Delhi District Court
State vs Sanjay Kumar Etc on 5 July, 2024
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS),
NORTH DISTRICT, ROHINI COURTS : DELHI
In the matter of:-
(Sessions Case No. 58310/2016)
CNR No. DLNT01-001221-2014
FIR No. 524/2014
Police Station Jahangir Puri
Charge sheet filed 302/307/308/34/174-A IPC
Under Section
Charge framed Under 323/308/307/302/34IPC against
Section all accused persons.
Additionally under section 174-
A IPC against accused Sachin
and Ravi.
Sanjay Kumar s/o Ram Avtar r/o EE-
2846, Jahangir Puri, Delhi
Sachin s/o Sh. Bhawani Prasad r/o Flat
State Vs. No.318, Ist Floor, MCD Flats, Gate No.
1, Jahangir Puri, Delhi.
Ravi s/o Sh. Ram Avtar r/o EE-2846,
Jahangir Puri, Delhi.
Mukesh s/o Sh. Ram Avtar r/o EE-2846,
Jahangir Puri, Delhi.
Date of institution 30.10.2014
Arguments concluded on 07.06.2024
Judgment Pronounced on 05.07.2024
Decision Convicted
JUDGMENT
BRIEF FACTS 1.1 Events which set the prosecution machinery into motion is that on 04.07.2014 a PCR call vide DD no. 61A was SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 1/77 FIR No. 524/2014 PS Jahangir Puri received in Control Room with regard to quarrel at H. No. 2661, EE Block, Jahangir Puri. Information was sent to ASI Ram Chander, who alongwith Ct. Gaynender reached at the spot where he came to know that injured persons had been shifted to BJRM Hospital by PCR Van. At the spot in front of H. No. EE-2656, on wall of big park, electric pole No. 42, corner of small park, in gali, in front of H. No. 2657, in front of H. No. 2661, in front of H. No. 2846 EE blood was found lying, pieces of brick and stones, blood stained white colour handkerchief and one slipper (chappal) white and green colour were also lying there. No eye witness was found present at the spot. On the instructions of Inspector, duty officer sent Ct. Vinayak, Ct. Rajender at the spot and Ct. Suresh and Ct. Amit went to hospital. After leaving Ct. Vinayak and Ct. Rajender at the spot, ASI Ram Chander and Ct. Gyanender went to BJRM Hospital and obtained MLC No. 81069 of deceased Rishipal, who was declared brought dead by the doctor.
1.2 ASI Ram Chander also collected MLC No. 81071/14 of injured Happy, MLC NO. 80992/14 of Deepak @ Monu, MLC No. 81070/14 of accused Sanjay and MLC No. 8089/14 of accused Mukesh. Eye witness Bimla also met in hospital. ASI Ram Chander recorded statement of Smt. Bimla wherein she alleged that on 01.7.2014 her son Deepak brought a female dog from the house of her sister-in-law namely Droup. She further alleged that on 02.07.2014 at about 10:00 PM Deepak went to the park for strolling of his dog and when he came back, he informed her that accused Sanjay alongwith his 4- 5 friends were sitting in the park and he was also having a dog. Both the dogs on seeing each other started barking upon each other and accused Sanjay took out his belt and started beating SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 2/77 FIR No. 524/2014 PS Jahangir Puri female dog due. An altercation took place between them and accused Sanjay threatened him, if he or his female dog saw in the park then he would kill him. She further alleged that on 03.07.2014 at about 10:00 PM when her son Deepak was coming to his house and reached MCD Flats, Jahangir Puri, accused Sanjay, Mukesh and two other boys obstructed his way and tried to manhandle him, however, he escaped on his motorcycle. She further alleged that she alongwith her husband went to the house of accused Sanjay i.e., EE-2846 where accused Mukesh, Sanjay and Sachin @ Nata, whose father name is Bhawani Prasad, were also present present. At that time accused Sanjay was carrying iron rod in his hand.
1.3 She further alleged that she tried to make accused Sanjay understand as they are residing in the same vicinity and accused Sanjay assured her that there is no issue between him and Deepak and told her to return back to home. She further stated that thereafter she alongwith her husband returned back to her house. She further alleged that on that day her brother Mahender and nephew Happy (nanad ka beta) came to her house.
1.4 At about 03:00 AM someone started throwing bricks and stones upon which they came out of the house and saw that accused Sanjay, Mukesh, Ravi and Sachin @ Nata were standing there. She further alleged that as soon as Deepak came out of the house, accused Sanjay inflicted injury on the head of Deepak with knife whereas accused Mukesh hit iron rod on the head of Happy. She further alleged that on hearing the noise, her brother in law Rishi Pal, who is residing in the vicinity, came out of house and tried to intervene. However, accused Ravi caught hold him and accused Sanjay inflicted injury in the chest of Rishipal SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 3/77 FIR No. 524/2014 PS Jahangir Puri with the knife.
1.5 She further alleged that at that time accused Sachin @ Nata was exhorting other accused persons by saying, " maaro saalo ko, in sabka kaam taman kar do" and started pelting stones and one of the stones hit Mahender. Due to the injuries suffered, blood started oozing out from the head of Deepak. Deepak and Rishipal fell down on the ground. Her daughter called at number
100. PCR came at the spot. During the incident, accused Sanjay and Mukesh also received injuries. All the injured shifted to BJRM Hospital where Rishipal was declared dead by the doctor.
1.6 During investigation, clothes of the deceased were seized and dead body was preserved for postmortem in mortuary in BJRM Hospital. On the complaint of complainant Bimla, FIR under section 302/307/308/34 IPC was registered and further investigation was marked to Inspector Radhey Shyam and crime team was called at the spot. IO Inspector Radhey Shyam reached at the spot and found blood, slippers, blood stained handkerchief and pieces of brick and stones lying there. Injured Mahender, who was present at the spot, was shifted to hospital by Ct. Jang Bahadur. Exhibits were lifted from the spot, site plan was prepared at the instance of injured Karambir and after postmortem dead body was handed over to relatives. Accused Sanjay and Mukesh were arrested. At the instance of accused Mukesh weapon of offence i.e., iron rod was recovered from roof of the temple and same was seized by the IO. Statement of injured Deepak was got recorded. At the instance of accused Sanjay, IO tried to trace out the weapon of offence i.e., knife but same could not be traced out. Postmortem report of deceased was obtained, on which doctor opined that death was due to hemorrhage shock, consequent upon stab injury. All the injuries SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 4/77 FIR No. 524/2014 PS Jahangir Puri were ante mortem fresh and caused by pointed sharp single edged weapon. Injury No. 1 is sufficient to cause death in ordinary course of nature". Opinion on the MLC of injured Deepak @ Monu was obtained on which doctor opined nature of injuries as grievous.
1.7 As accused Ravi and Sachin @ Nata could not be arrested, proceedings under section 82 CrPC were initiated against them and they were declared proclaimed offenders. Charge sheet under section 302/307/308/34 IPC was filed against accused Sanjay and Mukesh.
1.8 Accused Ravi and Sachin @ Nata were arrested in this case on 29.05.2015. After completion of investigation, supplementary charge sheet under section 302/307/308/323/174- A/34 IPC was filed against Ravi and Sachin @ Nata.
CHARGE
2. On committal of the case to the Court of Sessions, and vide order dated 17.12.2014, charge under section 323/308/307/302/34 IPC was framed against accused Sanjay Kumar and Mukesh Kumar and vide order dated 05.12.2015, charge under section 323/308/307/302/34/174-A IPC was framed against accused Sachin and Ravi. All the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 32 witnesses in all.
FORMAL WITNESSES
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 5/77
FIR No. 524/2014 PS Jahangir Puri
4. PW1 HC Sunil Dutt, being the duty officer, exhibited DD No. 6A as Ex. PW1/A, FIR as Ex. PW1/B, endorsement as Ex. PW1/C and certificate under section 65-B of Indian Evidence Act as Ex. PW1/D.
5. PW4 Retd. SI Naresh Kumar deposed that on 04.07.2014 at about 05:00 AM, on receipt of call from Control Room, he alongwith Ct. Subhash (photographer) and ASI Surender Saini (finger print proficient) and other staff reached at the spot i.e., EE-2661, Jahangir Puri, Delhi where he met ASI Ram Chander and other police officials of PS Jahangir Puri. He further deposed that he alongwith ASI Surender Saini inspected the place of occurrence and photographer Ct. Subhash took the photographs of the place of occurrence from different angles at his instance as well as ASI Ram Chander. He further deposed that the pieces of brick were lying at certain distance of the place of occurrence and blood was found at two places at the chhota park corner. One blood stained slipper (chappal) of white and turquoise (firozi) colour and one blood stained handkerchief were also found at the spot. He further deposed that IO lifted the blood stained soil, earth control and other exhibits from the spot. He further deposed that he prepared the crime team report which is Ex. PW4/A.
6. PW5 Ct. Sandeep deposed that on 04.07.2014 at about 03:48:45 hours, an information was received from mobile No. 9899869565 regarding quarrel as Pathrav Jayada Ho Raha Hai at H. No. 2661, Block EE, Jahangir Puri, Delhi. He fed the contents of information in PCR form No. 1 which is Ex. PW5/A and dispatched the information for flashing the same to PCR and local police.
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 6/77FIR No. 524/2014 PS Jahangir Puri
7. PW6 Dr. Abhilasha, deposed that patient Happy s/o Suraj Bhan was examined at BJRM Hospital. He was referred to Dental OPD but he did not report and got treatment at private hospital. He further deposed that as per record of Kiran Dental Clinic, he was treated for maxilla, however, he opined that it is to be co-related clinically at the time of giving final opinion. He exhibited his report which is Ex.PW6/A.
8. PW7 Dr. Jitender Nath Jha, deposed that on 04.07.2014, he examined Deepak and gave his observation which is Ex. PW7/A and referred the patient to LNJP Hospital. He further deposed that he opined the nature of injury as grievous vide his opinion which is Ex. PW7/B. 9.1 PW8 Dr. Bhim Singh deposed that on 04.07.2014, he conducted postmortem on the dead body of deceased Rishi Pal as brought by Inspector Radhey Shyam. He stated that on examination, he found external injuries i.e., stab wound, obliquely placed, measuring 3 cm x1 cm x chest cavity deep left side of chest, just lateral to midline, inner lower angle of the wound was acute, upper angle was obtuse situated 5 cm below and medial to left nipple and incised wound 3cm x0.5cm x0.5 cm between thumb and index finger of right hand. He further deposed that opined chest cavity was full of clotted and fluid blood measuring about 3.5 ltrs. Chest wall shows cut in 5 th intercoastal space, cutting upper part of 6 th rib goes through and through enters into heart, left ventrical through and through approximate length of wound was about 7.8 cm and other organs were pale.
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 7/77FIR No. 524/2014 PS Jahangir Puri 9.2 After postmortem examination, he opined that death
was due to hemorrhagic shock consequent upon stab injury. All the injuries were ante mortem in nature, fresh in duration and caused by pointed sharp single edged weapon. Injury No. 1 was sufficient to cause death in ordinary course of nature. He exhibited postmortem report as Ex. PW8/A.
10. PW13 HC Subhash Kumar being the photographer in Mobile Crime Team, he clicked 17 photographs of the spot at the instance of ASI Ram Chander and Inspector Radhey Shyam from his digital camera. After preparing CD of the photographs, he handed over the same to IO which is Ex. PW13/B. He exhibited positive print outs of the photographs as Ex. PW13/A1 to A-17 and certificate under section 65-B of Indian Evidence Act as Ex. PW13/C.
11. PW15 Randhir Singh deposed that on 04.12.2012, he got issued one SIM card No. 9717676759 from Airtel Retailer Deepak Verma, 7/57, Moti Ngar, New Delhi and for identify proof, he submitted copy of his driving license. He further deposed that after using that number for some days, he handed over the same to his brother Happy and from then onwards, his brother Happy was using that number. He further deposed that in September, 2014 police officials from PS Jahangir Puri made some inquiries from him regarding that SIM number.
12.1 PW18 ASI Vinod deposed that in the intervening night of 03-04.07.2014, he received a call regarding some jhagra at EE-2661, Jahangir Puri, Delhi. He alongwith his PCR staff immediately reached at the place of incident and found lot of stones, brick pieces and blood was lying in the street. He further SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 8/77 FIR No. 524/2014 PS Jahangir Puri deposed that five persons namely Rishi Pal, Mukesh, Sanjay, Happy and Deepak were found in injured condition at the spot. He took all the injured persons to BJRM Hospital in PCR van and got them admitted there. Injured Rishi Pal was declared dead by the doctor.
12.2 During cross examination done on behalf of accused persons he stated that he reached at the spot within 5 minutes after receiving the call and public persons were present there. He stated that he had not deputed any officer to take care of the spot. Rishi Pal was declared dead by the doctors in his presence immediately after he was taken to hospital.
13. PW22 Inspector Manohar Lal deposed that on 16.09.2014, he was called by Inspector Radhey Shyam at police station Jahangir Puri and accordingly, he reached there and from there he alongwith Inspector Radhey Shyam went to the spot i.e., gali in front of H. No. 2656, EE Block,k Jahangir Puri, Delhi and took measurement of the spot and prepared rough notes. He further deposed that on 17.09.2014, he prepared scaled site plan which is Ex. PW22/1.
14. PW23 Dr. Deepak, exhibited MLC No. 81302 dated 04.07.2014 of patient Karambir s/o Lelu Master as Ex. PW23/1 prepared by Dr. Shiraj.
15.1 PW24 ASI Guman Singh being the MHC(M) on 04.07.2014, he made entry in register No. 19 at serial No. 3144 which is Ex. PW24/1 with regard to deposition of 15 sealed pullandas by Inspector Radhey Shyam and entry at serial No. 3145 which is Ex. PW24/2 with regard to deposition of 3 sealed SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 9/77 FIR No. 524/2014 PS Jahangir Puri pullandas alongwith 3 sample seals by ASI Ram Chander. He also made entry at serial No. 3146 which is Ex. PW24/3 in register No. 19 with regard to deposition of one sealed envelope and one sample seal by Inspector Radhey Shyam.
15.2 On 22.07.2014, he further made entry in register No. 19 at serial No. 3176 which is Ex. PW24/4 with regard to deposition of two sealed pullandas alongwith two sample seals by Inspector Radhey Shyam.
15.3 On 24.07.2014, he sent 19 sealed pullandas, one sealed envelope and one sample seal to FSL, Rohini through Ct. Vinayak vide RC No. 134/21/14, 135/21/14 and 136/21/14 which are Ex. PW24/5, Ex. PW24/6 and Ex. PW24/7 respectively and acknowledgment thereof is Ex. PW24/8.
16.1 PW25 Dr. Deepak, exhibited MLC No. 81301 dated 04.07.2014 of Mahender as Ex. PW25/1 prepared by Dr. Rajesh and MLC No. 80899 dated 04.07.2014 of patient Mukesh as Ex. PW25/2 prepared by Dr. Chhitiz.
16.2 He was again examined and he exhibited MLC No. 81070 dated 04.07.2014 of patient Sanjay as Ex. PW25/1, MLC No. 81071 dated 04.07.2014 of patient Happy as Ex. PW25/2, MLC No. 81069 dated 04.07.2014 of patient Rishi Pal as Ex. PW25/3. All three patients were examined by Dr. Shahbad A. Khan under the guidance of Dr. Vaibhav Gulati. He also exhibited MLC No. 80992 dated 04.07.2014 of patient Deepak @ Monu as Ex. PW25/4 prepared by Dr. Vaibhav Gulati.
17. PW26 Sushil deposed that on 06.07.2014 he used to work as sweeper and on the instructions of IO Inspector Radhey SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 10/77 FIR No. 524/2014 PS Jahangir Puri Shyam, he reached at House No. EE-2683 where accused Sanjay was in custody of HC Brij Bhushan and Ct. Birbal. He further deposed that on the instructions of IO, he made efforts to search the knife in the nala but it could not be traced. He further deposed that the said place was pointed out by accused Sanjay also but same remained untraceable in the nala and memo regarding the adam baramadgi of knife was prepared by IO.
18. PW29 L. Babyto Devi, Assistant Director, FSL, Rohini deposed that on 24.07.2014, 20 sealed parcels were received in FSL. He analyzed and examined the parcels and prepared his report which is Ex. PW29/A. He further deposed that DNA profile generated from the source of exhibit '2' are matching with DNA profile generated from the source of exhibits '1a', '1b' and 17. However DNA profile generated from the source of exhibit '15' are matching with DNA profile generated from the source of exhibit '20'.
19. PW31 Surabhi deposed that SIM card No. 9717676759 was never used by her and it was also not got issued by her and she did not know who had got the above said SIM card issued in her name.
MATERIAL WITNESSES 20.1 PW2 Bimla deposed that on 01.07.2014 at about 10:00 PM, her son Deepak came to house from the house of his maternal aunt (bua) and brought a female dog and after having dinner, her son went to his bed.
20.2 She further deposed that on next day i.e., 02.07.2014 at about 11:00 AM her son left the house for his duty as he used to work as driver in Model Town and came back at about 10:00 SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 11/77 FIR No. 524/2014 PS Jahangir Puri PM. She further deposed that after taking dinner, her son Deepak went outside with female dog for strolling in the park in front of their house. She stated that accused Sanjay, who is residing in front of their house, was sitting in the park with his friends in front of their house. She stated that accused Sanjay was also having a dog with him in the park. She stated that the female dog and the male dog of accused Sanjay barked upon each other in the park and on this accused Sanjay took out the belt and hit the female dog. She further deposed that accused Sanjay and her son Deepak quarreled with each other and Deepak slapped Sanjay. She stated that on this, accused Sanjay threatened her son that if Deepak and female dog were ever seen in the park, he would kill Deepak as well as female dog. Her son came back to house and narrated the incident to her. She advised him that he should not talk with such type of persons and she would talk to accused Sanjay and his family members.
20.3 She further deposed that on 03.07.2014, her son Deepak left for his duty at about 11:00 AM and when her son was coming home after performing duty and reached near MCD Flat, he was tried to be stopped by accused Sanjay, Nata, Bhupesh and others, however, Deepak escaped from there as he was on motorcycle and reached home. Deepak narrated the incident to her and she further conveyed to her husband, who accompanied her to the house of accused Sanjay. She further deposed that at about 10:00-10:30 PM, she alongwith her husband reached at the house of accused Sanjay, who was sitting on a cot and an iron rod was lying on the said cot under the bed sheet. She further deposed that accused Sanjay used to sell liquor and at that time when they were talking to accused Sanjay some boxes of liquor were lying under the said cot. She further deposed that she requested Sanjay with folded hands and apologized on behalf of SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 12/77 FIR No. 524/2014 PS Jahangir Puri her son and told him that fighting with each other is not good as they were living in the same locality (mohalla). Accused Sanjay assured her that there was no such issue and asked her to go back.
20.4 She further deposed that Happy (son of Dhrop) alongwith Mahender (her real brother) came to their house for inviting them to attend the function of chhati. She further deposed that as Happy and Mahender came to their house in the night hours, she requested them to say at her house in the night. She further stated that during night hours on 03.07.2014 somebody started pelting bricks and stones on their door. They woke up after hearing the noise. She further deposed that when they opened the door, all accused were present in front of the door. She alongwith her son Deepak, Mahender, Happy and her husband came outside their house and her daughter in law Pooja and other family members remained inside the house as they bolted the door of staircase which was heading to first floor. 20.5 She further deposed that when they all reached in the gali outside their house, accused Sanjay gave knife blow on the head of Deepak. She further deposed that her brother in law (devar) Rishipal, who was residing in neighbourhood also came out of his house after hearing the noise. When Rishipal intervened, accused Ravi caught hold of him and accused Sanjay stabbed him in his right side chest. She further deposed that accused Mukesh gave blows of iron rod on the head and face of Happy and accused Nata pelted bricks and stones on them and said "in salo ko jaan se maar do, yeh bachne na paye". 20.6 She further deposed that Mahender sustained injuries on his hand and her husband sustained injury which was caused by sword. She further deposed that her daughter Deepika made a call to the police at number 100. Rishipal was lying on SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 13/77 FIR No. 524/2014 PS Jahangir Puri the ground. She put cloth on the head of Deepak in order to stop the bleeding. She further deposed that PCR came at the spot and took Rishipal, Deepak, Happy and Mahender to BJRM Hospital. She alongwith other relatives also reached at hospital. Police reached at the spot and recorded her statement which is Ex. PW2/A. 20.7 During cross examination done on behalf of accused persons, she stated that prior to the incident, there was no quarrel between his family and family of accused. She further stated that on 01.07.2014, female dog did not sustain much injury as the dog was beaten with belt by accused Sanjay and they did not file any complaint against accused Sanjay. She stated that she did not file complaint with the police on 03.07.2014 when her son was tried to be stopped by the accused persons.
20.8 She stated that accused persons pelted the stones on the door of ground floor and after hearing the noise, she alongwith her husband and other family members came out on the main door of the house, however, she could not specify the name of the person, who first came out. She stated that the gate was opened by her husband and she saw that accused persons were standing outside the house carrying stones in their hands. 20.9 She stated that no stone hit her because the door was opened when the accused persons had already pelted the stones. She further stated that they had not seen accused pelting stones on the door of their house. Public persons/labourer also gathered at the spot. Neighbours were watching from the roof of their houses and did not intervene to save them. She further stated that when they opened the door, accused persons retreated and thereafter, they attack her son.
20.10 First of all, her son Deepak was stabbed on his head by accused Sanjay. She stated that her clothes were also stained SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 14/77 FIR No. 524/2014 PS Jahangir Puri with blood, however, police did not seize them. She further stated that police reached at the spot after 5 minutes of making call at number 100. Rishipal was breathing when he was shifted from the spot.
20.11 She denied all the suggestions put by ld. Defence counsel. She further denied that on 03.07.2014 at about 10:00 PM, her son with Happy and 4-5 other boys consumed liquor in the park and thereafter, they reached the house of accused Sanjay. She further denied that Deepak broke one liquor bottle on the railing of the park near the house of accused Sanjay and at that time accused Sanjay was standing on the door of his house and Deepak threatened him that they would kill accused Sanjay in the morning.
20.12 She denied that at about 03:00 AM, Deepak, Happy, Mahender, her husband and 3-4 boys started pelting stones on the house of accused Sanjay and on hearing the sound of pelting stones, all accused persons came out from house and Deepak attacked Sanjay and Mukesh with knife. She further denied that Rishipal tried to stop Deepak and knife of Deepak hit Rishipal. She further denied that Mahender also tried to stop Deepak and in that process, Deepak sustained injury with his own knife and Happy also sustained injury in that process. She denied that she went to the house of accused Sanjay in the night of 03.07.2014 to stop her son Deepak and Deepak threatened Sanjay in her presence.
21.1 PW3 Karambir deposed on the lines of PW2 Bimla in his examination in chief.
21.2 In addition, he deposed that he alongwith police officials reached at the place of occurrence and pointed out the SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 15/77 FIR No. 524/2014 PS Jahangir Puri place where the offence was committed and site plan was prepared at his instance which is Ex. PW3/A. He further deposed that blood was lifted from near the wall of the park with the help of cotton, blood stained earth control and plain earth were broken with the help of hammer and chheni and seized vide seizure memo which is Ex. PW3/B. He further deposed that near the wall of the park, blood stained cemented floor and plain cemented floor were seized vide seizure memo which is Ex. PW3/C. Near the pole No. 42 at the corner of small park, blood was lifted with the help of cotton, earth stained with blood and earth control was also lifted and seized vide seizure memo which is Ex. PW3/D. 21.3 He further deposed that in front of house No. 2846 from the floor of the house, blood was lifted with the help of cotton, blood stained earth control and plain earth were also lifted and same were seized vide seizure memo which is Ex. PW3/E. Blood stained handkerchief used to stop blood which was oozing out from the head of Deepak vide seizure memo which is Ex. PW3/F. He further deposed that near the wall of the park in front of H. No. EE-2656, one slipper (chappal) of white and green colour was seized vide seizure memo which is Ex. PW3/G. Stones and pieces of brick which were lying in the street from H. No. EE-2656 to H. No. EE-2655 were seized vide seizure memo which is Ex. PW3/H. 21.4 He further deposed that he alongwith other relatives went to BJRM Hospital where Mahender Singh and Surender Singh identified the dead body of Rishi Pal, who was his brother and after postmortem dead body was handed over to his relatives. 21.5 He further deposed that in the evening hours of 04.07.2014, he went to police statement where accused Sanjay was arrested vide arrest memo which is Ex. PW3/J and conducted his personal search vide personal search memo which SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 16/77 FIR No. 524/2014 PS Jahangir Puri is Ex. PW3/K. He further deposed that accused Mukesh was arrested vide arrest memo which is Ex. PW3/L and conducted his personal search vide personal search memo which is Ex. PW3/M. He further deposed that he alongwith both the accused persons, IO and other police officials left the police station and reached in the gali as accused Mukesh led them to temple which was situated near the house of accused Mukesh. He further deposed that accused led them to the roof of the Mandir where he produced blood stained iron rod which was seized vide seizure memo which is Ex. PW3/N. 21.6 He correctly identified and exhibited case properties i.e., handkerchief as Ex. P1, slipper (chappal) as Ex. P2, piece of bricks as Ex. P3 (colly) and iron rod as Ex. P4. 21.7 During cross examination done on behalf of accused persons, he stated that his family and family members of Rishi Pal had no quarrel with accused and his family members prior to the incident. He stated that there was no injury mark on the female dog. He stated that Deepak did not tell him that accused Sanjay gave beatings to female dog. He stated that his son Deepak informed him and his wife that he was stopped near MCD flats. They went to house of accused Sanjay at about 10:00-11:00 PM and accused Sanjay and Mukesh were standing outside his house and accused Sanjay and Nata were sitting on the cot.
21.8 He further stated that when he saw accused Sanjay, he was not carrying any weapon in his hand and when they went to the house of accused, Mukesh was carrying iron rod in his hand and at that time, accused Mukesh did not extend any threat to them. He stated that he did not see accused persons pelting stones on their house and when they opened the door, they saw accused persons standing outside their house carrying stones in SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 17/77 FIR No. 524/2014 PS Jahangir Puri their hands. He further stated that his younger son Ritik was sleeping in the house when he alongwith his family members came outside the house. Ritik followed them and also came out of the house and no beatings were given to Ritik by any of the accused. He further stated that when Ritik came outside the house, the quarrel was going on. As soon as Deepak came out of the house, accused Sanjay gave a knife blow on his head. 21.9 He further stated that after giving knife blow to Deepak, he was taken near the house of his brother Rishipal. He further stated that when his son Deepak as taken by accused persons near the house of Rishipal, they followed them. Other members of their family were given beatings and caused injury near the house of Rishipal. He stated that accused Sanjay gave one knife blow only on the head of Deepak. He could not notice, if the accused persons were carrying stones in both of their hands or not when they came outside their house.
21.10 He further stated that accused persons were carrying iron rods, knife, hockey in their hands when Deepak was taken to near the house of Rishi Pal. Accused persons also carrying sword in their hands. He stated that the incident of quarrel continued upto 10 minutes and his daughter Deepika made a call to the police at 100 number at about 03:00-04:00 AM. He further stated that immediately on the start of quarrel, Rishipal came out from his house. Accused Mukesh was having sword in his hand, however he did not inform the police that accused Mukesh was carrying sword and informed the police that accused Ravi caught the hands of Rishipal from his back. He could not specify the name of accused, who caused injury to him and by which weapon, however, accused persons caused injury to him. 21.11 He further stated that Natta exhorted the words "maaro salo ko chhodna nahi inka kaam tamam kar do " while SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 18/77 FIR No. 524/2014 PS Jahangir Puri they were assaulting Rishipal. Accused Natta hit Mahender with the stone after exhorting. He further stated that he came to know in the hospital that accused Sanjay and Mukesh also sustained injuries. As soon as the quarrel was over, police reached the spot. He stated that accused Mukesh and Sanjay were apprehended by the police from BJRM Hospital. He denied all the suggestions put forth by Ld. Counsel for accused persons.
22.1 PW9 Deepak deposed that on 01.07.2014, he brought a female dog from the house of his aunt ( bua) Droup. He further deposed that on 02.07.2014, he went outside his house with female dog for a stroll in the park which was situated in front of his house. He further deposed that at about 10:00-11:00 PM, when he was strolling in the park with a female dog, accused persons Ravi, Mukesh, Nata and Sanjay were consuming liquor and their pet was with them. All the accused persons were sitting on the wall of the park.
22.2 He further deposed that the dog of accused persons started barking on his female dog and both caught each other. Accused Sanjay pulled out a belt from his pants and started giving beatings to the female dog. He further deposed that when he objected for the same, accused Sanjay threatened him " aaj ke baad teri kutia or tu park mai dikhai diya to jaan se maar denge and thereafter, he alongwith female dog left for his house. 22.3 He further deposed that on 03.07.2014 after performing duties and he was approaching his house and when he reached near MCD flats at about 10:30 PM, accused persons stopped him on the way and started manhandling him. He escaped and rushed to his house and informed these facts to his parents, who went to the house of accused persons for complaining their behaviour. He further deposed that his parents SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 19/77 FIR No. 524/2014 PS Jahangir Puri came back to their house. His cousin Happy (son of his bua) visited their house for inviting them for chhati puja of his son and his maternal uncle Mahender was also present at their house. He further deposed that due to late hours, his cousin Happy and uncle Mahender stayed at their house for that night. 22.4 He further deposed that on the same night at about 02:30-03:00 AM, he heard noise of stone pelting. He came out of his house followed by his family members. He further deposed that as soon as he came out from his house, accused Sanjay stabbed on his head with knife, accused Mukesh hit iron rod on the face of his cousin Happy. He further deposed that after hearing noise of quarrel, his uncle Rishi Pal came out of his house and intervened to save them. Accused Ravi caught hold hands of his uncle from back and accused Sanjay gave a blow of knife in the chest of his uncle Rishi Pal. He further deposed that accused Sachin @ Nata was exhorting " maaro salo ko aaj inka kaam tamam ker do". At the same time, PCR van reached there and shifted Rishi Pal, Happy, accused Sanjay and Mukesh to BJRM Hospital.
22.5 During cross examination done on behalf of accused persons, he stated that he did not complain to the parents and elders of accused persons and to his parents immediately after the beatings given to female dog. He stated that except accused Sanjay, none of the accused said anything to him at that time. He stated that he did not have any previous enmity with any of the accused persons. He stated that no complaint had been lodged with the police about the incident of 02.07.2014 or regarding the hathapai incident of 03.07.2014. He stated that his parents had gone to house of Sanjay between 10:00-11:00 PM and returned back in 1-1.5 hours and they did not inform him regarding talks they had with Sanjay etc. SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 20/77 FIR No. 524/2014 PS Jahangir Puri 22.6 He denied that on the night of 03.07.2014 and 04.07.2014, he, Mahender, Happy and 3-4 boys consumed liquor in first floor of his house. He denied that Mahender and Happy had been asked to stay back as they had consumed lot of liquor. He further denied that he stopped Mahender, Happy and others in pursuance of a conspiracy to attack Sanjay and others. 22.7 He stated that he had not seen any of the accused persons pelting stones on his house. He opened the door of the house. He further stated that he was alone at that time and Mahender and Happy followed him on hearing noise. He further stated that except Sachin, none of the other accused spoke anything at that time. He could not say as to what weapons had been seen by him by each of the accused persons when he saw them for the first time after opening the door. He denied that pieces of stones and bricks kept lying in the gali. He stated that immediately he came out of the house, accused Sanjay gave one stab blow with knife on his head and he had not been stabbed anywhere else. He further stated that he had not become unconscious immediately after receiving the stab blow on his head. He stated that police reached at the spot about 5-7 minutes after he was stabbed and none of the other neighbours intervened in the quarrel.
22.8 He further stated that his mama Mahender received injury during stone pelting. Police seized piece of stones and bricks from gali in his presence. He stated that he had not observed any sword or hockey stick in hands of any of the accused. As he had no knowledge, he could not say if accused Sanjay and Mukesh also received injuries during the incident. He stated that one rod was recovered by the police in his presence. He denied all the suggestions put forth on behalf of accused.
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 21/77FIR No. 524/2014 PS Jahangir Puri 23.1 PW10 Surender Singh deposed that on 04.07.2016
during night time when he was sleeping in his house, on hearing noise from outside he went to the house of cousin brother Karambir and saw stones lying on road there. PCR van was there. He further deposed that he saw two persons sitting in the van and three were lying in the van. He further deposed that Rishipal, Deepak and his nephew (bhanja), whose name he does not know, were lying there in the van. He saw Deepak in an injured condition there and he was bleeding. He further deposed that his brother Rishipal was bleeding from chest and his nephew (bhanja) had injury on his jaw and head. On reaching the hospital, doctor declared Rishipal as dead. 23.2 He was cross examined by ld. Addl. PP for the State wherein he stated that he heard noise at about 03:30 AM. He stated that house of his cousin was in 2600 wali gali and name of his nephew (bhanja) was Happy. He further stated that he identified dead body of Rishipal in hospital vide his statement which is Ex. PW10/1 and received the dead body after postmortem vide receipt which is Ex. PW10/2. 23.3 During cross examination done on behalf of accused persons, he stated that he heard noise of public in the gali, who were claiming jhagra ho gaya-jhagra ho gaya. He stated that he reached the spot within five minutes after coming out of his house. He stated that stones were lying on road from house No. 2661 till park in 2600 wali gali and there were 5-7 houses between 2661 and the park. He stated that he knew accused persons but they were not on visiting terms and he had no knowledge if they had any enmity with Deepak. He stated that as he had not observed, if accused Sanjay and Mukesh were the two boys, who were sitting in the PCR van and that they too were injured. He stated that as door of the PCR van was lying closed, SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 22/77 FIR No. 524/2014 PS Jahangir Puri he could not say whether or not Rishipal was breathing when he first saw him in the van. He did not have any talk with Deepak and Happy while they were lying in the van.
24.1 PW11 Deepu deposed that on 01.07.2014 her elder brother Deepak brought home a dog. She further deposed that on 03.07.2014 at about 03:00 AM his neighbours i.e., accused Sanjay, Ravi, Mukesh and their friend Nata started pelting stones on their houses. She further deposed that her brother Deepak opened the door to see as to what was happening. Sanjay was having a knife in his hand and Mukesh had an iron rod. She further deposed that her cousin Happy was also present in their house at that time. She stated that Sanjay hit the knife on head of her brother Deepak while Mukesh hit Happy with the iron rod. She further deposed that on hearing noise, her uncle (chacha) Rishipal, who lived in the neighbourhood also came there. Accused Ravi caught hold of his hands whereas accused Sanjay stabbed him on his chest and Nata was exhorting "maro salo ko, inka kam tamam kar do."
24.2 She further deposed that she was carrying mobile phone of Happy with her and on seeing all this, she called up number 100. She stated that her uncle (mama), who was also present in their house as well as her father received injury during course of stone pelting by the accused. She further deposed that all the injured were taken to BJRM Hospital by other family members and her uncle (chacha) Rishipal was declared brought dead in hospital.
24.3 She was cross examined by Ld. Addl. PP for the State wherein she stated that on 02.07.2014, when Deepak took the dog for a walk in the park, a quarrel took place between Deepak and Sanjay. She denied that any altercation took place SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 23/77 FIR No. 524/2014 PS Jahangir Puri between Deepak and Sanjay during day time, near MCD Flats, Jahangir Puri. She further denied that on the intervening night of 3rd and 4th July, 2014, her uncle (mama) Mahender and her cousin Happy were over staying in their house. She denied that incident took place in the morning of 04.07.2014 and not in the morning of 03.07.2014. She stated that while Nata was exhorting others, at the same time, he was also pelting stones on their house. 24.4 During cross examination done on behalf of accused persons, she stated that she stated that no quarrel took place about a week or 10 days prior to 03.07.2014 between anyone from his family and any of the accused persons. She stated that they were awake at the time of incident i.e., around 03:00 AM on 03.07.2014. She denied that Happy, Mahender and Rishipal had been called at their house by her brother Deepak on that day and at the time of incident, all were drinking in their house. She stated that she knew that it were the accused persons, who were pelting stones at their house as she had seen them doing so and all four of them were pelting stones. She further stated that on opening the door, Deepak went out first of all and they did not call the police at that stage. She stated that 2-3 days prior to the incident, accused Sanjay hit their dog with a belt in the park and an oral altercation took place between Deepak and Sanjay at that time.
24.5 She denied that on the day of incident, Deepak called Happy and Mahender in order to teach Sanjay a lesson. She denied that while returning home from his office on previous night, Deepak uttered foul words to accused persons. She stated that as she had no knowledge, she could not say, if any of the accused also suffered any injury at the time of incident. She stated that she did not remember mobile number of Happy from which she made the call. She denied that during course of SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 24/77 FIR No. 524/2014 PS Jahangir Puri incident it was Deepak, who had brought a knife and he received injuries from his own hands. She stated that Deepak received injury from the knife in the hands of accused Sanjay and not from any stone or due to having fallen down. She denied that she informed police that Sanjay was having a rod in his hand at the time of incident.
25.1 PW14 Happy deposed that on 03.07.2014, he had gone to Jahangir Puri to the house of Karamvir, who was his muhbola mama for inviting him and his family on the occasion of Chhati of his newly born son. He further deposed that he reached at the house of Karamvir at about 08:00 PM and when he was talking with family members of his mama, Deepak told him that on 02.07.2014, he had a quarrel with Sanjay, who was residing in front of his house, over the issue of dogs. He further deposed that he went to his mama's house on motorcycle and when he thought of returning from there, he found that one of its tyres was punctured, so he had to stay there.
25.2 He further deposed that at about 11:00-11:30 PM, he heard some sound of stone pelting from outside. His mama Karamvir came out of his house and he also followed him. A lot of crowd had gathered outside house of his mama and some "jhagra" was going on. He further deposed that Deepak also came outside and someone from the crowd hit Deepak with a danda and Deepak started bleeding. He further deposed that he tried to intervene and in the process someone also hit him on his face. Due to the injuries, he became unconscious. 25.3 He was cross examined by Ld. Addl. PP for the State wherein he stated that police never made any inquiry from him nor his statement was recorded in connection with the investigation of this case. He stated that he had sustained injuries SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 25/77 FIR No. 524/2014 PS Jahangir Puri during the quarrel as someone had hit him, however, he had never gone to police to make any complaint so that suitable action could have been taken against the culprits. He denied that during the talks Deepak told him that even on 03.07.2014, while he was returning from his job, Sanjay, his brother Mukesh alongwith their friends had tried to restrain him near MCD Flats though he managed to escape from there clutches. 25.4 He stated that one Mahender, Mama of Deepak, also came to his house on that day and stayed there overnight. He could not say as to whether stone pelting at the house of his mama Karamvir started at around 03:00 AM. He stated that on 03.07.2014, he visited at his mama's house for the first time. He denied that accused persons were well known to him even prior to the present case incident as accused Sanjay, Mukesh and Ravi used to reside in front of his mama's house and accused Nata used to frequently visit their house. He denied that when he alongwith family members of Karamvir came outside, the saw all the four accused persons standing outside the house and accused Sanjay having a knife in his hand and accused Mukesh was having a rod in his hand. He further denied that as soon as he and family members came outside, accused Sanjay inflicted a stab injury on the head of his cousin Deepak and accused Mukesh hit him on his head with a rod.
25.5 He further denied that he heard accused Nata saying 'maaro saalo ko, aaj inka kaam tamam kar do". He stated that he did not remember whether another mama Rishipal also came at the spot and tried to intervene, however, he denied that he had seen Rishi Pal intervening in the quarrel and accused Ravi caught hold of Rishipal and accused Sanjay stabbed Rishipal in his chest. He further denied that accused Nata was hitting them with bricks and stone pieces. He further denied that on 05.07.2014 SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 26/77 FIR No. 524/2014 PS Jahangir Puri when he was present at the house of Karamvir, police met him and recorded his statement.
25.6 During cross examination done on behalf of accused persons, he stated that Deepak told him that on 02.07.2014, only kaha suni happened between him and Sanjay and no Hatha Pai had happened. He stated that Deepak consumed liquor on the night of 03.07.2014 but not with him. Stones pieces were lying scattered throughout the gali and not only in front of house of his mama. He stated that when he and Deepak came outside of the house after hearing noise, quarrel was already going on. He stated that family of his mama was not involved in the said quarrel. When he and Deepak came outside one of the accused persons were present there and crowd consisted of around 15-16 persons and quarrel was taking place among them. He stated that he had not seen Deepu and Bimla outside the house when the quarrel was taking place. He stated that Deepak never told him that he was having any enmity with Sanjay and his family members.
26.1 PW17 Mahender Singh deposed that in 3rd or 4th month of year 2014 when one day he was present at his home, he received a telephone call from his nephew ( bhanja) Happy, who invited him at his house as he recently blessed with a male child and asked him to come to his house as he organized a little party. He further deposed that he reached at Happy's house at around 08:00-08:30 PM. He reached his sister Bimla's house, who offered him food and sweets. He further deposed that when he was having food, some noise erupted outside and it was felt that someone had thrown stones at the door of house of his sister. He stood up and tried to see outside. He further deposed that when they opened the door and came outside, they noticed that there SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 27/77 FIR No. 524/2014 PS Jahangir Puri was much halla gulla in the gali. He took some steps forward and saw that a lot of crowd including gents and ladies was doing shor sharaba.
26.2 He further deposed that Rishipal, brother in law (devar) of his sister Bimal was residing some houses away and he felt apprehended whether the quarrel was with Rishipal and he started moving towards the house of Rishipal. He further deposed that when he was going towards the house of Rishipal, someone hit him with a stone on his left hand. His brother in law ( jija) Karamvir asked him to go to hospital as he sustained injuries and accordingly, he left for hospital. He further deposed that after receiving medical treatment, he came out of the ward and saw that his sister Bimla, his nephew ( bhanja) Happy and Monu were lying on beds in the hospital. He further deposed that his sister Bimla told him that injuries had been caused to Rishipal. 26.3 He was cross examined by Ld. Addl. PP for the State wherein he stated that police never made any interrogations from him nor his statement had been recorded during investigation of this case. He stated that the present incident occurred on the intervening night of 03rd and 4th July, 2014 and in the evening hours of 03.07.2014, he went to house of his sister. 26.4 He denied that when he reached house of his sister, his sister Bimla was not found present there. He further denied that after some time when Bimla returned, she told that on 02.07.2014, his nephew (bhanja) had some quarrel with his neighour Sanjay on the issue of dogs and accused Sanjay threatened to kill Deepak and she had gone to the house of Sanjay alongwith her husband Karamvir for tendering apology to settle the matter.
26.5 He stated that incident had occurred at around 03:00 AM and stone pelting took place at the house of his sister. He SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 28/77 FIR No. 524/2014 PS Jahangir Puri stated that after they heard the sounds of stone pelting, he, his sister Bimla, his brother in law Karamvir, his nephew Deepak and Happy (nephew of Karamvir), came out of house. He denied that when they opened the door of house, they saw that accused Sanjay, Mukesh and Ravi, who all are real brothers and reside in the neighbourhood of his sister, were standing outside the gate of his sister. He denied that he saw that Sanjay was having a knife in his hand whereas accused Mukesh was having an iron rod in his hand. He further denied that as soon as they came out of house, accused Sanjay inflicted a knife injury on the head of Deepak and accused Mukesh hit Happy on his head with iron rod. He further denied that Rishipal came out of his house and tried to intervene and he saw that accused Ravi had caught hold of Rishipal and accused Sanjay stabbed Rishipal in his chest and due to the injuries, Rishipal and Deepak fell on the ground. 26.6 He further denied that accused Nata instigated other culprits saying that 'maro salo ko, aaj in sabka kam tamam kar do'. He further denied that while instigating other culprits, accused Nata kept on pelting stones and he had sustained injuries due to the stone pelted by accused Nata. He further stated that injuries had been caused to accused Sanjay and Mukesh in the scuffle. Police van reached at the spot and took the injured persons to hospital. He further stated that Rishpal was declared dead by the doctors at the hospital and he identified the dead body of Rishipal in the mortuary.
26.7 His examination was deferred as he was not able to see from one eye and unable to see properly. He was again summoned by the court, however, summons could not be served upon him being untraceable and therefore, he could not be cross examined by the accused persons. Hence, his testimony, though hostile, cannot be read in evidence by the court.
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 29/77FIR No. 524/2014 PS Jahangir Puri WITNESSES OF INVESTIGATION 27.1 PW12 Ct. Gyanender deposed that in the intervening
night of 3-4.07.2014 when he was on emergency duty alongwith ASI Ram Chander. At about 04:00 AM, a PCR call regarding some quarrel at EE-2661, Jahangir Puri had been received in the police station. He further deposed that on receipt of call he alongwith ASI Ram Chander immediately reached at the spot where he came to know that injured had been taken to BJRM Hospital by PCR staff. He further deposed that they had noticed pieces of bricks, stones and blood scattered at a number of places including in front of H. No. 2656, 2661, 2657, 2846, near the wall of park and near electric pole No. 42. One blood stained white colour handkerchief and one slipper (chappal) of white colour and one slipper (chappal) of green colour were also found lying at the spot.
27.2 He further deposed that ASI Ram Chander made local inquiries and in the meantime, Ct. Vinayak and Ct. Rajender reached at the spot, who were directed by ASI Ram Chander to take care of the spot and he alongwith ASI Ram Chander went to BJRM Hospital where 4-5 injured persons were found admitted and one of them namely Rishipal had been declared dead by the doctors. He further deposed that ASI Ram Chander collected MLCs of injured persons. IO Inspector Radhey Shyam also reached at the hospital alongwith SHO PS Jahangir Puri and concerned doctors handed over three sealed pullandas containing clothes of injured/deceased alongwith sample seals which were seized by ASI Ram Chander vide seizure memos which are Ex. PW12/1, Ex. PW12/2 and Ex. PW12/3. He further deposed that one lady Bimla was also present in the hospital and ASI Ram Chander recorded her SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 30/77 FIR No. 524/2014 PS Jahangir Puri statement and prepared rukka and handed over to Ct. Suresh for registration of FIR. He further deposed that injured Mahender and Karambir, who had been brought to hospital by Ct. Jung Bahadur, were also got medically examined.
27.3 He further deposed that ASI Ram Chander handed over a written request to him for shifting the dead body to mortuary and accordingly, he got shifted the dead body at mortuary and got it preserved there.
27.4 He further deposed that on 04.07.2014 at about 02:00 PM, IO Inspector Radhey Shyam came to mortuary, where dead body had been got identified. IO prepared inquest papers and postmortem on the dead body was got conducted and after postmortem, dead body was handed over to one Surender. He further deposed that doctors conducting postmortem handed over to him one pullanda containing clothes of deceased, one envelope containing blood sample of deceased alongwith sample seal and he handed over the same to IO in the hospital itself, who seized the same vide seizure memo which is Ex. PW12/4. 27.5 He was cross examined on 05.06.2017 as PW32 wherein he stated that in his presence, IO did not examine any public eye witness though public persons were present at a distance. He stated that the park was in front of H. No. EE-2656 where the pieces of stone and bricks were lying. He stated that the spot was not photographed in his presence and no material/exhibit was seized at the spot in his presence, however, parcels handed over to IO at the hospital were seized in his presence. He stated that when they reached at hospital, they found injured Sanjay, Ravi, Mukesh, Rishipal and Happy admitted in injured condition. He stated that when they reached at the hospital, injured Rishipal had already been declared dead.
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 31/77FIR No. 524/2014 PS Jahangir Puri 28.1 PW16 Ct. Vinayak deposed that on 04.07.2014, at
about 04:15 AM on the instructions of duty officer, he alongwith Ct. Rajinder reached in front of H. No. EE-2661, Jahangir Puri and found blood was spread there at number of places and pieces of brick and stones were lying there. Blood stained white colour handkerchief and a slipper (chappal) were also lying there and ASI Ram Chander and Ct. Gyanender were already present there. He further deposed that ASI Ram Chander instructed him and Ct. Rajinder to take care the spot and he himself alognwith Ct. Gyanender left for BJRM Hospital.
28.2 He further deposed that at about 05:10 AM, IO Inspector Radhey Shyam also reached there and at about 05:15 AM crime team reached at the spot and inspected the spot and took the photographs of the spot. One public witness namely Karambir also present there and he showed the place of occurrence to IO and IO prepared the site plan at his instance. 28.3 He further deposed that in the meantime, Ct. Suresh reached at the spot alongwith copy of FIR and original tehrir and handed over the same to IO. IO lifted exhibits i.e., blood lying near the wall of the park, blood stained pieces of floor, earth control from the spot and same were seized. IO also lifted exhibits from near the wall of park in front of H. No. EE-2656 i.e., blood stained piece of cemented floor, earth control, exhibits i.e., blood lying near pole No. 42, blood stained piece of floor, earth control were lifted from near the wall of smaller park in front of H. No. EE-2655. Exhibits i.e., blood lying on the floor in front of house No. EE-2846, blood stained floor pieces and earth control were lifted. All the exhibits were sealed and seized. 28.4 He further deposed that blood stained handkerchief, slipper (chappal) white and green colour, piece of bricks and stones lying in the gali were seized. He further deposed seal after SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 32/77 FIR No. 524/2014 PS Jahangir Puri use was handed over to Ct. Rajender. IO made enquiries from public persons, who gathered at the spot and thereafter, they returned to police station alongwith case property and deposited the same in malkhana by the IO.
28.5 He further deposed that accused Mukesh and Sanjay were taken into custody and were brought to police station. IO made interrogation from accused Mukesh and Sanjay separately. He further deposed that after interrogation, accused Mukesh and Sanjay were arrested, their personal search was conducted and their disclosure statements were recorded. He exhibited disclosure statement of accused Mukesh as Ex. PW16/1. 28.6 He further deposed that thereafter, accused Sanjay and Mukesh led the police team to place of occurrence and pointed out the place of occurrence vide pointing out memo which is Ex. PW16/2. He further deposed that accused Mukesh led them to temple constructed in the park and from the roof of the said temple, he got recovered an iron rod stating that he used the said in the incident. The said iron rod was seized after sealing the same. He further deposed that efforts were made to recover the knife used by accused Sanjay in the commission of offence but same could not be recovered. Efforts were also made to trace out accused persons namely Ravi and Nata but they could not be apprehended.
28.7 He further deposed that on 24.07.2014 as per instructions of IO, he collected 21 sealed pullandas from MHC(M) vide RC NO. 134, 135 and 136/14 and deposited the same in malkhana and handed over the acknowledgement to MHC(M).
28.8 During cross examination done on behalf of accused persons, he stated that when he reached at the spot only ASI Ram Chander and Ct. Gyanender and 2-4 public persons were present SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 33/77 FIR No. 524/2014 PS Jahangir Puri there. He stated that he remained at the spot for about four hours and during these four hours, no weapon was recovered from the spot. He stated that pieces of brick and stones which were collected from the spot, were lying in the entire gali and not only in front of H. No. EE-2661. No piece of brick or stones were recovered from park. He stated that when he reached at the spot none of the accused persons were present there. Accused Mukesh and Sanjay were arrested from their respective houses after treatment on 04.07.2014 at around 07:00 PM, however, he could not tell their house numbers. He stated that statements of Karamvir, Bimla, Deepak, Deepu, Happy and Mahender were recorded by the IO in his presence on the same day at the spot. He stated that iron pipe was recovered in presence of Karamvir and except Karamvir, no other public witness was joined by the IO at the time of recovery. He stated that there was no damage to the gates/doors of H. No. E-2661, 2656, 2655 and 2846.
29.1 PW19 Ct. Birbal deposed that on 04.07.2014 at about 07:50 Am, duty officer HC Sunil Dutt handed over copies of FIR to him with the instructions to deliver the same to Ld. MM and senior police officers. He further deposed that he left PS vide DD No. 11A on government motorcycle bearing registration No. DL 1SN 1263 and delivered the copy of FIR at the residence of Ld. MM, DCP North West, Joint CP and Special CP and returned back to PS at around 11:35 AM and lodged arrival entry vide DD No. 23A.
29.2 He further deposed that on 06.07.2014, he again joined the investigation with IO Inspector Radhey Shyam and on that day accused Sanjay, who was in police custody, was taken to EE Block, Jahangir Puri and in the adjoining areas in search of co-accused Ravi and Nata but they could not be traced. He SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 34/77 FIR No. 524/2014 PS Jahangir Puri further deposed that at that time HC Brij Bhushan was also with them. Thereafter, accused Sanjay led them to nala near H. NO. 2683, EE Block, Jahangir Puri, Delhi and stated that he had thrown the knife used in the offence in the nala. He further deposed that one Sushil Kumar was called and with the help of Sushil Kumar, efforts were made to find out the knife but same could not be traced and pointing out-cum-non-recovery memo was prepared which is Ex. PW19/1.
30.1 PW20 ASI Brij Bhushan deposed on the lines of PW16 Ct. Vinayak and PW19 Ct. Birbal.
30.2 In addition, he deposed that on 22.07.2014 on the directions of IO, he took injured Deepak and Happy to BJRM Hospital, Jahangir Puri to obtain their blood samples. He further deposed that in hospital, their blood samples were taken by concerned doctor and handed over to him. He came back to police station and handed over the blood samples of both the injured to IO, who seized the same vide seizure memo which is Ex. PW20/1.
30.3 He further deposed that on 29.05.2015, he again joined the investigation of the present case alongwith IO/Inspector Radhey Shyam, ASI Som Devi and HC Suresh. Thereafter, they reached at Metro Apartment, Jahangir Puri, Delhi in search of accused Ravi and Nata, who were declared proclaimed offenders. He further deposed that near Metro Apartment, one secret informer met IO and informed that wanted accused persons namely Ravi and Nata were sitting in a park situated in Bhalaswa Village near Outer Ring Road. IO conveyed the information to them and formed a raiding party consisting of aforesaid police officials and requested 3-4 passersby to join the raiding party but none agreed and left without disclosing their SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 35/77 FIR No. 524/2014 PS Jahangir Puri names and addresses. He further deposed that thereafter, raiding party alongwith secret informer reached at aforesaid park where on the pointing out of secret informer, accused Ravi and Sachin @ Nata were overpowered when they were sitting on a bench inside the park. He further deposed that accused Ravi and Sachin @ Nata were arrested vide arrest memos which are Ex. PW20/2 and Ex. PW20/3, their personal search was conducted vide personal search memos which are Ex. PW20/4 and Ex. PW20/5 and their disclosure statements were recorded. He exhibited disclosure statement of accused Ravi as Ex. PW20/6. He further deposed that both the accused persons led raiding party to the place of incident and IO prepared pointing out memo of the place of occurrence which is Ex. PW20/7.
30.4 During cross examination on behalf of accused persons, he stated that after reaching at the place of recovery of iron pipe, 3-4 public persons were requested to join the proceedings. He stated that family members or any relatives of the victims were not present at the time of recovery of iron pipe. He stated that accused Sanjay and Mukesh led to the place of incident where pointing out memo of place of incident was prepared. The distance between the place of incident and place of recovery might have been around 40-50 meters. He stated that at the place of recovery of pipe, 3-4 public persons were requested by IO to join the proceedings but none agreed. He stated that at the time of recovery, he had not noticed any devotee in the temple, however, some public persons were present there. 30.5 He could not recollect as to who had gone to the roof of temple at the time of recovery of iron rod and he saw the iron rod for the first time when it was seized from the roof of temple. He stated that rod was not visible from the ground. No blood sample was lifted from the rod in his presence. He stated that no SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 36/77 FIR No. 524/2014 PS Jahangir Puri police official entered inside the nala to recover the knife, however, one sweeper was called, who had gone inside the nala to search the knife and lot of public persons were present at the nala at the that time.
31.1 PW21 ASI Suresh, being the member of raiding party, deposed on the lines of PW20 ASI Brij Bhushan. He exhibited disclosure statement of accused Sachin @ Nata as Ex. PW21/1.
31.2 During cross examination done on behalf of accused persons, he stated that no public persons had been joined in the proceedings at the time of arrest of accused Ravi and Sachin. Accused Sachin @ Nata was apprehended by him whereas accused Ravi was apprehended by HC Brij Bhushan and accused Sachin was apprehended prior to accused Ravi. He stated that site plan of place of arrest of accused Sachin and Ravi was prepared by the IO. He stated that nothing was recovered during personal search of accused Sachin and Ravi.
32.1 PW27 Ct. Rajender deposed on the lines of PW16 Ct. Vinayak.
32.2 During cross examination done on behalf of accused persons, he stated that he received information through duty officer to join the investigation on that day at about 05:00 AM and he reached the spot within ten minutes. He stated that about 4-5 public persons were also present at the spot at that time and in his presence, IO did not ask the public persons to join the proceedings nor statement of any public witness was recorded by the IO in his presence. He stated that IO did not record statement of any police official at the spot. He stated that crime team reached at the spot at about 05:15 AM. No injured was found at SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 37/77 FIR No. 524/2014 PS Jahangir Puri the spot at that time. He stated that he remained at the spot for about one or one and a half hour. No pieces of bricks were lifted from the said park by the IO.
33.1 PW28 Retd. ASI Ram Chander, being first IO he deposed about the investigation carried out by him and deposed on the lines of PW12 Ct. Gyanender.
33.2 He exhibited rukka as Ex. PW28/A, his request to shift dead body to mortuary as Ex. PW28/B and disclosure statement of accused Sanjay as Ex. PW28/C. 33.3 During cross examination done on behalf of accused persons, he stated that no public person met him at the spot. He stated that he had not made efforts to call any public persons from nearby neighbours. Nobody was found at the spot. He stated that pieces of stone and bricks were lying at the corner of park. He stated that the Mandir from where the iron rod was recovered was situated at the distance of around 50-60 meters from the spot. No family member or any relative of the victim were present at the time of recovery of iron rod.
34.1 PW30 Inspector Radhey Shyam, being the IO in this case deposed about the investigation carried out by him and on the lines of PW12 Ct. Gyanender, PW16 Ct. Vinayak, PW19 Ct. Birbal, PW20 ASI Brij Bhushan, PW21 ASI Suresh, PW27 Ct. Rajender and PW28 Retd. ASI Ram Chander.
34.2 In addition, he stated that he obtained NBW against accused Sachin @ Nata and Ravi and when same could not be executed, he got issued process under section 82/83 CrPC against accused persons. He further deposed that he filed supplementary charge sheet in respect of accused Sachin @ Nata and Ravi as they were arrested after being declared proclaimed offender. He SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 38/77 FIR No. 524/2014 PS Jahangir Puri exhibited identification statement of Mahinder Singh as Ex. PW30/A. 34.3 He was re-examined under section 311 CrPC for further examination on 15.01.2024 and he deposed that on 16.08.2014, he moved an application which is Ex. PW30/A before Hon'ble Court to issue NBW against accused Ravi and Nata and in pursuance of said application, NBWs were issued against accused persons. He further deposed that NBWs could not be executed and he filed the reports before the court which are Ex. PW30/B and Ex. PW30/C. Thereafter, he moved an application before Hon'ble Court for issuance of process under section 82 CrPC which is Ex. PW30/D. He further deposed that he visited house of accused Ravi and recorded statements of Smt. Usha and Deepak, both neighbours of accused Ravi, which are Ex.PW30/E and Ex. PW30/F and filed report in respect of accused Ravi which is Ex. PW30/G. 34.4 He further deposed that he also visited house of accused Sachin @ Nata and recorded statement of landlord Rocky which is Ex. PW30/H and filed report in respect of accused Sachin @ Nata as Ex. PW30/I and both the accused persons were declared as proclaimed offenders vide order dated 09.03.2015.
34.5 During cross examination done on behalf of accused persons, he stated that accused Sanjay and Mukesh were produced before him by ASI Ram Chander in the hospital as they were also present there. He did not know whether accused as well as injured/deceased were taken to hospital in the same PCR van. He stated that accused Sanjay and Mukesh were not under treatment when they were produced by him in the hospital as they had no apparent injury. He stated that he recorded statement of public persons from the vicinity i.e., Vrinda, Karamvir, SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 39/77 FIR No. 524/2014 PS Jahangir Puri Deepak, Kumari Bindu etc. however, he had made enquiries from the neighbours and he had not recorded statement under section 161 CrPC. He denied that statement of independent public persons were not recorded as he never visited the place of incident.
34.6 He stated that rod was recovered on the day of incident which had blood stained however, he could not tell the presence of blood stains on the rod. He stated that initially, he took the accused persons for recovery of rod and later for identification of place of incident. He stated that he had no idea between the place of incident and place of recovery of weapon of offence i.e., rod but both of them were very close to each other. He stated that he did not meet pujari of the mandir or any devotee.
34.7 He could not recollect as to who had gone to the roof of temple at the time of recovery of iron rod. He stated that iron rod was seized by him from the ground floor. He could not tell the name of the police official, who had gone to the roof of temple. He stated that the seizure memo was signed by Ct. Vinayak and HC Brij Bhushan. He stated that priest of the temple was not present at the spot at the time of recovery, however, he did not remember the time of recovery. He stated that none of the public person had joined the investigation at the time of recovery of weapon of offence. He had not prepared the site plan of the place of recovery. No public person joined the investigation at the time of preparation of pointing out memo of the place of incident. He stated that no police official entered into the nala/drain to recover the knife. He denied that no recovery had been effected from accused persons and iron rod was planted upon accused Mukesh and signature of accused persons were obtained on blank papers and printed papers and later on SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 40/77 FIR No. 524/2014 PS Jahangir Puri converted into incriminating documents.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C 35.1 After closure of PE, statement of accused persons under section 313 was recorded on 08.02.2024, wherein they denied all the incriminating evidences put to them. It is stated that PW9 Deepak alongwith his friends used to consume liquor in the park outside house of co-accused Sanjay, Mukesh and Ravi and when co-accused Sanjay used to object to it, an oral altercation took place between co-accused Sanjay and PW9 Deepak many times. On 03.07.2014, PW9 Deepak alongwith PW14 Happy and 3-4 boys consumed liquor in the park and when co-accused Sanjay objected for the same, the issue got escalated. PW9 Deepak broke the liquor bottle using railing of the park and threatened co-accused Sanjay that he would face consequences by morning. PW9 Deepak told co-accused Sanjay that he alongwith his associates had gathered in pursuance of a plan. At about 03:00 AM during night of 03-04.07.2014, PW9 alongwith his associates pelted stones at the door of house of co- accused Sanjay, Mukesh and Ravi. After hearing the commotion, co-accused Sachin woke up and came outside his house which is near to the house of co-accused persons and saw that PW9 Deepak was holding a knife in his hand at that time. As soon as co-accused persons Mukesh and Sanjay opened the door, they all attacked upon them and they both received injuries during the incident.
35.2 When deceased Rishipal (uncle of PW9) intervened, PW9 stabbed him with knife on his chest. Even PW17 Mahender also received injuries with the said knife and PW14 Happy caused injuries on his person of his own to create evidence against us. It is stated that accused persons had not attacked on any person and co-accused Sachin never exhorted anything and SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 41/77 FIR No. 524/2014 PS Jahangir Puri co-accused Ravi never caught hold of deceased Rishipal. Co- accused Mukesh and Sanjay also received injuries during the incident and they made complaint to the police but no action was taken by the police on their complaint.
Accused persons opted not to lead defence evidence.
36. Thereafter, matter was fixed for final arguments.
ARGUMENTS
37. I have heard Ld. Addl. PP for State and Sh. K. S. Verma, Ld. Counsel for accused persons.
ARGUMENTS ON BEHALF OF STATE 38.1 It was argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature. Injured Deepak had brought a female dog to his house. Around 10:00-11:00 PM on 02.07.2014, he took the dog for a stroll to nearby park. Accused Sanjay alongwith accused Ravi, Mukesh and Sachin @ Nata were present there. The dog of accused persons started barking upon the female dog and both dogs started fighting. Accused Sanjay took out his belt and started beating the female dog. When injured Deepak objected for the same, accused Sanjay threatened him for dire consequences.
38.2 On 03.07.2014, all accused persons restrained injured Deepak when he was coming back from his duty around 10:30-11:00 PM but he somehow managed to escape from there. PW Bimla and Karamvir visited the house of accused Sanjay and they were assured that no further incident would take place. In the intervening night of 03-04.07.2014, all accused persons in furtherance of their common intention started pelting stones on the house of injured Deepak and when the door was opened, all SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 42/77 FIR No. 524/2014 PS Jahangir Puri accused persons attacked him.
38.3 Accused Sanjay inflicted injury on the head of injured Deepak with a knife whereas accused Mukesh inflicted an injury on the head of PW14 Happy with the help of a rod. On hearing commotion, uncle of injured Deepak reached there and tried to intervene but accused Ravi caught hold of him and accused Sanjay stabbed him in his chest. Accused Sachin exhorted maaro saalo ko aaj inka kaam tamam kar do . Accused Sachin @ Nata pelted stones and resultantly injured Mahender sustained injuries on his hands. Injured persons were taken to hospital where injured Riushi Pal succumbed to injuries. 38.4 Prosecution has examined, PW2 Bimla, PW3 Karamvir, PW9 Deepak and PW11 Deepu as material witnesses and they have thoroughly supported the case of the prosecution that all accused persons were involved in the incident. During investigation accused Sachin @ Nata and Ravi were declared proclaimed offenders. The investigation process has been duly proved by the police witnesses beyond reasonable doubt. Hence, prosecution has successfully proved its case against the accused persons to the hilt and they are liable to be convicted under section 302/308/323/307/34 IPC. Accused Sachin @ Nata and Ravi also additionally liable to be convicted under section 174-A IPC as they absconded deliberately.
38.5 It was further argued that all the police officials have clearly proved the chain and the manner of investigation and merely because the witnesses are police officials their testimony cannot be disbelieved and for this reliance is placed on the case of Girija Prasad Vs. State of M.P. (2007) 7 SCC 625.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS
39.1 Per contra, Sh. K. S. Verma, ld. Counsel for all
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 43/77
FIR No. 524/2014 PS Jahangir Puri
accused persons argued that prosecution has miserably failed to prove its case against the accused persons. PW2 Bimla, PW3 Karamvir, PW9 Deepak and PW11 Deepu are all family members and hence, interested witnesses. PW14 Happy, who has been examined as an injured and eye witness to the incident has turned hostile. Prosecution also failed to examine PW17 Mahender as his evidence cannot be read being incomplete. No other public person has been examined by the IO from the vicinity despite their availability which reflects that all the material witnesses are unreliable and their version is not corroborated by an independent witness. Moreover, PW14 Happy has given a contradictory statement to the testimony of other allegedly material witnesses.
39.2 The knife allegedly used by accused Sanjay during the incident could not be recovered and hence, there is no opinion by the doctor whether the injuries suffered by PW Deepak and deceased Rishi Pal could have been inflicted by a knife or not. It is stated that this a false case registered against the accused persons. In fact, an attack was being launched by Deepak and his family on the house of accused Sanjay by pelting stones. Deepak and his family were armed with weapons and that is why accused Sanjay was stabbed on his hand. In retaliation, accused tried to defend themselves and in the scuffle, deceased Rishipal got stabbed accidentally by the knife carried by injured Deepak and his family members.
39.3 It was further argued that the place of incident was H. No. 2846 i.e., house of accused Sanjay which was attacked by injured Deepak, Rishipal, Happy, Mahender and others and stones were pelted by them. This fact finds corroboration from seizure memo i.e., Ex. PW3/F and Ex. PW3/G wherein there are correction in the flat number. Initially, it was mentioned as EE SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 44/77 FIR No. 524/2014 PS Jahangir Puri 2846 but subsequently, the number was changed as 2656. The manipulation in these seizure memos was done by the IO at the subsequent stage. The correction is a strong indication that exhibits were collected by the IO from EE 2846 and not from EE 2656. Therefore, the testimonies of interesting witnesses are not reliable and the investigation is tainted by manipulations done by the IO the seizure memos and hence, prosecution has miserably failed to prove its case against the accused persons and they are entitled to be given benefit of doubt and they may be acquitted accordingly.
40. I have heard the arguments at length and perused the entire record. I have also gone through the case laws relied upon by Ld. Counsel for accused persons.
FINDINGS
41. The accused Sanjay Kumar, Mukesh Kumar, Ravi and Sachin @ Nata have been charged for the commission of offences punishable under sections 323/308/307/302/34 IPC. Accused Ravi and Sachin are additionally charged under section 174-A IPC.
42. The relevant sections are reproduced as under:
SECTION 300 IPC "Section 300. 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 SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 45/77 FIR No. 524/2014 PS Jahangir Puri 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--
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.
SECTION 302 IPC Punishment for murder.--Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
SECTION 307 IPC Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is herein before mentioned. Attempts by life convicts.-- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
SECTION 308 IPC Attempt to commit culpable SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 46/77 FIR No. 524/2014 PS Jahangir Puri homicide. Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
SECTION 323 IPC Punishment for Voluntarily causing hurt-Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
SECTION 34 IPC Acts done by several persons in furtherance of common intention.--
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone SECTION 174 A IPC Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.--Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 47/77 FIR No. 524/2014 PS Jahangir Puri before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both;
Or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
43. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
In Chandrashekhar Vs. State of Himachal Pradesh decided on 06.07.2018 relying on judgment of Data Ram Singh Vs. State of UP passed by the Hon'ble Supreme Court on 06.02.2018, it was held that:
"the freedom of an individual is utmost important and cannot be curtailed specially when guilt if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent........ A fundamental postulate of criminal juris prudence is a presumption of innocence meaning thereby that a person is believed to be innocent until found guilty..........
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 48/77 FIR No. 524/2014 PS Jahangir Puri accused beyond reasonable doubt.
44. In this backdrop, I proceed to delve upon the evidence adduced on behalf of the prosecution.
DEPOSITION OF MATERIAL WITNESSES 45.1 PW2 BIMLA: She happens to be the complainant in this case. She thoroughly supported the case of the prosecution on the lines of her complaint which is Ex. PW2/A. She correctly identified the accused persons during her deposition and described their role precisely played by them during the incident. She has deposed about the incident of 02.07.2014 when her son Deepak was threatened by accused persons in the park and accused Sanjay gave beatings to the female dog with a belt. She also deposed about the incident of 03.07.2014 when accused persons allegedly tried to stop PW Deepak around 10:30 PM. The incident of 02.07.2014 and 03.07.2014 were narrated to her by PW Deepak and she was not present at the time of these occurrences and therefore, her testimony qua these incidents is hearsay and not admissible against the accused persons.
45.2 She is an eye witness of the incident which took place on the intervening night of 03-04.07.2014 at 03:00 AM. She deposed that she alongwith her husband Karamvir, son Deepak, brother Mahender and Happy came out of their house i.e., EE-2661 when stones were pelted by the accused persons at the entrance door of the house. After coming out she saw that all accused persons were present. Accused Sanjay, who was armed with a knife, gave a knife blow on the head of Deepak. Her brother in law Rishi Pal, who used to reside in the neighbourhood, also came out of his house and tried to save SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 49/77 FIR No. 524/2014 PS Jahangir Puri them. Accused Ravi caught hold of him and accused Sanjay stabbed him on right side of his chest. Accused Mukesh inflicted injury on the face and head of Happy with an iron rod. Accused Sachin @ Nata pelted bricks and stones and exhorted in saalo ko jaan se maar do ye bachne na paye. Due to stone pelting, her brother Mahender sustained injury on his hand and her husband also sustained injury caused by a sword. Her daughter Deepika called the police and deceased Rishi pal was lying on the road in injured condition. She put a cloth on the head of her son Deepak to stop bleeding and at the same time PCR van came at the spot and took the injured persons to the hospital.
45.3 She has been cross examined at length and she has improved her statement on some accounts likewise, 1.) she informed the police that Sanjay, Nata, Bhupesh and others tried to stop her son Deepak on 03.07.2014 (confronted as name of Nata and Bhupesh were not mentioned in Ex. PW2/A), 2.) she informed the police that about 10:00-10:30 PM she alongwith her husband went to the house of accused Sanjay, who was sitting on a cot and an iron rod was lying on the said cot under the bed sheet (confronted as this fact was not mentioned in Ex. PW2/A),
3.) accused Sanjay used to sell liquor and when she visited his house with her husband, some boxes of liquor were lying under the said cot (confronted as this fact was not mentioned in Ex. PW2/A), 4.) she stated that Mahender and Happy came to their house for inviting them to attend the function of chhatti puja (confronted as this fact was not mentioned in Ex. PW2/A), 5.) she informed the police that her husband sustained injury with the stone (confronted as this fact was not mentioned in Ex. PW2/A), 6.) Mukesh gave blows of an iron rod on the face of Happy (confronted as this fact was not mentioned in Ex.SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 50/77
FIR No. 524/2014 PS Jahangir Puri PW2/A), 7.) she told the police that Sachin @ Nata exhorted saalo ko jaan se maar do ye bachne na paye (confronted as this fact was not mentioned in Ex. PW2/A) and 8.) she did not tell the police that accused Sanjay and Mukesh also sustained injuries (confronted with Ex. PW2/A wherein this fact has been mentioned).
45.4 All these improvements have been made by PW2 in her statement before the court but the court has to see whether she has supported the case of the prosecution on material account or not. As stated above, she has categorically described the roles of accused persons during the incident. The only material improvement is regarding use of words by accused Sachin @ Nata. She stated that Sachin exhorted saalo ko jaan se maar do ye bachne na paye, whereas in her complaint the word used are maaro saalo ko aur inka kaam tamam kar do. Therefore, it is matter of record that there is change of words but the intent of accused Sachin has been proved by PW2 Bimla. Accused Sachin exhorted that everyone should be finished and no one should be spared.
45.5 It is immaterial that there is change of words in the deposition of PW2 while proving this fact. The incident occurred on 04.07.2014 whereas she was examined on 23.05.2016. Meaning thereby, almost 2 years had gone by when she was examined and some minor contradictions are bound to occur in the testimony of a witness with the passage of time, age, health and other circumstances. The court has to consider whether she has described the conduct of accused Sachin and his intent or not. I am of the considered view that except change of words, there is nothing in her statement due to which she cannot be relied upon SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 51/77 FIR No. 524/2014 PS Jahangir Puri by the court.
45.6 As far as other improvements are concerned, witnesses do have a tendency to improvise their statements specially when their family members of injured ones or deceased in a particular case. If the improvements are such in nature that the credibility of the witness itself comes into question then the benefit of the same goes into the favour of accused. If the contradictions/improvements are trivial in nature and do not affect the merits of the case then such contradictions shall be covered in the category of minor contradictions.
45.7 The improvisation/contradiction occurred in the testimony of PW2 Bimla are squarely covered under the head of minor contradictions and hence, do not affect the material aspects of this case. She has stood the test of cross examination firmly and stated that accused Sanjay used a knife for inflicting injury on the head of PW9 Deepak and on the chest of deceased Rishipal. Accused Ravi caught hold of the deceased when he was being stabbed by accused Sanjay. Accused Sachin @ Nata pelted stones and caused injury on the hand of PW17 Mahender and also instigated other accused persons not to spare anyone from the victim party. Hence, her testimony is found to be reliable, trustworthy and cogent by this court.
45.8 PW3 Karamvir: He happens to be husband of PW2 Bimla and father of PW9 Deepak. He deposed on the lines of PW2 qua the incident of 02.07.2014 and 03.07.2014. He varied slightly from PW2 on the aspect that when they visited the house of accused Sanjay and Mukesh after they attempted to stop Deepak around 10:30 PM on 03.07.2014, accused Mukesh was sitting on a cot and was carrying an iron rod in his hands. He is SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 52/77 FIR No. 524/2014 PS Jahangir Puri silent whether accused Sanjay was armed with any rod or not as stated by PW2 Bimla.
45.9 He deposed on the lines of PW2 Bimla qua the incident, their identifications and roles played by accused persons at that time and there is no variation in their versions. He deposed that he went to BJRM Hospital on foot where his brother Rishipal was declared as dead. His son Deepak was referred to some other hospital near Delhi Gate. His statement was recorded and site plan was prepared by the IO at his instance which is Ex. PW3/A. He deposed that exhibits were collected by the IO in his presence from the spot.
45.10 In the evening of 04.07.2014, accused Sanjay and Mukesh were arrested in his presence and accused Mukesh got recovered blood stained iron rod from the roof of a temple. He correctly identified the case properties and the accused persons during his deposition.
45.11 His testimony qua the incident of 02.07.2014 and 03.07.2014 occurred at 10:30 PM also falls in hearsay category as of PW2 Bimla.
45.12 His testimony also contains some contradictions/improvisations i.e., 1.) he advised his son Deepak not to have any contact with such persons because they are bad persons (confronted with statement Ex. PW3/A wherein it is not so recorded), 2.) Happy was blessed with a son and he alongwith Mahender came to invite his family to attend the function of chhatti (confronted with statement Ex. PW3/A wherein it is not so recorded), 3.) he heard pelting of stones on their door at SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 53/77 FIR No. 524/2014 PS Jahangir Puri 02:00-02:30 AM (confronted with statement Ex. PW3/A wherein it is not so recorded), 4.) Deepak was taken near the house of Rishipal after suffering a knife blow on his head (confronted with statement Ex. PW3/A wherein it is not so recorded), 5.) accused persons were carrying sword and hockey in their hands (confronted with statement Ex. PW3/A wherein it is not so recorded), 6.) Mukesh caused injury on the face and head of Happy (confronted with statement Ex. PW3/A wherein it is not so recorded) and 7.) Mukesh was carrying sword and accused Ravi caught the hand of Rishipal from his back (confronted with statement Ex. PW3/A wherein it is not so recorded).
45.13 At the cost of repetition all these improvements are minor in nature and do not go to the roots of this case. It is immaterial whether it was mentioned to the police that PW Happy and Mahender came to the house of PW3 Karamvir to invite them for a function. The relevant fact is that PW Happy and Mahender sustained injuries during the incident and their presence was undoubtedly was at the spot during the incident. It is not the case of the accused persons that there was no function of Chhatti at the house of PW Happy.
45.14 PW3 Karamvir stated that he heard the sound of stone pelting at 02:00-02:30 PM whereas in his statement the time has been mentioned as 03:00 PM (it seems that typographical error has occurred during the recording of his testimony and 'PM' has been typed instead of 'AM'). It is a matter of record that the incident happened around 03:00 AM and police was informed. Therefore, minor difference in the timing of stone pelting hardly makes any difference and this contradiction is of no avail to the accused persons. He also improvised his SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 54/77 FIR No. 524/2014 PS Jahangir Puri statement that accused persons were armed with sword and hockey but the injury suffered by deceased Rishipal and injured Deepak were caused by a knife and therefore, mentioning of sword and hockey has become insignificant. As stated earlier, it is a human approach to improvise the statement as and when injured or deceased are family members of the witness.
45.15 Defence has tried to challenge the veracity of this witness as he admitted that he could not specify the name of the accused, who caused injury to him and by which weapon. The incident occurred around 03:00 AM and the victim family was completely surprised by the sudden attack on their house. When they came out they were attacked by the accused persons with weapons and therefore, it was quite possible and understandable that PW3 Karamvir could not clearly see as to what kind of weapon was used to inflict injury upon him and by whom it was inflicted. The fact of the matter is that Karamvir was present at the spot, he correctly identified the accused persons as assailants and he suffered injuries during the incident from their hands. Rest of the factors are insignificant qua merits of this case. In view of the above discussion, the testimony of PW3 Karamvir is also on the same footing likewise PW2 Bimla and falls into the category of reliable witness.
45.16 PW9 Deepak: He is the key witness this case as the initial altercation took place with him on 02.07.2014. Thereafter, he was restrained by the accused persons on 03.07.2014 and ultimately he suffered injuries at the hands of accused persons on 04.07.2014 at about 03:00 AM. He alongwith PW Bimla and PW Karamvir was present at the spot at the time of occurrence of main incident which culminated into death of SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 55/77 FIR No. 524/2014 PS Jahangir Puri deceased Rishipal. PW Deepak deposed on the lines of his parents Bimla and Karamvir and fully supported the case of the prosecution about the incidents of 02.07.2014, 03.07.2014 and 04.07.2014 in his examination in chief. He has categorically deposed that accused Sanjay caused injury on his head with a knife. Accused Ravi caught hold of hands of deceased Rishipal and accused Sanjay stabbed him. Accused Mukesh gave a blow on the face of PW Happy with a rod whereas accused Sachin was exhorting to instigate the other accused persons during the incident. Since, examination in chief of this witness has already been taken on record and on the lines of PW Bimla and PW Karamvir, same is not repeated for the sake of brevity.
45.17 Likewise, PW Bimla and PW Karamvir, he has also made some improvisation in his statement. He stated that on 02.07.2014, when he had taken his dog to the park, all accused persons were present there and having liquor while sitting on the wall. This fact was not mentioned in his statement given to the police which is Ex.PW9/DA. He could not tell whether he had mentioned in the statement given to the police that he was manhandled by the accused persons on 03.07.2014 around 10:30 PM. However, this fact is mentioned in his statement Ex. PW9/DA. He improved his statement that PW Happy had come to his house for inviting them for Chhatti Puja. He further improved that accused Sachin @ Nata exhorted " maaro saalo ko aaj inka kaam tamaam kar do" but this fact was not mentioned in Ex. PW9/DA.
45.18 Ld. Defence Counsel Sh. K. S. Verma has heavily relied upon these improvements in the testimony of PW9 Deepak to support his argument that this witness is not reliable. He SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 56/77 FIR No. 524/2014 PS Jahangir Puri pointed out that PW9 Deepak could not tell as to what kind of weapons were used by the accused persons. He is not sure about any other overt act of accused Sachin apart from exhorting words, "maaro saalo ko aaj inka kaam tamaam kar do". On the other hand, PW Bimla and PW Karamvir have deposed that accused Sachin pelted stones during the incident. How come these three family members are not sure about the role of accused Sachin during the incident. It is apparent that accused Sachin has been falsely implicated and this fact is also suggestive of the fact that entire story of these witnesses is full of concoction.
45.19 I do not find any merit in this submission as the improvements made by PW9 Deepak are not so material in nature, so that his whole testimony and his credibility can be put under scanner. It is stated by all the material witnesses that as soon as they came out of their house, accused Sanjay gave a knife blow on the head of PW Deepak and he started bleeding profusely. Therefore, it is quite understandable that PW Deepak is not sure about the role played by accused Sachin in the incident.
45.20 A person, who is being hit on his head with a knife, is likely to get puzzled and if he is not able to state a fact with precision then the court may look into the deposition of other witnesses, who were present at the spot. PW Bimla and PW Karamvir have categorically deposed that accused Sachin pelted stones during the incident apart from exhorting the above mentioned words. The stones pelted by him, injured PW Mahender. PW Deepak has categorically described the role of accused persons during the incident which is sufficient to arrive a conclusion as to what role was played by the accused persons and SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 57/77 FIR No. 524/2014 PS Jahangir Puri how injuries were inflicted upon the injured persons and deceased. Hence, the anomalies pointed out by Ld. Defence counsel in the testimony of PW Deepak are not so glaring that benefit of the same may be given to the accused persons.
45.21 PW11 Deepu: She happens to be sister of PW9 Deepak and daughter of PW2 Bimla and PW3 Karamvir. She was also present at the time of incident and has deposed in her examination in chief against the accused persons and explained as to how, by which weapon and to whom injuries were caused by the accused persons. In her cross examination done on behalf of State she has denied that PW Mahender and PW Happy were staying over in their house and her deposition in this regard is exactly contradictory to her family members PW2, PW3 and PW9. Apart from this discrepancy, defence has failed to extract anything fruitful from her cross examination.
45.22 There is no suggestion that she was not present at the spot and she did not inform the police at number 100. Interestingly, during her cross examination, suggestion has been given that PW9 Deepak had uttered foul words to accused persons in the night on 03.07.2014. No such suggestion is being given to PW9 Deepak, whom allegedly uttered those foul words. Therefore, this is a new defence introduced by the accused persons qua the incident of 03.07.2014 when accused persons had restrained Deepak when he was returning from his job. She has denied the fact that an attacked was launched by her family members on the house of accused persons. In totality, her deposition seems to be natural and reliable.
45.23 PW14 Happy: He is an injured in this case and
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was present at the spot during the incident. As per deposition of PW2, PW3, PW9 and PW11, PW14 Happy was being hit on his face by a rod by accused Mukesh. In his examination in chief, he has admitted his presence on the spot but changed the timing of the incident from 03:00 AM to 11:00-11:30 PM on 03.07.2014. He stated that Deepak was being hit with a danda and he started bleeding. When he tried to intervene he was also hit on his face and head and resultantly, he lost his consciousness.
45.24 During his cross examination on behalf of State he stated that he was staying alongwith Mahender in the house of PW Deepak. He could not tell whether stone pelting was started at 03:00 AM. He denied the fact that he had seen the accused persons during the incident and accused Sanjay was having a knife and accused Mukesh was having a rod. He also denied the role of other accused persons which were explained by the other eye witnesses.
45.25 In his cross examination done on behalf of accused persons, he had admitted that PW Deepak had consumed liquor on that night and stones pieces were lying scattered throughout the street not specifically in front of house of his mama. He further admitted that when he and Deepak went outside the house, the quarrel was already going on and accused persons were not present there. He further admitted that Karamvir's family was not involved in the said quarrel. He further admitted that he did not see PW Deepu and PW Bimla outside the house when the quarrel was taking place.
45.26 Meaning thereby, apart from admitting his presence on the spot and suffering injury during the incident, testimony of SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 59/77 FIR No. 524/2014 PS Jahangir Puri this witness is of no significance against the accused persons and he is a hostile witness and fact he has admitted the defence of the accused persons that they were not involved in the incident.
45.27 PW17 Mahender: He is one of the injured persons in this case. His cross examination could not be completed as after his examination on 31.10.2018, he could not be traced and therefore, his testimony is of no consequence in this case against the accused persons.
45.28 Ld. Defence counsel argued that hostile testimony of PW14 Happy is very important in this case and it is proved on record that PW2, PW3, PW9 and PW11, who all are family members, have deposed falsely against the accused persons. How come one injured is narrating different story of the incident which is in contradiction with other material witnesses. Meaning thereby, prosecution has failed to prove its case beyond reasonable doubt against the accused persons.
45.29 As noted above, there are some improvisations in the statement of PW2, PW3 and PW9 but they have thoroughly supported the case of the prosecution on material aspects. They have categorically described the roles of the accused persons, weapons used by them and which accused caused injury by which weapon to which injured, all these facts are crystal clear in their testimonies.
45.30 While discussing the nature of contradictions in a criminal trial, the Hon'ble Supreme Court of India in case titled as Gangadhar Behera and others Vs. State of Orissa (2002) 8 SCC 381 has talked about the major and minor discrepancies in a SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 60/77 FIR No. 524/2014 PS Jahangir Puri criminal trial. It was held that:
"Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so".
45.31 Applying the ratio of Gangadhar Behera's case (discussed supra) to the present case, it is clear that depositions of PW2, PW3, PW9 and PW11 are specific about the roles of accused persons during the incident. It is quite understandable the fact a family which is attacked in the wee hours around 03:00 AM, then they were taken to surprise. As soon as they came out, they were attacked by the accused persons which deadly weapons. Therefore, it is quite possible that they missed some facts at the time of recording of their statements and same were narrated by them before the court.
45.32 Moreover, statement are being recorded by the investigating officer under section 161 CrPC and if, any fact is not mentioned by the IO then the witness or the injured cannot be held liable for such lapse. What is material in a criminal trial as to what is being deposed by the witness before the court. It does not mean that statement given to the police is irrelevant. If the witness has deposed on the lines of his statement under section 161 CrPC and such deposition is suffering from some minor contradictions/improvisations, then such testimonies have to be considered as reliable, cogent and trustworthy.
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 61/77FIR No. 524/2014 PS Jahangir Puri 45.33 If the contradictions occurred in the deposition are
such that the witness has taken a 'U' turn then they may fall in the category of major contradictions and in that case accused cannot be convicted on the basis of such depositions.
45.34 In the present case, it is not disputed by the accused persons that they were not present at the spot or they did not receive injury during the incident. In fact, it is being pleaded on their behalf that an attacked was launched by the family of PW9 Deepak on their house. PW9 Deepak and his family members were armed and they inflicted injury upon accused Sanjay with the knife and when accused persons tried to save them, the knife carried by PW9 Deepak hit deceased Rishipal, Happy and himself. Therefore, it is an admission on their part that the injuries suffered by them and by the injured persons were in the same incident which occurred on the intervening night of 03- 04.07.2014 at about 03:00 AM.
45.35 Considering the defence theory, the hostile testimony of PW14 Happy is of no consequence in favour of accused persons. PW14 Happy appears to be won over by the accused persons and he has given a clean chit to them by stating that he did not see the accused persons during the incident whereas accused persons are admitting occurrence of incident and injuries suffered by them as well as by the other party. Therefore, I do not find any merit in the submission of Ld. Defence counsel Sh. K. S. Verma that hostile testimony of PW14 Happy has created such a rift in the prosecution's case that testimonies of PW2, PW3, PW9 and PW11 may be brushed aside by the court.
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 62/77FIR No. 524/2014 PS Jahangir Puri 45.36 In my considered view prosecution has successfully
proved the presence of accused persons at the spot on the basis of credible testimonies of PW2, PW3, PW9 and PW11. It stands proved that accused persons had attacked the house of PW9 Deepak i.e., H. No. 2661, EE Block, Jahangir Puri, Delhi by pelting stones. Accused Sanjay was armed with the knife and by which he inflicted injury on the head of PW9 Deepak and thereafter, he stabbed deceased Rishipal and he succumbed to injuries. Accused Mukesh was armed with an iron rod and he caused injury on the face and head of PW Happy (although, PW Happy has not stated so but this fact stands proved by other material witnesses). When deceased Rishipal tried to intervene, accused Ravi caught hold of him and accused Sanjay stabbed him. Accused Sachin @ Nata pelted stones during the incident and caused injury to PW Mahender and exhorted " maaro saalo ko aaj inka kaam tamaam kar do".
PLACE OF INCIDENT 46.1 It is being pleaded on behalf of accused persons that actually PW9 Deepak and his family members attacked their house i.e., EE-2846, Jahangir Puri by pelting stones and when they came out, they were attacked by the victim family. During the scuffle, PW9 Deepak, deceased Rishipal, PW17 Mahender and PW14 Happy received injuries from their own weapons. Sh. K. S. Verma, Ld. Defence counsel has drawn my attention towards Ex. PW3/F and Ex. PW3/G wherein there is a correction in the number of the flat. It is argued that IO had written flat No. 2846 initially in these documents but he subsequently changed the number as 2656. It reflects that exhibits were collected vide these memos from outside Flat No. EE 2846 that happens to be house of the accused and it is clear that incident occurred in front SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 63/77 FIR No. 524/2014 PS Jahangir Puri of EE-2846 and not outside H. No. EE 2661 or EE 2656. 46.2 As stated above, accused persons have tried to plead that they were attacked in their house i.e., Flat No. 2846 and the incident occurred over there. The corrections in Ex. PW3/F and Ex. PW3/G do exist and there is no dispute in this regard. First of all, there are oral testimonies of PW2, PW3, PW9, PW10 and PW11 which are found to be credible by the court to the fact that the incident started by stone pelting by accused persons at house No. EE2661 Jahangir Puri. PW10 Surender is another family member of PW2, PW3, PW9 and PW11. He has deposed that he went to the house of his cousin brother PW3 Karamvir and stones were lying on the road. PCR van was also parked there. In his cross examination he stated that stones were lying from H. No.2661 till the park in 2600 wali gali. He categorically deposed that he never saw stones lying on the road on usual basis. It is nowhere suggested to this witness by the accused person that the incident did not occur before 2661 and it occurred in front of H. No. 2648. Therefore, we have oral testimonies on record to support the fact that the incident occurred in 2600 wali gali and stones were scattered in front of H. No. 2661 till park.
46.3 During investigation IO prepared rough site plan which is Ex. PW3/A wherein stones have been shown starting from H. No. 2661 till corner of small park. There is no stone shown in front of H. No. 2648. Although, in the site plan at point F, which happens to be outside the house of the accused, some blood was found lying. Similar, is the scaled site plan which is Ex. PW22/1. Therefore, on the basis of these two site plans, the spot of occurrence has to be H. No. 2661 and not 2648.
46.4 The crime team also visited the spot soon after the
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incident and PW4 SI Naresh Pal prepared his report which is Ex. PW4/A wherein it is mentioned that most of the exhibits were collected from outside H. No. EE- 2656. There was blood at two points, one slipper was also lying there and one blood stained handkerchief was also recovered from that place. Near the electric pole there was presence of blood. Meaning thereby, some part of the incident might have taken place in front of H. No. 2656 also. The photographs of the spot have also been proved wherein it is apparent that pieces of brick are lying here and there but in front of house of victims, they are more in number which is again suggestive of the fact that incident occurred from H. No. 2661 till park.
46.5 PW30 Inspector Radhey Shyam is the author of Ex. PW3/F and Ex. PW3/G and he has been thoroughly cross examined on behalf of accused persons but there is not even a single suggestion about the correction appearing in these documents. It is nowhere put to this witness that he collected the evidence by way of these seizure memos in front of H. No. 2846 and later on he manipulated the number and rectified it as H. No. 2656. No cross examination in this regard, pointing towards the fact that this so called discrepancy was not considered as serious at the time of cross examination of PW30.
46.6 It seems that the correction in these documents is the human error committed by the IO and it is not reflective of any manipulation done by him. It is not improbable that such correction has been done because there are many house number involved in this case and there is every possibility that IO inadvertently filled Flat No. 2846 in Ex. PW3/F and Ex. PW3/G instead of Flat No. 2656. Later on he rectified his mistake and SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 65/77 FIR No. 524/2014 PS Jahangir Puri silence on the part of the defence during his cross examination also supports that it was a mistake only. Moreover, seizure memos i.e., Ex. PW3/B, Ex. PW3/C, Ex. PW3/D and Ex. PW3/H also prove that most of the exhibits were collected in front of H. No. EE-2656, 2655, 2661 to 2655. Although, as per seizure memo PW3/E blood was lifted from outside H. No. 2846EE alongwith earth control but no stones were found present in front of H. No. 2846. Therefore, I do not find any merit in the argument of Ld. Defence counsel that the place of incident in this case is H. No. 2846 EE and not H. No. 2661 EE. The reliance placed upon correction in Ex. PW3/F and Ex. PW3/G are misconceived and is of no consequence on the merits of this case.
46.7 Since, the place of incident is H. No. 2661 EE then defence of accused persons that they were attacked by the deceased, injured and their family members is of no consequence. Even if it is believed that an attacked was launched upon the house of accused persons then how come accused Sachin was present at 03:00 AM alongwith the accused persons at their residence. There is no explanation available on record in this regard.
46.8 PW9 Deepak has specifically described the incident of 02.07.2014 when he was threatened by accused Sanjay in the park and other accused persons were also present there. PW9 Deepak further proved the incident of 03.07.2014 which occurred at around 10:30 PM when all accused persons tried to assault him but they could not succeed. Meaning thereby, the involvement of all accused persons in the incident of 02.07.2014 and 03.07.2014 is duly proved by the prosecution and hence, presence of accused Sachin in the incident of 04.07.2014 occurred at 03:00 AM SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 66/77 FIR No. 524/2014 PS Jahangir Puri reflects that all accused persons attacked the house of PW9 Deepak in furtherance of their common intention. Therefore, I am of the considered view that the defence taken by accused persons is without any iota of truth and appears to be baseless and stands rejected accordingly.
CAUSE OF DEATH 47.1 As per the case of the prosecution, deceased Rishi Pal tried to intervene but he was caught hold by accused Ravi whereas accused Sanjay stabbed him which caused his death. Prosecution has proved MLC of the deceased bearing No. 81069 dated 04.07.2014 as Ex. PW25/3 through PW25 Dr. Deepak. As per MLC, deceased was unconscious and was not responding to BPS. He had a stab wound over left side chest of about 3 cm x .5 cm (depth could not be assessed) and he was declared brought dead by the doctor.
47.2 His postmortem report has been proved as Ex. PW8/A wherein external injuries have been mentioned as under:
1. stabbed wound, obliquely placed, 3cm x 1cm chest cavity deep left side of chest, just lateral to midline, inner lower angel is acute, upper outer angel is obtuse, situated 5cm below of medial to left nipple.
2. incised wound, 3 cm x 0.5 cm x 0.5 cm between thumb of index finger over right hand.
47.3 During internal examination, it was observed that there was a cut in 5th intercoastal space cutting upper part of 6 th rib through and through, enters into heart, left ventricle cutting through and through approximate length is 7.8 cm. The cause of death was opined as under:SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 67/77
FIR No. 524/2014 PS Jahangir Puri "Death was due to hemorrhage shock, consequent upon stab injury. All these injuries were ante mortem, fresh and caused by pointed by sharp single edged weapon. Injury No. 1 is sufficient to cause death in ordinary course of nature and time since death about 11-12 hours."
47.4 On the basis of MLC and post mortem report, it has been duly proved by the prosecution that deceased Rishi Pal expired on account of stab injury received by him at the hands of accused Sanjay when he was caught hold of by accused Ravi.
The knife blow was so severe that deceased could not survive and he was brought dead in hospital.
INJURIES CAUSED TO PW9 DEEPAK @ MONU, PW14 HAPPY AND PW17 MAHENDER
48. It is proved by the prosecution that injured persons namely Deepak, Happy, Mahender and deceased Rishipal were present at the spot and they had received injuries inflicted by the accused persons with the help of knife, iron rod and stones. Prosecution has proved MLC of PW17 Mahender as Ex. PW25/1. He had a swelling over his left elbow and after X-Ray it was opined by the doctor that injuries suffered by him were simple in nature. PW9 Deepak was examined and his MLC has been proved as Ex. PW25/4 wherein he was found having an incised wound on his left parietal region of 5 x 0.5 cm, abrasion on right elbow 3x 2 cm and abrasion on left hand 1 x 1 cm. On the basis of injury suffered by PW9 Deepak, same were found to be grievous in nature and the subsequent opinion on injury had been proved as ex. PW7/B. PW9 Deepak was having a fracture SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 68/77 FIR No. 524/2014 PS Jahangir Puri of frontal wound extended into the right frontal sinses. Injury to PW Deepak on his head was caused by accused Sanjay with the help of knife. MLC of injured/PW14 Happy has been proved as Ex. PW25/2 and he was having five injuries on his person. There is no final opinion qua the injuries suffered by PW14 Happy as he was asked to report to dental OPD with papers and thereafter there was no clarification about the nature of injury suffered by him. Hence, on the basis of MLCs of injured persons, prosecution has proved the fact that PW9 Deepak had suffered grievous injury on his head, PW17 Mahender had suffered simple injuries and injuries suffered by PW14 Happy are also to be considered as simple in absence of any specific opinion on his injury.
NON RECOVERY OF WEAPON OF OFFENCE I.E., KNIFE 49.1 It is argued by Ld. Counsel Sh. K. S. Verma that police has failed to recover the weapon of offence i.e., knife and consequently, it could not be sent for the expert opinion to ascertain that the injury suffered by the deceased on his chest could be caused by knife or not. The absence of weapon of offence, is detrimental to the case of the prosecution and it cannot be said to be proved that the fatal injury caused to the deceased was inflicted by a knife by accused Sanjay.
49.2 In Saleem Khan Vs. State Government of NCT of Delhi Criminal Appeal No. 491/2020 decided on 05.01.2022, Hon'ble Delhi High Court has dealt with the similar factual matrix which are identical to the present case. In that case injured and his brother had deposed against the accused that accused SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 69/77 FIR No. 524/2014 PS Jahangir Puri attacked them with a knife (churri). Injured suffered two injuries one on his neck and the other one on his stomach. Accused also attacked his brother when he tried to save the injured from the accused. During investigation, police could not seize the weapon of offence and no public witness was joined in the investigation. The trial court convicted the accused and the judgment was upheld by Hon'ble Delhi High Court. While dealing with testimony of an injured, the court relied upon State of Uttar Pradesh Vs. Naresh and Ors. 2011 4 SCC 324 wherein it was held as under:
27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law.
The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
49.3 While relying upon the judgment of State of Uttar Pradesh Vs. Naresh, Hon'ble High Court held that testimonies of injured and his brother were credit worthy and reliable and the appeal was dismissed.
49.4 In the present case, IO put in his efforts for the recovery of knife and he also avail the services of PW26 Sushil to recover the knife from the drain but of no avail. Therefore, it SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 70/77 FIR No. 524/2014 PS Jahangir Puri cannot be said that the investigation is faulty on this aspect. As stated by Hon'ble High Court in Saleem Khan's case (discussed supra), non recovery of weapon of offence becomes inconsequential provided the injured persons and other eye witnesses are reliable. In the present case, there is no dispute that accused persons were not present at the spot at the time of incident. Their defence theory that they were attacked by the victim party, is also found to be baseless and PW Karamvir, PW Bimla, PW Deepak and PW Deepu have categorically described the roles of the accused persons played by them during the incident and their testimonies are found to be cogent, reliable and trustworthy. Hence, non recovery of knife has no bearing on the merits of this case.
INVESTIGATION 50.1 Soon after the incident PCR call was made at 03:48:45 hours on 04.07.2014 to the effect that quarrel had taken place at EE-2661, Jahangir Puri. It was attended by PW5 Sandeep as PCR Operator. He filled the PCR form which is Ex. PW5/A and he transferred the call to the PCR van. Thereafter, PW18 ASI Vinod alongwith his PCR staff reached at the spot and found five injured persons Rishipal, Mukesh, Sanjay, Happy and Deepak at the spot. Lot of stones, brick pieces and blood was lying in the street. The PCR van shifted the injured persons to BJRM Hospital where Rishipal was declared brought dead.
50.2 The information also reached at PS Jahangir Puri and duty officer PW1 HC Sunil Dutt registered DD entry No. 6A which is Ex. PW1/A and the call was marked to ASI Ram Chander, who alongwith PW12 Ct. Gyanender reached at the spot. When ASI Ram Chander and PW12 Ct. Gyanender came to SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 71/77 FIR No. 524/2014 PS Jahangir Puri the spot, they came to know that injured had been taken to BJRM Hospital by the PCR staff. PW16 Ct. Vinayak and PW27 Ct. Rajender also reached at the spot on the directions of the duty officer and they were directed to guard the spot by ASI Ram Chander. ASI Ram Chander went to BJRM Hospital with Ct. Gyanender. He collected MLCs of the injured persons. Meanwhile, PW30 Inspector Radhey Shyam also reached at the hospital. ASI Ram Chander collected exhibits from the doctor and seized the same through seizure memos which are Ex. PW12/1, Ex. PW12/2 and Ex.PW12/3.
50.3 Complainant Bimla was also present in the hospital and ASI Ram Chander recorded her statement and prepared the rukka which is Ex. PW28/A. He handed over the rukka to Ct. Suresh for registration of FIR and the duty officer PW1 HC Sunil Dutt registered the FIR which is Ex. PW1/B after making his endorsement on rukka which is Ex. PW1/C. Meanwhile, ASI Ram Chander got shifted the dead body to mortuary. PW19 Ct. Birbal delivered copy of FIR to Ld. MM and senior police officers.
50.4 The second IO Inspector Radhey Shyam went to the spot from the hospital and called the crime team which reached at the spot around 05:15 AM which being headed by PW4 SI Naresh Kumar accompanied by PW13 Ct. Subhash (photographer) and ASI Surender Saini (finger print proficient). The spot was photographed suitably under the instructions of ASI Ram Chander and exhibits were collected from the spot. Crime team report is Ex. PW4/A whereas photographs of the spot are Ex. PW13/A1 to Ex. PW13/A17 and CD qua the photographs is Ex. PW13/B. SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 72/77 FIR No. 524/2014 PS Jahangir Puri 50.5 As injured Karamvir was present at the spot, PW30 Inspector Radhey Shyam prepared at the site plan at his instance which is Ex. PW3/A. Ct. Suresh came back at the spot and handed over copy of FIR and original tehrir to the second IO. IO lifted blood stained earth control, blood stained handkerchief, slipper, stones and pieces of bricks which were lying near H. No. EE 2656, 2846 and 2661. After seizure of case properties seal was handed over to PW27 Ct. Rajender and case properties were deposited in malkhana.
50.6 As accused Sanjay and Mukesh were admitted in BJRM Hospital on account of injuries suffered by them, they were interrogated and arrested by the IO in this case. They pointed out the place of occurrence to the police and accused Mukesh got recovered an iron rod from the roof of a temple. Efforts were made to recover the knife used by accused Sanjay. PW26 Sushil, who used to work as a sweeper, tried to trace the knife in the drain but same could not be recovered and pointing out-cum-non recovery memo was prepared which is Ex. PW19/1. Accused Ravi and Sachin @ Nata were arrested subsequently after being declared proclaimed offenders in this case.
50.7 A request for postmortem of the deceased was moved and same was conducted vide PM report which is Ex.PW8/A and same has been proved by PW8 Dr. Bhim Singh. The cause of death was due to hemorrhage shock, consequent upon stab injury. All the injuries were ante mortem fresh and caused by pointed sharp single edged weapon. Injury No. 1 is sufficient to cause death in ordinary course of nature".
SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 73/77FIR No. 524/2014 PS Jahangir Puri 50.8 Accused Sachin and Ravi were arrested on
29.05.2015. Opinion on the injuries of PW9 Deepak were obtained which were found to be grievous in nature and same have been proved by PW7 Dr. Jitender Nath Jha as Ex. PW7/B. IO got prepared scaled site plan from PW22 Inspector Manohar Lal which is Ex. PW22/1. The entries in register No.19 have been duly proved by PW24 ASI Hemant Singh.
50.9 Therefore, the investigation was initiated promptly and all the aspects of investigation stagewise have been duly proved by the prosecution. Ld. Defence counsel for the accused persons have failed to challenge the investigation process on any account.
ALLEGATIONS UNDER SECTION 174-A(II) IPC AGAINST ACCUSED SACHIN AND RAVI
51. It is a matter of record that after registration of FIR, accused Sachin and Ravi absconded. PW30 Inspector Radhey Shyam moved an application for issuance of NBW which is Ex. PW30/A but NBWs could not be executed and he filed his reports which are Ex.PW30/B and Ex. PW30/C. Thereafter, he moved an application for issuance of process under section 82 CrPC against accused Ravi which is Ex. PW30/D. He executed the process at the house of accused Ravi and recorded statement of his neighbours namely Smt. Usha and Deepak. Their statements are Ex. PW30/E and Ex. PW30/F. His report on process under section 82 CrPC is Ex. PW30/G. Similarly, he recorded statement of landlord of accused Sachin namely Rocky which is Ex. PW30/H and filed his report which is Ex. PW30/I. On 09.03.2015, both accused persons were declared proclaimed SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 74/77 FIR No. 524/2014 PS Jahangir Puri offenders and subsequently they were arrested on 29.05.2015. There is no suggestion on behalf of accused persons that they were not residing at the place where the NBWs were issued against him and thereafter, process under section 82 CrPC were duly executed. As per section 82 (4) CrPC where proclamation is issued against accused in relation to an offence under section 302 IPC when the court may pronounce him an offender and accordingly, accused Sachin and Ravi were declared as proclaimed offenders by the court. If an accused fails to appear pursuant to proclamation under section 82 CrPC then such a conduct is punishable under section 174-A IPC. If the declaration of proclaimed offender is being done under section 82 (4) CrPC then it is made punishable for a term which may extend to 7 years. Conduct of the accused Sachin and Ravi in absconding and consequently declared them as proclaimed offenders in terms of section 82 (4) CrPC is squarely covered as punishable offence under section 174-A (II) IPC. Prosecution has successfully proved its case against accused Sachin and Ravi under this section.
CONCLUSION 52.1 Thus, in view of the aforesaid findings, I am of the considered view that prosecution has successfully proved its case against accused persons that they in furtherance of their common intention attacked the house No. EE-2661. Accused persons pelted stones on the house of injured Deepak in the intervening night of 03.07.2014 and 04.07.2014 and when injured Deepak, Karamvir came out of house, accused Sanjay inflicted injury on the head of injured Deepak with the help of a knife and injury was grievous in nature and was life threatening. Since, the act of accused Sanjay was in pursuance of common SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 75/77 FIR No. 524/2014 PS Jahangir Puri intention, offence under section 307/34 IPC was proved against all of them.
52.2 When deceased Rishipal came to intervene, accused Ravi caught hold of him and accused Sanjay stabbed him with knife. He was brought dead by the doctor and this act of accused Sanjay is also sufficient to implicate all the accused persons under section 302/34 IPC as all of them were fully aware about the consequences of the use of knife being carried by accused Sanjay and all accused persons were prepared to cause deadly injuries during assault.
52.3 Prosecution has proved injuries suffered by PW14 Happy but nature of injuries could not be proved, however, the fact that PW14 Happy suffered injuries during the incident have been proved by the other eye witnesses which are sufficient enough to prove the allegations under section 323/34 IPC against all the accused persons.
52.4 As accused Sachin @ Nata exhorted, accused Sanjay, Mukesh and Ravi by saying "maaro saalo ko, in sabka kaam tamam kar do", he is equally liable for the act of co- accused persons.
52.5 As far as allegations under section 308/34 IPC are concerned, same could not be proved due to absence of nature o injuries suffered by PW14 Happy and all accused are acquitted under section 308/34 IPC.
52.6 Hence, accused Sanjay, Ravi, Mukesh and Sachin are held guilty of committing offences under sections SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 76/77 FIR No. 524/2014 PS Jahangir Puri 302/307/323/34 IPC and accused Sachin and Ravi additionally held guilty for committing an offence under section 174-A IPC. All the accused persons are convicted accordingly.
53. Matter be listed for arguments on sentence after compliance of directions passed in Karan V. State of NCT of Delhi, Crl. Appeal No. 352/2020 dated 17.12.2020.
Digitally signed by DHIRENDRA DHIRENDRA RANA RANA Date: 2024.07.05 17:52:56 +0530 Dictated and announced in the open (Dhirendra Rana) Court on 05.07.2024 ASJ:Special Judge (NDPS) (running in 77 pages) (North), Rohini Courts/Delhi SC No. 58310/16 State Vs. Sanjay Kumar & Ors. Page No. 77/77 FIR No. 524/2014 PS Jahangir Puri