Delhi District Court
State vs . Sanjay Kumar Etc. 1 Of 33 on 10 October, 2013
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.08/2013
FIR No.122/2006
PS Kanjhawala
U/s 302/34 IPC
State
Vs.
1. Sanjay Kumar,
S/o Satbir @ Satte,
2. Dayanand,
S/o Budh Ram,
3. Ishwar Singh,
S/o Budh Ram,
4. Satbir Singh @ Satte,
S/o Bhane Ram,
5. Ram Kumar,
S/o Bhane Ram,
6. Krishan Pal @ Bhagat @ Gyani,
S/o Roop Chand
State vs. Sanjay Kumar etc. 1 of 33
7. Vijender Singh @ Veenu,
S/o Ram Chander
All residents of Village Jhimer Pura,
Delhi81.
Date of institution :27.11.2006
Date when arguments concluded:29.08.2013
Date when Judgment pronounced: 10.10.2013
Appearances: Mr. Girish Giri, APP for the State.
Mr. D.V. Goel, Counsel for all accused.
JUDGMENT
1. Initially, seven accused were forwarded by police to face trial u/s 323/302/34 IPC. Accused Satbir @ Satte died midway trial and proceedings against him have abated.
2. Police case is that ASI Kamal Singh and Ct. Suresh reached village Jhimarpura, Delhi on 03.08.2006 on receipt of DD No.33A. There they found injured Babli, Subhash and Anil and they were taken to SGM hospital for medical examination. Babli had injury on right parietal region. All three persons were discharged on the same day after treatment and injury on the State vs. Sanjay Kumar etc. 2 of 33 person of Babli was kept under observation. Opinion was kept pending. Statement of injured Subhash was recorded on 04.08.2006 to the effect that her bhabhi Babli was returning home on 03.08.2006 at 8.30 P.M. At that time, accused Ishwar hit her with a stick(lathi). Accused Satbir(now deceased) was also present there, Subhash went to Satbir and asked why he was getting killed his bhabhi Babli as she had done no mistake. Satbir asked remaining accused to kill him also and Satbir himself gave him a lathi blow which he warded off by holding the stick. Then, accused Sanjay gave him a stick blow and thereafter, blows were given by Dayanand, Krishan, Ram Kumar and Bijender.
A kalandara u/s 107/151 Cr.PC was prepared in which complainant Subhash was kept on one side and accused Satbir, Ishwar, Sanjay Kumar and Dayanand on the other side. DD No.4A dated 04.08.2006 was recorded regarding that kalandara. All accused persons of that kalandara including complainant Subhash were sent to the jail and were released 23 days thereafter. In the meantime, the police kept on sleeping. It swung into action after receipt of DD No.19A dated 09.08.2006 that injured Babli had been referred to LNJP hospital from SGM hospital. The then HC Kamal State vs. Sanjay Kumar etc. 3 of 33 Singh reached LNJP hospital, obtained medical documents regarding injured Babli and also came to know that her parietal bone had been fractured. He wrote rukka consequent to which case FIR was registered. Babli was found unfit for statement and further investigation was handed over to SI Puran Pant. Police received information on 10.08.2006 that Babli died in LNJP hospital during treatment and in this way, Section 302 IPC was invoked and further investigation was assigned to Insp. Baljeet Singh who arrested all the accused on 12.08.2006 and recovered weapons of offence out of which a jailly and a stick were found stained with blood. FSL came to the conclusion that the blood stains on the jailly and lathi were matching with that of deceased.
3. Charge u/s 323/302/34 IPC was framed on 24.01.2007 against all accused to which they claimed trial.
4. In order to establish the case, prosecution examined sixteen witnesses. Accused did not examine a single witness in defence.
5. PW4 ASI Kamal Singh deposed that he was posted as HC in PS Kanjhawala on 03.08.2006. On that day, on receipt of DD No.33A Ex.PW4/C, he along with Ct. Suresh reached village State vs. Sanjay Kumar etc. 4 of 33 Jhimerpura where quarrel was going on and a crowd had gathered. Injured Babli, Subhash and Anil were taken to SGM hospital for medical examination. He recorded statement Ex.PW1/A of injured Subhash. DD was kept pending as nature of injury was not opined by the doctor. He received information on 09.08.2006 vide DD No.19 Ex.PW7/A that injured Babli had been referred to LNJP hospital from SGM hospital for further treatment, so he reached that hospital and collected the photocopies of the medical papers. Babli was found unfit for statement. He made endorsement on the statement of Subhash recorded on 04.08.2006, prepared rukka Ex.PW4/A and handed over the same to DO for registration of FIR. FIR Ex.PW6/A u/s 308 IPC was registered and investigation was handed over to SI Puran Pant.
PW6 ASI Kamal Singh registered FIR Ex.PW6/A on 09.08.2006 at 9.25 P.M. on receipt of rukka from HC Kamal Singh and made endorsement Ex.PW6/B on the rukka regarding registration of FIR. He proved DD No.33A as Ex.PW6/C. PW7 HC Raj Kumar registered DD No.19A Ex.PW7/A on 09.08.2006 at 5.50 P.M. on receipt of information from duty Ct. Yashvir posted in LNJP hospital regarding admission of injured State vs. Sanjay Kumar etc. 5 of 33 Babli in that hospital after reference from SGM hospital.
PW13 HC Rajender Prasad registered DD No.23A Ex.PW11/A on 10.08.2006 at 5.45 P.M. on receipt of a call from HC M.A. Khan from LNJP hospital to the effect that Babli had expired.
PW2 HC Naresh Kumar was MHC(M) on 12.08.2006.
On that day, Insp. Baljeet Singh deposited with him one jailly and one lathi sealed with the seal of BS and five other lathies in unsealed condition. He made entry No.1361 in register No.19. He further deposed that Insp. Baljeet deposited with him, on 25.08.2006, one sealed envelope and sample seal for which he made entry No.1372 in register No.19. On 26.10.2006, sealed pullandas containing lathi and jailly were handed over by PW2 to Ct. Ramesh vide RC No.167/21/06 for depositing in FSL and PW2 made entry against entry No.1361 in register No.19. FSL result, jailly and lathi were received in the malkhana on 24.01.2007 through Ct. Rajesh and PW2 made entry against main entry No.1361. Ex.PW2/A and Ex.PW2/B are the entry Nos.1361 and 1372. RC is Ex.PW2/C and receipt acknowledgment is Ex.PW2/D. PW8 SI Manohar Lal prepared scaled site plan Ex.PW8/A on 29.08.2006.
State vs. Sanjay Kumar etc. 6 of 33 PW10 Ct. Ramesh Kumar is the witness to the arrest of all accused, their disclosure statements and recovery of weapons of offence. He deposed that he along with Insp. Baljeet Singh, SI Puran Pant went to village Jhimerpura, at the instance of Sultan Singh, all accused were arrested vide arrest memos Ex.PW1/C to Ex.PW1/I and personal search memos from Ex.PW1/J to Ex.PW1/P. He further deposed that six lathies and one jailly were recovered at the instance of accused Satbir Singh from his house. One blood stained lathi and jailly were sealed with the seal of BS and were seized vide memo Ex.PW10/A bearing his signatures at point A. Disclosure statements from Ex.PW10/B1 to Ex.PW10/B7 of all the accused were recorded. Thereafter, police party returned to the PS and case property was deposited with the MHC(M) PW10 further deposed that he collected the sealed case property from MHC(M) on 26.10.2006 and deposited the same with FSL. He did not tamper with the case property until it remained in his possession. He identified jailly as Ex.P1 and one lathi Ex.P2 and remaining four lathies as Ex.P3 collectively.
PW11, the then SI Puran Pant deposed that further investigation was assigned to him after registration of FIR u/s 308 State vs. Sanjay Kumar etc. 7 of 33 IPC on 09.08.2006. On the same day, he came to know that injured Babli was unfit for statement. Next day i.e. on 10.08.2006, he came to know that Babli had succumbed to injury and thereafter, section 302 IPC was invoked and further investigation was handed over to Insp. Baljeet Singh. He along with Ct. Ramesh went to LNJP hospital on 11.08.2006. Insp. Baljeet Singh also reached there after some time. Postmortem was done and dead body was handed over to the legal heirs of the deceased Babli. PW11 further deposed that after postmortem, the doctor handed over to Insp. Baljeet Singh blood gauze piece and sample seal which were taken into possession vide memo Ex.PW11/B. He further deposed that he along with Insp. Baljeet and Ct. Ramesh visited village Jhimerpura on 12.08.2006 in search of the accused and there, they met complainant Subhash. Insp. Baljeet Singh prepared rough site plan at the instance of complainant Subhash. All the accused were arrested at the instance and identification of the complainant. He further deposed that five liathis and one jailly were recovered from a fodder room of accused Satbir and at the instance of Satbir Singh. Only one jailly and one lathi were found stained with blood and so they were sealed with the seal of BS and State vs. Sanjay Kumar etc. 8 of 33 were seized vide memo Ex.PW10/A. This witness also identified the jailly as Ex.P1, blood stained lathi Ex.P2 and other four lathies as Ex.P3 collectively.
6. Injured Anil, Subhash and Babli were medicolegally examined by Dr. Javed in SGM hospital on 03.08.2006 vide MLC Nos.11395, 11398 and 11396. The said doctor left the hospital and so, PW9 Dr. Manoj Dhingra was deputed by MS to prove the signatures and handwriting of Dr. Javed on MLCs. PW9 deposed that all three MLCs were in the handwriting of Dr. Javed and were bearing his signatures. In this way, he proved MLCs of Subhash and Anil as Ex.PW9/A and Ex.PW9/B and of Babli as Ex.PW9/C. He further deposed that Dr. Javed found a wound of 6cm. over left supra scapular region on the body of Subhash. On the person of Babli, Dr. Javed observed 6.7cm. open injury on right parietal region.
PW5 Dr. Kundan of SGM hospital examined injured Subhash on 11.08.2006. It is pertinent to mention that Subhash was first examined on 03.08.2006 by Dr. Javed. He again went to the same hospital for medical examination on 11.08.2006 and this time, it was Dr. Kundan. PW5 deposed that on examination, he State vs. Sanjay Kumar etc. 9 of 33 found a stitched wound over left shoulder and he prepared MLC Ex.PW5/A. He opined the injury as simple in nature at point A on MLC. He sent the patient for Xray examination vide requisition form Ex.PW5/B. He proved the casualty card of Subhash as Ex.PW5/C. PW15 Dr. Lokesh Gaur deposed and proved the treatment record of injured Babli prepared by Dr. Rohit who had left the LNJP hospital by the time he was to appear for deposition. PW15 stated that he had seen Dr. Rohit writing and signing in the ordinary course of duties, so he was well conversant with his handwriting. Babli was referred to the hospital where she was examined by Dr. Rohit vide document Ex.PW15/A. PW15 further deposed that the patient was further referred to the Department of Neurology and Surgery as she was having complaint of vomiting and headache. There, she was examined by on duty Neurologist and her NCCT Head was done in which it came out that her left parietal bone was fractured. Babli was admitted in Neurology Department under the observation of Dr. Chaitanya Sharma.
PW16 Dr. P.N. Pandey appeared in the witness box to prove the handwriting and signatures of Dr. Ajaz Ahmad Wahi. He State vs. Sanjay Kumar etc. 10 of 33 is claiming to be conversant with his signatures and handwriting because he saw him doing so in the ordinary course of the duties. As per PW16, Dr. Ajaz Ahmad has left the services of the hospital and his recent whereabouts were not available on the record. After going through the record, PW16 deposed that Babli was first taken to SGM hospital where her MLC was prepared on 03.08.2006. She was having history of assault leading to head injury. Thereafter she was referred to LNJP hospital where the doctor came to know after CT scan of brain that there was a depressed fracture on left frontal bone with under line preucethaulus. Patient was operated and depressed segment of the bone was removed. He proved the medical papers as Ex.PW16/A. PW16 further deposed that as per Dr. Ajaz Ahmad, patient Babli was unfit for statement on 09.08.2006 at 5.30 P.M. and endorsement in this respect has been made by Dr. Ajaz Ahmad at point B on Ex.PW16/B. Witness number PW5 has been given to two witnesses and both are doctors. The first witness examined as PW5 is Dr. Kundan who had examined injured Subhash on 11.08.2006. Second PW5 is Dr. Sriniwas of MAM College who conducted postmortem on the body of Babli on 11.08.2006. On external State vs. Sanjay Kumar etc. 11 of 33 examination, he found following injuries:
i. Surgical stitched wound 8.7 cms. X 1 cm. bone deep present in the left fronto parietal region starting 6cm above the mid point of left eye brow and extending to appoint 10.5 cm above the roof of left ear lobe. The margins were clean cut.
ii. Brownish scabbed abrasion 1cm x 1cm present on the back of right elbow.
On internal examination of the head, PW5 found following injuries:
Reflection of scalp layers revealed extravasation of blood(bleeding) in the scalp layers of left frontoparietal region with disruption of the scalp layers in the area of 7cm x 5cm surrounding injury No.1.
Irregular oval shaped defect 1.5cm x 1cm was in the left parietal bone just behind the coronal suture and 4cm from the midline. The lateral margin of the bony defect had a nibbled appearance (surgically made). Necrosed brain matter was fungating through the defect. Rent in the dura directly underlying the bone defect. Thin layer of subdural haemorrhage was present State vs. Sanjay Kumar etc. 12 of 33 diffusely over left cerebral hemisphere. Sub arachnoid haemorrhages were present in patches over the left frontoparietal and right temporoparietal lobes. Contusion laceration of the left parietal lobe underneath the bone defect. Extensive necrosis of the cortex and underlying white matter of left frontoparietal lobe, and anterior half of the corpus collosum. Multiple peteichial haemorrage was present in the periventricular white matter. Purulent turbid CSF was present in the ventricles and sub arachnoid space over the cerebellum. Brain edematous with grooving, of unci cerebellar tonsils & anteriorposterior elongation of Brainstem on the left side weight 1356gms.
Cause of death is cranio cerebral damage consequent to blunt force trauma to the head. All injuries were antemortem in nature. Injury No.1 had been surgically modified. It was caused by blunt heavy object. Dr. Sriniwas prepared detailed postmortem report Ex.PW5/A having the signatures at point A on all four pages.
PW14 Ms. Shashi Rai, Sr. Scientific Officer(Biology), FSL, Rohini deposed that three sealed parcels were received in the FSL on 26.10.2006 and same were marked to her for examination. After examination, she prepared reports Ex.PW14/A and State vs. Sanjay Kumar etc. 13 of 33 Ex.PW14/B bearing her signatures at point A. PW12 ACP Baljeet Singh was posted as Inspector in PS Kanjhawala on 11.08.2006 when investigation was assigned to him after the death of Babli due to head injury. He arrested all the accused, recorded their disclosure statements and recovered weapons of offence. After completion of investigation, he filed chargesheet.
7. PW1 Subhash is injured as well as eye witness and PW3 Sultan Singh is the husband of Babli who is claiming that his wife made dying declaration before him. PW1 deposed that his bhabhi Babli was standing in a street in front of the house of accused Satbir on 03.08.2006 at 8.30 P.M. All accused were also present there. She asked accused why they all were present there. Hearing so, accused Satbir instigated other accused to beat Babli and so she was attacked first by accused Ishwar with axe on her head.
Accused Satbir was armed with jailly and other accused were armed with lathies. Thereafter, accused Satbir hit Babli with jailly and other accused also followed the same course with their lathies. Babli fell on the grund and then, PW1 asked Satbir "Chacha satte iss bahu ne kaya galat bola hai jo isse mar diya hai". On this, Satbir State vs. Sanjay Kumar etc. 14 of 33 exhorted other persons to attack him also and in this way, accused Ishwar attacked him with axe on the left of the shoulder and other accused beat him with lathies when he was trying to pick up Babli who had fallen on the ground. He ran to his house and asked his nephew to call police and accordingly, he informed PCR by dialing 100 number. He admitted to have made statement Ex.PW1/A to the police. He further deposed that his bhabhi expired on 10.08.2006. He pointed out the place of occurrence to the police on 10.08.2006 and 12.08.2006. He identified jailly as Ex.P1, blood stained lathi as Ex.P2 and remaining four lathies as Ex.P3. He no where deposed that accused were arrested in his presence but he stated that their arrest memos were bearing his signatures. Regarding motive, PW1 deposed that his nephew Anil had taken his buffaloes for grazing on 03.08.2006 and there was some altercation in the fields over grazing of buffaloes with some persons including Vikas son of Baljeet Singh, a landlord of the village. He further deposed that preexisting dispute between him and family of the accused was also there.
PW3 Sultan Singh deposed that all the accused were his real chachas and cousin brothers. His father had a dispute with State vs. Sanjay Kumar etc. 15 of 33 accused about 1820 years ago over a piece of land measuring 70 sq. yds. in the Lal Dora area. At that time, a big quarrel had taken place between both families and both parties had sustained injuries. The matter could not cross the boundary of the village due to intervention of Panchayat. He further deposed that family of the accused persons was big and large one and so that piece of plot was retained forcibly by them. His father had filed a civil suit in Tis Hazari Courts for that land, it was withdrawn later on due to the pressure mounted by the accused. Since then, there existed enmity between both families and accused persons used to pick up quarrel with his family on one or or the other pretext.
8. PW3 is a farmer and he had taken land of Rohtas, Counselor on share basis and he used to grow vegetables on five acres in 2006. On the day of the incident, he returned home at 9.009.30 P.M. from the fields and saw PW1 and his(PW3) wife Babli in injured condition and blood was oozing out from their injuries. His brother and wife told him on inquiry that accused Satbir, Ram Kumar, Sanjay, Bujender @ Veenu, Krishan(all his cousin brothers), Dayanand and Ishwar(both his chachas) had inflicted injuries on them. His wife further told him that accused State vs. Sanjay Kumar etc. 16 of 33 Ishwar had hit her head with axe due to which she fell on the floor and then, remaining six accused gave lathi blows on the body due to which she sustained injuries on chest and back. She further told him that when Subhash came to her rescue, he was also hit by accused Ishwar with axe and other accused by lathies. Thereafter, accused threatened them to kill in case they made any complaint to the police or the Court. PW3 further deposed that police came to the spot and took his wife and PW1 to SGM hospital as his wife had sustained injuries on the head and on the other parts of the body. Both were discharged same day after first aid and suturing of head wound. PW1 was taken to PS but Babli was sent home by the police. His brother was kept in PS u/s 107/151 Cr.PC udner the pressure of the accused. His wife complained headache on 07.08.2006 and so he took her to SGM hospital and from there, she was referred to LNJP hospital. She was given treatment in LNJP hospital and was also Xrayed and was discharged. Her condition became critical on 08.08.2006 and so he took her again to the same hospital where she was admitted. She was operated upon for head injury on 09.08.2006. He next deposed that later he came to know from his wife that on 03.08.2006, his nephew and ladies State vs. Sanjay Kumar etc. 17 of 33 from his family were manhandled by the ladies from the family of the accused persons because Anil's buffaloes had entered in the fields of accused Dayanand which Dayanand had taken on share basis. Anil was beaten by Vikas who is son of landlord Baljeet. He was beaten at the instance of accused Dayanand because Dayanand used to cultivate the land of Baljeet. When the ladies of the family of PW1 and PW3 tried to intervene in order to save Anil from Vikas, the ladies from the family of the accused started beating them. He was further told by his wife and brother PW1 that accused Ishwar and Dayanand had threatened to teach them a lesson. He concluded by saying that his wife became victim of enmity between two families.
9. Ld. APP argued that prosecution has fully proved the motive as there was earlier a dispute between the complainant and accused party over a piece of land of 70 sq. yds. on the outskirt of the village. Father of the accused party had encroached upon that land and that a fight had taken place in which several persons were injured. The matter was reported to the police and civil suit was also filed by the father of the complainant. APP further submitted that after that incident, there were smaller incidents also State vs. Sanjay Kumar etc. 18 of 33 and such fight was a common phenomena between the parties. He further submitted that prosecution has proved its case through the mouths of PW1, who is eye witness and PW3 to whom the dying declaration was made by Babli. He further contended that incident had taken place on 03.08.2006 and statement of PW1 was recorded by the police on 04.08.2006 but by that time, no opinion on the injury of deceased was given by the doctor and that is why, DD was kept pending and when the opinion was given by the doctor that injury was grievous, the FIR was lodged promptly on 09.08.2006. He lastly concluded by arguing that all accused got their weapons recovered from the fodder room of accused Satbir and a Jailly and Lathi were found stained with the blood group of the deceased. All these arguments have been fully repelled by the defence counsel.
MOTIVE
10. As per PW1 and PW3, all accused persons were their real chachas and cousin brothers. About 1820 years ago, a dispute had broken out between their father and the accused persons on a piece of land measuring 70 sq. yds. Consequently, a big fight had State vs. Sanjay Kumar etc. 19 of 33 taken place between both families and injuries were also suffered by both parties but the matter was compromised after the intervention of the Panchayat. PW3 further deposed that family of the accused persons was big and so they pressurized his father and got the 70 sq. yds. of land though his father had filed a civil suit in Tis Hazari Courts but it was later on withdrawn due to pressure mounted by the father of accused. He further deposed that since then, enmity between both families started and accused persons used to pick up quarrels with them on one or the other pretext.
It has been admitted by PW1 that a fight had taken place between both parties about 1820 years ago. His father had filed a civil suit also. PW3 admitted in cross examination that FIR was also registered regarding that incident. They did not place on record any FIR. A copy of civil suit has also not been placed on record. Even if it is presumed that there was a fight, elapse of 18 20 years is sufficient enough to forget the past.
11. The dispute that really triggered the incident is of beating of Anil by the ladies from the side of the accused. PW1 admitted that Anil is the son of his real brother. Accused Dayanand was sowing the land of Baljeet Singh in village Jhimer Pura on State vs. Sanjay Kumar etc. 20 of 33 share basis. On the day of incident, Anil had taken his buffaloes in the fields which entered in the crops grown by accused Dayanand. On this, landlord's son Vikas objected and brought Anil in the village beating. Hearing that noise, the ladies from the side of complainant intervened and they were duly resisted by the women from the side of accused party. MLC of Anil is also on file. It seems that Anil was injured in that incident. He was the most competent witness to depose on the issue of motive but he has not been examined. He was not joined in the investigation by the police. PW1 and PW3 have admitted that they were not present at the time of happening of that incident. They returned home quite later from the fields and they were told about that incident by Anil and the ladies from their side. None of those ladies has been examined by the prosecution. So, the real dispute due to which the incident was sparked off has gone unproved. That was the real motive. But the case is based on eye witness account and in such like cases, motive is always immaterial.
EYE WITNESS ACCOUNT AND DYING DECLARATION
12. PW1 Subhash is injured as well as eye witness and PW3 State vs. Sanjay Kumar etc. 21 of 33 Sultan is brother of PW1 and husband of deceased Babli. PW1 deposed that first accused Ishwar attacked his bhabhi Babli with axe on head. Accused Satbir was armed with a jailly and other accused were armed with lathies. Thereafter, accused Satbir attacked his bhabhi with jailly and other accused persons also attacked with lathies. She fell down. When PW1 tried to pick up Babli, accused Ishwar attacked him with axe on the left of the shoulder and other accused persons beat him with lathies. On this point PW3 deposed that on 03.08.2006, he returned home at 9.00
- 9.30 P.M. from the fields and saw PW1 and Babli in injured condition and blood was oozing from their injuries. On inquiry, he came to know from Babli and PW1 that accused Ishwar hit her head with axe and when she fell down on the floor, remaining six accused persons gave her lathi blows due to which she sustained injuries on her chest, head and back. In cross examination, PW3 deposed that his wife told him that she was hit by accused Ishwar from the blade side of axe.
PW9 Dr. Manoj Dhingra deposed that as per MLC Ex.PW9/C, an open injury of the size of 6.7cms. was observed by Dr. Javed on the right parietal side of Babli. As per MLC Ex.PW9/B State vs. Sanjay Kumar etc. 22 of 33 and Dr. Manoj Dhingra, a wound of size of 6cms. over left supra scapular region was found on the person of injured Subhash. On the person of Anil and as per MLC Ex.PW9/A, an injury caused by gun shot was observed on his right hip. No other injury has been mentioned in the MLC of Babli and Subhash.
PW5 Dr. Sriniwas had conducted postmortem on the body of Babli and as per that doctor and postmortem report, Ex.PW5/A, there were two injuries, (1) surgical stitched wound 8.7 x 1cm. x bone deep in the left frontoparietal region; (2) brownish scabbed abrasion 1cm x 1cm on the back of right elbow.
PW1 and PW3 did not deposed the side of the head on which the axe blow was given by the accused Ishwar. In the MLC, it is shown on the right of the forehead but in postmortem report, it was found on the left of the head. It is a vital contradiction. When, there is a contradiction between eye witness account and medical opinion, the Hon'ble Supreme Court held in Dayal Singh & Ors. Vs. State of Uttranchal, Crl. Appeal No.529 of 2010 decided on 03.08.2012, that a complete contradiction or inconsistency between the medical evidence and the other ocular evidence on one hand and the statement of prosecution witnesses between State vs. Sanjay Kumar etc. 23 of 33 themselves on the other, may result in seriously denting the case of the prosecution in its entirety but not otherwise.
Other contradiction between ocular evidence and medical evidence is the number of injuries. MLC shows only one injury but as per PW1 and PW3, Babli had sustained injuries on head, chest and back. Both these witnesses had deposed that deceased Babli and PW1 were beaten badly by all accused. The number of accused is seven and they were armed with jailly and lathies which are capable of causing death. If both were attacked by all accused persons, both injured should have several suffered injuries but they had only one injury each. In Kishan Pal Vs. State, 2004(2) JCC 1149, Delhi High Court, prosecution case was that four accused assaulted the deceased but autopsy surgeon deposed that deceased received injuries on the right side of the face. Hon'ble high Court of Delhi held that due to number of assailants, victim was bound to get wounds on all the parts of his body and so, medical evidence was falsifying the oral account. That contradiction was treated as material one and ocular evidence was discarded. To the same effect are the facts of the case in hand.
13. There is discrepancy between ocular and medical State vs. Sanjay Kumar etc. 24 of 33 evidence in respect of weapon of offence. PW5 Dr. Sriniwas had conducted postmortem and he deposed that injury on the head of Babli was caused by blunt object. PW1 deposed that accused Ishwar hit the head of Babli with axe. Natural interpretation is that head was hit from the blade side. The position has been further cleared by PW3 in cross examination by deposing that Babli told him that accused Ishwar hit her head with axe from the blade side. Opinion of PW5 is that that injury cannot be caused by sharp weapon and that it can be caused only by blunt heavy object. From the blade side, the axe is a sharp edged weapon. No injury caused by sharp edged weapon was found on the body of Babli. To the same effect is Jagdish & Ors. Vs. State of M.P., 2007(4) JCC 2789. In Rajpal & Ors. Vs. State of Haryana, 2007 Crl. L.J. 2926, eye witnesses alleged that deceased was given a farsa (axe) blow and a stick blow on his head. No incised wound was found on the head in the postmortem report. The Hon'ble Supreme Court held that it was a clear case of inconsistency in ocular and legal evidence. In State of Haryana Vs. Rajpal & Ors. CRM No.8928 of 2011 and CRMA No.96MA of 2011 decided on 02.07.2012, the doctor had deposed that injured had sustained injuries by blunt weapon but State vs. Sanjay Kumar etc. 25 of 33 case of the prosecution was that injuries were caused by farsa. Hon'ble High Court of Punjab & Haryana held that it was a case of contradiction between eye witness account and medical evidence.
PW1 deposed that accused Ishwar gave axe blow on his shoulder and thereafter, he was beaten by other accused with lathies. In MLC, there is only one injury mentioned in this respect. There is no opinion of the doctor that the said injury has been caused by a sharp edged weapon. Number of injuries are not consistent with the number of assailants.
It is quite strange that brother and wife of PW3 were injured but he did not accompany them to the hospital.
Taking into account above discussion, the eye witness account and dying declaration version are disbelieved.
DELAY
14. Incident had taken place on 03.08.2006 but FIR was registered on 09.08.2006. There is a delay of six days. Prosecution tried to explain the delay saying that opinion on the injuries of Babli were kept pending and so, DD was also kept pending and when the doctor opined the injury as grievous on 09.08.2006, the State vs. Sanjay Kumar etc. 26 of 33 FIR was registered on the same day. Statement Ex.PW1/A is shown to have been written on 04.08.2006. Subsequent proceedings in respect of that statement conducted by the police are of 09.08.2006. When no opinion about the injuries is given by the doctor at the time of statement, generally, the police records another DD mentioning that main DD i.e. 33A in this case was kept pending till the receipt of medical opinion. Such DD is missing in the case in hand. At one stage, PW1 deposed that his statement was recorded by the police on 03.08.2006 itself but IO deposed that his statement was recorded on 04.08.2006. It is the case of the prosecution that PW1 and some of the accused were arrested on 03.08.2006 itself in a case u/s 107/151 Cr.PC. PW1 admitted in cross examination that he was released from jail on 07.08.2006. His arrest on 03.08.2006 and sending in jail on 04.08.2006 and release from there on 07.08.2006 shows that his statement was not recorded on 03.08.2006, 04.08.2006, 05.08.2006, 06.08.2006 and 07.08.2006. PW1 admitted in cross examination dated 03.11.2007 page No.2 that after release from jail, he visited the PS on 09.08.2006 and his signatures were taken on the paper. No proceedings done by police on 09.08.2006 bear the sign of PW1.
State vs. Sanjay Kumar etc. 27 of 33 Logical conclusion is that his signatures were taken on Ex.PW1/A and it was antedated by the IO as 04.08.2006. Case of the police is that IO visited the LNJP hospital on 09.08.2006 on receipt of information that Babli had been referred to LNJP hospital from SGM hospital for further treatment. Babli was found unfit for statement. There is a DD no.19A dated 09.08.2006 Ex.PW7/A to the effect that Babli was referred to LNJP hospital from SGM hospital and that DD is dated 5.50 P.M. The medical document Ex.PW16/B issued by LNJP hospital has been signed by the doctor on 09.08.2006 at 5.30 P.M. in which the patient was declared unfit for statement. Information about reference of Babli was received by PW5 ASI Kamal vide DD No.19A Ex.PW7/A at 5.55 P.M. It means the IO was not present in the hospital at 5.30 P.M. The IO was not present there, what was the occasion for the doctor to give the opinion that patient was unfit for statement. That opinion, now it becomes clear, was obtained by PW4 in order to cover the delay of six days. In State of Haryana Vs. Rajpal & Ors.(supra), there was a delay of two days in registration of FIR and Hon'ble High Court of Punjab & Haryana treated that delay as fatal to the prosecution case. To the same effect is held by this Court.
State vs. Sanjay Kumar etc. 28 of 33
RECOVERY
15. PW10 Ct. Ramesh Kumar, PW11 Insp. Puran Pant and PW12 ACP Baljeet Singh are witnesses to the recovery of weapons of offence by all seven accused. PW10 deposed that on 12.08.2006, he along with PW11 and PW12 went to Village Jhimerpura and arrested all the accused at the instance of PW3. He further deposed that six lathies and one jailly were recovered from the fodder room of the house of accused Satbir at the instance of accused Satbir. In further chief, he identified the jailly as Ex.P1, one lathi as Ex.P2 and remaining four lathis as Ex.P3 collectively. As per PW11, a jailly and a lathi were found blood stained and were sealed with the seal of BS and remaining lathies were kept unsealed. To the same effect is the evidence of PW12.
It has come in the evidence of PW1 and PW3 that their houses are near the houses of the accused. It has been deposed by PW10, PW11 and PW12 that all accused were arrested at the instance of PW3. PW1 deposed that he had signed the arrest and personal search memos of the accused. It means that accused were arrested in the presence of PW1 also. Their disclosure statements are even dated. Recovery was also effected on the same day. The State vs. Sanjay Kumar etc. 29 of 33 natural corollary is that all accused were interrogated in their village itself, they made disclosure statements, and thereafter, recovery was effected. No public witness was joined in the recovery proceedings. What prevented the police in joining PW1 and PW3 in the recovery proceedings. In Satish Kumar Vs. State, 1996 Crl. L. J. 265, no effort was made by the IO to join any independent witness at the time of recovery. Hon'ble High Court treated the recovery suspicious. To the same effect is Prem Singh @ Fauji Vs. State of Delhi, 2007 (3) JCC 1901.
It is also quite strange that case of the prosecution is that accused Satbir was armed with a jailly and remaining accused were armed with lathies. Prosecution produced only five lathies. It did not account for 6th lathi. One of the lathi, with which injury was caused to Babli was found stained with her blood group. Prosecution did not clarify from which accused the said lathi was recovered. Admittedly, all the weapons of offence were kept in the fodder room of the house of accused Satbir. They were kept there on 03.08.2006 and were recovered on 12.08.2006. Babli had expired on 10.12.2006. No accused would keep the weapon of offence at home to enable the police to recover those weapons and State vs. Sanjay Kumar etc. 30 of 33 use them against the accused. Moreover, those were kept in the fodder room and the fodder is sufficient enough to remove the stains of blood etc. from the lathies. So, recovery of weapons is also disbelieved.
TAINTED INVESIGATION
16. (i) As per PW1 and PW3, Babli's clothes were stained with blood and when PW1 lifted her, his clothes were also stained with blood. Blood had fallen on the ground also. Police did not seize the blood from the spot and also did no seize the blood stained clothes of PW1 and deceased.
(ii) PW1 and PW3 stated that statement of Babli was recorded. That statement is not on the file. It means no such statement was recorded. Babli was initially admitted to SGM hospital, her wound was sutured and was discharged on the same day. She was taken to LNJP on 07.08.2006 but there is no explanation with the police why it did not record her statement from 03082006 to 09082006.
(iii) As per the MLC of Anil, he had sustained a gun shot injury. Use of gun in the incident is totally a new case.
(iv) As per MLCs of Anil, PW1 and deceased, they State vs. Sanjay Kumar etc. 31 of 33 were treated under DD No.24A dated 03.08.2006. That DD has not been placed on the file.
(v) Police did not record the statement of Anil son of Jai Narain who was the important witness to motive.
(vi) Police prepared kalandara u/s 107/151 Cr.PC against PW1 on one side and against Satbir, Ishwar, Sanjay and Dayanand on the other side. Why it did not mention in that kalandara that Babli was injured in the incident.
CONTRADICTION
17. PW1 made several vital improvements in his deposition:
(i) He deposed that his bhabhi Babli was injured by accused Ishwar by causing an axe blow on her head. That fact has not been mentioned in his statement Ex.PW1/A and rather, it is mentioned that Ishwar was armed with lathi.
(ii) He did not state u/s 161 Cr.PC on 12.08.2007 that he came to know on 03.08.2006 that during day time, their buffaloes had entered into the fields of Baljeet which was sown by accused Dayanand on which his nephew Anil was beaten by Vikas son of Baljeet at the instance of accused Dayanand.
(iii) He did not state in statement Ex.PW1/A that accused Satbir instigated other accused to beat Babli, and thereafter, accused State vs. Sanjay Kumar etc. 32 of 33 Ishwar attacked her with Kulhari on head.
(iv) He did not state in Ex.PW1/A that accused Satbir hit Babli with jailly and other accused attacked her with lathies.
(v) He did not state in Ex.PW1/A the words "le lo isko"
uttered by all accused.
(vi) He did not state in Ex.PW1/A and supplementary statement dated 12.08.2006 that when he tried to pick up Babli, accused Ishwar attacked him with Kulhari on left shoulder.
(vii) He did not state in statement Ex.PW1/A about last dispute between his father and father of the accused.
18. In view of above discussion, all accused, namely, Sanjay, Dayanand, Ishwar Singh, Satbir Singh, Ram Kumar, Krishan Pal @ Bhagat @ Gyani and Vijender Singh @ Veenu are acquitted of the charges levelled against them. Their bail bond stand cancelled. Sureties discharged.
Announced in the Open Court on 10th day of October, 2013.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
North Distt: Rohini Courts: Delhi
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