Delhi District Court
State vs (1) Anil S/O. Rajinder Prasad on 31 July, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.950/06
FIR No. 638/06
PS ROHINI
U/s. 302/323/34 IPC
STATE VERSUS (1) Anil S/o. Rajinder Prasad
R/o. N28A/521, Jhuggi Industrial Area,
Ashok Kumar, New Delhi.
Permanent Add:
VillageMathia, PS Ram Nagar, District
Ambedkar Nagar, U.P.
(2) Vinod Kumar S/o. Ramji Lal
R/o. N28A/475, Jhuggi Industrial Area,
Ashok Vihar, New Delhi.
Permanent Add:
VillageBabnoli, PS Dhanghata, District
Gorakhpur, U.P.
(3) Haider @ Babloo S/o. Mohd. Anis R/o.
Opposite Jhuggi No.B66/2, CSA Colony,
Wazirpur Industrial Area, Delhi.
(4) Ram Singh S/o. Devata Singh, Jhuggi
opposite C60/4, CSA Colony, Wazirpur
Industrial Area, Delhi.
STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
2
Permanent Add:
Village - Malpur, PSBelaghat, District
Gorakhpur, U.P.
(5) Rajesh Singh S/o. Rajinder Singh, R/o.
N28B/203, Jhuggi, Industrial Area, Ashok
Vihar, New Delhi.
Permanent Add: VillageBhoopgarh, PS
Gola Bazar, DistrictGorakhpur, U.P.
(6) Mukesh Kumar @ Munshi S/o. Shiv Pujan, `
R/o. N28A/483, WPIA, Delhi.
(7) Sonu @ Darshan S/o. Ramji Lal, R/o.
Jhuggi No.N28A/475, CSA Colony,
Wazirpur Industrial Area, Delhi.
(8) Sanjay @ Lalu S/o. Maharaj Singh, R/o.
N28A/405, CSA Colony, Wazirpur
Industrial Area, Delhi.
Date of Institution in the Sessions Court:28.10.2006.
Date of Arguments:17.07.2012.
Date of Judgment:31.07.2012.
JUDGMENT:
1. Brief facts of the prosecution case are that on 06.07.2006, DD No.8A was recorded at PS Rohini that an information has been received on phone from Dr. BSA Hospital that STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
3
two persons, namely, Rohit and Avinash have been admitted in injured condition and one person, namely, Anil has been brought dead. On receiving the said DD, Inspector Yashpal Singh along with Ct. Raj Kumar reached at Dr. BSA Hospital, where SI Jagdish Chander met him. He collected the MLC of deceased Anil and injured Rohit and Avinash. Inspector Yaspal recorded the statement of injured Rohit and prepared the rukka by endorsing on the said statement, which he gave to Ct. Raj Kumar for registration of the FIR. Duty officer on the basis of the said rukka, registered the present case FIR, bearing No. 638/06, U/s 302/323/34 IPC.
2. In the statement, injured Rohit has stated that on the intervening night of 05/06.07.2006, he along with his friend Avinash, Aman, Anil, Manjeet and Naveen had came to Agarsain Bhavan F18, Sector8, Rohini to attend the marriage of cousin sister (mauseri behan) of their friend Pankaj in Maruti Car, bearing registration No. DL4CC1449. After attending the marriage at about 3:00 p.m, when they were returning and reached at Maruti Car and Anil tried to start the car, it was found that car could not be started due to no fuel and since petrol pump was closed. They decided to go till morning. After about 1015 minutes, they went towards STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
4
Agarsain Bhavan for quenching their thrust and when they reached near park of Agarsain Bhavan, where another marriage was being performed, 1012 persons stopped them and asked them from where they had come, on which complainant Rohit and others informed that they had come from the side of girl in Shakarpur marriage. On this, out of those 1012 persons, one person, who has long hairs said these are the same boys, who has quarreled with him and Halwai and asked them to beat, on which those boys, out of which one has danda and other two has knives started beating them. Out of those boys, one boy hit fist blow on the mouth of Rohit and other boy gave knife blow on the back of Rohit, whereas two persons caught hold Anil and gave him beating with knife and dandas. Anil fell down on the road on which those boy ran towards M2K cinema. Somebody made call to the police and police took Rohit, Anil and Avinash to Dr. BSA Hospital.
IO/Inspector Yashpal reached at the spot and inspected the spot. Crime team also inspected the spot and took the photographs. Inspector prepared the site plan and lifted blood sample, blood stained earth, earth control and seized after making pullanda and recorded statements of the witnesses. He got STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
5
conducted the postmortem of the body of deceased Anil and seized the articles, which were given by Doctors after postmortem and deposited the same in the malkhana. Articles were sent to the FSL. Accused persons Anil, Haider, Ram Singh, Rajesh, Mukesh and Vinod were arrested from their respective jhuggis at Wazirpur Industrial Area, whereas accused persons Sanjay @ Lala and Sonu @ Darshan could not be apprehended as they were declared as proclaimed offender.
3. After completion of the investigation, charge sheet was filed against all the aforesaid accused persons except accused persons Sanjay @ Lala and Sonu @ Darshan and their names were kept in column No.2, as they could not be arrested. All these accused persons were put to trial.
4. Later on accused Sanjay @ Lala and Sonu @ Darshan were also arrested and their supplementary challan were filed and they were also put to trial.
5. My ld. Predecessor framed charges U/s 302/323/34 IPC against accused Anil, Haider, Ram Singh, Rajesh, Mukesh and Vinod on 18.12.2006 and against accused Sanjay @ Lala on 29.07.2008 and against accused Sonu @ Darshan on 12.10.2007. STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
6
6. In order to prove its case, prosecution has examined 31 witnesses i.e PW1 Rohit is the complainant, as well as, one of the injured, PW2 HC Baldev Singh is the duty officer, who registered the FIR of the case Ex.PW2/A, PW3 Manjit and PW4 Aman are eyewitnesses to the incident, PW5 Sh. Pawan Kumar Jain is the father of the bride in whose marriage the quarrel took place, he provided phone number of caterer Veerpal, PW6 Ct. Raj Kumar has participated in the investigation with the IO and in his presence accused persons were arrested and weapon of offence which aforesaid accused persons were having were recovered, PW7 Dr. Rekha Dewan has medically examined the PW1 Rohit and prepared his MLC as Ex.PW2/A, PW8 Ct. Ashish recorded the DD No.11B as Ex.PW8/A, PW9 HC Mahender is the photographer of the Crime Team and who took photographs of the spot, PW10 SI Manohar Lal is the draughtsman and who prepared the scaled site plan Ex.PW10/A, PW11 Dr. Deepti Bhalla medically examined deceased Anil, vide MLC Ex.PW11/A and she also examined PW1 Rohit vide MLC Ex.PW11/B and injured Avinash vide MLC Ex.PW11/C, PW12 Sh. Ajay Sharma and PW13 Sh. Naresh Kumar have identified the dead body of the deceased Anil, PW14 Sh. STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
7
Prakash Chand Lohia is the treasurer of the Maharaja Agrasen Bhawan where the marriage was held and he proved that ground floor and basement of the said Bhawan were booked by Shri Pawan Kumar Jain on 05.07.2006,, PW15 Ct. Shriman Lal had delivered the special report to the ACP/DCP etc., PW16 Dr. Sameer Pandit conducted the postmortem examination of deceased Anil, PW17 Sh. Avinash Kapil is also one of the eyewitness, PW18 ASI Jagbir Singh had deposited the samples to the FSL, PW19 HC Pawan who first reached at the spot with SI Jagdish Chander on receiving DD No.11B and guarded the spot, PW20 Virpal was the caterer of the marriage of Babita daughter of Shri Pawan Kumar Jain, he proved that he employed Anil Kumar on contract for salad and food stall, PW21 Suresh Kumar is security guard of said Agrasen Bhawan, PW22 Pankaj is the friend of deceased in whose cousin's marriage deceased and injured have come, PW23 Tamesh Kumar Gupta is also relative of Pankaj, he took deceased Anil to the BSA Hospital, PW24 Inspector Ravi Singh is the Incharge Crime Branch, who inspected the spot, PW25 Sh. Sunil Chaudhary the than ld. ACMM and who conducted the TIP of accused persons Rajesh, Vinod Kumar, Anil, Ram Singh, Haider @ Bablu and Mukesh, PW26 SI STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
8
Jadish Chander participated in the investigations with the IO, PW27 ASI Ashwini Kumar was posted in the PCR Van and who took the injured to the hospital , PW28 Inspector Surender Dahiya has only identified the handwriting of Inspector Richpal Singh, as he had expired, PW29 HC Suresh Kumar is the MHC(M), PW30 Ct. Satender is the witness of arrest of accused Sonu @ Darshan, PW31 Inspector Pawan Singh Rana is the witness of arrest of accused Sanjay @ Lala.
7. Beside this, prosecution has also proved the documents i.e statement of complainant Rohit as Ex.PW1/A and rukka as Ex.PW2/B, FIR as Ex.PW2/A, DD No.11B as Ex.PW26/A, DD No.8A as Ex.PW2/F, DD No.10A as Ex.PW2/C and DD N.11A as Ex.PW2/D, site plan as Ex.PW28/A, scaled site plan as Ex.PW10/A, crime team report as Ex.PW24/A, seizure memo of blood stained earth and earth control and chain collectively as Ex.PW6/Y, seizure memo of cloth of deceased as Ex.PW6/Y1, seizure memo of recovery of knife of accused Anil as Ex.PW1/H and of accused Haider as Ex.PW1/J and of accused Rajesh as Ex.PW1/K, seizure memo of recovery of danda from accused Ram Singh as Ex.PW1/L and as of accused Mukesh is Ex.PW1/M, iron rod from accused STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
9
Vinod Kumar as Ex.PW1/N. Sketch of knives as Ex.PW6/X1, Ex.PWX2 and Ex. PW6/C. Pointing out memo of accused Anil, Vinod, Haider, Ram Singh, Rajesh, Mukesh as Ex.PW6/Y2 to Y7. The confessional statement Ex.PW6/B1 (of accused Anil), Ex.PW6/B2 (of accused Vinod), Ex.PW6/B3 (of accused Haider), Ex.PW6/B4 (of accused Ram Singh), Ex.PW6/B5 ( of accused Rajesh), and Ex.PW6/D6 (of accused Mukesh). Arrest memo of accused Anil is Ex.PW1/B, of accused Vinod is Ex.PW1/C, of accused Haider is Ex.PW1/D, of accused Ram Singh is Ex.PW1/E, of accused Rajesh is Ex.PW1/F and of accused Mukesh is Ex.PW1/G and personal search memo of accused Haider is Ex.PW6/A1, of accused Vinod is Ex.PW6/A2, of accused Anil is Ex.PW6/A3, of accused Mukesh is Ex.PW6/A4, of accused Rajesh is Ex.PW6/A5 and of accused Ram Singh is Ex.PW6/A6. Letter for request of conducting postmortem is Ex.PW8/D. The death report is Ex.PW28/B and brief facts Ex.PW28/C, handing over memo of dead body is Ex.PW6/Y8, MLC of injured Rohit is Ex.PW11/B, MLC of deceased Anil is Ex.PW11/A, MLC of injured Avinash is Ex.PW11/C, postmortem report of deceased Anil is Ex.PW16/A, FSL report is Ex.PW28/E, TIP proceedings of accused Rajesh is Ex.PW25/A, of STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
10
accused Mukesh is Ex.PW25/B, of accused Haider is Ex.PW25/C, of accused Vinod is Ex.PW25/D, of accused Anil is Ex.PW25/E and of accused Ram Singh is Ex. PW25/F. Booking slip of marriage slip of Maharaja Agarsain Bhavan is Ex.PW14/A & Ex.PW14/B.
8. After completion of the prosecution evidence, statements of all the accused persons were recorded U/s 313 Cr. PC, in which all the incriminating evidence put to them and they denied the same and claimed that they are innocent and they did not prefer to lead any evidence in their defence.
Accused Sanjay in his statement u/s. 313 Cr.P.C. had stated that he was not present at the spot, at the time of alleged incident and he is an electrician and works under a contractor Vijay and was working at that time in Gurgaon, Haryana.
Accused Anil in his statement u/s. 313 Cr.P.C. had stated that complainant persons had fought with somebody else and later on to save their skin falsely implicated him in this case. He was only working as Salad Vendor and no quarrel had taken place with him and all the recoveries have been planted upon him by the police.
Accused Sonu @ Darshan in his statement u/s. 313 Cr.P.C. had stated that he was not present at the spot at the time of STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
11
incident neither he was working as caterer in the said marriage. He was working as an interior decorator in the shop, by the name of Aakriti Interior, C4/2, Wazirpur Industrial Area, and name of his employer was Sunil Arora.
Accused Vinod, Rajesh, Ram Singh, Haider and Mukesh in their statement u/s. 313 Cr.P.C. had stated that they were not present at the spot at the time of incident and they were not working for the caterer in the said marriage.
9. Arguments were heard from ld. Addl. PP for the State and ld. Defence counsels for the accused persons and I have also gone through the record and considered their arguments. My findings are as under :
10. The case of the prosecution is that deceased Anil alongwith his friends Rohit, Avinash, Aman, Manjeet and Naveen had come to attend marriage of the cousin of their friend Pankaj on 05/06.07.2006 at Maharaja Agarsain Bhavan, Sector8, Rohini, where a quarrel took place with the accused persons. Accused persons gave them beating in which deceased Anil died while PW1 STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
12
Rohit and Avinash received0 injuries. Prime witness of the prosecution case are the injured PW1 Rohit, PW3 Manjeet and PW4 Aman.
11. PW1 Rohit has deposed that on 05.07.2006, he along with his friends Avinash, Aman, Anil, Naveen and Manjeet had gone to attend the marriage of cousin sister of their friend Pankaj at Sector8, Rohini, Agarsain Bhavan in the Maruti Car. They attended the marriage. The marriage of cousin of Pankaj was being nd rd solemnized on the 2 and 3 floor of Agarsain Bhavan, whereas on the ground floor of Agarsain Bhavan some other marriage was going on. At about 3:00 a.m, they came out from the Agarsain Bhawan. Anil started his Maruti car but the car did not start. On checking, they came to know that there is no petrol in the car and due to the said reason the car did not start. There was petrol pump near by Agarsain Bhavan, but the same was closed due to odd hours. They think that it necessary to take the petrol in the morning hours and then they will go to their house. They went towards Agarsain Bhavan for taking the water and when they reached near the pandal where the other marriage was being held, 8/10 boys were standing there. Those persons made inquiry from them as to from where they STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
13
had come. They told them that they had come to attend the nd marriage from the side of girl, which is being performed on the 2 rd and 3 floor of Agarsain Bhavan. Out of them, one person uttered the voice "yehi woh ladke hain jinho ne hamare saath or halwai ke saath jhagda kiya tha". The said person was having long hairs and tied a patti on his head. Out of those 8/9 boys, three were having knife and the remaining boys were having dandas and iron rods. Out of those boys, one boy gave a fist blow on the left eye of Rohit and those boys started beating them with knife, dandas and iron rods. Out of them, one boy hit a knife on the back of Rohit. Out of them, two boys caught hold of Anil and remaining boys gave beating to Anil with knife, danda and iron rod. Other friends of Rohit received minor injuries. The said person, who attacked Rohit threw him on the ground and after that he also attacked Anil with knife. Anil became unconscious and those 8/9 boys after boarding in a tempo ran away from the spot. The persons who were attending the marriage of cousin of Pankaj also reached at the spot and somebody informed the police. Police officials reached at the spot. Rohit, Avinash and Anil were removed to hospital by the police, where they were medically examined and the doctor declared Anil as brought STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
14
dead. Statement Ex.PW1/A of Rohit was recorded by the police. He correctly identified those 8/9 boys who had given beatings to them along with their colleagues. PW1 Rohit pointed out towards accused Anil and stated that he is the same person, who was having knife and told that " Yehi who ladke hain jinho ne hamare saath or halwai ke saath jhagda kiya tha". PW1 also pointed out towards accused Haider and Vinod and stated that they were also having knife in their hands. Accused Ram Singh was having iron rod in his hand. The witness has pointed out towards remaining two accused, namely, Rajesh and Mukesh and states that they were having danda in their hands. Accused Vinod inflicted knife on PW1. Accused Haider and Anil attacked with knife on the deceased Anil Kumar. Accused Vinod after inflicted knife on PW1, also attacked with knife on the deceased Anil.
PW1 was also taken to the spot from the hospital by the police officials. Police officials prepared the site plan and also lifted blood etc. which was lying at the spot. Police officials came to know from the waters and caterers who were present at the spot that those persons who attacked on PW1 and his friends are the resident of Wazirpur Jhuggi cluster. PW1 along with Avinash accompanied the STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
15
police to Wazirpur Jhuggi cluster and when they reached at the jhuggi cluster, one person was found sitting outside the jhuggi. PW1 identified the said person and he was apprehended by the police whose name was came to know as Anil. His arrest memo was prepared by the police. The same is Ex.PW1/B. Accused Anil was interrogated by the police. The remaining accused persons were also arrested by the police and they were brought by the police and PW1 identified the remaining accused persons. Their arrest memos were prepared. Arrest memo of accused Vinod is Ex.PW1/C, arrest memo of accused Haider is Ex.PW1/D, arrest memo of accused Ram Singh is Ex.PW1/E, arrest memo of accused Rajesh Kumar is Ex.PW1/F, arrest memo of accused Mukesh Kumar is Ex.PW1/G. One knife was recovered on the pointing out of accused Anil. Knife was converted into pullanda and after sealing it and it was seized vide memo Ex.PW1/H. PW1 has also signed the memos i.e Ex.PW1/J, PW1/K, Ex.PW1/L, Ex.PW1/M & Ex.PW1/N. Ld. Addl. PP for the state crossexamine the witness as he is declared hostile.
In his crossexamination by the Ld. Addl. PP, the witness admitted that one knife was also recovered on the pointing out of accused Haider from his jhuggi. He also admitted that sketch STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
16
of knife was prepared and it was converted into pullanda and police officials affixed the seal and thereafter it was seized vide memo Ex.PW1/J. He also admitted that one knife was recovered on the pointing of accused Rajesh and sketch of the same was prepared by police. It is also admitted by PW1 that said knife was converted into pullanda and seal was affixed by the police and it was seized vide memo Ex.PW1/K. It is also admitted that one danda was recovered on the pointing out of accused Ram Singh from the roof of his jhuggi, danda was converted into pullanda and sealed by the police and the same was seized vide memo Ex. PW1/L. It is also admitted that one danda was recovered on the pointing out of accused Rajesh underneath of cot from his jhuggi, same was converted into parcels and sealed by the police and was seized vide memo Ex.PW1/M. It is also admitted that one iron rod was recovered on the pointing out of accused Vinod underneath a takhat from his jhuggi, same was converted into parcel and sealed by the police and seized vide memo Ex.PW1/N. PW1 also identified danda, iron rod and knife, which were recovered from accused persons due to lapse of time.
In his crossexamination by the Ld. Defence counsel for accused Anil and Amicus curiae for accused Mukesh. In cross STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
17
examination, PW1 admitted that police has read over and explained to him his statement before he put his signatures on the same. The police officials recorded his statement as stated by him. He stated to the police that after meeting his friends and after taking meals, they came out. Confronted with statement, Ex.PW1/A, wherein it is not so recorded. However, it is recorded at point A to A that after attending the marriage, they came back at about 3:00 a.m. He told to police that there was petrol pump near Agarsain Bhavan and they think it necessary to wait for morning hours. Confronted with statement Ex.PW1/A, wherein it is not so recorded. He had not stated to the police that three persons were having knives in their hands and three persons were having danda. He had also not stated to the police that one person was having an iron rod in his hand. He had also not stated to the police that accused Anil attacked on him with knife and thereafter he had also attacked on deceased Anil. He denied the suggestion that he had not stated to the police because accused Anil had not attacked on the deceased. He told to the police that said 89 boys ran away in the tempo. Confronted with statement Ex.PW1/A, wherein it is not so recorded. He had stated to the police in his statement that some persons, who STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
18
were attending the marriage also came at the spot. Confronted with statement Ex.PW1/A, wherein it is not so recorded. It is admitted that he had received invitation to attend the said marriage. He had not produced the invitation card before the police. He denied the suggestion that he had not received invitation card for attending the marriage. The age of deceased Anil was about 17 years. It is admitted that as per rules of company, in a Maruti Car five persons can sit. The Maruti car was being driven by Anil (now deceased). It is admitted that Anil was not having driving license. Again said he had not seen whether Anil was having driving license or not. It is admitted that driving license used to be issued after the age of 18 years. It is also admitted that all his friends are living in separate houses. It is also admitted that his two friends are living at Shakarpur. They four friends namely, Rohit, Aman and Avinash went to the house of Anil (now deceased). They started from the house of Anil at about 9:00 p.m. Davin and Manjeet were taken from their residence at Shakarpur. It is wrong to suggest that his other friends had not received invitation card for attending the marriage. There were two marriage functions being held in Agarsain Bhavan on the date of incident. It is also admitted that several persons were STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
19
present in Agarsain Bhavan. There was electricity at the place where their car was parked. When, the car did not start, they pushed the car but it did not start and they understood that there was no petrol in the car. He denied the suggestion that there was a quarrel between Pankaj and the persons who were attending the marriage at ground floor in Agarsain Bhavan. He further denied the suggestion that they all six friends after consuming liquor went on the ground floor and picked up a quarrel on the instigation of Pankaj. He further denied the suggestion that empty bottles of bear and wine which were consumed by them were lying near the place where their car was parked. He denied the suggestion that they have not intentionally gone on the second floor or third floor of Agarsain Bhavan for taking water. He admitted that there was no enmity between PW1 and the accused persons prior to incident and that there was no quarrel between the accused persons and PW1 prior to the incident. He also admitted that there was separate gate for going in the marriage function of ground floor and there was nd rd separate gate for marriage function of 2 & 3 floor but the way for nd rd going to the marriage at 2 & 3 floor was from near the gate of marriage function of ground floor and that the road for attending both STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
20
the functions was common but the gates were separate. He denied the suggestion that they intentionally entered in the marriage function of ground floor with a view to take revenge. He further denied the suggestion that some hot words were exchanged between PW1 and the persons, who were attending the marriage on ground floor. It is also admitted that quarrel between them and accused persons took place on the road. They tried to run but the accused persons did not allow them to run from the spot and they apprehended them. PW1 had not stated to the police that they tried to run and accused persons apprehended them. It is also admitted that there was heavy noise at the time of quarrel. He denied the suggestion that the persons attending the marriage tried to pacify them and they told them that after consuming liquor they should not quarrel. He denied the suggestion that they had brought iron rod, danda and knife in their car. He further denied the suggestion that accused persons were inside the pandal and serving the persons attending the marriage or that they did not come outside the pandal.
He stated that Police reached at spot at about 3:303:45 a.m. They were removed to hospital by PCR. His statement was recorded in the PS only once. He cannot stated that on how many STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
21
papers police obtained his signatures, but he signed on the papers after going through the contents of the same. He also signed on some papers where the accused persons were arrested and the recovery was effected. They came back from the hospital at about 4:4:15 a.m. He remained in PS during the whole day till about 7:007:30 p.m. They started from PS at about 4:30 a.m, and went to jhuggi cluster at Wazirpur. It is admitted that there was darkness at about 4:30 a.m. PW1, his friend Avinash and 34 police officials went to jhuggi cluster in a police vehicle and it may be gypsy or PCR Van. PW1 cannot tell the number of said vehicle. He cannot tell the name of police official who accompanied them to jhuggi cluster. They reached at jhuggi cluster Wazirpur at about 5:00 a.m. Accused Anil was arrested after they reached there. It is admitted that arrest memo of accused Anil was prepared at PS and other papers were also written at PS. It is also admitted that police officials brought accused Anil around 5:30 a.m. It is also admitted that PW1 had not gone at any other place on that date. He denied the suggestion that PW1 is deposing falsely to save himself or that he had made his statement at the instance of police.
He was recalled for further crossexamination on that STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
22
day after lunch on behalf of accused Ram Singh. PW1 cannot say how many persons attended the marriage and out of them how many arrived in the marriage in their own car. He denied the suggestion that he had not attended the said marriage function. Other cars had also come in the said marriage function. The other cars were also parked near their car but there was no persons from whom he could request for petrol. They were going on second floor but in the way the accused persons apprehended them and started giving beatings. They were going to second floor for taking water and they had to wait till morning hours for opening of petrol pump. It took about 10/15 minutes in starting the car and pushing the car. He along with his five friends tried to start the car. They locked the car and thereafter were going to second floor. They were stopped outside Agarsain Bhavan near the pandal by the accused persons. It is admitted that they had reached near the gate of Sandal, where the second marriage was being performed. He saw that accused persons were having danda, iron rod and knife after he reached near them. First of all, accused persons made inquiries from them and thereafter they took out iron rod, knife and danda and they had not apprehension from the accused persons that they would attack on STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
23
them, so they had not tried to ran away before reaching near the accused persons. He denied the suggestion that they were going to attack on the Bart or that they were not going to take water. He does not know who took their car from the place where the car was parked. From hospital, he went to spot directly and at that time their Maruti car was found parked there. They reached at the spot at about 4:30 a.m from the hospital. They had gone to the jhuggis of accused Ram Singh at Wazirpur, but he cannot tell the number of jhuggi. It is wrong to suggest that jhuggis at Wazirpur had been demolished by DDA in March, 2006 and there was no jhuggi when the accused was arrested. He does not know if the jhuggi of accused Ram Singh at Wazirpur exists as on today or not. He denied the suggestion that he had not gone to the jhuggi of accused Ram Singh or that he was not arrested from his jhuggi. There was no quarrel between him and any other person in the park. Photographer took the photographs of the spot in his presence on reaching there from the hospital, but he cannot identify the photographs if shown to him. He denied the suggestion that accused Ram Singh had not gone in the marriage or that he was not present at the spot on the date of incident. He cannot identify accused Ram STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
24
Singh by name, but he can identify him by face. He identified accused Ram Singh by his face, when he was apprehended by the police. He denied the suggestion that he is deposing falsely.
PW1 was also crossexamined by Sh. Pradeep Sharma, Adv. for accused Haider. In his crossexamination, he stated that he had not stated to the police that accused Haider attacked with knife on the deceased Anil as he does not know the name of accused Haider. He told to the police that two persons attacked on deceased Anil. Confronted with statement Ex.PW1/A from portion B to B where it is not so recorded. Deceased Anil was apprehended by two persons and he was beaten by other accused persons, who were present there. He had not told to the police specifically that two persons apprehended deceased Anil and other accused persons started beating. He told to the police that two persons apprehended deceased Anil and the persons started giving beatings with knife and dandas. Two accused persons apprehended deceased Anil and they along with 12 other accused persons started beating with knife, danda and rod to deceased Anil. He denied the suggestion that accused persons had not given beating to deceased Anil with knife, danda and rod or that accused Haider had not caused any injury to STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
25
deceased Anil. After the accused persons gave beatings to him and deceased Anil, other persons who were present in the pandal were saying that there was some quarrel between Halwani and other persons. He had not told to the police that other persons present there were saying that a quarrel took place between Halwai and other persons, but he told to the police that there was some other quarrel between halwai and other persons. He does not remember the time when Barat had reached there. The barat had reached at the pandal after they reached there. He denied the suggestion that he was not present when the Barat had arrived or that he was consuming liquor. They took their meals in the pandal at about 11/12p.m. He cannot say at what time dinner was started and at what time dinner was closed. After taking dinner, they had not gone because they all the friends assembled after so many days and they were talking with each other. He denied the suggestion that they remained there after taking meals because they were consuming liquor even after taking meals or that water which was required for consuming liquor was finished and they had gone to take water in the pandal on the ground floor. There was no other person near the place of incident, when accused persons hit a fist blow. He fell down STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
26
and he tried to run away but accused persons apprehended him. He denied the suggestion that he had not seen which of the accused gave beating to Anil and them. He was able to see that accused persons were giving beating to deceased Anil, when he fell down. Deceased Anil was in front of him when he fell down. Naveen was on his right side. He does not recollect about the position of his other friends who were present at that time. He was thirsty and he wanted to go for taking water and he inquired from his other friends who also told him that they would also drink water and therefore they nd all were going for taking water on 2 floor. He denied the suggestion that accused persons were brought to PS and were shown to him. Rather, he along with the police officials went to jhuggis at Wazirpur and accused persons were apprehended on his pointing out. He further denied the suggestion that no recovery was effected in his presence or that no accused was arrested in his presence or that he does not know which of the accused gave beating to him and his friends including deceased Anil or that he is deposing falsely.
PW1 further crossexamined on behalf of accused Vinod Kumar and in his crossexamination he denied the suggestion that accused Vinod Kumar was not arrested in his presence or that STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
27
nothing was recovered at the instance of accused Vinod Kumar or that accused Vinod Kumar was not present at the spot or that that he is deposing falsely.
He was further crossexamined on behalf of accused Rajesh Kumar Singh. In his crossexamination, he stated that he and deceased Anil were having mobile phone and his phone was off as battery was down. Aman was also having a mobile phone. He along with his other friends were together when accused persons started beating them. Site plan has been shown to the witness by Ld. Defence counsel, after seeing the same he had stated that he is unable to understand the site plan. It is admitted that some other persons informed the police and his friend Aman had not informed the police. He cannot say why Aman had not informed to police. When, the accused persons gave beating to deceased Anil and them and at that time accused persons ran away from the spot. Three of nd his friends went to 2 floor to call some other person to save them. His said three friends along with 67 other persons came back to spot. He denied the suggestion that accused Rajesh Kumar Singh was taking dinner at the time of incident. He was not told by police to go to Tihar Jail to identify the accused persons. Ld. Defence STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
28
counsel put a question which is as under: Question: Is it correct that all the accused persons were apprehended by the police and are facing trial? Answer: All the accused persons were apprehended by the police except 23 persons, who were present at the spot and gave beating to them.
PW1 further stated that on the second day of the incident, police officials called him for the purpose of site plan. There was light outside Agarsain Bhavan. he is deposing falsely being friend of deceased Anil. PW1 Rohit further recalled for his further examination in terms of order, dt. 22.02.2012 on application U/s 311 Cr. P.C. moved by the State qua accused persons Sonu and Sanjay.
12. He further pointed out towards the accused Sanjay, as he was having knife at the time of incident and further pointed out towards the accused Sonu, as the person who attacked on his back side of shoulder and caused injuries to him by some sharp object and thereafter went towards Anil and gave beating to him at the time of incident. Thereafter, he went to the PS. In his cross examination, he deposed that Police has recorded his statement of the fact which he told to them. He does not STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
29
remember that he has stated to the police that 2/3 boys were having iron rods. Confronted with Ex.PW1/A where it is not so recorded. He does not remember whether he has stated to the police that 3/4 boys were having knives in their hands. Confronted with Ex.PW1/A, where it is not so recorded. He has also stated to the police that one or two boys gave knife blows on the back side of shoulder. Confronted with Ex.PW1/A, where it is not so recorded. He does not remember whether he had stated to the police that all the assailants gave beatings to deceased Anil with iron rod. Confronted with Ex.PW1/A, where it is not so recorded. He had also told to the police that the accused persons were saying that, to lift the Anil in tempo and to take away him from there. Confronted with statement Ex.PW1/A, where it is not so recorded. He had also stated to the police that, on his shouting, accused persons left the Anil at the spot. Confronted with Ex.PW1/A, where it is not so recorded. he had also stated to the police that when he reached near deceased Anil, he became unconscious. Confronted with Ex.PW1/A, where it is not so recorded.
He further stated that blood were oozing out from his injuries from back side of his shoulder. His wearing shirt torn due to the injuries caused to me by knife. He had not handed over his torn STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
30
blood stained shirt to the police. Police did not ask for the said shirt. He denied the suggestion that he had not been stabbed by the accused or that he had received injuries, as he fallen down and received injuries from the iron grill installed in the park. After the incident, public persons were gathered at the spot. He does not remember whether the police has recovered that tempo, in which accused persons ran away from the spot. He reached at the PS alongwith police in the morning hours on 06.07.2006. He and Avinash remained in the PS, till evening time on that day, and he signed all the papers in the PS. He does not remember whether he had stated about the description of the assailants to the police or not. He had stated the police about the description of the knives. He was confronted with Ex.PW1/A, where it is not so recorded. He had identified the knives in the PSRohini, Sector3. He does not remember the time when the arrested accused persons were brought at the PS. He cannot tell the exact number of the assailants, however, he had told their numbers by approximation. The distance between place of occurrence and Agrasen Dharamshala is about 200 meters. He does not remember, whether he had stated before the court on 23.5.07 that the person who caused injuries to him on STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
31
his back side of shoulder was not present in the court. He admitted the suggestion that the incident took place about 23 a.m. and there was darkness at the place of incident. He does not know, who had called the PCR, but it might have been called by father or uncle of Pankaj. There was a blood stains on the wearing jeans of Anil. He does not remember the name of the person, who took the injured Anil to the PCR Van. He went to the hospital in another vehicle, but he could not tell the exact description of the said vehicle. Vol It might be WagaonR or Santro. He does not remember whether he had stated to the police that accused Ram Singh was having an iron rod in his hand at the time of incident. He admitted the suggestion that he does not know the accused persons prior to the incident and he has no previous enmity with the accused persons. He had seen the accused persons Sanjay and Sonu in the PS in the year 2008, after the incident. At this stage, witness pointed out towards accused persons Sanjay and Sonu, but he could not specifically tell the name of the accused persons, as who is Sanjay and who is Sonu. He denied the suggestion that he had not seen the accused Sonu in PS Rohini, Sector3, in the year 2008. He does not know the name of the police official who had identified them in the PS. He had seen the STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
32
accused Sonu at PS on 5.3.2008. He further denied the suggestion that he had not identified the accused Sonu in PS on the abovesaid date or that he was not present at the spot or that no injury was received by him or that deposing falsely at the instance of the police or that he had identified the accused Sonu at the instance of the Police. He does not remember the registration number of Maruti 800, by which they reached at the abovesaid place. He was wearing the black shirt having white lining and dots and Anil was wearing white colour shirt and cargo pant. He does not remember the colour of that cargo pant. They parked their Maruti 800 at a distance of about 300 meter from the gate of the Agrasen Bhawan. He had not visited to the Agrasen Bhawan building, after the incident. He could not tell how many blows of knife were given to deceased Anil by the accused persons. He denied the suggestion that he had not seen the accused persons giving injuries to deceased Anil, as he was saving himself. The distance between him and Anil was about 89 feet. he had seen the accused Sanjay in the PS, after the incident. he was not taken to the house of accused Sanjay by the police. He does not remember whether he had stated to the police that accused Sanjay was having knife at the time of incident. He had not given the STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
33
description of knife to the police. He denied the suggestion that he had not seen the accused Sanjay was not having any knife or used knife in the incident or that accused Sanjay was not present at the spot on the day of incident or that no quarrel took place with the accused Sanjay and other accused persons or that the quarrel had taken place with some other persons, who were attending the marriage or that he or deceased or other witnesses were not invited in the marriage ceremony, due to which those other persons had objected our presence and which resulted into quarrel or that he had concocted the false story just to falsely implicate the accused persons at the instance of IO.
13. PW3 Manjeet has almost repeated the same facts about the incident, as deposed by PW1 in his testimony with some variation. He has deposed that on intervening night 5/6.7.06, at about 10pm, he alongwith his friends Anil, Rohit, Aman, Avinash, Pankaj and Naveen went to the marriage of cousin sister of Pankaj at Agrasain Bhawan, Sector8, Rohini, Delhi, in Maruti Car. After dinner they came out at about 3pm. The Maruti Car was not started, as there was no petrol in the car and they decided to wait. After 1015 minutes, when they felt thirsty and were going towards the STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
34
park, where another marriage was being performed 1012 boys inquired from them and one boy among them told to other boys that, we are the same boys, who had quarreled with them and Halwai and they started beating them. The accused having long hairs and two other accused persons were having knives in their hand, two were having danda and one was having iron rod. Two of the accused persons caught Anil and one of accused started beating his friend Avinash and when other were coming to apprehend him, he started running and while running he saw some of the accused persons were giving beating to deceased Anil, Rohit and Avinash. He further stated that after two months, photographs of six accused persons were shown to him and he identified them, as the persons who gave beatings to them. He further stated that accused Anil, Haider and Rajesh were having knives and Mukesh and Vinod were having danda. He does not remember, which of the accused was having iron rod. He was cross examined by the ld. Addl. PP for the State and in his cross examination he stated that he does not remember, whether accused Vinod was having iron or accused Ram Singh was having danda.
In his cross examination by ld. Defence counsel he STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
35
stated that police recorded his statement once. The other marriage was performed in the park and its was separate. They remained in the marriage party till 3pm. When Anil started the car, then they came to know that the petrol has been finished. Police showed him six photographs of accused persons at his home on 02.09.2006. Police did not obtain his signatures on any of the photograph, shown to him. He denied the suggestion that accused persons Vinod and Anil were doing the job of waiter in another marriage party and they were not involved in the said quarrel. He also denied the suggestion that accused Anil, Sonu and Vinod had not beaten Anil (deceased), Rohit and Avinash.
In his cross examination by defence counsel for accused Ram Singh, he stated that he himself had not received any injury and denied the suggestion that he was not present at the spot. In his cross examination by accused Mukesh he denied the suggestion that accused Mukesh was not involved in this dispute or that deceased Anil did not receive any injury from danda. In the cross examination by accused Rajesh, he stated that he reached back at the spot at 3.15am. Police official had taken him alongwith Aman and Naveen to the PS. Police had recorded their statement on STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
36
6.7.2006, but they did not obtain their signatures. In his cross examination by ld. Counsel for accused Haider he denied the suggestion that since he did not disclose the physical appearance of accused Haider to the police, he was not involved in the incident. He further denied the suggestion that accused Haider did not cause injury to any person including deceased Anil. In his cross examination by the ld. Counsel for accused Sanjay, he stated that he does not remember whether he had seen the accused Sanjay giving beatings to the deceased Anil. He did not state to the police that accused Sanjay was having a knife.
14. PW4 Aman has also deposed the same facts, as deposed by PW3 in his some variations in examination in chief. In his cross examination, he deposed that he does not remember the date when he first time met with the police. He further stated that his statement Mark A that he alongwith Rohit, Avinash and Anil in a Maruti Car of Anil went to Shakurpur and from where picked up Manjeet and Naveen. He was confronted with his statement u/s. 161 Cr.P.C. where it is not so recorded. He has also stated that they went to drink water outside Agrasen Bhawan from a Piau, confronted with his statement u/s. 161 Cr.P.C. where it is not so recorded. He STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
37
stated that 34 boys started beating him, confronted with his statement where only two boys is mentioned. He further stated that police had shown him the photographs of the accused persons at his residence. He stated that they first tried to start the car but the same was not started and they though that due to some technical defect and then they opened the bonnet of the car and poured 1012 bottles of water, but the car had not started. Then one person asked them that someone had extracted petrol from their car, then they came to know that petrol from their vehicle was extracted by someone. He further stated that police first time met him at BSA Hospital and recorded his statement on 06.07.2006 in noon. Police also recorded statement of Rohit, Avinash and Naveen. The blood stained clothes of Rohit and deceased Anil were not taken into possession by the police in his presence. He denied the suggestion that accused persons had quarreled with them.
15. Shri S.C. Sroai, ld. Addl. PP for the State has argued that from the testimony of PW1, PW3 and PW4, it is proved beyond reasonable doubt that accused persons have picked up quarrel with them and they caused the death of Anil by stabbing him. ld. Addl. PP for the State has further argued that weapon of offence STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
38
has been recovered from their instance and even FSL Report Ex.PW28/A, it has been established that by those knives recovered from he accused persons blood stains were found on the two of the knives were sent for examination in the FSL and out of these blood group on the knife was same as that of deceased Anil. Hence, accused persons are liable to be convicted for the offence punishable u/s. 302 IPC for causing murder of deceased Anil and offence punishable u/s. 323 IPC for causing hurt to PW1 Rohit.
16. On the other hand, ld. Defence counsels for the accused persons have argued that there are number of contradictions in the statement of PW1, PW3 and PW4 examined by the prosecution from their statement recorded by the police, as well as, in their interse statement. Further, they contradict that PW1 Rohit has stated that accused Vinod has stabbed the deceased Anil and PW1, but police has shown recovery of iron rod from accused Vinod Kumar. Further, in his complaint Ex.PW1/A as stated that two persons were having knives in their hands. But in his testimony he has stated that five persons were having knives as he has told that accused Anil, Haider, Vinod, Sanjay and Sunil were having knives.
17. Ld. Counsel for accused Vinod further contended STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
39
that when iron rod has been recovered from the accused Vinod, testimony of PW1 Rohit for causing stab injuries by accused Vinod to PW1 Rohit and Anil (deceased) become false. Learned Defence counsels for the accused persons have further argued that no role specifically assigned to the accused Ram Singh, Rajesh, Mukesh and Sanjay and only vague allegations have been made that they were started giving beatings. Hence, in such circumstances, statement of eyewitnesses are not reliable, therefore, accused persons are entitled to be acquitted.
18. I have considered the arguments and gone through the record. From the the testimony of PW1 Rohit, it is proved that he alongwith deceased Anil and other friends had attended the marriage of their friend's sister at Agarsen Bhawan and Sector8, Rohini, Delhi on 05.07.2006, where other marriage was being performed and when they after attending the marriage were returning back, they found no petrol in their car. And they decided to wait till morning and in the meanwhile they felt thirsty and when they reached back to Agarsain Bhawan for water, they were stopped by some boys and with whom they have quarreled and some of the boys were having knives, iron rods and dandas who beat him, STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
40
Avinash and deceased Anil and stabbed him and deceased Anil and due to injury Anil died. His testimony is duly corroborated to that extent by PW3 Manjot, PW4 Aman. Despite cross examination nothing have come out which could put dent to their testimony upto that extent. Even PW22 Pankaj in whose cousin sister's marriage PW1, PW3, PW4 and deceased Anil came, has corroborated their testimony that they attended the marriage and some quarrel had taken place with them in which deceased Anil and PW1 Rohit had received injuries. Further testimony of official witness particularly of PW26 SI Jagdish also proved that quarrel had taken place near Maharaja Agrasen Bhawan, as he found blood scattered on the road. Site plan Ex.PW28/A depict the exact location, where the blood was found scattered. The said place is outside the marriage pandal and near the water tank, which corroborated the testimony of PW1 that he and his friend were going to fetch water where they were attacked. PM Report Ex.PW16/A proved that deceased Anil had been stabbed in his thigh and he has bruise over left arm. Thus, medical evidence also corroborates the testimony of PW1, PW3 and PW4 that deceased Anil was stabbed with some sharp edged object which may be knife and also beating, which caused him bruise on STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
41
his hand. On perusal of the MLC Ex.PW11/B of PW1 Rohit it is proved that he was given CLW over left upper back., which in my view could be possible by knife as stated by him. Beside this, he has bruise below the left eye, which also corroborates his testimony that he was given last blow over his eyes. Thus medical testimony corroborates to testimony of PW1 Rohit that deceased Anil and he was attacked with knife and also given beating to them.
IDENTIFICATION OF THE ACCUSED
19. All the accused persons except accused Anil, have denied that they were present in the marriage. But, PW1 Rohit in his testimony has identified the accused Anil as the person who has long hair and was among 89 boys have stopped him and uttered the voice,'they are the person who have quarreled with him and halwai'. PW3 Manjit and PW4 Aman have also corroborated his testimony on this aspect. Even PW20 Virpal who take control of catering of the marriage, when quarrel took place has testified but he had given control of salad and fruit stall to accused Anil. Hence, identity of accused Anil as one of the assailant is established beyond reasonable doubt.
PW1 has further identified the accused Haider and STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
42
Vinod as the person who have knife in their hand and accused Ram Singh as the person who has iron rod in his hand and accused Rakesh and Mukesh were having danda in their hand. He also identified the accused Sanjay and Sonu as the person who were having knife. PW3 has testified that accused Mukesh and Vinod were having danda . Accused Haider and Rajesh who were having knives in their hand. In his cross examination, he has stated that he was shown the photographs of aforesaid six accused persons. PW4 Aman has stated in his cross examination by ld. Addl. PP for the State that he cannot identify accused persons by their names. But he identified them by pointing towards them. He identified accused persons Anil, Rajesh and Haider as the persons who were having knives with them. PW1 Rohit in his testimony pointed out towards accused Sonu @ Darshan and Sanjay @ Lala, as the person who have knife. PW4 Aman has also identified the accused Sanjay and Sonu during his cross examination by ld. Addl. PP for the State. Despite cross examination nothing has come out, which could dent their testimony regarding identification of the accused persons, except some contradictions regarding nature of weapon possessed by them. It is quite natural that, when so many persons are involved STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
43
in the quarrel, witnesses may get confused regarding which accused is carrying which weapons. Accused persons have failed to point out any enmity between them and witnesses, hence, there is no reason for witnesses to falsely identify the accused persons. They have been arrested on the same day on the identification of PW1 Rohit, which is proved from Arrest memo Ex.PW1/B to Ex.PW1/G. Further from the TIP proceedings Ex.PW25/A to Ex.PW25/F, it is proved that Accused persons Anil, Vinod, Haider, Ram Singh, Rajesh and Mukesh have refused to participate in the TIPs, when IO had filed the application for their identification through PW4 Aman. Accused Sanjay @ Lala and Sonu @ Darshan had stated that they were working somewhere else and were not present in the said marriage, but they had not produced any witness in support of their contention. Hence, in such circumstances, I held that identity of all the accused persons have been established, as the assailant who gave beating to deceased Anil and PW1 Rohit and their friends.
ALLEGATION AGAINST THE ACCUSED
20. Case of the prosecution is that Deceased Anil, PW1 Rohit, PWs Avinash, Manjeet, Aman and Naveen had come to attend the marriage function, when accused persons have attacked STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
44
on them with knife, danda and iron rod. PW1 Rohit has stated that 10/12 boys had stopped them while they were going to Maharaja Agrasen Bhawan for taking water. Out of which one was accused Anil who uttered the word, "yahi who ladka hai jinhone Hamare saath aur halwai ke saath jhagda kiya tha", out of those persons three were having knife and remaining boys were having iron rod and dandas. One boy gave him a fist blow on his left eye and remaining boys started beating them with knife, danda and iron rods. One boy whom he identified as Vinod hit him on his back and one hit knife on his back. Two boys caught hold Anil and remaining boys gave beatings to Anil with knife, danda and iron rod. He has further stated that Anil, Haider and Vinod, Sonu and Sanjay were having knife, accused Ram Singh was having iron rod and Rajesh and Mukesh. He further stated that Anil & Haider attacked with knife.
Ld. Defence counsels have argued that testimony of PW1, is full of contradictions from his previous statement recorded by the police regarding who gave knife blow to him and deceased Anil. They argued that in his testimony dated 23.5.07, PW1 had stated that accused Vinod had given knife blow on his back, whereas, in his testimony dated 13.3.2012, he had stated that STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
45
accused Sonu @ Darshan had given knife blow on his back. Similarly, in his statement dated 23.05.2007, he has stated that accused Haider and Anil had attacked with knife on deceased Anil and after inflicting knife on him, he attacked deceased Anil. Whereas in his cross examination he stated that accused Haider had not attacked deceased Anil and further in his testimony dt. 13.3.2012, he stated that accused Sonu after hitting on the back side of his shoulder ran towards deceased Anil and gave beatings to him. They argued that as per his MLC Ex.PW11/B, he has only sharp injury. Hence, injury to PW1 Rohit by knife can be caused by one person only and similarly, as per the PM Report Ex.PW16/A deceased Anil also received only one sharp edged injury. From person cannot cause one sharp injury. Hence, PW1's testimony does not reconcile with medical evidence. He further argued that PW1 stated that Vinod was having knife, whereas PW3 Manjit has testified that accused Vinod was having danda in his hand, whereas IO has recorded that an iron rod was found from accused Vinod. PW3 has not assigned any specific role to accused Vinod what he has did. Whereas he has not taken name of accused Sonu at all in his testimony. PW4 Aman in his examination in chief has not taken the STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
46
name of accused Vinod and Sonu at all. Only in the cross examination by ld. Addl. PP for the State, he has admitted the suggestion that accused Vinod was having iron rod with him.
I have considered the arguments of the defence counsel. Undoubtedly, there are contradictions in the testimony of PW1, PW2 and PW4, but in my view, same is not material as whenever there are so many persons involving in the quarrel, it would be very difficult for a witness to pin point what each accused was doing. Things happened so fast in a quarrel that each and every minute details cannot be remembered. It is virtually impossible to identify what each accused is carrying or what particular role each accused has played as eight (8) accused persons were involved in the quarrel. PW1, PW3 and PW4 and victim, will be more interested to save themselves rather to pay attention which accused is causing injury on which part of the body of which particular accused. Considering this fact in mind, Section 34 of the IPC have been enacted, it is not a substantial offence, but it is a rule of evidence. The distinctive feature of section 34 IPC is the element of participation in action. In order to bring bring home the charge of common intention the prosecution has to establish by evidence, STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
47
whether direct on circumstantial that there was plan or meeting of mind of all the accused persons to commit the offence from which they were charged with the aid of Section 34, be it prearrange or as the spur of moment, but it must be necessary before the commission of crime. It is not necessary that each accused must take active part in commission of crime, what is material is that each accused has common intention to commit that crime. In Mehboob Shah Vs. Emperor (1945) 47 MOMLR 941, It is held by Bombay High Court that "When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.
In 1870, it was amended by the insertion of the words "in furtherance of the common: intention of all" after the word "Persons" and before the word "each", so as to make the object of the section clear. Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the section, the essence of that liability is to be found in the existence of a common intention animating the STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
48
accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.
This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the prearranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most case it has to be inferred from his act or conduct or other relevant circumstances of the case".
21. In this case PW1, PW3 and PW4 have categorically testified that all the accused persons stopped them while they were going to take water and started beating them. While some of the accused picked up deceased Anil and PW1 Rohit for beating, other accused chased PW3 and PW4 and their other friends, hence, it is proved that all the accused persons were acting in tandem in STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
49
furtherance of their common intention to give beatings to deceased Anil, Rohit and to their other friends to teach them a lesson, as they believe on earlier occasion victim party gave beating to accused Anil and Halwai. There is no reason to disbelieve the testimony of PW1, PW3 and PW4. From their testimony, it is proved beyond reasonable doubt that all the accused persons have participated with common intention to cause injuries to PW1 and Deceased Anil.
CULPABLE HOMICIDE OR MURDER
22. Ld. Defence counsels have contended that even prosecution case is admitted as it is, it would not make a case of murder, as there was no intention to commit the murder ot deceased Anil, but, in sudden quarrel, deceased Anil had received injuries on his thigh and due to excessive bleeding, he had died, hence, at the best case is made out culpable homicide not amount to murder punishable u/s. 304 PartII IPC.
23. Before deciding whether the case falls u/s. 302 IPC or u/s. 304 IPC, it would be better to go through the relevant provisions of law.
Section 299 IPC deals with culpable homicide. It reads as under : STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
50
299. Culpable Homicide : Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Section 299 has following essentials:
1. Causing of death of a human being.
2. Such death must have been caused by doing an act
i) with the intention of causing death; or
ii) with the intention of causing such bodily injury as is likely to cause death; or
iii)with the knowledge that the doer is likely by such act to cause death.
Section 300 IPC. Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
51
4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4.....
Exception 5....
In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii)with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
52
death will be a likely result are culpable homicide not amounting to murder.
In Laxminath v. State of Chhattisgarh AIR 2009 (SC) 1383 Hon'ble Supreme Court has made distinction between Section 299 and 300 IPC as under:
The academic distinction between 'murder and culpable homicide not amount to murder' has always vexed the Courts. The confusion is cause, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will he helpful in appreciating the points of distinction between the two offences".
Section 299 Section 300 A person commits culpable Subject to certain exceptions,
homicide, if the act by which culpable homicide is murder, the death is caused is done if the act by which the death is
(a) with the intention of caused is done.
causing death
1) With the intention of causing death;
STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
53
2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
(b) with the intention of causing such bodily 3) With the intention of causing bodily injury as is likely to injury to any person, and the bodily cause death; injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;
(c) With the knowledge 4) With the knowledge that the act is that .... the act is likely so imminently dangerous that it must to cause death. in all probability cause death, or such bodily injury as is likely to cause death.
9. "Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death", is not an essential requirements of clause (2). Only the intention STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
54
causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim., is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration(b) appended to Section 300. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender.
Instances of cases falling under clause (2) of section 300 can be where the assailant causes death by a fistblow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of the particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special rality of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature"
have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.55
nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words"bodily injury.... sufficient in the ordinary course of nature to cause death"
result of the injury, having regard to the ordinary course of nature.
10. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874) is an apt illustration of this point. In case State of Andhra Pradesh vs Rayavarapu Punnayya & Another 1977 AIR 45, 1977 SCR (1) 601, Hon'ble Supreme Court observed as under : "Whenever a court is confronted with the question STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
56
whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, leads to the, second stage for, considering whether that act of the accused amounts to culpable homicide as defined in s.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s. 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in s. 300, if the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of s.304, depending, respectively, on whether the second or the third clause of s.299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in s.300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of s.304, Penal Code".
STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
57
It was further observed as under : "In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of this first degree. This is the gravest form of culpable homicide which is defined in s.300 as 'murder'. The second may be terms as 'culpable homicide of the second degree'. This is punishable under the 1st part of s.
304. Then, there is 'culpable homicide of the third degree.' this is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of s. 304".
24. Now reverting back to the facts of the present case. As per the PM Report, deceased Anil had received following external injuries:
(i) a slit shaped stab injury is present on the dorsal aspect of right thigh 6.5cmx3cms size obliquely placed 7cm above poplitial STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
58
fossa and 17 cms below gluteal fold with clean cuts sharp margins directed anteriorly upwards and medially having upper angle sharp and acute. On dissection the underlying muscles and connective tissues are clearly cut with through and through cut on femoral vessels on medial side of femur passing, further anteriorly to exit on antro medial aspect of right thigh 12cms above knee joint and 25 cm below anterior superior iliac spine size being 3.5cmX1.5cm with sharp averted edges
(ii) bruise outer aspect of left arm 5cm X 3.5cms in mid 1/3rd.
Further as per the opinion of the PW16 Dr. Sameer Pandit deceased died due to haemohhragic shock as a result of injury no.2 femoral vessels from the stab wound on right thigh, which was sufficient to cause death in ordinary course of nature. In fact injury on femoral vessels is Injury No.1, it appears that due to typographical error in his testimony it has been mentioned as Injury No.2.
25. It is admitted by the prosecution witnesses i.e. PW1, PW3 & PW4 that, there was no previous enmity between them and accused persons and they were known to each other, prior to the incident. It is stated by PW1 that, they were returning to Agarsen Bhawan for taking water at about 3 am, when they were stopped by the accused persons on the road outside the marriage place, which clearly establish that, they were found by the accused persons by STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
59
chance. Further from the testimonies of PWs it is evident that accused persons who had quarreled with deceased Anil and his friends including PW1, PW3 and PW4 as accused persons thought that they are the same persons, who had quarreled with them on earlier occasion on the same day. Hence, it is proved that there was no premeditation in causing murder of deceased Anil. But deceased Anil and his friends were caught by the accused persons by chance. Further Postmortem Report of the deceased Ex.PW16/A prove that only two injury has been caused on the deceased Anil and out of which only injury no.1 is fatal. As per PM report, which is a stab injury, which may have been caused with sharp edged weapon and thus may be caused by knife. But said injury has been caused on thigh area. Which is nonvital part of the body. Whereas other injury no.2 is only bruise over outer aspect of left arm, which in my view can be caused even by falling on the ground. Hence, it is evident that accused persons have only intention to cause injury to deceased as they wanted to teach him a lesson, as they believe that deceased was one of the person, who gave beatings to accused Anil and Halwai on earlier occasion, but definitely they have no intention to cause his death. This can also be infer from the injuries of PW1 STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
60
Rohit. As per MLC of PW1 Ex.PW2/A, he was also given only knife blow on his back, which is again nonvital part of body. PW16 Dr. Sameer Pandit, who had conducted the postmortem examination on the dead body of deceased Anil, has admitted in his testimony that, femoral vessels cut in causing of injury no.1 a young person survives for about ½ - 1 hour without any medical aid and he further stated that deceased died due to hemorrhagic shock due to excessive bleeding. Hence, in my view, it was by chance that the single blow on thigh area had cut the femoral vessels which proved fatal, otherwise, thigh is not such a vital body part, in which a single knife blow can cause death, hence despite the fact that, PW16 had opined that injury no.1 is sufficient to cause death in ordinary course of nature, in my view, from the circumstances, it cannot be inferred that accused persons have intention to cause the death of deceased Anil, so that, they could be convicted for offence punishable u/s. 302 IPC. However, certainly accused persons have knowledge that, by their act, death is likely to be caused. In my view, the degree of probability of causing death, in such circumstances is lowest. Hence, in such circumstances, present case would not come within the ambit of murder, as defined u/s. 300 IPC, But, certainly it is STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
61
culpable homicide, not amounting to murder.
26. In the aforesaid facts and circumstances, I convict all the accused persons for causing death of deceased Anil, in furtherance of their common intention, which is culpable homicide not amounting to murder, punishable u/s. 304 PartII IPC read with 34 IPC. Since all the accused persons in furtherance of their common intention have also caused hurt to PW1 Rohit by sharp edged weapons but since, accused persons have been charged u/s. 323 IPC, hence, I do not think appropriate to convict accused persons for offence punishable u/s. 324 IPC. Hence, I convict them for offence punishable u/s. 323 IPC read with 34 IPC. Now to come up for order and arguments on order on sentence.
Announced in the open court (SANJEEV KUMAR) On 31.07.2012 Addl. Sessions Judge Rohini Courts: Delhi.
STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
62
IN THE COURT OF SH. SANJEEV KUMAR ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI SC No.950/06 FIR No. 638/06 PS ROHINI U/s. 302/323/34 IPC STATE VERSUS (1) Anil S/o. Rajinder Prasad R/o. N28A/521, Jhuggi Industrial Area, Ashok Kumar, New Delhi.
Permanent Add: VillageMathia, PS Ram Nagar, District Ambedkar Nagar, U.P. (2) Vinod Kumar S/o. Ramji Lal R/o. N28A/475, Jhuggi Industrial Area, Ashok Vihar, New Delhi.
Permanent Add: VillageBabnoli, PS Dhanghata, District Gorakhpur, U.P. (3) Haider @ Babloo S/o. Mohd. Anis R/o.
Opposite Jhuggi No.B66/2, CSA Colony, Wazirpur Industrial Area, Delhi.
(4) Ram Singh S/o. Devata Singh, Jhuggi opposite C60/4, CSA Colony, Wazirpur Industrial Area, Delhi.
Permanent Add: Village - Malpur, PSBelaghat, District STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
63
Gorakhpur, U.P. (5) Rajesh Singh S/o. Rajinder Singh, R/o.
N28B/203, Jhuggi, Industrial Area, Ashok Vihar, New Delhi.
Permanent Add: VillageBhoopgarh, PS Gola Bazar, DistrictGorakhpur, U.P. (6) Mukesh Kumar @ Munshi S/o. Shiv Pujan, ` R/o. N28A/483, WPIA, Delhi.
(7) Sonu @ Darshan S/o. Ramji Lal, R/o.
Jhuggi No.N28A/475, CSA Colony, Wazirpur Industrial Area, Delhi.
(8) Sanjay @ Lalu S/o. Maharaj Singh, R/o.
N28A/405, CSA Colony, Wazirpur Industrial Area, Delhi.
ORDER ON SENTENCE Present: Shri S.C. Sroai, ld. Addl. PP for the State.
Accused persons Anil, Vinod, Haider, Ram Singh, Rajesh Singh, Mukesh, Sonu @ Darshan and Sanjay @ Lalu are present, produced from JC.
Shri Tripurari Tiwari, ld. Counsel for convicts Anil, Vinod, Haider, Sonu.
Shri D.M. Bhalla, ld., counsel for convicts Ram Singh and Rajesh Singh.
Ms. Dhaneshwari, ld. Amicus Curiae for convict Sanjay @ Lala.
STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
64
1. Brief facts of the case are that on 06.07.2006, on a road near Agrasen Bhawan, F18, Sector8, Rohini, both the aforesaid accused persons gave beatings to deceased Anil and PW1 Rohit. Vide separate Judgment of even date, all the accused persons are convicted under section 304 PartII read with Section 34 IPC and 323 IPC read with Section 34 IPC.
2. It is argued by ld. Counsel for convict Anil that he is in JC since 07.07.2006 and he is a young man of age about 31 years, and he has old parents to look after, besides one unmarried sister and he is the sole bread earner of his family.
It is argued by ld. Counsel for the convict Vinod is in JC since 07.07.2006 and he is a young man of age about 28 years, and he has old parents to look after, besides two unmarried sister and one younger brother and he is the sole bread earner of his family.
It is argued by ld. Counsel for the convict Haider is in JC since 07.07.2006 and he is a young man of age about 25 years, and he has old parents to look after, besides two unmarried sister and two younger brother and he is the sole bread earner of his family.
It is argued by ld. Counsel for the convict Ram Singh is in JC since 07.07.2006, he is a young man of age about 30 years, STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
65
and he has old parents to look after, besides three married sister and three brothers and he is the sole bread earner of his family.
It is argued by ld. Counsel for the convict Rajesh Singh is in JC since 07.07.2006 and he is a young man of age about 25 years, and he has old parents to look after, besides one sister and one brother and he is the sole bread earner of his family.
It is argued by ld. Counsel for the convict Mukesh is in JC since 07.07.2006 and he is a young man of age about 25 years, and he has old father to look after, besides one sister and two brothers and he is the sole bread earner of his family.
It is argued by ld. Counsel for the convict Sanjay @ Lala is in JC since 03.03.2008 and he is a young man of age about 27 years, and he is married and three children to look after and he has one sister and he is the sole bread earner of his family.
It is argued by ld. Counsel for the convict Sonu @ Darshan is in JC since 20.07.2007 and he is a young man of age about 25 years, and he is unmarried and he has old parents to look after, besides four sisters and three brothers and he is the sole bread earner of his family. He is in JC since 07.07.2006 STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
66
3. On the other hand, ld. Addl. PP for the State submits that accused persons have caused the death of deceased Anil and also caused hurt to PW1 Rohit without any reason and thus they should be given maximum sentence, as prescribed under the statute.
4. I have heard the rival submissions and gone through the record.
5. The protection of society by stamping out criminal proclivity is essential function of state. It can be achieved by imposing appropriate sentence. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts for imposing appropriate sentence. Any definite formula relating to imposition of sentence cannot be laid down. The object of sentencing is that the offenders does not go unpunished and the justice be done to the victim of crime and the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The measure STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
67
punishment in a given case must depend upon the gravity of the crime; the conduct of the offender and the defence less and unprotected state of the victim. Imposition of appropriate punishment is the way adopted by the courts for responding the society's desire for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
It was held in the case of Siddarama & Ors. V State of Karnataka, (2007) 1 SCC (Cri) 72 : the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
68
drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
In case State of Punjab V Prem Sagar and Ors. (2008) 7 SCC 550 it was observed that the Indian Judicial System has not been able to develop legal principles as regards sentencing. It was further observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of offence said to have been committed by the accused plays an important role. A wide discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
69
relevant.
6. Section 304 part II of Indian Penal Code prescribed punishment for culpable homicide not amounting to murder for a term which may extend to 10 years or with fine or both.
7. In this case as stated above, all the convicts with common intention have stabbed deceased Anil and also caused hurt to PW1 Rohit. Considering the fact that convicts Anil, Haider, Vinod, Ram Singh, Rajesh Singh and Mukesh are in JC since 07.07.2006. Hence, they are in JC for the last six years, hence, I am of the view that they have already suffered punishment for their act. Hence, I sentence them for the period already undergone by them.
8. Whereas, convict Sonu @ Darshan is in JC since 20.07.2007 and convict Sanjay @ Lala is in JC since 03.03.2008. They are in JC for almost five years and 4 ½ years respectively. They have also suffered punishment for the act, which they have committed. Hence, I sentence them for the period already undergone by them, as well as, a fine of Rs.2000/ each for offence punishable u/s. 304 PartII IPC, in default of payment of fine they shall also be undergo sentence SI for one month.
9. The case property is confiscated to the State. A copy of STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.
70
the judgment and order on sentence be supplied to the convict free of cost forthwith. They are directed to furnish personal bond in the sum of Rs.10,000/ each with one surety of like amount each, in compliance of provisions of Section 437A Cr.P.C. within a week. Thereafter file be consigned to the record room.
Announced in the open court (SANJEEV KUMAR)
On 31.07.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
STATE VS ANIL & OTHERS//PSROHINI.
FIR NO.638/06 AND U/S. 302/323/34 IPC.