Delhi District Court
State vs : on 29 November, 2010
IN THE COURT OF SH. R.B. SINGH, ASJ 03, (OUTER)
ROHINI COURTS, DELHI
SC No. : 53/08
FIR No. : 270/04
PS : Mangol Puri
U/S : 302/34 IPC
State Versus:
1. Rajesh @ Tukkan
S/O Sh. Mange Ram,
R/O S-826, Mangol Puri,
Delhi.
2. Neeraj Kumar @ Nirja
S/O Sh. Pratap Singh,
R/O B-1/232, Aman Vihar,
Delhi.
3. Jitender
S/O Sh. Azad Singh
R/O B-15, Utsav Vihar,
Sultan Puri, Delhi.
Date of Institution of the case : 27.08.2004
Date of Decision of the case : 29.11.2010
JUDGMENT
1. Briefly stated, the prosecution case is that on 12.05.2004 at about 1.00 am on the public road within the jurisdiction of PS Mangol Puri, Delhi, all the three accused persons in furtherance SC No. 53/08 Page 1/35 of their common intention with an intension to cause death committed murder of Babu Lal and thereby committed an offence punishable U/S 302 r/w section 34 IPC and in cognizance to the court of Sessions. With these allegations, the accused persons were sent for trial.
2. After committal of the case to the Court of Sessions and after hearing the arguments from the Ld. Counsel for the accused persons and Ld. Addl. P. P. for the State, charge U/S 302/34 IPC was framed against all the three accused persons, to which they plead not guilty and claimed trial.
3. In support of the case the prosecution has examined 24 prosecution witnesses.
4. All the three accused persons were examined U/S 313 of Cr. PC and all the material evidences against them were put to them and they have denied the same as false and submitted that they are innocent persons and have been falsely implicated in this case. Accused persons have also led evidence in their defence and have examined two witnesses namely DW1-Sh. Sushil and DW2- Smt. Banarsi in defence.
5. Ld. Counsel for the accused persons has submitted that the accused persons have been falsely implicated in this case. The SC No. 53/08 Page 2/35 public witnesses have made material improvement in their testimonies in the Court which is fatal to the Prosecution case. There are material discrepancies and contradictions which are fatal to the Prosecution case which create doubt in the Prosecution case and the benefit of doubt is always right of the accused persons. The Prosecution has also failed to establish the probable motive of the accused persons to commit the alleged offence. Therefore, it is, prayed that since the Prosecution could not establish its case against the accused persons for the offence U/S 302/34 IPC beyond shadow of doubt, the accused persons may be acquitted of the alleged offences by giving benefit of doubt, as the benefit of doubt is the right of the accused persons.
6. On the contrary, Ld. Addl. P. P. for the State has submitted that it is a well established principle of Law that the every discrepancy in witness statements could not be fatal to the Prosecution case. The discrepancies which does not effect the Prosecution case materially does not create infirmity and there is no material discrepancies/ contradictions in the Prosecution case. The evidence, circumstances and the facts on record, if cumulatively taken together leads to the only conclusion that the accused persons are the perpetrators of crime. Prosecution has successfully established its case against the accused persons beyond shadow of doubt and the lacunae, if any, is not fatal to the case of the Prosecution. Hence, it is, prayed that the accused SC No. 53/08 Page 3/35 persons may be convicted for the alleged offences.
7. I have heard Ld. Counsel for the accused persons, Ld. Amicus Curiae for the accused Jitender, Ld. Addl. P. P. for the State and have perused the material on record carefully.
8. On the carefully scrutiny of the testimony of the witnesses reveals that PW4-Om Prakash who is the son of the deceased has deposed on oath that on the night of 11-12.05.2004 at about 12.45 am, there was marriage of Babita in front of his house and there was a programme of DJ going on at the marriage. His younger brother, Hemchand was also dancing in the DJ and he and his father were sitting at the cot outside the house. At the same time, three boys came and asked his brother Hemchand to go from there and let them dance. There was an altercation of those boys with his brother and thereafter, his brother was given beatings by them and he came to the house. His father tried to pacify those boys. He was also taking details about the happening from his brother. His father told those boys to go and nothing is kept in quarrel. On this, all the above said three boys sat on the chair in front of his house. They started abusing and asked to take out his brother Hemchand from the house. They also told his father that "Yeh bahut jayada bolta hai, isi ko tapka dalo". Accused Jitender and Rajesh Caught hold of hands of his father and accused Nirja took out a knife and gave a blow in the side of SC No. 53/08 Page 4/35 left side of his father under arm pit. His father raised an alarm, on hearing the alarm, his brother Hemchand also came out and they chased the three boys but they managed to escape. Accused Neeraj @ Nirja and Rajesh present in the court (correctly identified by the witness). He along with his brother Hemchand and other boy took his father to SGM Hospital in an Auto. Doctor examined his father and declared him brought dead. Thereafter, the dead body of his father was deposited in the mortuary and he came to his house. Police met him at the spot and recorded his statement. Police seized blood stained carpet by cutting and also sample of carpet and the remaining carpet was also seized vide memo Ex. PW4/A, B and C. pullindas were sealed with the seal of AS. IO also prepare the site plan at his instance. Thereafter, they again went to the hospital where he identified the dead body of his father and his statement was recorded to this effect by the police which is Ex. PW4/D bearing his signature at point A. He has also deposed in his cross examination that he was at a distance of about five paces from the place where DJ was going on. There were number of persons present at the marriage. There was loud noise of DJ. It is correct that threat given to his brother Hemchand was not actually heard by him. After the incident his brother Hemchand had come inside the house. He also went inside the house to make queries from his brother regarding the incident. Three boys continued sitting at the chair outside his house for about three minutes. When a knife blow was SC No. 53/08 Page 5/35 given he was in the house. Voltd. Everything was visible from the house. He rushed towards his father but before he could reach him, he was already given knife blows. Many people were present there at the time of occurrence. Voltd. Some persons including himself had chased the assailants also. He is a junk picker and sometimes accused Nirja used to sell junk items to him and that is how he knew him. It is wrong to suggest that no incident had taken place or that accused Neeraj did not give any knife blow to his father. It is wrong to suggest that he was not present at the spot at the time of occurrence. Accused Neeraj taken out the knife from left pocket of his pant. His statement was recorded simultaneously as he narrated to them. The containers in which the exhibits were kept were of plastic in which toffis are kept. It is wrong to suggest that his father had lost his balance and fell on the furniture arranged there. It is wrong to suggest that some iron stick was protruding out from that furniture pieces which injured his father. It is wrong to suggest that accused Rajesh was to take the payment of junk articles from him and to avoid payment, he falsely implicated him in this case.
He was re-examined by Ld. Addl. P. P. for the State and in his re-examination he has deposed that it is correct that his statement was earlier recorded before the court. He was shocked on that day.
He has also deposed in his examination in chief recorded after allowing of an application U/S 311 Cr.PC moved on behalf SC No. 53/08 Page 6/35 of the Prosecution that it is correct that he gave his statement in the Court on 13.12.2004 and on 25.08.2005. He identified the accused Jitender present in the Court. It is wrong to suggest that he had deposed earlier on 25.08.2005 in his cross examination due to threat given by the accused persons. He has also deposed in his cross examination that he was not called by the police at the PS at the time of the arrest of the accused Jitender. It is correct that he gave correct statement as per his knowledge on 25.08.2005 before the Court. It is wrong to suggest that he had identified the accused Jitender as tutored by the IO.
9. PW5-Hemchand has deposed that it was summer season when a marriage was being held and the tent was erected in front of their house. DJ was playing and he was dancing at about 12.30-12.45 am. At that time, accused Tukkan and Rajesh (witness pointed out towards accused Rajesh and Neeraj respectively) along with Neeraj came. Both the accused persons present in the court (correctly identified by the witness) gave beatings and he returned to his house. By kicking him accused had resorted "Khali Kar Raha Hai Ya Kara Do". His father and his elder brother Babloo (Om Prakash) were sitting on a cot in front of their house at that time. His elder brother came inside to inquire as to what had happened. His brother assured him to make accused persons understand and they came out. He saw his father lying on the dari, who was bleeding and all the three accused SC No. 53/08 Page 7/35 persons were running. He saw blood stained knife in the hands of accused Niraj. He with his brother and two more children chased the accused persons but they returned as accused were appeared to be armed. He with his brother and an unknown person who come to attend marriage took his father to SGM Hospital. His father was declared dead and that his post mortem examination would be conducted. PM examination was conducted on the body of his father. He knew the third assailant as he used to buy junk container as he had seen him in their block. He knew both the accused persons present in the court (correctly identified by the witness) prior to the occurrence as they were also residents of his block.
He has also deposed in his cross examination that in the aforesaid marriage DJ was installed in front of their house at a distance of about 15 feet. His father was invited to that marriage. He had gone to dance at about 10.15 pm. At that time, his father was lying on the cot in front of his house. Accused persons had come to the marriage party at about 12 midnight. Many people had witnessed the kicks given to him by the accused persons. After he was kicked, he straight away went to his house. He had not seen anyone giving knife blow to his father as he was inside the room of his house. His brother Om Prakash was also with him when his father was given blow. He had chased accused persons upto crossing which was three plots away. He had left chasing accused persons after S-Block. He and his brother Manoj had SC No. 53/08 Page 8/35 taken his father to the hospital. He does not know where the accused Neeraj was living. Accused Neeraj is not present in the court. Some boys who were present at the spot had told him the name of Neeraj. The carpet laid on the road was of blue colour. It is wrong to suggest that accused persons had not kicked him or that they were not present there.
He has also deposed in respect to the accused Jitender that it is true that he gave his deposition in the court other day. Babu Lal is his father. He is no more. He does not know how his father Babu Lal met with his death as he was standing on his roof.
He has deposed in his cross examination by Ld. Addl. P. P. for the State that the accused Jitender now shown to him is not known to him. He had not made any statement before the police. It is wrong to suggest that he made a statement before the police on 12.05.2004. It is wrong to suggest that he stated that all the three accused persons present in the court had come to the DJ and asked them to go away and that they threatened that they would not allow them to dance. It is wrong to suggest that his brother Om Prakash and his father Babu Lal tried to intervene and tried to pacify them and they went away abusing them. It is wrong to suggest that he stated that he saw his father lying on the dari and who was bleeding and all the three accused persons running away. It is wrong to suggest that accused Neeraj had inflicted knife blow on his father Babu Lal while the other accused Rajesh @ Tukkan and Jitender caught hold of his father. (Confronted SC No. 53/08 Page 9/35 with the entire statement mark A where it is so recorded). It is wrong to suggest that he is deposing falsely to save the accused.
10. PW18-SI Raghubir Singh has deposed that on 12.05.2004 at about 1.18 am he along with Ct. Rajesh was returning to the PP after attending the call received vide DD No. 30 dated 11.05.2004. When they reached S-Block crossing, Ct. Surender met them and he handed over copy of DD No. 3 dated 12.05.2004 Ex. PW13/A. Then he along with Ct. Surender and Rajesh reached S-1181 Mangol Puri. There he found a carpet which was spread on the road and there was blood on it. He was informed that injured was removed to SGM Hospital. He left Ct. Rajesh at the spot to guard the scene of occurrence and reached to SGM Hospital along with Ct. Surender. In the hospital, he collected MLC Of Babu Lal, S/o Sh. Pothi Lal who was declared dead by the doctors. Addll. SHO Inspector Azad Singh also reached to SGM Hospital. He inspected the dead body of Babu Lal and saw mark of stab injury in the arm pit. No eye witness was found in the hospital. He made an endorsement Ex. PW18/A on the copy of DD itself and sent it to PS at 2.50 am through Ct. Surender. In the rukka itself, he had requested DO to send the crime team and the photographer at the spot. He with Addl. SHO and other staff reached to the spot where Ct. Surender also returned after registration of the case. The crime team came to the spot. The scene of occurrence was got photographed. Addl. SHO had taken SC No. 53/08 Page 10/35 over the investigation, so he recorded statement of Incharge Crime Team. The Addl. SHO lifted exhibits from the spot, which included piece of blood stained carpet, sample carpet and the full carpet, sealed them with seal of AS except the full carpet and seized them vide memos Ex. PW4/A to PW4/C which bears his signature. Om Prakash S/o deceased was also present at the spot when they had reached there and Addl. SHO recorded statement of other witnesses. From the spot they returned to SGM Hospital where Addl. SHO conducted inquest proceedings.
On 30.05.2004 he along with HC Rai Singh, Ct. Jal Raj, Ct. Surender was patrolling the area of PP and at about 6.15 pm, they were present at the crossing of S-Block. Addl. SHO Inspector Azad Singh with rider Ct. Vinod also reached there. HC Sushil and HC Ominder also reached there. At about 6.40 pm, he received a secret information that two persons who were involved in the murder of Babu Lal were sitting in the park near the Sub- Station, Mangol Puri, Industrial Area, Phase-I. He passed on the information to Addl. SHO who requested 3-4 persons to join the investigation but none agreed. Addl. SHO formed a raiding party and with secret informer they reached near the Sub-Station. There the secret informer pointed out both the accused persons present in the court who were sitting in the park. Addl. SHO instructed them to apprehend the accused persons. HC Rai Singh and Ct. Jal Raj apprehended accused Rajesh @ Tukkan while the accused Neeraja @ Neeraj was apprehended by HC Sushil and SC No. 53/08 Page 11/35 Ct. Surender. Both the accused persons produced before the Addl. SHO. Addl. SHO took the cursory search of accused Rajesh @ Tukkan and from the right pocket of his pant a button actuated knife was recovered, investigation of which was entrusted to HC Rai Singh. Then Inspector Azad Singh took cursory search of accused Neeraj and from right side pocket of his pant a button actuated knife was recovered and HC Sushil was entrusted with the investigation of the same.
Accused Rajesh @ Tukkan was interrogated by Addl. SHO and he made disclosure statement Ex. PW15/A. Accused Rajesh @ Tukkan was arrested vide arrest memo Ex. PW18/B which bears his signature at point A and personal search memo Ex. PW15/B which bears his signature at point A. Thereafter, accused Neeraja @ Neeraj was interrogated and he made disclosure statement Ex. PW11/A. Thereafter, accused Neeraj @ Neeraja was arrested vide memo Ex. PW11/E and personal search memo Ex. PW11/F. Both the accused persons were handed over to ASI Narender and SI-Uday Veer conducted their investigation under Arms Act and then they all went to the place of occurrence where both the accused persons pointed out the spot.
On 31.05.2004 he along with Addl. SHO, HC Sushil and accused Neeraj left the PS at 9 am and accused Neeraja @ Neeraj led them to near CRPF Camp Village, Sultan Puri, Majra after he had made another disclosure statement Ex. PW11/B. After removing some earth accused Neeraja got recovered one knife SC No. 53/08 Page 12/35 which was buried by him under a Neem tree which was used by him in the offence. Addl. SHO prepared sketch of that knife Ex. PW11/C and the knife was sealed in pullinda with seal of AS and seized vide memo Ex. PW11/B. He has correctly identified the knife Ex. P-3 which was recovered at the instance of accused Neeraj, blood stained piece of carpet Ex. P-1, sample piece of that carpet Ex. P-2 and full carpet Ex. P-4 from which the sample and blood stained pieces were cut.
He has also deposed in his cross examination that the secret information was received by him only and the same was conveyed to the Addl. SHO. No legal action was taken against the passersby who had refused to join the investigation. The secret informer had not told him the names and addresses of both the accused persons. Ct. Surender had his own two wheeler scooter. He had reached SGM Hospital for the first time from the spot at about 1.30 am. Inspector Azad Singh had reached the hospital at 1.50 am. He had reached to the spot from the hospital at about 3 am. The pieces of the carpet were cut by the IO with the help of scissors. He does not know from where the IO had procured the scissor. The blood stained pieces and sample pieces of carpet were sealed separately in plastic boxes. IO was having those boxes. He does not know if the IO had brought those boxes with him or had procured those boxes at the spot. IO had recorded the statement of Om Prakash, Hem Chand, Tek Chand, SI Subhash Chand, Ct. Chunni Lal etc at the spot before 6.30 am.
SC No. 53/08 Page 13/35His statement was recorded by the IO at PP SGM Hospital on 12.05.2004 at 2.30 pm. On 30.05.2004 he had his two wheeler with him and HC Rai Singh was having his own two wheeler scooter. It took about 5-7 minutes in forming the raiding party. The park was opened having some boundary wall at some places. Accused persons were sitting at the distance of about 4-5 paces from the boundary of the wall. No public person was present at that time in the park. It took about ½ hour in recording the disclosure statement of Rajesh in the park which was recorded by HC Ominder. There was electric light in the park. They had gone to CRPF Camp in the Govt. Gypsy which was driven by driver HC Rajender. They were four police officials and the accused in the Gypsy. Only accused Neeraja was taken to CRPF camp. The second disclosure statement of accused Neerja was recorded at PS at about 8 am. HC Ominder has scribed the disclosure statement. No public witness was called at the PS when the disclosure statement of the accused Neerja was recorded. Accused had removed earth upto 5- 6 inches for recovery of the knife. It is correct that the place from where the knife was recovered was accessible to public. IO had not requested any public person to join the investigation. They had returned to PS at about 2.00 pm after the recovery. His statement was recorded by the IO after the recovery of the knife at the place of recovery. It is wrong to suggest that accused Neeraja was lifted from his house and falsely implicated in the SC No. 53/08 Page 14/35 present case.
11. PW24-Inspector Azad Singh who is the IO of the case has deposed that on 12.05.2004 he was posted as Addl. SHO in the PS Mangol Puri and on that day, the further investigation of the present case was assigned to him after registration of the present case by the orders of the SHO. Thereafter, he along with Head Ct. Vinod Kumar reached SGM Hospital. On reaching to the hospital, he found SI Raghubir Singh and Ct. Surender were already present there. From the hospital, he alongwith his staff returned to the place of occurrence and found that one tent had been put for marriage purposes. On that carpet, he noticed blood stains there. Om Prakash, S/o deceased Babu Lal met them. On the pointing out of Om Prakash, he prepared the rough site plan Ex. PW24/A. The pieces of the stained carpet on which he noticed blood stains, were taken and the same were kept in a plastic dabba and its pullinda was sealed with the seal of AS. The parcel was taken into police possession vide memo Ex. PW4/A. One piece of carpet was cut and taken as sample, it was kept in a plastic dabba which was converted into a cloth parcel and was sealed with the seal of AS. The sample parcel was taken into police possession vide memo Ex. PW 4/B which bears his signature at point A. The remaining portion of the carpet was taken into police possession vide memo Ex. PW4/C. He recorded statement of the witnesses. They made search of the accused but SC No. 53/08 Page 15/35 could not trace them out.
He prepared brief facts of the case Ex. PW24/B and made a request for autopsy on the body of the deceased vide application Ex. PW24/C. He recorded the statements of Tek Chand Ex. PW2/A and Om Prakash Ex. PW4/D with regard to the dead body identification and thereafter, the postmortem was conducted by the doctor. After the PM examination, Ct. Surender produced before him sealed parcel which were given to him by the autopsy surgeon and he took into police possession vide Ex. PW9/A. After the postmortem the dead body was released to legal heirs for cremation. They returned back to the PS and deposited the sealed parcels to the MHC(M).
On 30.05.2004 he along with Ct. Vinod Kumar, HC Omender and HC Sushil were present at the S-Block Chowk, Mangol Puri and SI-Raghubir Singh along with the staff also arrived there and joined his party. SI-Raghubir Singh received a secret information and informed him that he had received the information to the effect that two culprits of the present case were sitting in a park in the industrial are, Phase-I, Mangol Puri. He requested 5-6 public persons to join the raiding party but none agreed. Thereafter, they all police officials formed a raiding party and at about 6.40 pm they reached at the aforesaid park. The informer was also with them and on his pointing out, they apprehended two accused persons namely Rajesh and Neeraj present in the court (correctly identified by the witness). From the SC No. 53/08 Page 16/35 searches of the accused persons one knife each from the right side pocket of their pant were recovered. During the investigation the accused Neeraj and Rajesh Kumar made their separate disclosure statement which are Ex. PW11/A and Ex. PW15/A. On 31.05.2004 accused Neeraj had led the police party headed by him to CRPF Camp Park near Sultan Pur Majra Village, Delhi. There, the accused produced one knife after removing some earth near Neem Tree. The knife was measured and its sketch Ex. PW11/C was prepared by him. The recovered knife was kept in a parcel and it was sealed with the seal of AS. The parcel was taken into police possession vide memo Ex. PW11/D. The accused Rajesh and Neeraj were arrested on 30.05.2004 vide arrest memo Ex. PW8/B and Ex PW11/E respectively. The personal search memos of the accused Rajesh and Neeraj are Ex. PW5/B and PW11/F respectively.
On 31.05.2004 the two accused persons were produced in the Court of Ld. MM, PS-Mangol Puri. They made the search of the third accused Jitender but he could not found. He send the seized samples of the case property to the FSL, Rohini. He had taken the parcel of the recovered knife and had taken the same to the autopsy surgeon, SGM Hospital to obtain his opinion. He made request to the doctor by submitting an application Ex. PW3/B. The doctor examined the knife and had given his opinion in writing which is Ex. PW3/D. On completion of the investigation the charge sheet was filed in the court for trial of the SC No. 53/08 Page 17/35 two accused persons. He identified the piece of carpet Ex. P-1 and blood stained piece of carpet Ex. P-2 as the same which were taken into police possession and the knife Ex. P-3 recovered from the accused Neeraj.
On 20.02.2005 he formally arrested the accused Jitender present in the court (correctly identified by the witness) as he had been arrested by other police official in case FIR NO. 212/04, PS Mangol Puri. He interrogated the accused. His disclosure statement was recorded but nothing was recovered on the basis of that statement. He recorded the statement of Ct. Bhagwan Das. Thereafter, filed the supplementary charge sheet in the court.
He has also deposed in his cross examination that on 12.05.2004 he had gone to the hospital at about 1.50 am in the night. The seal after use was handed over to SI-Raghubir Singh but no memo was prepared in respect to handing over and return of seal. Some of the papers were recorded by HC Ominder but at his instance. SI Raghubir Singh had recorded rukka of the case but he was busy in the other proceedings. The crime team had reached the The dog squad had accompanied the crime team at the spot. The dog had gone in the direction of T-Block, Mangol Puri for about 30-40 steps but the said dog had not found any clue about the accused persons. He had not recorded the statement of any of the persons employed at DJ. It is correct that he had not joined any worker of the tent owner when he seized the carpet. It is correct that he had not got TIP of the recovered carpet SC No. 53/08 Page 18/35 conducted from the tent owner. As per the MLC deceased was declared as brought dead. The body had been shifted to the mortuary in the hospital. No other public person except the accused persons were available in the park. Chowkidar of the park also did not meet them. The personal search memo and arrest memo were prepared by sitting in the park itself. No specific name had been given to the park.
The place of recovery of knife was situated at a distance of about 1 km from the PS. It is correct that they had gone to the place, there public persons were available. It is wrong to suggest that accused Rajesh and Neeraj have been falsely implicated in this case. It is wrong to suggest that the accused Neeraj did not get recovered the knife. It is wrong to suggest that the entire investigation was completed while sitting in the PS.
12. PW1-Dr. Deepak Kumar has physically and medically examined the patient Babu Lal S/o Sh. Hoti Lal on the night intervening 11-12.05.2004 vide MLC Ex. PW1/A, PW2-Tak Chand who is the son of the deceased Babu Lal has identified the dead body of Babu Lal in the hospital, PW3-Dr. Ashish Jain has conducted the Postmortem examination on the dead body of Babu Lal vide Postmortem examination report Ex. PW3/A, he has also given opinion Ex. PW3/D on the weapon of offence produced before him by the IO, the cause of death was asphyxia and hemorrhagic shock consequent to laceration of lung as a result of SC No. 53/08 Page 19/35 stab injury, after examination of the weapon of offence he gave his opinion that the injury no.1 as mentioned in the postmortem report could not have been caused by the same or similar other weapon and his opinion is Ex.PW3/D which bears his signature at point A, PW12-ASI Dharampal Singh is the duty officer, PW13- Ct. Ashok is the DD writer, PW14-HC Sukhbir Singh is the Special Messenger who has delivered the report of this case to the Concerned MM and Senior Police officers at their residence, PW16-Ct. Amar Nath has deposited the exhibits of this case to FSL Rohini, PW17-HC Hari Singh is the MHC(M). Rest of the witnesses are official in nature.
13. After hearing arguments, on the critical analysis of the testimony of the witnesses and on the perusal of the material on record more particularly seeing the testimony of PW-4 Om Prakash @ Bablu S/o Babu Lal logically follows that on the night of 11-12.05.2004 at about 12.45 am, there was marriage of Babita in front of his house. There was a programme of DJ going on at the marriage. His younger brother, Hemchand was also dancing in the DJ and he and his father were sitting at the cot outside the house. At the same time, three boys came and asked his brother Hemchand to go from there and let them dance. There was an altercation with those boys with his brother and thereafter, his brother was given beatings by them and he came to the house. His father tried to pacify those boys. He was also taking details SC No. 53/08 Page 20/35 about the happening from his brother. His father told those boys to go and nothing is kept in quarrel. On this, all the above said three boys sat on the chair in front of his house. They started abusing and asked to take out his brother Hemchand from the house. They also told his father that "Yeh bahut jayada bolta hai, isi ko tapka dalo". Accused Jitender and Rajesh Caught hold of hands of his father and accused Nirja took out a knife and gave a blow in the side of left side of his father under arm pit. His father raised an alarm, on hearing the alarm, his brother Hemchand also came out and they chased the three boys but they managed to escape. Accused Neeraj @ Nirja and Rajesh are present in the court.
He along with his brother Hemchand and other boy took his father to SGM Hospital in an Auto/Vikram. Doctor examined his father and declared him brought dead. Thereafter, the dead body of his father was deposited in the mortuary and he came to his house. Police met him at the spot and recorded his statement. Police seized blood stained carpet by cutting and also sample of carpet and the remaining carpet was also seized vide memo Ex. PW4/A, B and C. pullindas were sealed with the seal of AS. IO also prepare the site plan at his instance. Thereafter, they again went to the hospital whee he identified the dead body of his father and his statement was recorded to this effect by the police which is Ex. PW4/D bearing his signature at point A. Thereafter, they received the dead body and dead body was cremated.
SC No. 53/08 Page 21/35He has also deposed in his cross examination he was at a distance of about five paces from the place where DJ was going on. There were so many boys dancing in the DJ alongwith his brother. There was loud noise of DJ. It is correct that threat given to his brother Hemchand was not actually heard by him. The altercation over DJ continued for about five minutes. After the incident his brother Hemchand had come inside the house. He also went inside the house to make queries from his brother regarding the incident. Three boys continued sitting at the chair outside his house for about three minutes. When a knife blow was given he was in the house. Voltd. Everything was visible from the house. He rushed towards his father but before he could reach him, he was already given knife blows. Many people were present there at the time of occurrence. Voltd. Some persons including himself had chased the assailants also. He is a junk picker and sometimes accused Nirja used to sell junk items to him and that is how he knew him. Sometimes, he used to sell polythene waste to him. The incident took place for about half an hour from starting the altercation till his father was given knife blow. It is wrong to suggest that no incident had taken place or that accused Neeraj did not give any knife blow to his father. It is wrong to suggest that he was not present at the spot at the time of occurrence. Accused Neeraj taken out the knife from left pocket of his pant. It is wrong to suggest that some iron stick was protruding out from that furniture pieces which injured his father.
SC No. 53/08 Page 22/35It is wrong to suggest that accused Rajesh was to take the payment of junk articles from him and to avoid payment, he falsely implicated him in this case.
The witness was examined when two accused persons namely Rajesh @ Tukkan and Neeraj Kumar were facing trial, thereafter, the third accused namely Jitender was charged on 05.07.2005 and PW4 was again examined on 25.08.2005. Ld. Addl. P. P. for the State has submitted that no further examination of this witness is required consequent upon the arrest of the accused Jitender as the witness has already spoken to the role of the accused Jitender also. He was cross examined on behalf of the accused Jitender where he has deposed that when the incident had happened he was inside the house and he heard the shouts only. He did not see anything else. He was also re-examined by Ld. Addl. P. P. for the State and in his re-examination he has deposed that it is true that his statement was earlier recorded before the court. He was shocked on that day. The witness is not answering the question as to which of the statement he made is true. It is wrong to suggest that he is deposing falsely.
PW4-Om Prakash was also recalled for further examination on the prayer of the Ld. Addl. P. P. for the State and his testimony was recorded on dated 23.11.2010 and he has deposed that it is correct that he gave his statement in the Court on 13.12.2004 and on 25.08.2005. He identified the accused Jitender present in the Court. It is wrong to suggest that he had SC No. 53/08 Page 23/35 deposed earlier on 25.08.2005 in his cross examination due to threat given by the accused persons. He has also deposed in his cross examination by Ld. Amicus Curiae it is correct that he gave correct statement as per his knowledge on 25.08.2005 before this Court. It is wrong to suggest that he had identified the accused Jitender as tutored by the IO.
14. PW5-Hem Chand has also deposed that a marriage was being held and the tent was erected in front of their house. DJ was playing and he was dancing at about 12.30-12.45 am. At that time, accused Tukkan and Rajesh (witness pointed out towards accused Rajesh and Neeraj respectively) along with Neeraj came. Both the accused persons present in the court (correctly identified by the witness) gave beatings and he returned to his house. By kicking him accused had resorted "Khali Kar Raha Hai Ya Kara Do". His father and his elder brother Babloo (Om Prakash) were sitting on a cot in front of their house at that time. His elder brother came inside to inquire as to what had happened. His brother assured him to make accused persons understand and they came out. He saw his father lying on the dari, who was bleeding and all the three accused persons were running. He saw blood stained knife in the hands of accused Niraj. He with his brother and two more children chased the accused persons but they returned as accused were appeared to be armed. He with his brother and an unknown person who come to attend marriage SC No. 53/08 Page 24/35 took his father to SGM Hospital. His father was declared dead. He knew the third assailant as he used to buy junk container as he had seen him in their block. The name of third boy was Niraj. He knew both the accused persons present in the court (correctly identified by the witness) prior to the occurrence as they were also residents of his block.
He has also deposed in his cross examination that the DJ was installed in front of their house at a distance of about 15 feet. His father was invited to that marriage. At that time, his father was lying on the cot in front of his house. Accused persons had come to the marriage party at about 12 midnight. Voltd. At that time he was also in the marriage party and had gone to dance at 12.15 am. Many people had witnessed the kicks given to him by the accused persons. After he was kicked, he straight away went to his house. He had not seen anyone giving knife blow to his father as he was inside the room of his house. His brother Om Prakash was also with him when his father was given blow. He and his brother Manoj had taken his father to the hospital. Police met him in the hospital where his statement was recorded. He does not know Neeraja or that where the accused Neeraj was living. Accused Neeraj is not present in the court. Some boys who were present at the spot had told him the name of Neeraj. It is wrong to suggest that the accused persons had not kicked him or that they were not present there.
PW5-Hem Chand was also recalled after 13.12.2004 SC No. 53/08 Page 25/35 upon the arrest of the accused Jitender and he has deposed that it is true that he gave his deposition in the court other day. Babu Lal was his father and he is no more. He does not know how his father Babu Lal met with his death as he was standing on his roof. Thereafter, he was cross examined by Ld. Addl. P. P. for the State. He has deposed in his cross examination by Ld. Addl. P. P. for the State that the accused Jitender now shown to him is not known to him. It is wrong to suggest that accused Neeraj had inflicted knife blow on his father Babu Lal while the other accused Rajesh @ Tukkan and Jitender caught hold of his father.
15. PW6-Sanjay has deposed that he runs the tent house with the name and style of R. L.Tent House. In the night intervening 11-12.05.2004 he had installed his tent in front of H.No. S-1196 and the main gate of the tent was erected in front of the H.No. 1181. he had laid carpet near the main door of the tent. He had left the site at 9.30 pm. At about 12.30-12.45 am he was informed by worker Sonu who came and informed that quarrel had taken place in the tent. He reached the site and saw blood on the carpet provided by him. Police was present there. He was informed by Addl. SHO that they would seize blood stained carpet and police took away entire carpet. He has identified the blood stained piece of carpet Ex. P-2 which is the same piece of the said carpet.
16. PW22-Tek Chand has deposed that deceased Babu Lal SC No. 53/08 Page 26/35 was his father. On 12.05.2004 he went to the mortuary of SGM Hospital and identified the dead body of his father. IO recorded his statement vide Ex. PW2/A which bears his signature at point A. PW23-Dr. Ashish Jain had conducted the Postmortem examination on the dead body of Babu Lal, aged about 50 years on the request of Inspector Azad Singh. His detailed Postmortem examination report is Ex. PW23/A which bears his signature at point A. The cause of death was asphyxia and harmorrhagic shock consequent to laceration of lung as a result of stab injury. After examination of weapon of offence he gave opinion that the injury no. 1 may be caused the injury no. 1 mentioned in the Postmortem examination report could have been caused by the same or similar other weapon. His opinion is Ex. PW3/D which bears his signature at point A.
17. PW18-SI Raghubir Singh was posted at PS Mangol Purin in PP SGM Hospital on 12.05.2004. At about 1.18 am he with Ct. Rajesh was returning to the PP after attending the call received vide DD No. 30 dated and when they reached S-Block crossing, Ct. Surender met them and he handed over copy of DD No. 3 dated 12.05.2004 Ex. PW13/A. Then he with Ct. Surender and Rajesh reached S-1181 Mangol Puri. There he found a carpet which was spread on the road and there was blood on it. He was informed that injured was removed to SGM Hospital. He left Ct. Rajesh at the spot to guard the scene of occurrence and with Ct.
SC No. 53/08 Page 27/35Surender reached SGM Hospital. In the hospital, he collected MLC of Babu Lal who was declared dead by the doctors. Addl. SHO Inspector Azad Singh also reached to SGM Hospital. He inspected the dead body of Babu La and saw mark of stab injury in the left arm pit. The crime team came to the spot. The Addl. SHO lifted exhibits from the spot, which included piece of blood stained carpet, sample carpet and the full carpet, sealed them with seal of AS. Om Prakash S/o deceased was also present at the spot when they had reached there and Addl. SHO recorded his statement and the statement of other witnesses.
On 30.05.2004 he along with HC Rai Singh, Ct. Jal Raj, Ct. Surender were patrolling the area of PP and at about 6.15 pm, they were present at the crossing of S-Block. At about 6.40 pm, he received a secret information that two persons who were involved in the murder of Babu Lal were sitting in the park near the Sub-Station, Mangol Puri, Industrial Area, Phase-I. Addl. SHO requested 3-4 persons to join the investigation but none agreed. Addl. SHO formed a raiding party and with secret informer they reached near the Sub-Station. There the secret informer pointed out both the accused persons present in the court (correctly identified by the witness) who were sitting in the park. Addl. SHO instructed them to apprehend the accused persons. HC Rai Singh with the help of Ct. Jal Raj apprehended accused Rajesh @ Tukkan while the accused Neeraja @ Neeraj was apprehended by HC Sushil with the help of Ct. Surender. Addl.
SC No. 53/08 Page 28/35SHO took the cursory search of accused Rajesh @ Tukkan and from the right pocket of his pant a button actuated knife was recovered. Then Inspector Azad Singh took cursory search of accused Neeraj and from right side pocket of his pant a button actuated knife was recovered. Accused Rajesh @ Tukkan was interrogated by Addl. SHO and he made disclosure statement Ex. PW15/A. Accused Rajesh @ Tukkan was arrested vide arrest memo Ex. PW18/B and personal search memo Ex. PW15/C. Thereafter, accused Neeraja @ Neeraj was interrogated and he made disclosure statement Ex. PW11/A. Thereafter, accused Neeraj @ Neeraja was arrested vide memo Ex. PW11/E and personal search memo Ex. PW11/F. Accused Neeraja got recovered one knife which was buried by him under a Neem tree which was used by him in the offence. Addl. SHO prepared sketch of that knife Ex. PW11/C and the knife was sealed in pullinda with seal of AS and seized vide memo Ex. PW11/B. He has correctly identified the knife Ex. P-3 which was recovered at the instance of accused Neeraj, blood stained piece of carpet Ex. P-1, sample piece of that carpet Ex. P-2 and full carpet Ex. P-4 from which the sample and blood stained pieces were cut.
18. Under the aforesaid discussion, it can safely be concluded that the Prosecution could not establish his case against the accused persons so far as the offence U/S 302/34 of IPC is concerned, as the accused persons had not intended to kill Sh.
SC No. 53/08 Page 29/35Babu Lal. The accused persons could have been hold guilty for the offence U/S 302/34 IPC if the accused persons would have caused the death of PW5-Hem Chand, as there had been a quarrel between PW5-Hem Chand and with the accused persons on the armpit of dance at the DJ. As all the three accused persons sat on the chair in front of his house and started abusing and asked to take out Hem Chand from the house. Since, they had sat outside the house of Hem Chand in his wait and somehow the PW5-Hem Chand had not come outside and when the father of Hem Chand had intervened and tried to persuade the accused persons to go as nothing is kept in the quarrel. Hence, the accused persons could have been guilty of murder, if they had committed the murder of Hem Chand. The accused Jitender and Rajesh caught hold of the hands of Babu Lal (since deceased) and Neeraj took out and gave a knife blow on the left side of Babu Lal under the armpit. The accused persons had given one knife blow only and somehow the said blow proved to be fatal to the deceased. Hence, at the same time, the accused persons definitely can be hold guilty of the offence U/S 304/34 of IPC as the accused Jitender and Rajesh caught hold the deceased Babu Lal and Neeraja took out and gave a knife blow in the left side of armpit of Babu Lal. He was taken to the hospital but he was declared brought dead. When the two accused persons namely Jitender and Rajesh caught hold of hands of Sh. Babu Lal and accused Neeraja took out and gave a knife blow in the left side under the armpit of Babu Lal, the accused SC No. 53/08 Page 30/35 persons were fully aware and having knowledge that what they were doing may likely to cause death or to cause such bodily injury as is likely to cause death.
19. The testimony of PW-4 namely Sh. Om Prakash @ Bablu S/o Babu Lal is quite coherent, probable and trustworthy and inspire the confidence of the court as he has categorically deposed that the accused Jitender and Rajesh caught hold hands of his father and accused Neeraja took out and gave a knife blow in the left side armpit of his father. His father raised alarm. On hearing alarm, his brother also came out and chased the three boys but they managed to escape. He has also identified the accused Neeraj @ Neeraja and Rajesh who were present in the court in his testimony on dated 13.12.04 and he has correctly identified the accused Jitender in his testimony dated 23.11.10 to the effect that he can identify accused Jitender if shown to him and the witness has correctly identified the accused Jitender who is present in the court today. He has also categorically deposed that when a knife blow was given, he was in the house. Vol. Everything was visible from the house. He rushed towards his father but before he could reach, his father was already given knife blow. The incident took place for about half an hour from starting the altercation till his father given a knife blow. The submission on behalf of the accused to the effect that the PW-4 Om Prakash @ Bablu has deposed in his cross examination on SC No. 53/08 Page 31/35 dated 25.08.05 that when the incident happened he was inside the house and he did not see anything else meaning thereby his testimony recorded on earlier point of time may not be believed is not convincing as it is an established law of land that if the cross examination of a witness is recorded after a considerable period of recording of examination in chief, his testimony recorded on earlier point of time has to be believed as the testimony recorded after a considerable long time may give time for winning over the witness, tutoring, manipulating and also a witness may forget some of the things due to the lapse of time. I found the testimony of PW-4 recorded on earlier point of time on dated 13.12.04 is quite coherent, probable and trustworthy and inspire the confidence of the court. The Hon'ble Supreme Court of India in "Khujji @ Surender Tiwari Vs. State of Madhya Pradesh" has also ruled that "evidence of hostile witness cannot be rejected into merely because prosecution choose to treat him hostile and cross-examined him - evidence of such hostile witness cannot be treated as effaced or washed off record altogether - same can be accepted to extent their version is found to be dependable on careful scrutiny thereof". Though PW-5 Hem Chand S/o Sh. Babu Lal has not fully supported the case of the prosecution but he has also given the truthful version of the prosecution story to the effect that it was a summer season, marriage was being held, tent was erracted in front of his house, DJ was playing and he was dancing at about 12.45 AM. At that time, accused Tukkan and SC No. 53/08 Page 32/35 Rajesh, present in court, (witness pointed out towards accused Rajesh and Neeraj respectively) with another Nirza. Both the accused present in court gave beatings and he returned to his house. By kicking him accused exhorted "khali kar raha hai ya kara de". His father and younger brother Om Prakash @ Bablu were sitting on cot in front of their house at that time. His elder brother came inside the house and inquired as to what had happened. His brother assured him to make accused persons understand and they came out. He saw his father lying on dari who was bleeding and all the three accused persons running. He saw blood stained knife in the hands of accused Nirza. His father was declared dead and his postmortem examination was conducted. Hence, his testimony to the effect is convincing that a quarrel had taken place between him and accused persons with regard to dancing on the DJ. The testimony of PW-6 Sanjay is also a chain in the prosecution story as PW-6 Sanjay run a tent house with the name and style of R.L. Tent House. In the night intervening 11-12.5.04, he has installed a tent in front of house no. 1196 and the main gate of the tent was erracted in front of house no. 1181. He left the house at 9.30 PM. At about 12.30- 12.45 PM, he was informed by his worker Sonu that a quarrel had taken place in the tent. He reached the site and saw blood on the carpet provided by him. He has identified blood stained piece of carpet Ex.P-2 is also the part of the same carpet. Hence, he has proved a chain of prosecution story that there was marriage SC No. 53/08 Page 33/35 function in which he has arranged necessary tent etc. and a quarrel had taken place and blood stained carpet was seized. The testimony of the part IO namely PW-18 SI Raghubir Singh and second IO PW-24 Inspector Azad Singh is also quite coherent, probable and trustworthy and inspire the confidence of the court. The chain of evidence is also complete.
20. In the net result as per the discussion held above I am of the considered opinion that the prosecution could not established their case against the accused persons for the offence U/s 302/34 IPC but the prosecution has successfully established a case against the accused persons for the offence U/s 304(part IInd)/34 IPC to the effect that the accused persons were having knowledge that it is likely to cause death or may cause such bodily injury as is likely to cause death and has caused the death of Babu Lal. It is an established law of land that the accused persons can be convicted for a lessor offence, though the accused persons had not been charged for the same. Since the prosecution has successfully established its case for the offence U/S 304(part IInd)/34 IPC against the accused persons, I am left with no other option but to hold the accused persons guilty for the aforesaid offences and consequently, all the three accused persons namely Rajesh @ Tukkan, Neeraj Kumar @ Nirja and Jitender are convicted for the offence U/S 304(part IInd)/34 IPC.
SC No. 53/08 Page 34/3521. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
Announced and dictated in the open court today on 29.11.2010.
R.B. SINGH ASJ, 03-Outer, Rohini Courts, Delhi/29.11.2010 SC No. 53/08 Page 35/35