajay and Ct. Savinder went to hospital in a government vehicle. Further, she deposed in corroboration to testimony of PW11 qua postmortem of deceased, handing over of dead body and arrest of accused Kamlesh. PW18 was cross examined by Ld. Addl. PP on the point of identity of knife to which she stated that she could not identify the knife due to lapse of time.
21.PW19 ASI Mukesh Tyagi deposed that on 15.08.2013 at about 2.30 PM, he received a call from H. No. 253, Gali No. 13, Than Singh Nagar, FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 27/64 28 regarding stabbing of a person, which was noted vide DD No.22A Ex.PW19/A. The said call was entrusted to emergency officer SI Kamal for further action and at about 2.43 PM, he received another call from PCR from the abovesaid address regarding stab injury to two persons which was registered vide DD entry no. 23A Ex.PW19/B. Said call was also entrusted to SI Kamal.
22.PW20 WCt. Neelam deposed that on 15.08.2013 a call was received at Police Control Room at 100 number from H.No.253, Gali No. 12, Than Singh Nagar, Anand Parbat, Delhi regarding a quarrel in which two persons were stabbed. After filling the said call in computer, same was dispatched for further action. Copy of Form 1 of PCR call is Ex.PW20/A.
23.PW21 WHC Savita deposed that on 15.08.2013 she was posted at CPCR PHQ and at about 2.27 PM she received a telephonic message through telephone no. 8595346151 regarding quarrel at Gali No. 13, Than Singh Nagar, Anand Parbat, Delhi. The said information was transferred to Control Room through PCR Form Ex.PW21/A.
24.PW22 W/Ct. Suman deposed that on 15.08.2013 at about 2.23 PM, a call FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 28/64 29 was received from telephone no.8530633094 regarding stab injury to a person in quarrel at H. No.253, Gali No. 13, Anand Parbat. This information was transferred by her to control room vide PCR Form No. 1 Ex.PW22/A.
25.PW23 ASI Vijay Pal Singh, MHC(M), deposed that on 15.08.2013, SI Kamal deposited 2 sealed pullandas and sample seal of LHMC in Malkhana vide entry No. 2149 Ex.PW23/A. On the same day, Inspector Dalbir Singh also deposited 4 sealed plastic jars vide same entry of even date from portion A to A1.
On 16.08.2013, Inspector Dalbir Singh deposited one sealed pullanda of knife, an envelope of blood gauze and sample seal of LHMC FMT in Malkhana and he made endorsement against entry no. 2149 from portion B to B1 of Ex.PW23/A. On 23.10.2013, 6 sealed pullandas were sent from malkhana to FSL through Ct. Rajeev and out of which 5 pullandas were deposited at FSL and one pullanda was brought back to PS by him.
On 30.08.2013, Inspector Dalbir Singh collected the sealed pullanda of FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 29/64 30 knife and took the same to LHMC hospital vide RC No. 74/21/13 Ex.PW23/B. He deposed that till the time case properties remained in Malkhana, no tampering took place.
26.PW24 Inspector Mahesh Kumar deposed that on 02.11.2013, on request of SI Kamal, he reached PS Anand Parbat from where he alongwith SI Kamal went to spot, i.e., Gali No.12, Than Singh Nagar, Anand Parbat and took rough notes and measurement of the spot at the instance of PW Sanjay and SI Kamal. He deposed that on 06.11.2013, on the basis of rough notes and measurement, he prepared scaled site plan Ex.PW24/A and thereafter, rough notes were destroyed. He deposed that IO recorded his statement on 02.11.2013.
27.(a) PW25 SI Kamal deposed that on 15.08.2013, he was on emergency duty at PS Anand Parbat with Ct. Mahesh and at about 2.152.30 PM, on receipt of DD No.22A regarding stab injury to a male in quarrel at Gali near H. No. 253, Than Singh Nagar, Anand Parbat, Delhi, he alongwith Ct. Mahesh reached at the spot and came to know that injured persons had already been shifted to Lady Harding Medical Hospital. He observed blood FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 30/64 31 lying at the spot. He deposed that he left Ct. Mahesh at the spot and went to Lady Harding Medical hospital where injured persons was being treated. At hospital, he met complainant Sanjay who informed that his two cousins and his brother sustained injuries. He deposed that during examination of complainant, he received information from PS that injured Umesh succumbed to his injuries in the hospital. He wrote down the statement Ex.PW3/A of complainant and made endorsement Ex.PW25/A on it. Dead body of deceased was got preserved for 72 hours and CMO handed over to him blood in gauze, blood stained clothes of the deceased and sample seal of the hospital.
27. (b) From the hospital, he alongwith complainant and above mentioned exhibits reached at the spot and handed over the rukka to Ct. Mahesh for getting FIR registered. He deposed that Ct. Mahesh alongwith SHO Inspector Dalbir Singh reached at the spot and handed over copy of FIR and rukka to him. He called the Crime Team at the spot who collected the blood stained earth control and handed over the same to Inspector Dalbir Singh. After inspection of the spot, crime team was relieved. He FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 31/64 32 also handed over the exhibits, collected from the hospital, to Inspector Dalbir Singh. They tried to trace out the accused persons but in vain. They returned to PS and deposited the exhibits in Malkhana and thereafter, Inspector Dalbir Singh recorded his statement.
27. (c) He further corroborated the testimony of PW11 ASI Ajit Singh with regard to investigation conducted on 16.08.2013 qua post mortem got conducted by Inspector Dalbir Singh on the dead body of deceased Umesh, handing over of dead body to its relatives after post mortem, receipt of secret information while returning to PS qua location of accused Kamlesh, apprehension, arrest and conducting of personal search of accused Kamlesh, and disclosure statement made by her. He also corroborated the testimony of PW11 ASI Ajit Singh qua secret information about accused Yogesh @ Matru and Gaurav, their apprehension, arrest, personal search, their disclosure statements, preparation of pointing out memo at the instance of accused Kamlesh, Yogesh @ Matru and Gaurav, recovery of knife at the instance of accused Gaurav, preparation of sketch of recovered knife, its measurement, its FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 32/64 33 seizure memo, medical examination of accused persons at Lady Harding hospital, return to PS and deposition of recovered knife at Malkhana. He deposed that his supplementary statement was recorded by Inspector Dalbir Singh and later on investigation was marked to Inspector Satish Malik as Inspector Dalbir Singh was transferred.
27. (d) During investigation, secret informer informed Inspector Satish Malik that he could get coaccused Sunil apprehended from village Jatwara, District Sonipat, Haryana. He further corroborated the testimony of PW17 HC Priyavart with regard to going to local PS of village Jatwara in private vehicle and informing them about purpose of their visit to village, joining of local police, apprehension of accused Sunil, his interrogation, recording of disclosure statement of accused Sunil, his arrest, personal search, efforts made to trace out the weapon of offence, i.e., knife, preparation of memo in this regard, preparation of pointing out memo at the instance of accused Sunil and their return to PS Anand Parbat, Delhi. He further deposed that medical examination of accused Sunil was conducted at Lady Harding Hospital, recording of statements of witnesses FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 33/64 34 and thereafter, handing over of the case file to Inspector Satish Malik. He identified the knife as Ex.P1. He further deposed that they tried to trace out the knife at the instance of accused Yogesh @ Matru but same could not be traced and in this regard memo was prepared.
27.(e) He deposed that Inspector Dalbir Singh prepared seizure memo in respect of blood stained earth control and earth control. He further deposed that he recorded statement of Inspector Mahesh Kumar (draughtsman / member of crime team) under Section 161 Cr.PC. During inspection of spot, photographs of the spot from different angles were taken by crime team members. The blood stained earth control is Ex.P3, blood gauze is Ex.P4, blood stained vest / baniyan, one torn / cut shirt and a blood stained green shirt (already identified by PW9 as Ex.P2) as Ex.P5.
27.(f) PW25 SI Kamal was cross examined by Ld. Addl. PP. In cross examination, PW25 stated that on 15.08.2013, concerned doctor at Lady Harding hospital gave him a pullanda of blood gauze of deceased and he prepared memo Ex.PW25/B in this regard. He deposed that he also seized blood stained clothes of deceased and sample seal of hospital vide FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 34/64 35 memo Ex.PW25/D. He further deposed that on 16.08.2013, Inspector Dalbir Singh prepared a memo while taking into possession the blood gauze of deceased vide memo Ex.PW25/C and prepared site plan of place of recovery of knife. He deposed that Inspector Dalbir Singh prepared inquest report prior to postmortem of deceased.
28.PW26 Dr. Sri Mohana Kanna, SR, Lady Harding Medical College deposed that as per record on 15.08.2013 at about 3.00 PM, patients namely Sunil S/o Laxman Dass, Vikas S/o Laxmi Chand and Umesh S/o Laxmi Chand were brought in the casualty in Lady Harding hospital with alleged history of assault and were examined by Dr. Ashutosh. Dr. Ashutosh prepared the MLCs Ex.PW4/A, Ex.PW1/A and Ex.PW26/A. MLC qua patient (accused) Sunil S/o Sh. Rajender Kumar prepared by Dr. Ashutosh is Ex.PW26/B and as per record, there was no fresh injury on the person of Sunil Kumar S/o Rajender. He further deposed that as per record, Sunil S/o Laxman Dass had stab wound over upper chest and patient Umesh had stab wound over lower chest and incised wound over left arm. Patient Vikas was not able to move left upper limb and had fracture of FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 35/64 36 clavicle (collar bone) and concerned doctor opined the nature of injury as grievous.
29.PW27 Inspector Satish Malik deposed that on 19.09.2013 he took over the investigation of present case. On 23.10.2013 he sent the sealed exhibits seized in case to FSL, Rohini for expert opinion through Ct. Rajeev Jha vide RC No. 101/21/13 alongwith forwarding letter.
On 27.10.2013, he obtained the opinion on MLCs of Sunil and Vikas from the concerned doctor at Lady Harding Hospital. He recorded the statement of witnesses under Section 161 Cr.PC who joined the investigation during the period when he conducted investigation. He deposed that the charge sheet was prepared but FSL result was not collected as same was not prepared by that time.
30.PW28 Dr. Abhinav, Assistant Professor, Orthopaedics Department, Lady Harding Medical College and Associated Hospital deposed that on 15.08.2013 when he was on emergency duty as Senior Resident at Lady Harding Hospital, one patient namely Vikas Anand was sent to him from casualty. He examined the patient and advised for Xray of left side FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 36/64 37 shoulder, which was got conducted. He further deposed that on 25.10.2013 as per Xray report, he gave opinion on MLC Ex.PW26/A that patient Vikas Anand sustained grievous injury.
31.(a) PW29 Inspector Dalbir Singh deposed that on 15.08.2013 when SI Kamal was making inquiry qua DD No.22A and 23A, he received information from DO regarding DD No.26A with regard to death of the injured. On receipt of the said information, he alongwith staff went to the spot, i.e., H.No. 253 & 254, Gali No. 13, Than Singh Nagar, Anand Parbat where he met SI Kamal and SI Dhan Singh (Incharge Crime Team) and other staff member. After sometime, Ct. Mahesh reached at the spot and handed over copy of FIR and Rukka to him. Photographer took photographs of the spot from different angles. He deposed that earth control, blood stained earth control and blood in gauze were collected from the spot, put in separate plastic jars and sealed with the seal of APRVTI vide seizure memos Ex.PW14/A and Ex.PW14/B. The blood stained earth control and blood in gauze were lifted from two places at the spot. The places are Mark A and B. The blood stained earth control and blood in FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 37/64 38 gauze were lifted from place Mark B were seized vide memo Ex.PW14/C. He deposed that while leaving Ct. Mahesh at the spot, he alongwith SI Kamal went to Lady Harding hospital, recorded statement of injured persons Sunil and Vikas and also met eye witness Sanjay and his son Aman whose statements were also recorded. From hospital he alongwith SI Kamal, Sanjay and Aman came back to the spot and prepared site plan at the instance of Sanjay and recorded his supplementary statement. He deposed that he recorded statement of SI Kamal and Ct. Mahesh. He tried to trace out the assaulters but in vain. Thereafter, he returned to PS and deposited the case properties on Malkhana. He also collected the report of Incharge, Crime Team on the spot and recorded statement of SI Dhan Singh and Ct. Ravinder (photographer).
31.(b) On 16.08.2013 at about 10.00 AM, he alongwith SI Kamal, ASI Ajeet Singh, driver and operator went to Lady Harding hospital mortuary where dead body of deceased was identified by his relatives vide statements Ex.PW6/A and Ex.PW29/A. He prepared the inquest papers Ex.PW29/B, postmortem over the dead body was got conducted and FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 38/64 39 concerned doctor handed over to him blood in gauze and sample seal of hospital which were seized. After postmortem, dead body of deceased Umesh was handed over to his relatives vide receipt Ex.PW29/C. He deposed that they left hospital for PS and reached at Military Road. At about 5.00pm, he received a secret information that accused Kamlesh who was wanted in present case, was present at her house. Thereafter, Ld. Ct. Sangeeta was called there from PS and a raiding team was constituted.
31.(c) PW29 corroborated the testimony of PW11 ASI Ajit Singh and PW25 SI Kamal regarding apprehension of accused Kamlesh, her interrogation, recording of her disclosure statement (Ex.PW11/C), her arrest (Ex.PW11/A), her personal search (Ex.PW11/B), recovery of one nose pin, one pair of ear ring and one ring Ex.PW11/D1, another secret information qua accused Yogesh and Gaurav, their apprehension, recording of disclosure statement Ex.PW11/E and Ex.PW11/F, their arrest and personal search Ex.PW11/J1 to Ex.PW11/J4, recovery of weapon of offence, i.e., knife at the instance of accused Gaurav under the stone near the boundary wall of the plot, preparation of sketch of knife Ex.PW11/G, FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 39/64 40 preparation of pullanda of knife Ex.PW11/H, preparation of site plan of place of recovery of knife Ex.PW11/L, efforts of police team in search of knife in pursuance of disclosure statement of accused Yogesh, preparation of memo Ex.PW11/M in this regard, pointing out memos at the instance of all the accused persons Ex.PW11/D, Ex.PW11/K1 and Ex.PW11/K2, and depositing case properties in Malkhana.
31.(d) PW29 further deposed that on 17.08.2013, the accused persons were produced before Ld. ACMM where he moved an application for two days PC remand of accused persons for apprehension of co accused Sunil which was declined and accused persons were sent to JC remand. He obtained the PCR Form No. 1. He deposed that the weapon of offence, i.e., knife was sent to Lady Harding hospital for subsequent opinion and later on he collected postmortem report and subsequent opinion from the hospital.
31.(e) He deposed that on 18.09.2013 he was transferred from PS Anand Parbat, therefore, he deposited the case file with MHC(R). During investigation, he recorded statements of witnesses. Further investigation FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 40/64 41 was conducted by Inspector Satish Malik. He identified the blood stained earth control Ex.P3, knife recovered at the instance of accused Gaurav Ex.P1 and blood gauze Ex.P4.
32.Upon completion of prosecution evidence the statement of accused persons were recorded separately under section 313 Cr.PC in reference to all the incriminating evidence received against them. The accused persons examined four witnesses in their defence.
33.DW1 is Smt. Krishna, aged about 49 years, a neighbour of the parties. She deposed that on 15/08/2013 at about 2:30 PM a scuffle broke out between Sunil s/o Laxmi and 3-4 unknown persons. Yogesh (accused), her neighbour, was at home at that time. Later, she came to know that Sunil has suffered a knife blow. Thereafter, she went inside her house. Yogesh went on his own to the police station to get his father released as he was picked up by the police officials. She deposed that she came to know that the scuffle broke out due to consumption of liquor in the open and eve teasing committed by boys involved in the scuffle.
In cross examination conducted by ld. Addl.PP, DW1 replied that she saw FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 41/64 42 deceased (sic) Sunil at the spot during the scuffle. She did not know who was fighting with Sunil as her eyesight was weak due to operation. She replied that she did not go to house of Yogesh. She stated that Sunil (sic) had expired in the incident.
Ld. Addl. PP argued that the testimony of DW1 has no evidentiary value for obvious reasons; she did not correctly disclose the incident of scuffle, the persons involved and injured in the scuffle, and the person who expired in the scuffle. Her testimony is also not consistent with the defence raised by accused persons in the cross examination of prosecution witnesses.
34.DW2 is Kishen, father of accused Gaurav. He deposed that on 15/08/2013 at about 5:30 PM some police officials from PS Anand Parbat came to his home and enquired about whereabouts of Gaurav. He called Gaurav home. When Gaurav reached home he was taken away by police. Police officials told him that Gaurav was being taken to police station on account of involvement in some scuffle. In cross examination conducted by ld. Addl.PP, DW2 stated that he did not complain to senior police officers FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 42/64 43 about wrongful taking of Gaurav to police station on 15/08/2013. He denied the suggestion that Gaurav was arrested by police on 16/08/2013 on the basis of secret information and was not taken away by police from his home on 15/08/2013.
Ld. Addl. PP submitted that the testimony of DW2 is not related to the incident. His deposition is limited to the circumstances in which accused Gaurav was arrested. His testimony is a defence afterthought since he admittedly did not complain to police officers against the allegedly wrongful arrest of his son Gaurav.
35.DW3 Naresh Kumar, aged about 50 years, is a resident of Sonipat, Haryana. He deposed that on 15/08/2013 he was present at his home. At around 10 AM he met his neighbour Sunil (accused) who was present at his home on that day. Thereafter, he and Sunil went to play cards in the chaupal where they stayed till the evening. After some days, the police officials came to his locality and enquired about accused Sunil. He deposed that on 15/08/2013 from about 10 AM or 11 AM till the evening hours FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 43/64 44 accused Sunil was with him in the Chaupal at Sonipat, Haryana. In cross examination conducted by ld. Addl. PP, DW3 stated that accused Sunil was his real cousin. He replied that when he was playing cards at the chaupal accused Sunil was not present there but he came there later on. He stated that later he came to know that accused Sunil was arrested by police in a case of murder at Delhi. He made no complaint to any senior police officer that accused Sunil had been falsely implicated in the present case. He admitted that the house of inlaws of accused Sunil was in Delhi. He denied the suggestion that he deposed falsely in order to save accused Sunil who was his real cousin.
36.DW4 Vinod is brotherinlaw of accused Sunil, and a resident of Sonepat, Haryana. He deposed that on 15/08/2013 at around 12:0012:30 pm he went to Sunil's home at Sonepat at his invitation. It was a holiday and they had food together. After sometime they went together to Chaupal to play cards, spent few hours there and came back to his home. He deposed that accused Sunil did not leave Sonepat on that day. Like DW3, DW4 Vinod FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 44/64 45 too made no complaint to any senior police officer that accused Sunil had been falsely implicated in the present case.
37.I have heard the elaborate final arguments from both sides. Ld. Defence Counsels argued that the accused persons have been falsely implicated by complainant side because of enmity between their families. Per contra, Ld. Addl. PP argued that prosecution witnesses have brought home the charged offences against accused persons beyond reasonable doubt, whereas, the version of defence witnesses was not reliable. In order to appreciate the arguments addressed from prosecution and defence side, the depositions of prosecution and defence witnesses are analysed.
The Incident :
38.(a) The prosecution witnesses testified that the incident occurred in afternoon of Independence Day of year 2013. At around 2:00 pm on that day, complainant Sanjay gave rupees hundred to his son Aman to purchase kites but the money was snatched from him by his neighbour Gaurav in the street. Aman came back crying in 10 minutes and told his father about the FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 45/64 46 snatching. Complainant Sanjay accompanied Aman to the street downstairs where accused Gaurav was standing with his brotherinlaw Sunil and brother Yogesh. When complainant Sanjay asked them the reason for snatching money from Aman, they misbehaved and beat them. Upon hearing their cries Sunil (real brother of Sanjay), Vikas and Umesh (cousin brothers of Sanjay) came downstairs from their respective houses. In the meantime, accused Kamlesh, bua (aunt) of accused Gaurav and Yogesh also reached the spot and started abusing and scuffling with complainants. Accused Kamlesh caught hold of Umesh from behind whereas accused Gaurav exhorted "Sabko sabak sikha do" (teach lesson to all of them) upon which all accused persons took out knife from their possession and started inflicting injuries on Umesh indiscriminately. When Vikas and Sunil tried to rescue their brother Umesh, accused Yogesh and Sunil attacked them too with knife due to which PW5 Vikas sustained injuries on his left shoulder, whereas, PW9 Sunil was stabbed on his left chest. The incident took place within seconds and after inflicting injuries, accused persons fled from the spot. PW3/Complainant Sanjay took injured Umesh, Vikas and FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 46/64 47 Sunil to Lady Harding Hospital in an auto at around 03:00 pm and during treatment Umesh expired at 03:50 pm.
38.(b) To the contrary, the accused persons raised the defence that on the date of incident scuffling took place between the complainant and some outsiders on the issue of eve teasing committed from the complainant side in the street. Accused persons crossexamined PW3 Sanjay with the suggestion that on the day of incident he and his son Aman were drunk. He and Aman suspected that accused Gaurav had made a complaint against Aman regarding his involvement in eve teasing because of which Aman had beaten Gaurav with bat. When accused Gaurav raised alarm, many public persons gathered there. In the meantime, brothers of PW3 Sanjay reached at the spot armed with knives. PW3 denied the suggestion that he and his brothers sustained injuries in quarrel with other public persons who tried to rescue Gaurav from them. No question in cross examination was put to PW10 Aman regarding the alleged defence of eve teasing. On the other hand, PW9 Sunil was crossexamined with the suggestion that the FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 47/64 48 incident occurred as deceased Umesh was misbehaving with some girls in the street, whereas, accused Yogesh, Gaurav and Kamlesh objected to it.
38.(c) Although no such defence question was put to PW3 Sanjay, accused Kamlesh crossexamined PW5 Vikas with the suggestion that she came at the spot just to pacify the fight between Aman and Sanjay with some neighbours apart from accused persons. PW5 was suggested in the crossexamination that during the fight PW9 Sunil s/o Laxman Das came to the spot with knife and inflicted injuries to accused Kamlesh on her chest. Accused Kamlesh crossexamined PW9 Sunil with the suggestion that he reached at the spot with a knife with which he attempted to kill accused Yogesh and Gaurav. When Kamlesh tried to rescue them, he inflicted knife blows on her. Strangely, accused Yogesh did not cross examine PW9 Sunil with the suggestion that PW9 tried to kill him with knife. Although PW 10 Aman deposed consistent with prosecution stand, he was not cross examined by accused Kamlesh to the effect that she arrived at the spot just to pacify the fight between complainant side and remaining accused FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 48/64 49 person's side or that when she attempted to rescue Yogesh and Gaurav, PW9 Sunil inflicted knife blow on her.
39.The accused persons further raised vacuous and hollow defence that complainants injured each other with knife and falsely implicated the accused persons because of personal enmity between their families.
40.The defence raised by accused Kamlesh, Yogesh and Gaurav are fragmented and inconsistent. On the other hand, the testimonies of PW3 Sanjay, PW5 Vikas, PW9 Sunil and PW 10 Aman are consistent, coherent and unwavering. The defence version falls flat when pitted against prosecution version of the incident.
Plea of alibi :
41.(a) Accused Sunil raised the defence that on the date of incident he remained present at his village in Sonipat, Haryana; he did not visit Anand Parbat the whole day. He examined DW3 Naresh Kumar and DW4 Vinod both of whom stated that they met accused Sunil at his home at Sonepat, FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 49/64 50 Haryana on 15/08/2013. They deposed that for the entire day of 15/08/2013 they were together, playing cards at chaupal in Sonipat Haryana.
41.(b) Ld. Addl. PP argued that DW3 and DW4 were interested and planted witnesses; their deposition was an attempt to create false defence of alibi for accused Sunil. No prosecution witness was cross examined with specific suggestion that on the day of incident accused Sunil was playing cards with DW3 Naresh and DW4 Vinod at chaupal at Sonepat, Haryana. The prosecution witnesses were cross examined with perfunctory suggestion that at the time of incident accused Sunil was not present at the spot. Rather, PW5 Vikas Anand was cross examined with the suggestion that accused Sunil resided with accused Kamlesh at Anand Parbat, Delhi. Thus, testimonies of DW3 and DW4 are not worthy of reliance in defence of accused Sunil.
41.(c) Indeed, accused Sunil took prosecution by surprise by examining DW3 and DW4 since no prosecution witness was given specific FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 50/64 51 suggestion that accused Sunil played cards with DW3 and DW4 for whole day of 15/08/2013 at Chopal in Sonipat, Haryana. No credible proof was adduced by accused Sunil to substantiate the bald testimonies of DW3 and DW4.
41.(d) With regard to accused Sunil's plea of alibi it is apposite to note the following : the incident occurred at 02:05 pm on 15/08/2013. Immediately thereafter, all the injured persons were rushed to Lady Harding College by complainant Sanjay at around 03:00 pm. Police officials reached hospital around 3040 minutes after injured persons. The statement Ex. PW3/A of complainant Sanjay was recorded in the hospital when injured Umesh was still alive but in critical condition. After recording statement of complainant Sanjay, PW25 SI Kamal went back to the spot. In the meantime, he received the information that vide DD No. 26A that police station had been informed that injured Umesh had expired during treatment. SI Kamal sent rukka at 06:00 pm and FIR was registered without delay at 06:15 pm. The FIR was registered by name against all the FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 51/64 52 accused persons including accused Sunil at the statement of complainant Sanjay. There was no delay in recording of statement Ex.PW3/A and there was no opportunity to complainant Sanjay to calmly reflect and falsely implicate accused Sunil in the FIR, although he was not present at the spot and was not one of the assailants. The plea of alibi raised by accused Sunil remained unproved.
Nature of Injuries inflicted by Accused Persons :
42.(a) All the prosecution witnesses uniformly deposed that initially accused Gaurav, Yogesh and Sunil were beating Sanjay and Aman. On hearing their cries, Umesh, Vikas and Sunil came at the spot. In the meantime, accused Kamlesh also reached there. Accused Kamlesh joined the coaccused and started abusing and scuffling with complainants. Accused Kamlesh caught hold of Umesh from behind whereas accused Gaurav exhorted "Sabko sabak sikha do" (teach lesson to all of them) upon which all accused persons took out knife from their possession and started inflicting injuries to Umesh indiscriminately. When Vikas and Sunil tried FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 52/64 53 to rescue their brother Umesh, accused Yogesh and Sunil also attacked them with knife due to which Vikas sustained injuries on his right abdomen and left shoulder, whereas, Sunil was stabbed on his left chest.
42.(b) Evidently, all the accused persons acted in unison and participated in commission of injuries to complainants. Accused Yogesh, Gaurav and Sunil carried knives at the time of incident with which they stabbed Umesh in his abdomen and caused incised wound on his forearm, while accused Kamlesh overpowered him from behind. When Vikas and Sunil tried to rescue their brother Umesh, accused Yogesh and Sunil also attacked them with knife due to which Vikas sustained injuries on his left shoulder, whereas, Sunil was stabbed on his left chest.
42.(c) As per post mortem report Ex.PW2/A, Umesh died due to haemorrhage and shock consequent upon stab wound on abdominal organ via injury No. 3 (incised stab wound of size 3.2 x 1 x 12 cm) that was sufficient to cause death in ordinary course of nature and could be produced by some sharp cutting and stabbing single edged weapon. He FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 53/64 54 sustained four bruise and abrasion injuries on his face, hand and shoulder. He sustained an incised wound on his left forearm. All the injuries sustained by him were ante mortem in nature.
42.(d) As per MLC Ex.PW4/A, the stab injury sustained by patient Sunil on his chest was dangerous to his life as, due to trauma, 1200 ml blood was collected in his left pleural cavity.
42.(e) The MLC Ex. PW 26/A of patient Vikas was proved by PW26 Dr Sri Mohana Kanna. He deposed that patient Vikas Anand had fracture injury on his left clavicle bone because of which the nature of injury was opined as grievous.
Whether Murder or Culpable Homicide not amounting to Murder :
43.(a) Ld. Defence Counsels submitted that the incident occurred as a sudden fight between the parties; there was no previous enmity between them. They submitted that as per the MLC Report and the post mortem report, deceased Umesh had suffered only one stab injury in his abdomen FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 54/64 55 and in a case of single fatal blow on a vital part of body, the Apex Court in catena of judgments has taken a view that the case would fall under Exception 4 of Section 300 IPC provided such an injury has been caused on the spur of moment, without pre meditated plan or design on the part of the accused persons. They submitted that the exhortation of Gaurav "Sabko sabak sikha do" (teach lesson to all of them) could not be construed as an exhortation to kill Umesh, especially when only one stab wound had been caused to him.
43.(b) Ld. Addl. PP, on the other hand, submitted that as per the MLC Ex.PW1/A, patient Umesh was admitted in Lady Harding Medical College on 15/08/2013 at 3:00 PM in critical condition with stab wound over right lower chest. His omentum was protruding through the wound. Within 50 minutes of admission in hospital, injured Umesh succumbed to his injuries and was declared dead at 3:50 PM. As per post mortem report Ex.PW2/A, Umesh died due to haemorrhage and shock consequent upon stab wound on abdominal organ via injury No. 3 (incised stab wound of FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 55/64 56 size 3.2 x 1 x 12 cm) that was sufficient to cause death in ordinary course of nature and could be produced by some sharp cutting and stabbing single edged weapon. He sustained four bruise and abrasion injuries on his face, hand and shoulder. He sustained an incised wound on his left forearm. All the injuries sustained by him were ante mortem in nature. In view of post mortem report Ex.PW2/A, the case was squarely covered by clause thirdly of Section 300 IPC.
43.(c) In the landmark judgment of Virsa Singh v. State of Punjab AIR 1958 SC 465, the Hon'ble Supreme Court held that the following are the four steps of inquiry involved in the offence of murder under Section 300 IPC, clause thirdly:
(i) whether bodily injury is present;
(ii) what is the nature of the injury;
(iii) it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 56/64 57
(iv) it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.
In the present case all the above elements are fulfilled: there is an injury on the body of the deceased; it is a fatal injury; the injury is the one which the accused persons intended to inflict and also the injury has been proved to be sufficient to cause death in the ordinary course of nature. Thus it has sufficiently been proved that the accused persons had committed murder of the deceased under Section 300 IPC clause thirdly. Ld. Addl. PP rightly submitted that since all three accused Gaurav, Yogesh and Sunil were carrying knives at the time of incident with which they together assaulted Umesh, Sunil and Vikas, and since the incident occurred in a flash, it could not be specifically pointed out by the prosecution witnesses as to which accused inflicted the fatal knife blow to deceased Umesh. Since all the accused persons acted with common intention, all of them would be equally liable for the fatal knife blow given to deceased Umesh.
43.(d) Now dealing with the contention raised by Ld. Defence FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 57/64 58 Counsels that the offence committed by the accused persons would be culpable homicide not amounting to murder, covered under Exception 4 to Section 300 IPC, let us first reproduce the said provision which reads as under: "Exception 4 to Section 300 of the Code, reads as follows:
"Exception 4. 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.
Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault."
If the case falls under Exception 4, then the further inquiry should be as to whether the case falls under the first or second part of Section 304 IPC, which reads as follows:
"304Punishment for culpable homicide not amounting to murder:Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 58/64 59 to cause such bodily injury as is likely to cause death."
43.(e) In Pappu v. State of Madhya Pradesh (2006) 7 SCC 391 the Hon'ble Apex Court almost exhaustively dealt with the parameters of Exception IV to Section 300 of the Code. The relevant paras of the judgment are reproduced as under:
"13...The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight;
(c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 Indian Penal Code is not defined in Indian Penal Code. 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 FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 59/64 60 unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 Indian Penal Code is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body on which it was given and several such relevant factors."
43.(f) In the present case, the testimonies of PW3 Sanjay, PW5 Vikas, PW9 Sunil and PW 10 Aman reflect that a quarrel occurred between the parties in the street. The quarrel resulted into sudden fight and accused persons gave a stab wound in the abdomen/ lower right chest of deceased Umesh. The stab wound proved fatal and Umesh died shortly thereafter on the same day. The accused persons inflicted knife blows in the heat of passion without any premeditation and without any intention to murder Umesh. There is no evidence that accused persons took undue advantage or acted in cruel or unusual manner. Thus the case falls under exception 4 to Section 300 IPC.
43.(g) Now it has to be examined whether the case falls under first part or second part of Section 304 IPC. When there is intention to cause FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 60/64 61 death or such bodily injury as is likely to cause death then the same would be a case of Section 304 Part I but if it is only a case of knowledge and not the intention to cause death or bodily injury as is likely to cause death, then the same would be a case of Section 304 part II. In the present case, accused persons intentionally caused deep stab wound with knife in the lower chest/abdomen of deceased Umesh by overpowering him from behind. As per postmortem report Ex.PW2/A, the stab wound caused to deceased Umesh was sufficient to cause death in the ordinary course of nature. Indeed, it did cause his death shortly thereafter, in the hospital. It is evident that the accused persons intended to cause death or such bodily injury as was likely to cause death of deceased Umesh. The case of accused herein is covered by first part of section 304 IPC. Liability for injuries caused to Sunil ,Vikas, Sanjay and Aman :
44.(a) The MLC Ex.PW4/A reflects that the stab injury caused by accused persons to patient Sunil on his chest was dangerous to his life. As per MLC Ex. PW 26/A, patient Vikas sustained fracture injury on his left FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 61/64 62 clavicle bone, which was opined as grievous injury. As observed hereinabove, the accused persons intentionally caused stab injury with knife in furtherance of their common intention on the chest of victim Sunil. However, their intention was not to cause death of victim Sunil but to cause such bodily injury as was likely to cause his death. Considering that the accused persons caused injuries to victim Sunil in a sudden street fight, the circumstances were such that if the death of Sunil was caused due to stab injury, the accused persons would have been guilty of culpable homicide not amounting to murder, punishable under Part I of Section 304 IPC. Since victim Sunil survived the injury, the accused persons would be guilty of attempting to cause culpable homicide not amounting to murder, punishable under Section 308 IPC.
44.(b) Similarly, the accused persons intentionally caused grievous fracture injury on the left clavicle bone of victim Vikas Anand in furtherance of their common intention, for which they are liable under Section 325 IPC, which is a lesser offence than offence under Section FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 62/64 63 307/34 IPC with which accused persons had been charged.
44.(c) Complainant Sanjay and his son Aman did not subject themselves to medical examination after the incident. PW3 Sanjay admitted that he did not sustain any injury in the incident. However, PW10 Aman deposed that he was slapped and beaten by accused Gaurav in the incident, which was the reason a fight ensued between the parties. Causing of apparent bodily injury and preparation of MLC of the victim is not prerequisite of offence under section 323 IPC. Voluntarily causing bodily pain brings the act within ambit of Section 323 IPC. Thus, accused Gaurav is liable for offence under section 323 IPC regarding simple hurt caused to victim Aman.
Conclusion :
45. In conclusion, accused Yogesh, Sunil, Gaurav and Kamlesh are convicted for the offence under Section 304 (Part I)/34 IPC, for committing culpable homicide not amounting to murder of victim Umesh in furtherance of their common intention. The accused persons are convicted for the offence FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 63/64 64 under Section 308/34 IPC for attempting to commit culpable homicide not amounting to murder of victim Sunil in furtherance of their common intention. The accused persons are convicted for the offence under Section 325/34 IPC for voluntarily causing grievous hurt to victim Vikas Anand in furtherance of their common intention. Accused Gaurav is convicted for the offence under Section 323 IPC for voluntarily causing simple hurt to victim Aman. The accused persons are acquitted of the offence under section 307/34 IPC. Accused Yogesh, Sunil and Kamlesh are acquitted of the offence under section 323/34 IPC.
Order on sentence shall be announced after hearing submissions of the convicts.
Announced in the open court
today i.e. 31st August, 2020 (VISHAL SINGH)
ASJ03, WEST/DELHI
31.08.2020
This judgment contains 64 pages and all pages bears my signatures.
(VISHAL SINGH) ASJ03, WEST/DELHI FIR No. 146/2013 PS : Anand Parbat State Vs. Yogesh @ Matru & Ors. Page 64/64