Delhi District Court
State vs . 1. Sandeep on 21 December, 2010
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE / SPECIAL JUDGE NDPS,
DISTRICT NORTH, DELHI
Unique Identification No. 02401R0615662007
State Vs. 1. Sandeep
S/o Shri Bisamber
R/o H. No. 265, Gali No. 9,
Nehru Nagar, Anand Parbat,
Delhi.
2. Pawan
S/o Shri Jagdish
R/o H. No. 244, Gali No. 7,
Nehru Nagar.
3. Jaswant
S/o Dhayan Singh
R/o VPO Bees Wall,
PSRangal More,
District Poree Garwal
(Uttranchal)
FIR No. : 43/07
Under Section: 302/34 IPC
Police Station : Anand Parbat
Case No. : 31/07
FIR No. 43/07 1/33
Date of Committal : 03.10.2007
Judgment reserved on : 30.11.2010
Date of Judgment : 16.12.2010
JUDGMENT
1. Accused Sandeep S/o Bishambar, accused Pawan S/o Jagdish and accused Jaswant S/o Dhayan Singh, have been prosecuted under Section 302/34 IPC for having committed murder of Umed Singh vide FIR no. 43/07, PS Anand Parbat, Delhi.
2. The case of the prosecution is that in the morning on 24th February, 2007, deceased Umed Singh was found lying dead at Gali No. 8, Nehru Nagar, Anand Parbat, Delhi. The brother of the deceased, namely, Mahender Singh, reached the spot and lodged the complaint, on the basis of which FIR was registered. The investigation was started by the police and during investigation one Raj Dulari and her nephew Parveen Kumar came forward and narrated the incident to the police. Parveen Kumar stated that he was with the deceased and in his presence above named accused persons stabbed Umed Singh several times and also pushed & dragged him to pahari and thereby caused his death. The articles of the deceased lying at the spot were lifted and also other incriminating material and FIR No. 43/07 2/33 dead body was sent for postmortem. The statements of other public witnesses were also recorded who had witnessed the occurrence. The accused persons were arrested and after completion of investigation chargesheet was filed against them.
3. On 03.10.2007, Ld. Metropolitan Magistrate committed the case for trial to the Court of Session.
4. On 15th January, 2008, accused Sandeep, Pawan and Jaswant were charged for having committed an offence punishable under Section 302/34 IPC, to which they pleaded not guilty and claimed trial.
5. Prosecution examined 31 witnesses in all to bring home the guilt of the accused persons.
6. PW1 HC Jaivir Singh, visited the spot of occurrence being the member of the Crime Team and took the photographs of the spot vide Ex. PW 1/1A to PW 1/12A.
7. PW2 Smt. Raj Dulari, knew the the deceased Umed Singh as he used to take tea and food at her house occasionally. She stated that on 23.02.2007 after taking dinner Umed Singh left her home along with her nephew Parveen. PW2 further deposed that Parveen Kumar her nephew was late and therefore, she telephoned on the mobile of Umed Singh but the phone was picked up by someone and FIR No. 43/07 3/33 she heard the noises and abuses from other side. At about 4:00 A.M., Parveen returned home in perplexed condition and his clothes were bloodstained. According to PW2, she was not told about the incident by Parveen. She washed the clothes and produced them before the police. She was crossexamined by Ld APP for the State since she was resiling from her earlier statement, during which she denied having made statement Ex. PW 2/A to the police. She was also cross examined on behalf of accused persons during which she stated that deceased Umed Singh had not taken dinner at her house on 23.02.2007. She also admitted that clothes of Praveen were not stained with blood.
8. PW3, HC Ramphal delivered the FIR of the present case at the residence of Ld. M.M. and at offices of Joint CP and DCP concerned.
9. PW4 Kamal Kumar, is the resident of Gali No. 11, Nehru Nagar, Delhi. He stated that he has not witnessed the incident and had not made any statement to the police. This witness was cross examined by Ld. APP for the State as he was resiling from his earlier statement, during which he stated that he has not made any statement dated 24.02.07 mark 'A' to the police. He denied the suggestion that he along with his friend Deepak witnessed the incident. FIR No. 43/07 4/33
10. PW5 Deepak S/o Tekchand also stated that he has not witnessed the incident and cannot identify the accused persons. He only heard the name of accused Jaswant. He was also cross examined by Ld APP for the State during which he denied having made any statement to the police U/s. 161 Cr.P.C. He specifically denied the suggestion that accused Jaswant @ Jassu and accused Pawan were causing injuries to Umed Singh and accused Sandeep declared that Umed Singh (deceased) be killed.
11. PW6 Manoj Kumar was having a shop in Gali No. 9 Nehru Nagar. He stated that on 22.02.2007 at about 10.30 pm, 2 /3 persons came to him, who were drunk and asked for cigerattes but on his refusal they started throwing goods from his shop. Next day, he came to his shop and was informed that blind person namely Umed Singh has been killed. He was also cross examined by Ld APP for the State during which he denied having made any statement Mark 'C' to the police. He denied the specific suggestion that accused persons had come to his shop and threw the goods from there. He further denied that he witnessed all the accused persons surrounding a blind man namely Umed Singh along with Praveen and took them to Gali No. 8. He denied the suggestion that he has been threatened by the accused FIR No. 43/07 5/33 persons.
12. PW7 ASI, Suresh Chand visited the spot on receipt of DD no. 6A. He along with Ct. Bahadur found the dead body of blind man lying in the street having various injuries on his body and he along with Ct. Bahadur took the dead body to DDU hospital mortuary at the instance of the IO.
13. PW8 Sunil Kumar, is the tailor by profession and owner of mobile phone no. 9213359393. He deposed that one day he left his house after taking dinner and reached Subzi Mandi, Nehru Nagar, where accused Sandeep requested him to make a call from his mobile. This witness was also crossexamined by Ld APP for the State during which he denied that he met all the three accused persons who after talking from his mobile left towards Gali No. 7, Nehru Nagar, Delhi.
14. PW9 Joytish Maharana, brought the call details of Mobile no. 9811384459 for 24.02.07 and proved the same as Ex. PW9/A.
15. PW10 Praveen Kumar, is the eye witness and was with the deceased at the time of occurrence. He stated that on 23.02.07 at about 11 pm, all the three accused persons namely Jassu, Pawan and Sandeep rebuked Umed Singh near Gali No. 8 and stated that Umed Singh had helped Raju Hakla in running away. They also took Umed Singh and PW 10 inside the gali to a vacant place. Accused Jassu and FIR No. 43/07 6/33 Pawan took out knives and started stabing Umed Singh whereas accused Sandeep guarded so that no other person could intervene. The accused persons caused several stab injuries on the person of Umed and all three then hit him with kicks and fists. Even the knife injuries were caused on the nose of Umed besides causing knife injuries on his buttocks and thighies & other parts. Umed fell on the ground and blood started oozing from his injuries and ultimately, he died there.
16. Prior to this accused Pawan and Jassu had taken away golden ring, cash and mobile phone Nokia from the person of Umed. Accused persons also threatened other persons of the locality who came out of their houses, that if they interfere they would meet the same fate. Accused took off the clothes of the Umed and pushed him near a Pahari. They also threatened PW10 that if he gives any statement to the police he would be killed. When he tried to save Umed he was stabbed by accused Jassu on his hand. His clothes were taken off. He fell unconscious at the spot and on regaining consciousness went to his house at 4:00 am after wearing his clothes which the accused persons had left at the spot. Next day he gave statement to the police and also handed over his clothes to the police. Witness has been crossexamined at length on behalf of the accused FIR No. 43/07 7/33 persons. He denied the suggestion that he was not present at the spot or that he is deposing falsely.
17. PW10A HC. Bijender joined the investigation of the present case on 23.03.07 along with inspector Manoj Sinha, SI Jitender, PW Mahender Singh and deposed about recovery of one golden ring belonging to Umed at the instance of accused Sandeep. He proved seizure memo Ex. PW 10/A bearing his signatures at point A and also identified the ring as Ex. P1. During cross examination he denied that nothing was recovered from the accused.
18. PW11 Ct. Babu Lal reached the spot of occurrence on receipt of DD no. 6A along with SI Jitender, SI Babu Lal and the IO SI Manoj Kumar and they found a dead body lying with several injuries in front of H. No. 276/77. They found blood , one belt, one black colour spectacles (broken), one handkerchief, one blood stained safa, some coins and two chhapals etc lying at the spot. Mahinder Singh got recorded his statement, on the basis of which IO prepared the Tehrir and got the FIR registered.
19. PW12 Anand Parkash, stated that on 23/2/2007 he received a call from mobile phone of Sunil and accused Sandeep was speaking. Accused Sandeep asked for Rs.300/ which he had borrowed from Sandeep. This witness was also crossexamined by FIR No. 43/07 8/33 APP during which he denied that he was threatened by accused Jassu and also that he made any statement Ex. PW 12/A. During cross examination on behalf of accused, this witness stated that he was threatened by IO Inspector Manoj Sinha to depose against accused persons.
20 PW13 WHC Julita, recorded the FIR of the present case being the Duty Officer and proved the same Ex. PW 13/A. She also lodged DD vide Ex. PW 13/B.
21. PW 14, HC Satpal Singh was posted with PCR on 24.2.2007 and received the information about dead body lying at Gali No. 8. He filled up the PCR form Ex. PW 14/A.
22. PW15 HC Krishan Chand was working as MHC (M) on 24.2.2007. He deposed about deposition of case property in Malkhana and brought the record of relevant entry in the register no. 19 and also deposed about sending of the same to FSL.
23. PW16 Ct. Bahadur Singh also visited the spot along with Inspector Manoj and other Police Officials. He proved identification statements of dead body Ex. PW 16/A and Ex. PW 16/B, receipt of the dead body Ex. PW 16/C and went with ASI Suresh Chand to Mortuary and deposited the dead body there.
24. PW17 ASI Sultan Singh was Duty Officer on 24.2.2007 at FIR No. 43/07 9/33 PS Anand Parbat and recorded DD no. 6A vide Ex. PW 17/A.
25. PW18 SI Mahesh Kumar has prepared scaled site plan Ex. PW 18/A.
26. PW19 Mahender Singh is the brother of deceased Umed Singh. He deposed that information about murder of Umed Singh was given to him by his nephew Vikrant, who was residing at Nehru Nagar. He rushed to the spot and inquired about incident. He was told that accused persons had killed his brother. His statement was recorded vide Ex. PW 19/A. According to PW19, accused persons namely, Pawan, Jassu and Sandeep were known to him earlier also. He also deposed about recovery of gold ring at the instance of accused Sandeep, as he joined the raiding party. He also received dead body vide Ex. PW 16/C and stated about seizure of articles from the spot i.e. bloodstained earth, stones, clothes and other belongings of the deceased vide Ex. PW20/A to D. He identified the case property so produced during the trial Ex. P1 to P12. He has also been crossexamined on behalf of the accused persons, during which he denied that his brother Umed Singh was accused in rape case. He admitted that on inquiry from Parveen, Raj Rani and other neighbours, he came to know that his brother was killed by Jassu, his brother Vikram and Sandeep Dholwal. Parveen told him that Pawan FIR No. 43/07 10/33 was also involved in killing of his brother. He firstly saw the dead body of the deceased at 7 am on 24th February, 2007 in Gali No. 8. He has no knowledge whether there was any enmity of his brother with accused persons or not. He voluntarily stated that he had no enmity with accused persons. He denied the suggestion to be deposing falsely.
27. PW20 SI Babu Lal, joined the investigation of the present case and went to the spot of occurrence. He stated that dead body of blind man was lying in front of H. No. 276/277, Gali No. 8. The upper body was naked and it was wearing an underwear and the pant was down till knees. Blood & other articles were lying in front of H. No. 291/1. He also proved seizure memo prepared by IO. He also stated that Parveen came at the spot and handed over his clothes to the IO but his clothes were washed by his aunt. He was cross examined by Ld. APP during which he admitted that his statement was recorded by the IO. He also admitted the contents of Ex. PW 20/A, B, C and D. He also admitted that he joined the investigation on 22.3.2007 and accused Sandeep was apprehended at the instance of secret informer. The disclosure of accused Sandeep was recorded vide Ex. PW 20/F. Accused was arrested vide arrest memo Ex. PW 20/E. Personal search memo is Ex. PW20/H. He identified the case FIR No. 43/07 11/33 property Ex. P1 to P12. During crossexamination PW20 stated that bloodstains were not visible on the clothes of the Parveen, so handed over to IO.
28. PW21 SI Jitender Kumar, joined the investigation of the present case on 24/2/2007 as well as on 22/3/2007 and stated about details of investigations and recovery of gold ring from accused Sandeep.
29. PW22 SI Lalit Kumar being the member of Crime Team examined the spot and gave his report Ex. PW 22/A.
30. PW23 Ms. Guddi stated that on 24/2/2007 in the morning at about 45 a.m police came and threatened her to put her in the lockup. Her signatures were taken on blank papers. Accused Jaswant is the husband of her sister Rajkumari who has expired. She has been crossexamined on behalf of Ld. APP during which she denied having made any statement mark PW 23/A to the police. She denied the suggestions that her signatures were not taken on blank papers by the police or that she is deposing falsely having been won over by the accused.
31. PW24 Dr. Amit Kumar Pundhir, conducted postmortem on the dead body of the deceased Umed Singh and has given the details of injuries and cause of death in his report Ex. PW 24/A. FIR No. 43/07 12/33
32. PW25 Vikrant is the nephew of deceased Umed Singh and received information about dead body lying in Gali No. 8, Nehru Nagar. He went to the spot and found the dead body of uncle Umed Singh and informed his another uncle Mahender Singh and also called PCR.
33. PW26 Inspector Manoj Sinha conducted the investigation of the present case since receipt of DD no. 6A on 24/2/2007. He has given the details of the spot of occurrence and of various articles lying at the spot. He prepared rukka Ex. PW 26/A and seized the articles vide seizure memo Ex. PW 10/A. He also prepared site plan Ex. PW 26/B and inquest papers Ex. PW 26/C. On 22.3.2007 he apprehended the accused Sandeep on the basis of secret information and proved arrest memo, disclosure statement and recovery of gold ring from accused Sandeep. He also identified the articles Ex. P1 to P12. He has been crossexamined at length. He admitted that Praveen was not medically examined. He denied the suggestion the he did not conduct the fair investigation of the present case.
34. PW27 HC Lakhvinder Singh joined the investigation of case FIR no. 1533/07, PS Sultan Puri, under Section 186/353/307 IPC in which accused Jaswant Singh @ Jassu was arrested. He made FIR No. 43/07 13/33 disclosure statement of the present case.
35. PW28 Inspector Om Prakash, got the information from PS Sultan Puri about disclosure of accused Jaswant. He was arrested in this case on 21.11.2007 vide arrest memo Ex. PW 28/A
36. PW29 Inspector Sanjay Kumar also deposed about disclosure statement made by accused Jaswant in case FIR no. 1533/07.
37. PW30 ASI Subeydin, joined the investigation on 05.09.07 along with Ct. Gyanender, Inspector JS Joon and apprehended accused Pawan from near his house at the instance of secret informer.
38. PW31 Inspector Joginder Singh Joon also deposed about the arrest of accused Pawan on the basis of secret information and proved arrest memo and personal search memo Ex. PW 30/A and B.
39. Thereafter, prosecution evidence was closed.
40. Statements of accused persons were recorded under Section 313 Cr. P.C separately and individually, during which all the incriminating evidence has been put and explained to them. Accused Pawan pleaded innocence and stated he was not even in Delhi at the time of alleged incident. He was ordered to remain out of Delhi by the order of DCP. He was not knowing Sandeep and has been falsely implicated in the present case.
FIR No. 43/07 14/33
41. Accused Jassu @ Jaswant also pleaded innocence and stated that he was not knowing the deceased and he has been falsely implicated in the present case.
42. Similarly accused Sandeep also pleaded innocence and stated that he was not knowing the deceased and he has been falsely implicated in the present case.
43. All the accused preferred not to lead any evidence in defence.
44. I have heard ld. APP Sh. Ramesh Kumar, for the State and Sh. Arun Sharma, Amicus Curiae for all the accused persons.
45. Learned APP arguing on behalf of State raised following points.
(i) The present case was registered on the basis of complaint lodged by PW19 and he has supported the version of the prosecution in his testimony.
(ii) PW10 is the eye witness to the incident and has confidently supported the case of the prosecution. He clearly deposed about the manner in which all three accused committed the offence.
FIR No. 43/07 15/33
(iii) The testimony of PW10 and PW19 are cogent and reliable and although other witnesses have turned hostile, prosecution case is not adversely affected, particularly because eye witness has no reason to depose falsely against the accused persons.
(iv) Accused persons have criminal background and it has come in evidence that they openly threatened the public not to depose against them.
(v) The cause of death as reported in postmortem report is consistent with the deposition of the eyewitness.
(vi) The recovery of gold ring from the possession of accused Sandeep has also been duly established which links him to the commission of offence. The accused persons were having rivalry with the deceased and wanted to eliminate him and hence motive is also established.
(vii) The prosecution has been able to bring sufficient evidence on the record as against the accused persons and therefore their conviction should be recorded under Section 302/34 IPC.
FIR No. 43/07 16/33
46. On the other hand, amicus curiae Sh. Arun Sharma has steronously argued on behalf of the accused persons and raised following points:
(i) Most of the public witnesses are hostile and have failed to support the prosecution case .
(ii) PW10 Parveen who claims to be eye witness is not at all reliable as his conduct has not been natural and probable. He has stated about sustaining of injuries in the incident but no MLC or other records have been brought to prove this fact. PW10 did not explain to her aunt on returning home about the incident. He did not lodge any report with the police after the incident and therefore his presence at the spot of occurrence is doubtful.
(iii) Bloodstained cloths allegedly recovered by the police from PW10 were admittedly washed before the seizure. There are several contradictions in the statements of prosecution witnesses due to which strong shadow of doubt is created for which benefit should go to the accused persons. FIR No. 43/07 17/33
(iv) FIR itself is on the basis of hearsay statement and has no admissibility. In the FIR,PW19 named Vikram as one of the accused but admittedly at the relevant time Vikram was in judicial custody. Later the name of accused Pawan was inserted without any explanation. Since prosecution has miserably failed to prove its case, accused persons deserve to be acquitted.
47. I have given due consideration to the arguments and contentions raised by both the sides and also the authorities submitted in support of the respective arguments. I have also analysed the facts & circumstances and evidence of the present case.
48. The case of the prosecution is based on direct evidence about the occurrence. The DD in the present case was recorded at 06.55 a.m. on 24.02.07 and PCR call was made at about 06.36 a.m. on 24.02.07. The rukka was sent at 09.30 a.m. and FIR was registered at 09.45 a.m. on 24.02.07. It is clear from these documents as well as the statements of witnesses that occurrence had taken place in the night of 23.02.07. The postmortem was conducted on 25.02.07 at about 11.50 a.m. In the postmortem report, the time of death has been mentioned as 3/4th day prior to postmortem and also so testified by FIR No. 43/07 18/33 PW24. However, this is not supported by the facts and circumstances as the deceased was found dead in the early morning of 24.02.07 and therefore, postmortem report to the effect that death has taken place 16 hrs (3/4th day) prior to conducting postmortem cannot be believed.
49. The FIR in the present case was recorded on the statement of PW19 brother of the deceased. The complainant had not witnessed the incident but named accused Jassu, Sandeep and one Vikram specifically in the complaint. He also mentioned that some other persons were also there and crime has been committed due to old enmity. The investigation started and shortly thereafter the statement of eye witness Parveen Kumar was recorded under Section 161 Cr. P. C wherein he specifically named all the three accused persons namely Sandeep, Pawan and Jaswant being responsible for having committed the murder of deceased Umed Singh. Parveen Kumar has been examined as PW10 and his testimony is most material in order to ascertain the details of the occurrence. On scrutiny and evaluation of testimony of PW10, Parveen Kumar, I find that he has given complete, consistent and cogent details about the entire occurrence. He has specifically named the accused persons for causing stab injuries to the deceased and also there after dragging and pushing him near the pahari. He categorically stated that stab injuries FIR No. 43/07 19/33 were caused on nose, face, hips and thigh of Umed Singh.The clothes, mobile phone and golden ring were taken off by the accused persons from Umed Singh. PW10 was also hit on his hand when he tried to rescue the deceased . He was made to sit at the corner of the spot while the accused persons were assaulting deceased. Some persons also came outside their house but they were threatened by the accused persons. During lengthy cross examination, PW10 has remained consistent and confident. I find no discrepancy or inconsistency so far as his testimony is concerned. The core and substance of his testimony has remained unshaken despite lengthy questioning.
50. The arguments of Ld. defence Counsel that testimony of PW10 cannot be believed for the reason that his statement has not been supported by other public witnesses and that no medical of his sustaining injuries has been produced, cannot be accepted. There is nothing to affect the credibility of PW10 who has clearly narrated about the occurrence.
51. The evidence of any witness has to be read as a whole and hyper technical approach should not be adopted so as to give undue weightage to minor discrepancies and trivial matters. It has been held by Apex Court in STATE OF MAHARASHTRA v. SIRAJ AHMED NISAR AHMED, 2007(5) Supreme Court Cases 161 that: FIR No. 43/07 20/33
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence, as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of matter in issue, hypertechnical approach by taking sentence out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarly permit rejection of the evidence as a whole."
52. Coming to the present case, it is categorically stated by PW10 as well as by his aunt PW2 that deceased was accompanied by PW10 Parveen Kumar on the night of 23.02.07. The deceased had taken dinner at the house of PW2 and thereafter he was being escorted to his house by PW10. On the way, the occurrence had taken place. The version of eye witness (PW10) stands corroborated by the medical evidence. It is stated by PW 24 Dr. Amit Kumar that FIR No. 43/07 21/33 deceased had taken dinner one hour prior to his death. According to postmortem report several sharp injuries were found on the person of deceased including injuries on nose, hips and thigh. The cause of death has been mentioned as craniocerebral damage from head injuries consequent upon blunt force impact. It is also evident from site plan and statements of police officials that stab injuries were caused in front of house No. 291 and dead body was found lying in front of house No. 276/277. The blood trail and dragging marks were visible near the body confirming that deceased was so dragged from House No. 291 to front of House No. 276/277. Head injuries must have resulted due to dragging. In this way, medical evidence, eye witness deposition and circumstantial evidence are consistent and inconfirmity to each other. This lends credence to the statement of PW10.
53. It has been pleaded on behalf of the accused persons that they have been falsely implicated and PW10 is deposing falsely. However, no reason has been attributed to PW10 for deposing falsely against accused persons. Foundation has to be laid if plea of false implication has been made. PW10 has no enmity with the accused persons and even in their statements under Section 313 Cr. P. C, accused persons have not spelt out any reason for him to depose FIR No. 43/07 22/33 against them.
54. It is true that no medical injury sustained by eye witness has been placed on record but simply for this reason, the testimony of eye witness cannot be rejected. It was for the investigating officer to get the eye witness medically examined and to place his MLC on record but due to this lapse of IO, eyewitness (PW10) cannot be rendered unreliable.
55. The next contention of Ld. Defence Counsel has been that despite having allegedly witnessed the crime of murder, PW10 did not report the matter to the police or to his aunt. This conduct of PW10 is not natural and probable and therefore no reliance can be placed on his testimony. However, on consideration of facts and circumstance of the case, I find no merit or substance in this argument. PW10 is a young boy of 17 years and was accompanying the deceased at the time of occurrence and witnessed this brutal act at the hands of accused persons. It is categorically stated by PW10 that accused openly threatened him as well as other public persons while committing the offence. The clothes of PW10 were taken off by accused persons and he was made to sit at the corner of the gali while they were accomplishing the crime. At the relevant time, when no report was lodged by any of the public witness despite the fact that it FIR No. 43/07 23/33 must have taken sufficient time to complete the crime. In such peculiar circumstances, it cannot be expected of PW10, to have reported the matter immediately to the police. I find nothing unnatural in the conduct of the eye witnesses who had fallen unconscious at the spot and thereafter got up, wore his clothes and went back home. However, it is categorically stated by him that he narrated the entire story to his aunt Raj Dulari. This young boy of 17 years despite having witnessed the brutal act had the courage to depose against the accused persons not only before the investigating officer but also before the Court. On dealing with the testimony of PW10, I find that he has remained categorical and consistent and specifically detailed the manner in which the crime was committed by the accused persons. In view of aforesaid observations, I hold that PW10 is reliable and trustworthy witness and there is nothing to affect the credibility and veracity of this witness.
56. PW19 is also an important witness being the author of FIR and witness to the recovery of gold ring at the instance of accused Sandeep. It is argued by defence counsel the testimony of PW19 cannot be believed as he is interested witness being real brother of deceased Umed Singh. In his complaint, PW19 named Vikram as one of the assailant despite the fact that Vikram was in judicial FIR No. 43/07 24/33 custody on the day of occurrence. Later on the name of Pawan was inserted without any explanation for which prosecution has no justification. On considering the testimony of PW19 and the facts and circumstances of the present case, I find that he is also natural and probable witness and crucial with respect to the facts of this case. It is true that in the FIR PW19 named Vikram as one of the assailant and name of Pawan was not mentioned but it is also true that he lodged the complaint on the basis of the inquiry conducted by him from the public persons. He is not the direct witness of the occurrence. Same day, accused Pawan's complicity in the offence has been detailed by eyewitness Parveen Kumar. The natural flow of circumstances stands established. The plea of defence to my mind is untenable. So far as the contention that PW19 being the interested witness should not be relied upon, is concerned, I am of the opinion that merely because PW19 is the brother of deceased, he cannot termed as unreliable. It has been held by Supreme Court in Dalip Singh and others v. The State of Punjab (AIR 1953 SC 364)that "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the FIR No. 43/07 25/33 last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
57. In the present case, PW19 has categorically stated in his testimony that he had no enmity with the accused persons and this part of his statement has not been rebutted on behalf of accused persons. Also the accused have not attributed any reason to PW19 for their alleged false implication. Thus, I find no ground to disbelieve PW19 and the arguments of Ld. Defence Counsel cannot be accepted.
58. It is further the contention of Ld. Defence Counsel that most of the public witnesses have turned hostile and they have failed to support the prosecution case. It is categorically denied by the witnesses examined as PW2, PW4, PW5, PW6, PW8 and PW12 FIR No. 43/07 26/33 that they have witnessed any such occurrence at the hands of accused persons or that they made any statements to the police under Section 161 Cr. P. C.. It is stressfully argued by Ld. Defence Counsel that since most of the witnesses have belied the prosecution case, the guilt of accused persons has not been established. On analyzing the facts and circumstances of the present case on this aspect, I find no justification to discredit or disbelieve the eye witness PW10 for the reason that other witnesses have turned hostile. The murder in the present case has taken place in gali no. 8, Nehru Nagar, which is residential area and gali is surrounded by several houses. Accused persons have criminal involvement and background as is evident from the record. They openly killed the deceased with full intention and knowledge by causing brutal stab injuries and thereafter, dragging him to distance. While doing this act, accused threatened public persons openly to the effect that if they intervene they would meet the same fate. Even during the trial PW2 Raj Dulari while appearing as witness on 18/3/08, supported the prosecution case but also stated that she was constantly threatened on behalf of accused persons and her complaints with SHO in this regard have not brought any result (Recorded in order sheet dated 18/3/08). The next day on 19 th March, 2008, PW2 again appeared and turned completely hostile and did not FIR No. 43/07 27/33 support the prosecution case any further. She even controverted her examination in chief recorded on 18.03.2008 by stating that no bloodstains were found on the clothes of her nephew (PW10) and deceased had not taken any dinner at her house on 23.02.2007. In these circumstances, it is clear that most of the public witness have been under influence of threats and were not able to come out of the fear and depose independently.
59. PW10 Parveen Kumar had the courage to depose against the accused persons despite the fact that accused made all efforts to extend threats to him also. The testimony of PW10 is consistent with the medical evidence, with the nature of injuries found on the body of deceased, with the condition in which the dead body was found and also with the investigation so conducted by the police. It is clear that all the accused persons shared common intention to eliminate the deceased Umed Singh.
60. Coming to the motive of the accused persons, it is argued by Ld. APP that accused had old rivalry with the deceased and considered him to be an associate of Raju Hakla and therefore wanted to eliminate him. On the other hand, ld. Defence Counsel argued that there was no motive with the accused persons to kill the deceased. It has also been pleaded by accused persons in their statements recorded FIR No. 43/07 28/33 U/s. 313 Cr.PC that they were not knowing the deceased.
61. Again the testimony of PW10 and PW19 is significant on this aspect. It is clearly stated by PW10 that before assaulting, all the accused persons surrounded Umed Singh and him and rebuked Umed on the point that he helped Raju Hakla in running away. PW10 has no reason to depose falsely against the accused persons and no specific suggestions have been given to PW10 to controvert his testimony on this aspect. PW19 stated that he knew the accused persons but has no knowledge if they had enmity with deceased. No crossexamination was conducted of PW19 on this aspect. It was not suggested that accused never knew the deceased. The motive in such circumstances is clearly established that accused persons were having strong rivalry to the deceased.
62. Ld. Defence Counsel also argued that call details produced by the prosecution vide Ex. PW 9/A does not show that PW2 had called on the mobile of the deceased at the time of occurrence. He further stressed that occurrence allegedly took place after 11.30 p.m. on 23.02.2007 whereas according to Ex. PW9/A, the calls were made from the mobile numbers mentioned by PW2 at about 5.40 p.m. and 8.40 p.m. No call details of 23.02.2007 after 11.00 p.m. is shown. On consideration of this, I am of the opinion that although Ex. PW 9/A FIR No. 43/07 29/33 does not reflect that calls were made on the mobile of deceased at the time of occurrence from the mobile numbers mentioned by PW2, but this fact itself cannot prove or disprove any fact or circumstance. It is not the case based on circumstantial evidence and since sufficient direct evidence has come on the record, the call details have no significance particularly when the statement of PW2 is not considered to have been given in free and fair manner.
63. On consideration of all the facts and circumstances of the present case and in view of the aforesaid discussions, I conclude that there is sufficient evidence on record to prove active participation of all the three accused persons in the commission of the offence. They have intentionally assaulted deceased Umed Singh by means of knife and thereafter dragged him to a distance causing head injuries to him which resulted in his death. Accused persons have failed to establish any defence to their guilt. The recovery of gold ring belonging to deceased has also been recovered from accused Sandeep thereby linking him to the commission of offence. The investigation conducted after the occurrence and the memos prepared during the investigation have been duly proved on the record. I therefore, hold that prosecution has been able to bring home the guilt of all the accused persons U/s. 302 read with Section 34 IPC. I therefore, FIR No. 43/07 30/33 convict accused Sandeep, accused Pawan and accused Jaswant for the offence punishable under Section 302/34 IPC.
ANNOUNCED IN THE OPEN COURT ON 16.12.2010 (ANJU BAJAJ CHANDNA) ADDL. SESSIONS JUDGE DELHI FIR No. 43/07 31/33 IN THE COURT OF MS. ANJU BAJAJ CHANDNA ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH) DELHI.
FIR No. 43/07 PS Anand Parbat US 302/34 IPC S/V 1. Sandeep
2. Pawan
3. Jaswant 21.12.2010 ORDER ON SENTENCE PRE: APP for State.
All convicts from J.C. Counsel Sh Arun Sharma, Amicus curiae for all the convicts. Heard on the point of sentence and also perused the file. Accused persons have been convicted vide separate Judgment dt. 16.12.2010 u/s 302 read with section 34 IPC.
It is submitted on behalf of convict Sandeep that he is 23 years of age and is unmarried and he is not a previous convict. He has old parents to look after and in view of his family circumstances, lenient view is prayed for.
With respect to convict Jaswant, it is submitted that he is 31 years of age and is widower and is responsible to look after his four years old son. He is not a previous convict although involved in criminal cases. Lenient view is prayed for.
With respect to convict Pawan, it is prayed that he is 30 years of age and is sole bread winner of his family consisting of wife, aged mother FIR No. 43/07 32/33 and two daughters. He is previously convicted u/s 392 IPC. Lenient view is prayed for.
Ld Amicus curiae has further submitted that murder was not gruesome or diabolic and does not fall within the category of rarest of rare cases.
On the other hand, Ld APP has submitted that severest punishment be awarded to the convicts as they have killed a blind person without any substantial reason.
On consideration of facts and circumstances, I find that present case does not fall in the category of rarest of rare cases as per the guidelines laid down by Hon'ble Supreme Court, therefore the present case does not call for capital punishment. Accordingly, I sentence all the three convicts to rigorous imprisonment for life and fine of Rs 15,000/ each, in default of payment of fine to undergo further simple imprisonment for 4 months each.
Copy of the judgment as well as order on sentence be given to all the convicts. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT ON 21.12. 2010 (ANJU BAJAJ CHANDNA) ADDL. SESSIONS JUDGE DELHI FIR No. 43/07 33/33