Delhi District Court
State vs :- 1- Surrender Singh @ Sonu @ Sohan on 17 September, 2007
IN THE COURT OF SH. BHARAT PARASHAR:
ASJ:FTC:ROHINI:DELHI
S.C.NO.161/06
STATE VERSUS:- 1- SURRENDER SINGH @ SONU @ SOHAN
SINGH,
S/O SH. KULBIR SINGH,
R/O A-50, DDA COLONY,
KHAYALA,
DELHI.
(CONVICTED UNDER SECTION-
147/148/149/323/326 IPC)
2- PALVINDER KAUR,
W/O SH. KULBIR SINGH,
R/O A-50, DDA COLONY,
KHAYALA,
DELHI.
(CONVICTED UNDER SECTION-
147/148/149/323/326 IPC)
3- KULBIR SINGH,
S/O SH. SANTOKH SINGH,
R/O A-50, DDA COLONY,
KHAYALA,
DELHI.
(CONVICTED UNDER SECTION-
147/148/149/323/326 IPC)
4- NARRENDER SINGH @ MOHAN SINGH @
Monu,
S/O SH. KULBIR SINGH,
R/O A-50, DDA COLONY,
KHAYALA,
DELHI.
(CONVICTED UNDER SECTION-
147/148/149/323 IPC, R/W SECTION
302/34 IPC)
5- BALJIT SINGH @ BABOO,
S/O SH. GURCHARAN SINGH,
R/O 5D/21, VISHNU GARDEN,
DELHI.
(CONVICTED UNDER SECTION-
147/148/149/323 IPC, R/W SECTION
302/34 IPC)
6- BAKSHISH SINGH @ GURBAX SINGH,
S/O SH. KHARAK SINGH,
R/O C-435, DDA COLONY, - (ACQUITTED)
KHAYALA,
DELHI.
7- BABLOO @ JASPAL SINGH,
S/O SH. KULBIR SINGH,
R/O A-50, DDA COLONY, - (ACQUITTED)
KHAYALA,
DELHI.
8- PARAMJIT SINGH @ LALLI, - (SINCE DEAD)
S/O SH. GURCHARAN SINGH,
R/O 5D/21 DHARAMPURI,
KHAYALA,
DELHI.
9- GURCHARAN SINGH, - (SINCE DEAD)
S/O SH. SANTOKH SINGH,
R/O 5D/21 VISHNU GARDEN,
DELHI.
FIR NO.777/99
U/S 147/148/149/302/308/323 IPC & 27 ARMS ACT, 1959
PS TILAK NAGAR.
JUDGMENT
The case in hand presents a classic example as to how far the accused persons can go in order to wriggle out of a serious charge of murder against them. The overall facts coupled with the testimony of the prosecution witnesses clearly shows as to how the course of administration of justice is hindered by such unscrupulous attempt made by the accused persons. In order to better appreciate the aforesaid preposition, it will be worthwhile to narrate in brief the facts of the present case as stands unfolded by the report u/S 173 Cr.PC.
One Devender Singh along with his family comprising of his parents, brothers and his wife used to reside at A-58, JJ Colony, Khayala, Delhi. The family was engaged in the business of embroidery and had also installed two compressors to earn their livelihood. Nearby to their house the present accused persons were residing and incidentally they were also primarily engaged in the business of embroidery and tailoring. As usual on account of the fact that both the parties were engaged in similar kind of business, so, business rivalry existed between them. Accused Kulbir Singh accordingly used to hurl abuses towards Devender Singh and his family and he along with his family members were always on a lookout to somehow harass them so that they may close down their business of embroidery. Thus, on one such occasion i.e on the night intervening 22/23- 09-1999 at about 11.35pm Kulbir Singh returned to his house after consuming liquor and started hurling abuses towards Devender Singh and his family members while standing outside their house. Upon this, when Devender Singh and his brothers Jitender Singh and Gurvinder Singh came out of their house and told Kulbir Singh to not to do so and to go back to his house then Kulbir Singh left the spot threatening them of dire consequences. Thereafter, within five minutes or so Kulbir Singh again returned back to the spot accompanied with his three sons, namely, Surrender Singh @ Sonu, Narrender Singh @ Mohan Singh @ Monu and Babloo @ Jaspal Singh, wife Palvinder Kaur besides Baljit Singh @ Babbu, Paramjit Singh @ Lalli, Gurcharan Singh and Gurbaksh Singh duly armed with dagger, dandas and hockeys. Palvinder Kaur and Gurcharan exhorted all the aforesaid persons to attack Devender Singh and his family and to finish them off. Thereafter, accused Baljit Singh caught hold of Devender Singh from behind and accused Paramjit Singh attacked him with a dagger. Accused Narrender Kumar attacked Devender Singh with a hockey. When Balbir Singh, the father of Devender Singh, who was also sitting on a cot outside his house tried to intervene and save his son then he too was attacked by the accused persons. Nirmaljeet Kaur, wife of Devender Singh was also given beating by Palvinder Kaur. Both Jitender Singh and Gurvinder Singh, the two brothers of Devender Singh were also given beating by the other accused persons. In the aforesaid incident Devender Singh sustained serious injuries and fell down on the ground and all the accused persons thereafter ran away from the spot. Devender Singh was thereafter removed to DDU Hospital by his brothers where he was declared as brought dead. Jitender Singh, Gurvinder Singh, Nirmaljit Kaur and Balbir Singh were also examined at DDU Hospital. In the meantime, matter came to be reported to the police. SI Subey Singh of PS Tilak Nagar accordingly upon receipt of DD No.31 went to the spot along with HC Rajpal, Ct. Virender Singh, Ct. Om Prakash and Ct. Arvind Kumar. At the spot, he found that the injured persons have already been removed to hospital and blood was lying over there. One broken piece of hockey and one blood stained chunni was also found lying over there. Accordingly, after leaving HC Rajpal at the spot, he went to DDU Hospital and where he came to know that Devender Singh was brought dead to the hospital. At the hospital, he recorded statement of Balbir Singh, the father of deceased Devender Singh and on the basis of his statement, he prepared a rukka and got a case registered at PS Tilak Nagar. The subsequent investigation in the meantime was however taken over by Addl. SHO, PS Tilak Nagar, namely, Inspt. Rajendra Prasad. He collected the blood samples and earth control samples besides seizing the said broken piece of hockey and the blood stained chunni from the spot. He also recorded statement of other injured persons and also carried out the inquest proceedings qua the dead body of Devender Singh. The postmortem examination was thereafter got carried out. Subsequently accused Palvinder Kaur, Gurcharan Singh and Gurbaksh Singh were all arrested from bus stand Sarai Kalley Khan on the basis of a secret information. All the three accused persons led the police party to the place of occurrence and accordingly at their instance the pointing out memos were prepared. Later while accused Palvinder Kaur and Gurcharan Singh were sent to judicial custody and one day police custody remand of accused Gurbaksh Singh was obtained and again on the basis of a secret information other accused persons, namely, Palvinder Kaur, Balbir Singh, Surrender Singh and Narrender Singh @ Mohan Singh were arrested from "Gurdwara Bangla Sahib". During the course of interrogation, all the accused persons also made disclosure statements stating about their involvement in the present case. Accused Paramjit Singh thereafter also got recovered a 'dagger' used by him in the commission of the present offence and the shirt which he was wearing at the time of incident from the first floor of his house. After preparing a sketch of the 'dagger', the same was sealed in a pullanda with the seal of "RP". Accused Surrender Singh got recovered a 'hockey' which was used by him in the impugned incident from the second floor of his house. Subsequently, accused Kulbir Singh was also arrested from Nanak Pura Gurdwara, Moti Bagh, Delhi and at his instance also pointing out memo of the place of incident was prepared. However, one of the other accused, namely, Jaspal Singh could not be arrested as he was found to be absconding and accordingly NBW were got issued against him from the court. Accused Kulbir Singh also however allegedly made a disclosure statement admitting his involvement in the present incident. Thus, upon completion of necessary further investigation challan was prepared and was filed in the court for trial against eight accused persons. Accused Babloo @ Jaspal Singh, son of Kulbir Singh was however arrayed in column no.2 as an absconding accused.
As the charge sheet filed against the remaining eight accused persons was for the offence U/S 147/148/149/302/308/323 IPC read with Section 27 Arms Act, 1959 so, after compliance of Section 207 Cr.PC, the same came to be committed to the court of Sessions. The then ld. Predecessor of this court thereafter framed charges for the offence U/S 147/148/149/302/308/323 IPC against all the eight accused persons, namely, Surrender Singh, Narrender Singh, Palvinder Kaur, Kulbir Singh, Balbir Singh, Paramjit Singh, Gurcharan Singh and Bakhshish Singh. A separate charge for the offence U/S 27 Arms Act, 1959 was also however framed against accused Paramjit Singh. All the accused persons however pleaded not guilty to the charges so framed and claimed trial.
Thereafter, the examination-in-chief of PW1 Nirmaljeet Kaur the wife of deceased Devender Singh was recorded and even her part cross- examination was also recorded and the further cross-examination was deferred on the request of learned defence counsel. However, before the next date of hearing when she could be recalled for her further cross- examination that the ninth absconding accused person, namely, Babloo @ Jaspal Singh also came to be arrested and upon filing of a supplementary charge sheet qua him the said matter also came to be committed to the court of Sessions. The then Ld. Predecessor of the court accordingly framed a separate charge for the offence U/S 147/148/149/302/308/323 IPC against him also to which he also pleaded not guilty and claimed trial. Thus, in the aforesaid facts & circumstances of the present case, the trial of all the aforesaid nine persons continued together.
Prosecution in order to prove its case examined 26 witnesses. All the accused persons were thereafter examined U/S 313 Cr.PC. They however refused to lead any evidence in their defence.
Before adverting further, it will be worthwhile to mention that during the course of trial, two of the accused persons, namely, Paramjit Singh @ Lalli and Gurcharan Singh expired and the proceedings against them stood abated.
PW1 Nirmaljeet Kaur was allegedly an eye witness of the incident. In her part deposition initially recorded on 22-9-00, she reiterated the entire prosecution story while stating that all the aforesaid accused persons were involved in the impugned incident in which her husband died and she along with other family members sustained injuries. She also specifically stated about the role of accused Narrender Singh, Surrender Singh, Palvinder Kaur, Paramjit Singh and Baljit Singh. Thereafter, upon the apprehension of accused Babloo @ Jaspal Singh PW1 Nirmaljeet Kaur was again examined on 4-1-2001 and her examination-in-chief was again recorded. Once again, in her said deposition recorded on 4-1-01 she reiterated the prosecution story stating that all the accused persons were involved in the incident in which her husband Devender Singh died and she along with other family members sustained injuries. She once again specifically stated about the role of accused Paramjit Singh @ Lalli, Narrender Singh @ Monu, Surrender Singh, Palvinder Kaur and Baljit Singh @ Babbu besides that of accused Kulbir Singh also. Even on 4-1-2001 at the time of re-recording of the examination-in-chief of PW1 Nirmaljeet Kaur, the cross-examination was again deferred on the request of learned defence counsel. Thus, after the initial cross-examination of this witness which was carried out at the time of her earlier examination on 22-9-00, she came to be cross examined afresh by learned defence counsel on behalf of all the accused persons on 3-6-2002. In her said cross- examination she though sticked to her ground as to the actual incident in question but, not only claimed ignorance as to her earlier examination-in- chief recorded on two occasions in the court but also stated that the same was given under the pressure of the police by her. She also disowned the prosecution story by specifically denying the presence or role of any of the accused persons in the impugned incident. She was accordingly reexamined at length by ld. APP but, she continued to hold ground as to her changed stand and thus nothing material could be elicited in her re-examination by ld. APP.
PW2 Jitender Singh was also a brother of deceased Devender Singh. This witness was also initially partly examined on 4-1-2001 but on account of certain objections having been raised by learned defence counsel during the course of recording of the examination-in-chief of this witness that the then ld. Predecessor stopped the further recording of his evidence and sought a transfer of the case from his court. This witness thus was again examined before the transferee court on 17-1-2003. In his deposition over there he too though admitted about the death of his brother Devender and sustaining of injuries by him and his other family members in an incident on the said night but, denied the presence or role of the accused persons in the said incident. He was also accordingly cross examined by ld. APP at length but nothing material could be elicited from his mouth which may favour the case of the prosecution or may lead me to disbelieve his testimony.
Similarly, PW3 Gurvinder Singh yet another brother of deceased Devender Singh also deposed on identical lines as his brother PW2 Jitender Singh did and he also chose to not to support the prosecution story on the material aspect of the involvement of the present accused persons in the incident in question. In his cross-examination by ld. APP also nothing material could be elicited which could be of any help to the prosecution.
PW4 HC Ved Singh was the duty officer, PS Tilak Nagar on 23- 9-99. He had recorded the FIR in the present matter and proved the copy of FIR as Ex.PW4/A. PW6 Teerath Raj Singh was the draftsman, who prepared the scaled site plan Ex.PW6/A in the present matter.
PW7 Dr. RK Sharma had carried out the postmortem examination on the dead body of deceased Devender Singh vide his report Ex.PW7/A. He also subsequently examined the impugned 'dagger' with which injuries were caused on the person of Devender Singh and prepared its sketch Ex.PW7/B and gave his opinion Ex.PW7/C to the effect that the injuries in question were possible by the said weapon in question. He thus proved his said opinion as Ex.PW7/C. PW8 HC Shamsher Singh was posted as MHC(M), PS Tilak Nagar with whom the various case property articles were deposited with by the IO during the course of trial. Subsequently, he sent the sealed parcels to FSL through Ct. Vinod Kumar vide RC No.261/21.
PW9 Rampreet was the photographer, who had taken the photographs as Ex.PW9/6 to 10 and corresponding negatives as Ex.PW9/1 to 5.
PW10 HC Om Prakash was the duty officer, PS Tilak Nagar on 24-9-99, who recorded DD No.9 Ex.PW10/A regarding admission of injured in DDU Hospital.
PW12 HC Ishwar Singh was the DD writer, Police Post-Khayala, Police Station-Tilak Nagar on the intervening night of 22/23-09-1991 and had recorded DD No.31 Ex.PW12/A about the information having been received in respect of the present incident.
PW14 Ct. Vinod Kumar had taken ten sealed pullandas from MHC(M), PS Tilak Nagar on 12-10-99 and deposited the same in FSL.
PW15 Dr. Barjinder Singh had medically examined injured Nirmaljeet Kaur at DDU Hospital vide MLC Ex.PW15/A. PW16 Rajender Singh was the Record Clerk, Govt. of NCT Delhi, who proved the copy of the notification vide which possession of 'dagger' more than six inches long or two inches wide were prohibited by the Government.
PW17 ASI Mewa Singh was the PCR official, who had removed Balvinder Kaur to hospital where she was medically examined vide MLC Ex.PW19/C. PW18 SI Subey Singh was the initial IO of the case. In his deposition he reiterated the investigation carried out by him besides proving the various documents/memos prepared by him during the course of investigation. He also deposed about the subsequent investigation carried out by Inspt. Rajender Prasad with whom he remained associated during the course of investigation.
PW19 JC Vashisht was the Record Clerk, DDU Hospital. He proved the MLC Ex.PW19/A to Ex.PW19/D of the various injured persons, which were in the hand of Dr.Pritanand, who was no longer available in the services of the hospital.
PW20 HC Jaikaran was the control room official, who received the initial information about the incident and he passed on the said information through wireless to Police Post Khayala.
PW21 HC P.P Wargish was the duty constable, DDU Hospital, who had conveyed the information about the admission of the injured persons in the hospital to PS Tilak Nagar vide DD No.9A.
PW22 HC Jai Karan was also the control room official, who had recorded the information about the incident at West District Control Room, Rajouri Garden and forwarded the same to Police Post Khayala.
PW24 Ct. Babulal was the Special Messenger, who had taken the copy of FIR to the senior officers of police and to the concerned area Magistrate.
PW26 SI Kehar Singh had formally arrested the absconding accused Babloo @ Jaspal Singh on 21-10-2000 in the present case when he was arrested in some other case of PS Tilak Nagar.
PW25 Inspt. Rajender Prasad was the subsequent IO of the case, who had taken over the investigation of the present matter upon the death of Devender Singh. In his deposition, he reiterated the prosecution story deposing about the various documents/memos prepared by him during the course of investigation.
PW5 HC Rajbala, PW11 HC Matloob Ali, PW13 Ct. Virender and PW23 Ct. Om Parkash were the other police officials, who remained associated with PW18 SI Subey Singh and PW25 Inspt. Rajender Prasad during the course of investigation of the present case. They all deposed about the investigation which was carried out in their presence and thereby corroborated the testimony of the two investigating officers in material particulars.
In their statements U/S 313 Cr.PC all the accused persons however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely. They thus claimed themselves to be innocent.
I have heard the arguments as addressed by ld. APP as well as by ld. counsel Sh. AK Manchanda for all the accused persons at length.
It was vehemently submitted by ld. defence counsel that under the Code of Criminal Procedure, there was no provision under which examination-in-chief of a witness could be repeatedly recorded. It was further stated that if joint trial is ordered at a subsequent stage of the trial of a case then the evidence earlier recorded cannot be read against any of the accused persons. It was also stated that even otherwise the two examination-in-chief of PW1 Nirmaljeet Kaur substantially differs from each other. It was also stated that from the deposition of PW1 Nirmaljeet Kaur itself it was clear that there was no common intention or common object amongst the assailants of Devender Singh. It was also stated that both PW2Jitender Singh and PW3 Gurvinder Singh stated that PW1 Nirmaljeet Kaur reached the spot after about ten minutes of the incident. It was further stated that due to business rivalry existing between the two families in respect of the trade of embroidery in which they were engaged the present accused persons were falsely implicated in this case. It was further stated that the murder of Devender Singh was a blind murder in as much as no one had actually seen as to who had killed him. It was further stated that not only PW1 Nirmaljeet Kaur in her cross-examination completely disowned the prosecution story as regards the involvement of the present accused persons but, none of the prosecution witnesses have supported the case of the prosecution as to the involvement of the present accused persons in the incident in question. The accused persons were thus prayed to be acquitted.
On the other hand, ld. APP strongly opposed the contentions of learned defence counsel stating that a bare perusal of the testimony of the various prosecution witnesses shows that the prosecution witnesses were won over by the accused persons by the time they entered the witness box again for the purposes of cross-examination. It was thus stated that if such kind of tactics are allowed to be played by the accused persons then the cause of administration of justice will immensely suffer. It was further stated that from the mere fact that a witness had been declared hostile by the prosecution, her testimony does not cease to have any effect. The prosecution was thus stated to have been successful in proving its case against all the accused persons beyond shadows of all reasonable doubts. They were thus prayed to be convicted.
I have carefully perused the record.
At the outset, I may state that the facts and circumstances of the present case in the light of the nature of deposition of the various prosecution witnesses raises very few questions to be adjudicated upon, for, taking place of the actual incident has not been disputed by the accused persons. What is however in dispute is that none of the present accused persons were in any manner involved in the incident in question. Admittedly, the date, time and place of incident as deposed to by PW1 Nirmaljeet Kaur, PW2Jitender Singh and PW3 Gurvinder Singh have not been disputed by the accused persons. The injuries sustained by Devender Singh which finally resulted in his death are also not in dispute. Similarly, the injuries sustained by PW1 Nirmaljeet Kaur, PW2Jitender Singh and PW3 Gurvinder Singh have also not been disputed by the accused persons. The only short question which thus remains to be analyzed is as to whether the present accused persons or any one of them was in any manner involved in the impugned incident or not.
No doubt, PW2Jitender Singh and PW3 Gurvinder Singh both have completely denied about the presence or role of the present accused persons in the incident in question. On the other hand, PW1 Nirmaljeet Kaur though in her examination-in-chief recorded on two occasions stated about the presence and specific role of the accused persons but in her cross-examination recorded on a subsequent date she also towed the line of PW2Jitender Singh and PW3 Gurvinder Singh. However, in order to appreciate the testimony of PW1 Nirmaljeet Kaur and that of the other prosecution witnesses it will be worthwhile to mention certain dates as to when they were actually examined.
The incident in question admittedly took place on the night intervening 22/23-9-1999. PW1 Nirmaljeet Kaur entered the witness box for the first time on 22-9-00 when her examination-in-chief was recorded and she was also partly cross examined by learned defence counsel. Her cross-examination however remained deferred on the request of ld. Counsel for the accused persons. Thereafter, upon the apprehension of the absconding accused, namely, Babloo @ Jaspal Singh, PW1 Nirmaljeet Kaur again entered the witness box on 4-1-2001 and as is apparent from the record after the framing of charge against accused Babloo @ Jaspal Singh, the trial from the stage of recording of the deposition of the prosecution witnesses started afresh. Again on 4-1-2001 the examination- in-chief of PW1 Nirmaljeet Kaur was recorded but her cross-examination was deferred on the request of learned defence counsel. Finally, PW1 Nirmaljeet Kaur again entered the witness box on 3-6-2002 when she was cross examined by learned defence counsel and wherein she completely turned around denying the very presence of the accused persons at the spot at the time of incident. She was accordingly re-examined by ld. APP but she continued to hold ground to her changed stand while claiming ignorance as to the facts stated earlier in her examination-in-chief.
On the other hand, PW2Jitender Singh, the brother of deceased Devender Singh had also initially entered the witness box on 4- 1-2001 and when only a part examination-in-chief of his was recorded that objections were raised by learned defence counsel that the court was not dictating whatever was being stated by the witness. Thus, being perturbed by such an allegation, the then ld. Predecessor thought it proper to recluse himself and sought the transfer of the matter to some other court by sending the file to ld. Sessions Judge, Delhi. Thus, when the matter came to be transferred to another court that PW2Jitender Singh again entered the witness box on 17-1-2003. On the second occasion PW2Jitender Singh also completely denied the very presence of the accused persons at the time of incident at the spot. PW3 Gurvinder Singh, who also was examined on 17-1-2003 also towed the line of his brother PW2Jitender Singh.
From the aforesaid facts & circumstances of the present case, coupled with the nature of deposition of the three witnesses, namely, PW1 Nirmaljeet Kaur, PW2Jitender Singh and PW3 Gurvinder Singh it is clearly apparent that they have been won over by the accused persons. At this stage, I may add as a word of caution that the aforesaid conclusion is not a figment of imagination but is writ large on the face of the record. I shall be hereinafter demonstrating as to how this conclusion stands fortified from the records of the case.
However, before, I may proceed further as to a further discussion of the prosecution evidence, it may be worthwhile to mention that the evidentiary value of a hostile witness cannot be treated as effaced or washed off the record altogether. Part of his evidence which is otherwise acceptable can be acted upon. Reliance in this regard can be placed on the case KHUJJI @ SURENDERA TIWARI VS. STATE OF M.P 1991 CR.L.J. 2653 SC & the case RADHA MOHAN SINGH @ LAL SAHEB & OTHERS VS. STATE OF UP AIR 2006 SC 951.
To every offence an important ingredient is the issue of motive to the accused persons which might have prompted them to commit such an offence. Accordingly, in the case in hand the business rivalry admittedly was the sole grudge to the accused persons against the deceased and his family members. Though, not only this issue has not been controverted by the accused persons but, it also stands amply proved from the testimony of PW1 Nirmaljeet Kaur & PW2Jitender Singh. In his initial part examination-in-chief recorded on 4-1-2001. PW2 Jitender Singh specifically stated that accused Kulbir Singh was also doing the job of embroidery and while accused Baljit Singh was a tailor by profession. He also stated that the business of accused Baljit Singh and Kulbir Singh was slightly less than their business. To similar effect, a statement was made by PW1 Nirmaljeet Kaur in her examination-in-chief, on the two occasions. In fact, learned defence counsel also sought to argue that the names of these accused persons were falsely taken in the present incident on account of this business rivalry existing between the two parties. Moreover, this part of the deposition of the two witnesses has not been disputed at all by the accused persons in their cross-examination.
Thus, from the aforesaid un-controverted part of deposition of the prosecution witnesses it stands clearly proved on record that since both the parties were engaged in the business of embroidery and the business of accused persons was slightly less than that of the family of deceased so, they were keeping a grudge towards the victims family on that account.
At this stage, I may once again reiterate that the death of Devender Singh or the injuries sustained by other persons have not been disputed by the accused persons. In these circumstances, it will be thus worthwhile to deal with the contentions of learned defence counsel as to whether they carry some force or not in the light of the aforesaid undisputed facts.
As regards the re-recording of the examination-in-chief of PW1 Nirmaljeet Kaur upon the apprehension of accused Babloo, I may simply state that since at the initial stage when the charges were framed against eight accused persons by the then ld. A.S.J-Sh. RS Verma on 18-3-00 then one of the co-accused, namely, Babloo @ Jaspal Singh was absconding. Thereafter, the case was adjourned for recording of prosecution evidence and PW1 Nirmaljeet Kaur was partly examined and her cross-examination was deferred. It was thereafter that absconding accused Babloo came to be apprehended. Again the then ld. Predecessor of this court Sh. RK Jain framed charges against accused Babloo @ Jaspal Singh on 13-12-00 and the trial of the nine accused persons was thereafter carried out jointly. The learned Judge thus in order to avoid any prejudice to accused Babloo @ Jaspal Singh thought it proper to call upon PW1 Nirmaljeet Kaur to get her examination-in-chief recorded again. Thus, it cannot be stated that by again calling upon PW1 Nirmaljeet Kaur to record her examination-in- chief afresh after the apprehension of Babloo @ Jaspal Singh any prejudice has been caused to the accused persons and rather in all fairness, the learned Judge has ensured that the evidence of the prosecution witnesses be that their examination-in-chief or their cross- examination has been recorded in the presence of all the nine accused persons. The learned Judge thereby ensured due compliance with the provisions of the Code of Criminal Procedure. Thus, the contention of learned defence counsel that the examination of PW1 Nirmaljeet Kaur could not have been carried out again and again does not hold ground. Rather on the other hand, the reiteration of the same averments by PW1 Nirmaljeet Kaur in her examination-in-chief recorded on the two occasions clearly supports my earlier conclusion drawn in the earlier part of the judgment that by the time PW1 Nirmaljeet Kaur entered the witness box again on 3-6-02 for the purposes of her cross examination then she was already won over by the accused persons. In fact, a bare perusal of the examination-in-chief of PW1 Nirmaljeet Kaur recorded on the two occasions clearly shows that she could not have doubted or faltered in the identification of the accused persons being the assailants of her husband Devender Singh. Admittedly, the accused persons were residing in the neighbourhood of PW1 Nirmaljeet Kaur and were thus well known to her from prior thereto. Since, PW1 Nirmaljeet Kaur herself also sustained injuries in the present incident so, her presence at the time of incident cannot be doubted. However, it is clear that during the period of about 18 months which elapsed when she was cross-examined after the recording of her examination-in-chief something transpired which made her shift her evidence on the question of identity to help the accused persons. A bare reading of her examination-in-chief coupled with her cross examination recorded after a gap of about 18 months clearly shows that the same is an attempt to wriggle out of what she had earlier stated in her examination-in-chief. Since, the accused persons were admittedly known to her from prior thereto and her presence at the spot at the time of incident cannot be doubted because of the un-disputed injuries sustained by her, I have no doubts whatsoever to disbelieve what she stated in her earlier examination-in-chief recorded on the two occasions. In fact, though in her cross-examination by learned defence counsel she stated that her earlier examination was made by her under the pressure of police but, it was nowhere suggested to her that she had earlier named the accused persons being the assailants involved in the present incident on account of any previous enmity or business rivalry. However, in her re- examination by ld. APP she though disowned the prosecution story but instead of denying that the earlier statements made in her examination-in- chief were false or incorrect she by and large stated that she does not remember her earlier examination-in-chief recorded in the court. Moreover, her testimony recorded prior to the apprehension of Babloo @ Jaspal Singh also cannot be scrapped away from the record. In fact, learned defence counsel himself also while trying to draw home the conclusion that she was not a truthful witness argued that she in her two examination-in-chief she contradicted herself. Thus her said earlier deposition was clearly available to both prosecution as well as to defence to contradict her subsequent deposition or to corroborate her subsequent testimony so as to show that she has been a consistent witness and a truthful witness or not qua the said aspects.
I may also mention that the cross-examination of PW1 Nirmaljeet Kaur as was carried out by learned defence counsel on the two occasions also supports the fact that by the time of her second cross- examination she was already won over. A bare reading of her initial part cross-examination recorded on 22-9-00 clearly shows that the prosecution case about two incidences having taken place on that night within a gap of five minutes or so was not disputed. However, in her subsequent cross-examination carried out on 3-6-02 the line of cross-examination completely changed. A new story that Devender Singh died in an accident which took place in a party just outside their house was put forward. This line of cross-examination of the witness was completely on a different footing from the one on which her initial cross-examination was being carried out.
Though, ordinarily there cannot be a bar on the defence from taking different plea of defence but, the same cannot be contradictory in nature or a completely vague and false plea of defence. In the case STATE OF T.N. RAJENDERAN AIR 1999 SC 3535, 'it was observed by Hon'ble SC that if in a case the accused takes a false plea then the same becomes an additional link in the chain of circumstances'.
From the subsequent discussion, it will become apparent that the plea of defence taken in her cross-examination dated 3-6-02 was completely a false plea of defence without any basis whatsoever.
In the same light the testimony of PW2Jitender Singh and PW3 Gurvinder Singh has to be seen and analysed. In fact, neither to PW2Jitender Singh nor to PW3 Gurvinder Singh it was at all suggested by learned defence counsel that the accused persons were got framed in this case falsely on account of any previous enmity or business rivalry. In fact, in the present case Balbir Singh, the father of deceased Devender Singh was the complainant on whose statement the present case came to be registered but during the course of trial before he could be examined he was found to have expired. Though, Balbir Singh in his complaint lodged with the police and the basis of which the present case was registered, specifically stated about the role of all the accused persons in the impugned incident. However, as Balbir Singh did not enter the witness box himself to prove the said complaint so, I am not placing any reliance upon it. However, in the overall facts & circumstances of the present case, the learned defence counsel should have at least put a suggestion to the three witnesses, namely, PW1 Nirmaljeet Kaur, PW2Jitender Singh and PW3 Gurvinder Singh that the present accused persons were in fact falsely implicated or named even by their father in the present case on account of some previous enmity or business rivalry. Moreover, as regards the contention of learned defence counsel that the wife of a person, who died in an incident or the brothers of the deceased person will not like to falsely depose in order to save the actual culprits of the deceased, I may again state that this argument may though appear to be emotionally true but on the basis of this argument the earlier examination-in-chief of PW1 Nirmaljeet Kaur also does not stand explained by learned defence counsel, which clearly spells out the role of the accused persons.
The contention that her earlier examination-in-chief was made by her under the pressure of police is clearly without any force on the face of it. Firstly, there was no reason for the police to falsely implicate the present accused persons in this case. Though, to both PW18 SI Subey Singh or to PW25 Inspt. Rajender Parsad a suggestion was put by learned defence counsel that the accused persons have been falsely implicated in this case but, this suggestion was not only denied by both the witnesses but the accused persons failed to show as to why the police officials will like to falsely implicate them in this case.
As regards the contention of learned defence counsel that in the entire proceedings carried out by the IO, no public independent witness was joined in the proceedings despite availability of a number of them, I may simply state that for the aforesaid negligence or carelessness of the IO, the prosecution case cannot be made to suffer. Even otherwise public witnesses are usually found to be reluctant in joining proceedings with the police and especially when the two parties are of the same locality residing in their neighbourhood. Thus, no adverse inference can be drawn simply on this score against the case of the prosecution and it is thus not a ground to discard the testimony of the prosecution witnesses examined. As regards the recovery of 'dagger' at the instance of accused Paramjit Singh or of a hockey at the instance of accused Surrender Singh learned defence counsel merely put certain suggestions to the contrary which were vehemently denied by the witnesses. Thus, it cannot be stated that merely by putting certain suggestions the very recovery of the said articles became doubtful suggestions, if denied cannot take the place of proof. (Vide: Sita Ram Pandey & Others Vs. The State of Bihar, 1976 Crl. L.J. 800 Patna). The FSL report which shows the presence of human blood on the impugned 'dagger' and shirt also render corroboration to the prosecution case. In fact, the blood on the impugned shirt was also found to be of "A" group i.e similar to that of deceased Devender Singh.
Apart from the aforesaid circumstances the conduct of the accused persons in pointing out the place of incident to the investigating officer is clearly admissible U/S 8 of the Indian Evidence Act. This piece of evidence as deposed to by the prosecution witnesses has remained un- controverted at the altar of cross examination. The conduct of the accused persons in pointing out the place where the incident actually took place and from where the blood samples etc were lifted is clearly admissible U/S 8 of the Indian Evidence Act, irrespective of any other statement made at that point of time by the accused persons which may or may not stand admissible U/S 27 Indian Evidence Act. The aforesaid conduct in pointing out the said place by the accused persons is clearly an important piece of incriminating evidence admissible against them.
In the case PRAKASH CHAND VS STATE AIR 1979 SC 400, it was observed by the Hon'ble SC that 'There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure Code is the statement made to the Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by Police Officer during the course of investigation. For example, the evidence of the circumstance simpliciter, that an accused person led a Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden would be admissible as conduct U/S 8 of the Evidence Act irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act (vide Himachal Pradesh Administration V. Om Prakash (AIR 1972 SC 975)'.
Finally, as regards the contention of learned defence counsel that there was no element of common intention/object between the accused persons I may again state that the same stands amply proved from the material on record. Not only the accused persons came armed to the spot with 'lathies', hockeys', 'danda' and dagger but upon the exhortation of Palvinder Kaur and Gurcharan Singh to finish off Devender Singh and his family members they all attacked them. As regards the contention of learned defence counsel that some party was going on outside the house of deceased Devender Singh in which a quarrel had taken place, I may again state that the same is clearly a feeble attempt on the part of the accused persons to create a false plea of defence in order to save their skin. No evidence at all was led by the accused persons as to whose party and in connection to which occasion the said party was going on over there. Though, it was submitted by learned defence counsel that a tent was erected over there but again for reasons best known to them no evidence at all was led by them as to from which tent house the said tent came to be erected over there. Thus, it is once again clear that the said plea of defence that the incident took place in a party was a false plea of defence. Moreover, all the police officials, who visited the spot have completely denied any suggestion put to them that a party was being held near the house of the deceased.
However, I may state that PW1 Nirmaljeet Kaur though in her examination-in-chief has deposed about the presence of all the accused persons at the time of incident but she specifically stated about the role played by some of them only. Even, as regards certain accused persons, she claimed her inability to state as to with which weapon of offence, they were armed with at the time of incident. She clearly stated that all the accused persons were known to her from prior to. This statement of her was not disputed by the accused persons. She stated that accused Kulbir Singh was the person, who initiated the quarrel while hurling abuses upon Devender Singh and other family members and thereafter called upon the accused persons to take a revenge. She also stated about the specific role played by accused Narrender @ Monu, who she stated was armed with a hockey and had given a hockey blow behind the left ear of Devender Singh. She also specifically stated about the roles of accused Surrender and Palvinder Kaur, who had come armed with dandas. She stated that when she tried to intervene in the matter in order to save her husband Devender Singh then accused Palvinder Kaur caught hold of her hair and made her fell on the ground and also gave danda blows on her right hand and abdomen. As regards, accused Baljit @ Babbu she specifically stated that he caught hold of Devender Singh from behind and thereafter accused Paramjit Singh, who was armed with a dagger gave a blow on the chest of her husband and thereafter another blow on his left elbow. She however did not state anything else about the specific role played by the other accused persons viz Bakshish Singh, Gurcharan Singh and Babloo @ Jaspal Singh. In fact, she even did not mention the names of these three accused persons being present at the spot at the time of incident or not, though she made a general statement that all the accused persons were present.
However, one important question which occurs in the overall facts & circumstances of the present case is for which of the offences the various accused persons can be thus held liable. Though, all the accused persons have been charged for the offences U/S 147/148/302/308/323 IPC with the aid of Section 149 IPC and have thus been tried in respect of the acts committed by the members of the impugned unlawful assembly in furtherance of the prosecution of the common object of the said unlawful assembly. However, what is important to be seen and analyzed is as to whether in the given set of facts & circumstances of the present case all the accused persons whose presence in the said unlawful assembly has been proved by the prosecution can be said to be liable for all the acts committed by some of the members of the said unlawful assembly or not. In other words, what is required to be seen is as to whether all the acts done by the various members of the unlawful assembly in prosecution of the common object of the unlawful assembly or were such that the members of the assembly knew to be likely to be committed in the prosecution of the said common object.
However, the answer to the aforesaid question is "NO". In the present facts & circumstances of the present case, all the members of the said unlawful assembly whose presence at the time of incident has been established by the prosecution cannot be held liable for the acts committed by the different members either on account of the fact that the said acts were done in prosecution of the common object of the assembly or that the said acts were such as the members knew were likely to be committed in prosecution of that object. In order to better appreciate the aforesaid preposition, it will be important to again recapitulate the circumstances which led to the present incident.
Admittedly, the two parties were engaged in the business of embroidery and tailoring in the neighbourhood of each other. They were having some business rivalry on account of the said fact. Accused Kulbir Singh, who was bearing a grudge in this regard came in a drunken condition and started hurling abuses outside the house of Devender Singh. When Devender Singh and his two brothers objected to his said acts that he ran away from there while extending threats to them and within five minutes again came back allegedly with all the aforesaid accused persons. Some of the members came armed with hockey, dandas and one of them was having a dagger. It is also the admitted case of the prosecution that only accused Baljit Singh @ Babbu, Paramjit Singh and accused Narrender attacked Devender Singh but none of the other accused persons caused any injury to him. Accused Palvinder Kaur admittedly entered into a scuffle with PW1 Nirmaljeet Kaur. In fact, the aforesaid incident of Palvinder Kaur entering into a scuffle with PW1 Nirmaljeet Kaur stands proved even from her MLC Ex.PW19/C. The said MLC even goes to establish her presence at the time of incident at the spot. Thus, it is difficult to conclude from the aforesaid facts & circumstances of the present case that the common object of the said unlawful assembly comprising of the present accused persons was to commit the murder of Devender Singh or of any other person. In fact, from the nature of injuries sustained by PW1 Nirmaljeet Kaur, PW2 Jitender Singh and PW3 Gurvinder Singh which were simple in nature, this conclusion further gets fortified. Had there been such a common object of the members of the unlawful assembly then the injuries sustained by the other accused persons would have been certainly different in nature. It thus cannot be presumed merely on the basis of conjectures and surmises that the common object of the unlawful assembly was to commit murder of Devender Singh or for that matter of any other member of his family. Thus, it cannot be stated that the death of Devender Singh which finally took place in the impugned incident was in prosecution of the common object of the unlawful assembly.
With the aforesaid background what is still required to be seen is as to whether the murder of Devender Singh was such as the members knew to be likely to be committed in prosecution of the common object of the unlawful assembly or not. Once again, I may state that from the fact that accused Paramjit Singh, who was one of the members of the unlawful assembly was carrying a dagger in his hand though clearly imputed upon other members of the unlawful assembly, a knowledge that some grievous injuries might be caused in the incident but not that the murder of Devender Singh or of any other person was the likely result of his carrying a dagger in his hand. Thus, as one of the member of the unlawful assembly was armed with deadly weapon so, the knowledge that grievous injuries might be caused by the members of the unlawful assembly in the incident can certainly be attributed to all the members of the unlawful assembly.
However, with the aforesaid scenario an important question may arise as to whether any member of the unlawful assembly can be held liable individually or collectively for the murder of Devender Singh or not and if so which of the members can be so held liable.
Certainly, Paramjit Singh, who inflicted dagger blow on the chest of Devender Singh and which injury was opined to be sufficient to cause death by the doctor and Devender Singh in fact died on account of the said very injury is clearly and apparently liable for the said act viz the murder of Devender Singh. However, accused Baljit Singh @ Babbu, who had caught hold of Devender Singh from behind and thereby facilitated Paramjit Singh to give a dagger blow on the person of Devender Singh is also clearly and apparently liable for the murder of Devender Singh. At the same time accused Narrender Singh @ Monu, who gave hockey blow on the person of Devender Singh which resulted in injuries on his left ear also cannot escape from his liability for the murder of Devender Singh.
The important issue which however arises is, if to commit the murder of Devender Singh was not the common object of the unlawful assembly and the said act was also not such as was likely to be committed in prosecution of the common object then how just three members of the said unlawful assembly be held liable for the murder of a person. One could have said that the said common object to commit the murder of Devender Singh came into existence at the spot itself amongst those three persons during the course of incident. However, in that situation when the prime requirement for imputing liability on a person U/S 149 IPC of the acts done by any other person is that they all should form part of a common unlawful assembly and which necessities that there should be a minimum of five or more persons.
In the aforesaid facts & circumstances of the case, there though may appear to be a a contradiction that if only three members of the assembly can be held liable for the murder of Devender Singh and the other persons present cannot be attributed any such knowledge that the murder of Devender Singh could have been committed in prosecution of the common object of the assembly then how the culpability can be attributed upon them.
However, I may state that the liability of the murder of Devender Singh stands imputed upon all the three accused persons, namely, Paramjit Singh, Narrender and Baljit Singh @ Babbu by virtue of Section 34 IPC. Ordinarily the aforesaid statement may appear to be strange in as much as once provisions of Section 149 IPC have been invoked against the accused persons then normally the applicability of Section 34 IPC does not come into picture. Section 34 IPC talks of an act having been done by two or more than two persons in furtherance of the common intention shared amongst them. There may be however certain cases where Section 34 IPC and Section 149 IPC may tend to overlap each other in their applicability. The present case presents one such example. Both Section 34 IPC and Section 149 IPC deal with constructive criminal liability. Though, there is much difference between the scope and applicability of Section 34 IPC and Section 149 IPC but both have some resemblance and are to some extent overlapping. The principle feature of Section 34 IPC is the element of active participation in the commission of the criminal act. However, U/S 149 IPC the liability arises by reason of the membership of the unlawful assembly with common object. There need not be active participation of all in the preparation or the commission of the crime. Section 34 IPC is however merely a declaratory rule of criminal liability and does not create a distinct offence. Section 149 IPC however is not merely a declaratory provision and does create a distinct offence.
Coming to the case in hand, I may once again state that though the common object of the unlawful assembly was not to commit the murder of Devender Singh or of any other person but during the course of incident accused Narrender Singh, Baljit Singh @ Babbu and Paramjit Singh all developed a common intention and they all actively participated in committing the murder of Devender Singh in furtherance of their said common intention. This fine distinction as to the applicability of Section 34 IPC and Section 149 IPC to the facts & circumstances of the present case is being sought to be emphasized so as to clarify that though at the initial stage of the incident when all the accused persons came to the spot being members of an unlawful assembly then there was no common object of committing murder of Devender Singh or of any other person and there was no knowledge to them that the murder of Devender Singh was likely to be committed in prosecution of the common object. The common object primarily was to quarrel with the opposite party on account of the grudge being carried by the accused party due to the business rivalry and so to deter them from continuing with their said business. The immediate provocation was also though provided by accused Kulbir Singh when he in an inebriated condition hurled abuses towards Devender Singh and his family members while standing outside their house. Upon objections having been raised by Devender Singh and his brothers that he went to his house and called upon the other accused persons to teach the opposite party a lesson. However, during the course of aforesaid quarrel some of the members of the unlawful assembly also developed a common intention at the spur of the moment different from the common object of the unlawful assembly so as to attack Devender Singh with such intention and knowledge by hockey and a dagger and by catching hold of him from behind so as to commit his murder and that he may not provide any resistance to such attacks. Thus, this formation of common intention at the spur of the moment during the course of quarrel was certainly different from the common object of unlawful assembly with which the accused persons had come over there.
In my aforesaid view, I also find ample support from the case KAUSHAL KISHORE SINGH AND ANOTHER VS. STATE OF UP AIR 2006 SC
951. Thus, in view of my aforesaid discussion, I am of the considered opinion that the prosecution has been successful in proving that accused Narrender, Surrender, Palvinder Singh, Baljit Singh, Kulbir Singh and Paramjit Singh were all members of an unlawful assembly, who had gathered at the spot in order to have a quarrel with the family of Devender Singh on account of the grudge, they were having due to the business rivalry. However, the prosecution has not been able to prove that accused Bakshish Singh, Gurcharan Singh and Babloo Singh @ Jaspal Singh were also members of the said unlawful assembly. The mere statement made by PW1 Nirmaljeet Kaur that all the accused persons present in court were present at the time of incident is too vague a statement so as to impute criminal liability upon them. She even claimed ignorance as to with weapon of offences the said three persons were armed with or whom they attacked in the quarrel. The prosecution ought to have led positive specific evidence qua their presence and role in the incident. Thus, I am of the considered opinion that on the basis of the deposition of PW1 Nirmaljeet Kaur it cannot be concluded that they all three were members of the said unlawful assembly.
As already discussed by me herein above from the fact that one of the members of the unlawful assembly was carrying a dagger and other were carrying danda and hockeys in their hand so, this knowledge can be attributed upon all members of the unlawful assembly that grievous injury might be caused to someone in the incident. Thus, accused Palvinder Kaur, Surrender and Kulbir Singh can at the most be held liable for the offence U/S 147/148/149/323/326 IPC and not for the murder of Devender Singh i.e for the offence U/S 302/149 IPC. In fact, the prosecution has also failed to prove the charge for the offence U/S 308/149 IPC also against any of the accused persons. It also has not been proved by the prosecution from the nature of injuries sustained by Gurvinder Singh, Jitender or Balbir Singh that the injuries caused to them were such that if they had died on account of the said injuries then all the accused persons would have been guilty of the offence of committing culpable homicide not amounting to murder.
However, accused Narrender, Baljit Singh and Paramjit Singh are certainly liable for the murder of Devender Singh having been committed by them in furtherance of their common intention which was developed amongst them at the spur of the moment besides for the other acts done by the members of the unlawful assembly in prosecution of the common object. However, as accused Paramjit Sing has since expired so, I am not any further discussing the prosecution case qua him for any of the offences whatsoever.
The other two accused Baljeet Singh and Narrender however stands liable for the offence U/S 147/148/149/323 IPC besides for the offence U/S 302/34 IPC.
Though, no separate charge for the offence U/S 34 IPC has been framed but as Section 34 IPC does not create a distinct offence so, it cannot be stated that in the absence of any such charge any prejudice has been caused to the accused persons. If the evidence led qua the facts sought to be proved in respect of the offences for which accused was charged is the same qua the offences for which he has been convicted then no prejudice stands committed despite non-framing of a specific charge U/S 34 IPC. If the facts to be proved and the evidence to be adduced with reference to the charge U/S 149 IPC would be the same, if the charge were under Section 34 IPC, then the failure to charge the accused u/S 34 IPC cannot not result in any prejudice and in such cases the substitution of Section 34 IPC for Section 149 IPC has been held to be a formal matter.
I find support in this regard from the case LACHMAN SINGH AIR 1952 SC 167 GUJTESHWAR NATH JHA 1986 SCC (CRI.) 191 BHOOR SINGH AIR 1974 SC 1256, SUKHA AIR 1966 SC 513, WILLIE (WILLIAM) SLANEY AIR 1956 SC 116.
In view of my aforesaid discussion, I am thus of the considered opinion that the prosecution has miserably failed to prove its case against accused Babloo @ Jaspal Singh and Bakshish Singh for any of the offences whatsoever. They both thus stands acquitted in the present case.
As regards accused Narrender Singh and accused Baljit Singh the prosecution has succeeded in proving its case beyond shadows of all reasonable doubts for the offence U/S 147/148/149/323 IPC and for the offence U/S 302/34 IPC. They both thus stands convicted thereunder.
The prosecution has however succeeded beyond shadows of all reasonable doubts to bring home the guilt of accused Kulbir Singh, Surrender Singh and Palvinder Kaur for the offence U/S 147/148/149/323/326 IPC. They all thus stands convicted thereunder. However, the charge for the offence U/S 302/149 IPC could not be proved against them and they all are thus acquitted of the same.
The charge for the offence U/S 308/149 IPC however also could not be proved against any of the accused persons and they all thus stands acquitted of the same.
ANNOUNCED IN THE OPEN COURT ON 13/9/07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI COURTS D E L H I. FIR NO.777/99 U/S 147/148/149/302/308/323 IPC & 27 ARMS ACT, 1959 PS TILAK NAGAR.
13-9-07 Pr. Addl. PP for the State.
All accused are present on bail.
Vide my separate detailed judgment dated 13-9-07 accused persons, namely, Babloo @ Jaspal Singh and Bakshish Singh have been acquitted for the offence U/S 147/148/149/302/308/323 IPC.
Accused Narrender Singh & Baljit Singh have been convicted for the offence U/S 147/148/149/323 IPC, r/W Section 302/34 IPC.
Accused Kulbir Singh, Surrender Singh and Palvinder Kaur have been convicted for the offence U/S 147/148/149/323/326 IPC.
All the convicted persons be taken in custody and remanded to JC till 17-9-07.
Case is now adjourned for Arguments on Sentence to 17-9-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI COURTS D E L H I. FIR NO.777/99 U/S 147/148/149/302/308/323 IPC & 27 ARMS ACT, 1959 PS TILAK NAGAR.
17-9-07 Pr. Addl. PP for the State.
All convict persons are present in JC with ld. Counsel Sh. Vikas Manchanda.
Arguments on sentence have been heard.
Vide my separate detailed order dated 17-9-07, Order on Sentence has been announced separately.
File be consigned to record room.
Announced in the open court on 17-9-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI COURTS D E L H I. IN THE COURT OF SH. BHARAT PARASHAR:ASJ:FTC:ROHINI:DELHI S.C.NO. :- 161/06 STATE VERSUS:- SURRENDER SINGH ETC.
FIR NO. :- 777/99U/S :- 147/148/149/323/326 IPC, R/W SECTION 302/34 IPC.
PS :- TILAK NAGAR.
ORDER ON SENTENCE
Vide my separate detailed judgment dated 13-9-07 accused persons, namely, Narrender Singh @ Mohan Singh @ Monu & Baljit Singh @ Baboo both have been convicted for the offence U/S 147/148/149/323 IPC, r/W Section 302/34 IPC and accused Surrender Singh @ Sonu @ Sohan Singh, Palvinder Kaur & Kulbir Singh have been convicted for the offence U/S 147/148/149/323/326 IPC.
I have heard ld. APP for the State and Sh. Vikas Manchanda for all the five convict persons on the point of sentence.
It has been submitted by learned defence counsel that convict Narrender Singh @ Mohan Singh @ Monu is aged about 27 years and is the only son of his aged parents. It was also submitted that he has no previous criminal record and during the course of trial convict Narrender Singh has already remained in custody for a period of more than three years and that his conduct during the course of trial has completely remained aboveboard.
/2/ As regards accused Baljit Singh, it was submitted that he is aged about 31 years and has already remained in custody for a period of about 3½ years. It was also submitted that he too has no previous criminal record and his conduct during the course of trial has completely remained aboveboard.
As regards convict Kulbir Singh, it was submitted that he is an old man, aged about 66 years and he too has already remained in jail for more than 3½ years. It was also submitted that during the period of his earlier incarceration, he even suffered a heart attack and underwent an operation for the same. It was also submitted that he has no previous criminal record and his conduct during the course of trial has completely remained aboveboard.
As regards convict Surrender Singh @ Sonu @ Sohan Singh, it was submitted that he is a young man, aged about 27 years and he has recently married in the month of February. It was also submitted that he has already remained in custody for a period of about 3½ years during the course of trial and he has no previous criminal record and his conduct during the course of trial has completely remained aboveboard.
Lastly, as regards convict Palvinder Kaur, it was submitted that she is an old lady, aged about 55 years and suffering from various ailments. It was also submitted that she has already remained in custody /3/ for a period of 100 days during the course of trial and has no previous criminal record. It was also submitted that her conduct during the course of trial has completely remained aboveboard.
Ld. Defence counsel further prayed for grant of probation to the convict persons, namely, Surrender Singh, Kulbir Singh and Palvinder Kaur. A lenient view was thus prayed for.
On the other hand, ld. APP strongly prayed for imposition of a severe sentence of imprisonment stating that the convict persons were involved in the gruesome murder of Devender Singh but even during the course of trial they tried to win over the witnesses and thereby hampering with the administration of justice. It was thus submitted that the convict persons does not deserves any leniency.
I have carefully perused the record.
As regards the plea of grant of probation to convict Surrender Singh, Kulbir Singh and Palvinder Kaur, I may state at the outset that as all the three convict persons have been held guilty of the offence U/S 326 IPC and which is punishable with imprisonment of life so, the provisions of Probation of Offenders Act, 1958 are clearly not applicable to the facts & circumstances of the present case.
/4/ No-doubt, the facts & circumstances of the present case present a picture where the convict persons behaved like hardened criminals and indulge in rioting just out of small business rivalry. Even during the course of trial, they tried to win over the witnesses. However, keeping in view the overall facts & circumstances of the present case, I am of the considered opinion that the present case does not fall in the category of rarest of rare cases. Thus, as regards offence U/S 302/34 IPC convict Narrender Singh and Baljit Singh are hereby sentenced to rigorous imprisonment for life and to pay a fine of Rs.5000/- each. In default of payment of fine, both the convict persons, namely, Narrender Singh and Baljit Singh shall further undergo simple imprisonment for a period of three months each.
As regards the offence u/S 147 IPC, I sentence convict Narrender Singh and Baljit Singh to rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/- each. In default of payment of fine, both the convict persons, namely, Narrender Singh and Baljit Singh shall further undergo simple imprisonment for a period of one month each.
As regards the offence u/S 148 IPC, I sentence convict Narrender Singh and Baljit Singh to rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/- each. In default of payment of /5/ fine, both the convict persons, namely, Narrender Singh and Baljit Singh shall further undergo simple imprisonment for a period of one month each.
As regards the offence u/S 323/149 IPC, I further sentence convict Narrender Singh and Baljit Singh to rigorous imprisonment for a period of one year each.
As regards convict Kulbir Singh, Surrender Singh and Palvinder Kaur, they all three are sentenced to rigorous imprisonment for a period of five years each and to pay a fine of Rs.2000/- each for the offence U/S 326/149 IPC. In default of payment of fine, they shall further undergo simple imprisonment for a period of two months each.
As regards the offence u/S 147 IPC, I sentence convict Kulbir Singh, Surrender Singh and Palvinder Kaur to rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/- each. In default of payment of fine, all the three convict persons shall further undergo simple imprisonment for a period of one month each.
As regards the offence u/S 148 IPC, I sentence convict Kulbir Singh, Surrender Singh and Palvinder Kaur to rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/- each. In default of payment of fine, all the three convict persons shall further undergo simple imprisonment for a period of one month each.
/6/ As regards the offence u/S 323/149 IPC, I further sentence convict persons, namely, Kulbir Singh, Surrender Singh and Palvinder Kaur to rigorous imprisonment for a period of one year each.
Benefit of Section 428 Cr.PC shall be given to all the convict persons.
It is further directed that all the substantiative period of sentences of imprisonment shall run concurrently.
A copy of the Judgment as well as that of Order on Sentence be given free of costs to all the convict persons and another copy be attached with their jail warrants.
File be consigned to Record.
Announced in the open court on 17-9-07.
(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURT:ROHINI:DELHI