Delhi District Court
State vs Ravi @ Rambo on 18 July, 2018
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST : TIS HAZARI COURTS: DELHI
SC No.57732/16
FIR No. 189/2009
U/s. 394/397/302/34/120B/ IPC
P.S Kirti Nagar
State
versus
1. Ravi @ Rambo
S/o Rakh Pal
R/o A-124, Sangam Colony,
Pandav Nagar, New Delhi.
2. Ajay @ Golden
S/o Vishnu
R/o B-508, Pandav Nagar,
Delhi.
3. Mahesh Kumar @ Maheshwa
S/o Shiv Kumar
R/o A-278, Sangam Colony
Pandav Nagar, Delhi.
Date of Institution : 21-10-2009
Date of reserving Judgment : 30-05-2018
Date of pronouncement : 18-07-2018
Sessions Case No.57732/2016 Page 1/68
Appearances:
For the State : Ms. Reeta Sharma,
Addl. Public Prosecutor.
For Accused Ravi @ Rambo : Shri R.K Jha, Advocate.
For Accused Ajay @ Golden : Shri Balwan Singh, Advocate.
and Mahesh Kumar @ Maheshwa
JUDGMENT
Accused persons namely Ravi @ Rambo son of Rakh Pal aged 21 years, Ajay @ Golden son of Vishnu aged 22 years and Mahesh Kumar @ Maheshwa son of Shiv Kumar aged 21 years were sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) i.e Chargesheet submitted on 08.10.2009 upon conclusion of investigation into First Information Report (FIR) no. 189/2009 of police station (PS) Kirti Nagar for the offences punishable under Sections 394/397/302/34/120B of the Indian Penal Code, 1860 (IPC).
Sessions Case No.57732/2016 Page 2/68Prosecution Version
2. According to the prosecution story, vide DD No.10B dated 09.07.2009, an information regarding one dead body lying in Plot No.36/2, Loha Mandi, Naraina, was received in PS Kirti Nagar. The said DD was assigned to Assistant Sub-Inspector (ASI) Ram Gopal, who alongwith constable (Ct.) Sanjay proceeded to the spot. Inspector C.L Meena alongwith Ct. Vinod Kumar also reached at the spot i.e A Block Industrial Area Naraina near the railway tracks in front of plot no. A-40 where one male dead body aged about 21-22 years was found lying there. Crime team was informed and the spot was got photographed. There was stab injury on the chest of the deceased while on the right shoulder and middle of the neck, there were scratch marks. One Ram Karan @ Rudra Pratap accompanied with Bablu Vishwakarma, Dindayal @ Raju and Jaiprakash reached the spot and identified the deceased as Rajkumar @ Bablu son of Jagdev Vishwakarma resident of village Chanpura Police Station Sumer Pur, District Hameer Pur, U.P. Ram Karan @ Rudra Pratap told that he used to work as Sessions Case No.57732/2016 Page 3/68 watchman (Chowkidar) at TATA Company Tower. His co-villagers namely, Bablu Vishwakarma, Rajkumar @ Bablu (deceased), Jai Prakash and Dindayal Pandit @ Raju also used to work as watchmen at different places. On 08.07.2009, at about 8 p.m, Ram Karan @ Rudra Pratap alongwith Rajkumar @ Bablu (deceased) went to answer the natures' call near railway line at Naraina Industrial Area. At that time three boys aged about 25-30 years came there. Two of the boys caught Rajkumar @ Bablu while one boy caught Ram Karan @ Rudra Pratap, who slapped him (Ram Karan @ Rudra Pratap) and hit him with a stone on his forehead and also asked to hand over all the money he was having. Out of fear, Ram Karan @ Rudra Pratap handed over Rs. 6000/- which were kept in his purse to that boy. He somehow managed to escape from there. He told about the whole incident to his other friends and also made a call at 100 number. Police came to the spot and searched for Rajkumar @ Bablu but could not find him on the spot. Ram Karan @ Rudra Pratap was taken to the hospital by the police. After his discharge from the hospital, Ram Karan @ Rudra Pratap alongwith Sessions Case No.57732/2016 Page 4/68 his other friends, again went to the spot where they found Rajkumar @ Bablu lying dead near railway line. He further stated that the said three persons had robbed and injured him and Rajkumar @ Bablu and committed murder of Rajkumar @ Bablu after robbing him of his salary amount of Rs. 3500/-. He further stated that he could identify all the said three persons. On the basis of above-said statement of Ram Karan @ Rudra Pratap, Tehrir was prepared and the same was sent to the police station for registration of the FIR through Ct. Vinod Kumar. After registration of the FIR, Inspector C.L Meena, the Investigation Officer (I.O) shifted the dead body of Rajkumar @ Bablu to the mortuary of DDU hospital. During investigation, site plan was prepared by the IO and Exhibits were lifted from the place of incident and were seized. After postmortem examination, dead body of Rajkumar @ Bablu was handed over to his family members. IO also recorded the statements under section 161 Cr.P.C of the witnesses. Statement of witness namely, Ram Niwas Gupta, who had witnessed the incident while passing through the spot was also recorded by the IO.
Sessions Case No.57732/2016 Page 5/683. During further investigation, on 11.07.2009 at the instance of eye-witness namely Ram Niwas Gupta, accused Ravi @ Rambo was apprehended from Satyam Park, Naraina Road, Delhi who on interrogation disclosed about the involvement of other co-accused persons namely, Ajay @ Golden and Mahesh @ Maheshwa. Out of the robbed amount, a sum of Rs. 1800/- alongwith one purse were recovered from the possession of accused Ravi @ Rambo. Accused Ravi @ Rambo was arrested. However, co-accused persons namely, Ajay @ Golden and Mahesh @ Maheshwa could not be arrested. Test Identification Parade (TIP) of accused Ravi @ Rambo was conducted but he refused to participate. The TIP of the case property i.e. purse was also got conducted. After concluding the investigation, the I.O came to a conclusion that sufficient evidence were collected against the accused persons qua commission of offences under Section 394/397/302/34/120-B IPC. As only accused Ravi @ Rambo could be arrested, he prepared chargesheet against accused Ravi @ Rambo and filed in the court on 08.10.2009.
Sessions Case No.57732/2016 Page 6/684. On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate (West), Tis Hazari Courts took cognizance of offences and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 12.10.2009, committed the case to the Court of Session for 21.10.2009.
5. Accused Ajay @ Golden and Mahesh @ Maheshwa could not be arrested and proceedings under Section 82 Cr.P.C were initiated against them. Both the said accused person were declared proclaimed offender vide order dated 21.12.2010. Subsequently, on 08.03.2011 both the accused persons were also arrested. Accused Ajay @ Golden refused to participate in the TIP proceedings whereas accused Mahesh @ Maheshwa was duly identified in the TIP proceedings. A supplementary charge-sheet was filed against both of them in the court on 28.05.2011.
Charge
6. On 11.01.2010, after hearing the learned Additional Public Prosecutor for the State and the Sessions Case No.57732/2016 Page 7/68 learned counsel for the accused Ravi @ Rambo, charge was framed against accused Ravi @ Rambo for commission of offences punishable under Section 394/34 IPC, under section 397 IPC , under section 302/34 IPC and under section 120-B IPC. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.
7. On 18.08.2011, after hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused persons namely, Ajay @ Golden and Mahesh Kumar @ Maheshwa, charge was also framed against them for commission of offences punishable under Section 394/34 IPC, under section 394 IPC r/w section 397 IPC, under section 302/34 IPC and under section 120-B IPC. The charge so framed was read over and explained to the accused persons to which they did not plead guilty and claimed trial.
8. During the course of trial, vide order dated 06.03.2017, on an application under Section 216 Cr.P.C moved by the State, after hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused persons namely, Sessions Case No.57732/2016 Page 8/68 Ajay @ Golden and Mahesh Kumar @ Maheshwa, charge was also framed against them for commission of offence punishable under Section 174-A IPC. The charge so framed was read over and explained to the accused persons to which they did not plead guilty and claimed trial.
Prosecution Witnesses
9. To bring home the afore-mentioned charges to the accused persons, the prosecution got examined Vivek Vishwakarma (PW-1), Ram Karan (PW-2), HC Ram Chander (PW-3), Jagdev Vishwakarma (PW-4), Babloo (PW-5), ASI Narender Singh (PW-6), Constable Amjad Khan (PW-7), Dr. Santosh Kumar (PW-8), Woman constable Sarika (PW-9), Woman constable Dipa (PW-10), Constable Raj Kumar (PW-11), Retired SI Gulshan Kumar (PW-12), SI O.P Mandal (PW-13), Mohinder Virat, Ld. ACMM (PW-14), Constable Sanjay Kumar (PW-15), Constable Ajit Singh (PW-16), Constable Shiv Prasad (PW-17), Dr. Ajay Sharma (PW-18), HC Rajeev Tyagi (PW-
19), SI Manohar Lal (PW-20), ACP Kul Bhushan (PW-21), HC Ramesh Chand (PW-22), HC Sessions Case No.57732/2016 Page 9/68 Ghanshayam (PW-23), Constable Sanjeev (PW-24), B.L Sharma (PW-25), Inspector C.R Meena (PW-
26), Vijay Shankar, Ld. ACMM, (PW-27), Inspector Braj Mohan (PW-28), HC Ajit Singh (PW-29), HC Mahender Kumar (PW-30) and Inspector C.L Meena (PW-31).
Documentary Evidence
10. The prosecution also relied on following documents, tendered into evidence i.e identification statement of dead body (Ex.PW-1/A), dead body handing over memo (Ex.PW-1/B), statement recorded by police (Ex.PW-2/A), seizure memo of blood stained grass, leaves and earth and plastic piece (Ex.PW-2/B), identification signature (Ex.PW-2/C), identification statement of dead body (Ex.PW-4/A), DD entry no. 26 B dated 08.07.2009 (Ex.PW-6/A), DD entry no. 8B dated 09.07.2009 (Ex.PW-6/B), postmortem examination report (Ex.PW-8/A), PCR form (Ex.PW-9/A), PCR form (Ex.PW-10/A), photographs of place of occurrence (Ex.PW-11/A1 to A7), negatives of photographs of place of occurrence (Ex.PW-11/B1 to B7), crime team report (Ex.PW-12/A), DD entry no. 59 B Sessions Case No.57732/2016 Page 10/68 dated 08.07.2009 (Ex.PW-13/A), DD entry no. 36 A dated 08.07.2009 (Ex.PW-13/B), DD entry no. 8 A dated 09.07.2009 (Ex.PW-13/C), TIP proceeding of accused Ravi @ Rambo (Ex.PW-14/A), certificate regarding TIP of accused Ravi @ Rambo (Ex.PW-14/B), TIP proceedings of purse (Ex.PW- 14/C), seizure memo of blood sample, black shoes, black pant, yellow T-shirt, black socks and underwear of deceased alongwith sample seal (Ex.PW-15/A), seizure memo of purse and rupees (Ex.PW-17/A), arrest memo of accused Ravi @ Rambo (Ex.PW-17/B), personal search memo of accused Ravi @ Rambo (Ex. PW-17/C), disclouser statement of accused Ravi @ Rambo (Ex.PW- 17/D), pointing out memo by accused Ravi @ Rambo (Ex.PW-17/E), arrest memo of accused Ajay @ Golden (Ex.PW-17/F), arrest memo of accused Mahesh Kumar @ Maheshwa (Ex.PW- 17/G), personal search memo of accused Ajay @ Golden (Ex.PW-17/H), personal search memo of accused Mahesh @ Maheshwa (Ex.PW-17/J), disclouser statement of accused Ajay @ Golden (Ex.PW-17/K), disclouser statement of accused Mahesh @ Maheshwa (Ex.PW-17/L), pointing out Sessions Case No.57732/2016 Page 11/68 memo of accused Ajay @ Golden (Ex. PW-17/M), MLC of Rudra Pratap Singh (Ex.PW-18/A), FIR (Ex.PW-19/A), endorsement on rukka (Ex.PW- 19/B), scaled site plan (Ex.PW-20/A), application for TIP of accused persons namely, Ajay @ Golden and Mahesh Kumar @ Maheshwa (Ex.PW-27/A), directions qua TIP proceedings (Ex.PW-27/B), identification statement of witnesses namely, Ram Niwas Gupta and Lallu (Ex.PW-27/C), TIP proceeding of accused Ajay @ Golden (Ex.PW- 27/D) TIP proceedings of accused Mahesh Kumar @ Maheshwa (Ex.PW-27/F), permission for TIP (Ex.PW-27/G), statement of Sewa Ram (Ex.PW- 30/A), statement of Ram Bharose (Ex.P-30/B), endorsement on the process qua accused Ajay (Ex.PW-30/C), statement of Udai Singh (Ex.PW- 30/D1), statement of Veer Pal (Ex.PW-30/D2), statement of Shiv Baran (Ex.PW-30/D3), endorsement on the process qua accused Maheshwa (Ex.PW-30/E), rukka (Ex.PW-31/A), site plan without scale (Ex.PW-31/B), inquest papers (Ex.PW-31/C), application for conducting postmortem examination (Ex.PW-31/D), form for postmortem examination (Ex.PW-31/E), request for Sessions Case No.57732/2016 Page 12/68 TIP of accused Ravi @ Rambo (Ex.PW-31/F), request letter for copy of TIP proceedings on Ravi @ Rambo (Ex.PW-31/G), request for TIP of case property (Ex.PW-31/H), request for TIP proceedings of case property (Ex.PW-31/I) and brief facts (Ex.PW-31/J).
Statement of Accused Persons
11. After conclusion of prosecution evidence, on 16.08.2016, statements of accused persons under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were falsely implicated in the present case.
12. After framing of charge under Section 174-A IPC, testimony of HC Ajeet Singh (PW-29) was recorded and was put to both accused persons namely, Ajay @ Golden and Mahesh @ Maheshwa under Section 313 Cr.P.C on 19.04.2017. Accused Ravi @ Rambo stated that on 10.07.2009, police officials from PS Kirti Nagar called him and his father to the police station for enquiry where he was shown to the complainant, who was already Sessions Case No.57732/2016 Page 13/68 present there. Accused Ravi @ Rambo also stated that police official got his signature on the blank paper which was used against him in the present case.
13. Both accused persons namely, Ajay @ Golden and Mahesh @ Maheshwa stated that on 15.02.2012 and 02.04.2012, both of them were shown to the complainant outside the court room in Tis Hazari Courts. Police officials told their names to the complainant and directed the complainant to identify both of them in court and accordingly, complainant identified both the accused persons in court.
14. All the accused persons desired to lead evidence in their defence. Accused Ajay got examined his sister Kavita (DW-1), accused Mahesh got examined his elder brother Rakesh (DW-3) and accused Ravi got examined his father Rakhpal (DW-4). ACP Kulbhushan Sharma was also got examined as DW-2.
Final Arguments
15. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for Sessions Case No.57732/2016 Page 14/68 the State, Shri R.K Jha, learned Counsel for accused Ravi @ Rambo and Shri Balwan Singh, learned counsel for accused persons namely Ajay @ Golden and Mahesh @ Maheshwa. I also perused the entire material available on record.
16. During the course of arguments, learned Additional Public Prosecutor argued that the case of the prosecution has been proved beyond reasonable doubts as eye-witness of the incident namely Ram Karan (PW-2) deposed in a consistent and categorical manner who also identified all the three accused persons while deposing in the court. Further, accused Ravi @ Rambo and accused Ajay @ Golden had refused to participate in TIP proceedings whereas accused Mahesh @ Maheshwa was duly identified during TIP proceedings. She further argued that an adverse inference is to be drawn against the accused Ravi @ Rambo and accused Ajay @ Golden as they had not furnished any reason for refusing to participate in the TIP proceedings. Ld. Prosecutor further argued that the testimony of eye-witness PW-2 remained intact and was duly corroborated with the testimonies of other prosecution witnesses as well Sessions Case No.57732/2016 Page 15/68 as with the postmortem examination report of the deceased. There are no contradictions in the testimonies of prosecution witnesses. Purse of the deceased was also recovered from the possession of accused Ravi whereas accused Ajay and Mahesh avoided their arrest and were declared proclaimed offenders which shows their conduct. Further, the defence witnesses cannot be relied upon as their testimonies were impeached in their cross- examination. It was, therefore, argued that the prosecution succeeded in establishing its case against the accused persons beyond reasonable doubts and all the three accused persons deserve conviction.
17. Per contra, learned Counsel for the accused persons argued that there are major contradictions in the testimonies of prosecution witnesses. The prosecution failed to establish the identity of accused Ajay @ Golden. All the accused persons were falsely implicated in the present case and the recovery of purse was planted upon the accused Ravi @ Rambo. Further, there are contradictions in the testimony of eye-witness PW-2 and the same cannot be relied upon. The learned defence counsel Sessions Case No.57732/2016 Page 16/68 also filed written submissions and placed reliance on State through CBI v. Mahender Singh Dahiya - 2011 (1) RCR (Criminal) 706, Chandan @ Babar v. State Government of NCT of Delhi - 2014 (2) JCC 1474, Rajinder Kumar v. State - 23 (1983) DLT 42, Md. Nazrul Islam v. State of Assam - 2008 Cr.L.J 3374 and Abdul Rehman & Anr. v. State of Rajasthan - 2007 Cr. L.J 3113.
18. Learned counsel for accused persons further argued that prosecution could not establish its case beyond all reasonable doubts and all the accused persons are entitled for acquittal.
19. I have given my thoughtful consideration to the submissions of both sides.
Points for Determination
20. In the facts and circumstances of the case and in view of the submissions advanced on both sides, following points for determination are emerging in the present case :-
1. Whether Raj Kumar @ Bablu son of Jagdev Vishwakarma (deceased) died on 08.07.2009?Sessions Case No.57732/2016 Page 17/68
2. Whether the deceased had sustained such injuries on his person which were sufficient to cause death in ordinary course of nature?
3. Whether the death of the deceased was a homicide?
4. Whether Ram Karan @ Rudra Pratap son of Lallu Khangar also sustained injuries on his person on 08.07.2009?
5. Whether all the accused persons were responsible for causing the said injuries on the person of the deceased and Ram Karan @ Rudra Pratap?
6. Whether all the accused persons committed robbery upon the deceased and Ram Karan @ Rudra Pratap and used a deadly weapon for the same?
7. Whether all the accused persons entered into a criminal conspiracy with each other for committing offence in the present case ?
8. Whether accused persons namely Ajay@ Golden and Mahesh @ Maheshwa failed to appear before the Court on a specified date and time and were rightly declared proclaimed offenders?Sessions Case No.57732/2016 Page 18/68
Testimonies of Prosecution Witnesses
21. The case of the prosecution is based on direct as well as circumstantial evidence. In all, 31 witnesses were got examined by the prosecution. For the sake of convenience, the testimonies of all the prosecution witnesses are referred in a tabular form hereunder: -
Sl.No Name of PW Nature of Testimony Documentary of PW Evidence PW-1 Vivek Vishwakarma Identified the dead body Ex.PW-1/A and of Raj Kumar @ Babloo Ex.PW-1/B (cousin brother of (deceased) on 09.07.2009 deceased) in DDU hospital and received the same.
PW-2 Ram Karan Deposed about the Ex.PW-2/A, Ex.PW-
incident as he was 2/B and Ex.PW-2/C (Eye-witness) accompanying the deceased at the time of incident. Also identified the case property.
PW-3 HC Ram Chander Deposed about admission
of Ram Karan @ Rudra
Pratap Singh in DDU
hospital in injured
condition by PCR van
staff on 08.07.2009
PW-4 Jagdev Vishwkarma Identified the dead body Ex.PW-4/A
of his son Raj Kumar
(Father of deceased) (deceased) in the
mortuary of DDU hospital
and received the same.
PW-5 Babloo Deposed about Raj
Sessions Case No.57732/2016 Page 19/68
Kumar @ Babloo going
to railway track on the
day of incident
accompanied by Ram
Karan @ Rudra Pratap.
He also deposed about
Ram Karan returning
back in injured condition
telling about the incident
to him.
PW-6 ASI Narender Singh Deposed about Obtaining the MLC of Ram Karan @ Rudra Pratap from DDU hospital.
PW-7 Ct. Amjad Khan Proved DD No. 26 B and Ex.PW-6/A &
DD No. 8 B. Ex.PW-6/B
PW-8 Dr. Santosh Kumar Proved the postmortem Ex.PW-8/A examination report of deceased duly prepared by Dr. Sushil Kumar Chaurasia PW-9 W/Ct. Sarika Proved the PCR form Ex.PW-9/A duly filled by her regarding dead body in the intervening night of 8/9.09.2009.
PW-10 W/Ct. Dipa Proved the PCR form Ex.PW-10/A
duly filled by him
regarding snatching and
stabbing in the
intervening night of
8/9.09.2009
PW-11 Ct. Raj Kumar Deposed about inspecting Ex.PW-11/A1 to A7 &
the spot alongwith Ex.PW-11/B1 to B7
(photographer) incharge crime team and
taking photographs of the
place of incident.
PW-12 SI Gulshan Kumar Deposed about inspecting Ex.PW-12/A
Sessions Case No.57732/2016 Page 20/68
the spot and prepared
(Incharge Mobile crime report.
Crime Team)
PW-13 SI O.P Mandal Reached to the place of PW-13/A,PW-13/B &
incident on receipt of DD PW-13/C
No. 59 B. Deposed about
DD No. 36 A and DD No.
8A and also proved the
same.
PW-14 Sh. Mohinder Virat Conducted TIP Ex.PW-14/A, Ex. PW-
proceedings of accused 14/B, Ex.PW-14/C,
(Ld. ACMM) Ravi @ Rambo and case Ex.PW-14/D and
property i.e. purse. Ex.PW-14/E.
PW-15 Ct. Sanjay Kumar Deposed about the part Ex.PW-15/A
investigation in the
present case.
PW-16 Ct. Ajit Singh Deposed about delivering
copies of FIR to the
(Special senior police officials and
Messenger) the learned Metropolitan
Magistrate.
PW-17 Ct. Shiv Prasad Joined the investigation Ex.PW-17/A,Ex.PW-
with IO. Deposed about 17/B, Ex.PW-17/C,
arrest of the accused Ex.PW-17/D, Ex.PW-
persons and recovery of 17/E, Ex.PW-17/F,
purse containing Rs. Ex.PW-17/G, Ex.PW-
1800/-. Also witnessed 17/H, Ex.PW-17/J,
preparation of arrest Ex.PW-17/K, Ex.PW-
memo, personal search 17/L & Ex.PW-17/M
memo and disclouser
statement. Also identified
case property.
PW-18 Dr. Ajay Sharma Deposed about MLC of Ex.PW-18/A
Rudra Pratap Singh
prepared by Dr. Sidhartha
Kumar on 08.07.2009.
PW-19 HC Rajeev Tyagi Proved the FIR and Ex.PW-19/A &
endorsement on rukka. Ex.PW-19/B Sessions Case No.57732/2016 Page 21/68 (Duty Officer) PW-20 SI Manohar Lal Deposed about inspecting Ex.PW-20/A the spot and prepared the (Draughtsman) scaled site plan.
PW-21 ACP Kul Bhushan Conducted further
Sharma investigation after arrest
of accused Ravi@
Rambo, obtained NBWs
against accused persons
namely, Ajay and
Mahesh.
PW-22 HC Ramesh Chand Deposed about receipt of PCR call regarding stabbing incident and admitting the injured in DDU hospital.
PW-23 HC Ghanshyam joined the investigation with IO. Deposed about arrest of the accused persons namely Ajay @ Golden and Mahesh @ Maheshwa. Also witnessed preparation of arrest memo, personal search memo and disclouser statement. Also identified the accused persons in the court.
PW-24 Ct. Sanjeev joined the investigation with IO. Deposed about arrest of the accused persons namely Ajay @ Golden and Mahesh @ Maheshwa. Also witnessed preparation of arrest memo, personal search memo and disclouser statement. In his presence, both the Sessions Case No.57732/2016 Page 22/68 accused persons were medically examined in DDU hospital and their MLCs were prepared.
PW-25 B.L Sharma Produced admission Ex. PW-25/A, Ex.PW-
report regarding date of 25/B and Ex.PW-25/C ( Vice Principal birth of accused Mahesh.
GBSSS, Also produced admission
Shadikhampur, form, school leaving
New Delhi) certificate and admission
register in respect of
accused Mahesh and
proved the same.
PW-26 Inspector C.R Conducted part
Meena investigation after arrest
of accused Ravi @
(Investigation Rambo. Arrested accused
Officer) persons Ajay @ Golden
and Mahesh Kumar @
Maheshwa and got
conducted TIP
proceedings of both the
accused persons.
PW-27 Sh. Vijay Shankar Conducted TIP Ex.PW-27/A, Ex.PW-
proceedings of accused 27/B
(Ld. ACMM) persons Ajay @ Golden Ex.PW-27/C, Ex.PW-
and Mahesh Kumar @ 27/D, Ex.PW-27/E,
Maheshwa. Ex.PW-27/F &
Ex.PW-27/G
PW-28 Inspector Braj Got verified the age of
Mohan accused Mahesh and
prepared the
(Investigation supplementary charge-
Officer) sheet against accused
persons Ajay and Mahesh
@ Maheshwa.
PW-29 HC Ajit Singh Got executed the process Ex. PW-29/A, Ex.PW-
u/s 82 Cr.P.C against 29/B and Ex.PW-29/C accused persons Mahesh Sessions Case No.57732/2016 Page 23/68 @ Maheshwa and Ajay @ golden.
PW-30 HC Mahender Deposed about efforts to PW-30/A, PW-30/B
Kumar execute the process u/s 83 PW-30/C, PW-30/D1,
Cr.P.C against accused PW-30/D2,PW-30/D3
persons Mahesh @ & PW-30/E
Maheshwa and Ajay @
golden.
PW-31 Inspector C.L Deposed about the PW-31/A, PW-31/B
Meena investigation conducted PW-31/C, PW-31/D
by him. PW-31/E, PW-31/F
(Investigation PW-31/F1,PW-31/G
Officer) PW-31/H, PW-31/I &
PW-31/J
Testimony of Defence witnesses
22. Kavita (DW-1), sister of accused Ajay @ Golden deposed that Ajay was not known as "Golden". She deposed that after the death of her parents, she took her brother (accused Ajay) to her matrimonial home where he used to work at their food item Rehdi. She further deposed that on 08.03.2011, police apprehended her brother (accused Ajay) from her house. After 2-3 days of apprehension of accused Ajay, they orally apprised DCP, Raja Garden about the incident. DW-1 stated that her brother Ajay was falsely implicated by the police in the present case.Sessions Case No.57732/2016 Page 24/68
23. ACP Kulbhushan Sharma (DW-2) deposed about the dossier of accused Ajay. However, he could not tell as to when the photographs used for dossier were taken as he was not posted at police station Kirti Nagar at the relevant time.
24. Rakesh (DW-3), elder brother of accused Mahesh deposed that on 08.03.2011, some police officials came to his house and apprehended his brother ( accused Mahesh). He further deposed that they were not known to accused Ravi and no notice regarding arrest of his brother was affixed at their house. DW-3 stated that her brother accused Mahesh was falsely implicated in the present case.
25. Rakhpal (DW-4), father of accused Ravi deposed that on 10.07.2009, on asking of police officials, he took his son (accused Ravi) to police station where police officials asked him that they wanted to make some enquiries from his son. He further deposed that on the next morning when he again went to the police station, police officials got his signatures on blank paper and told him that his son (accused Ravi) had been arrested for murdering someone.Sessions Case No.57732/2016 Page 25/68
Analysis Points for determination no. 1 to 4:
26. In the present case, all the accused persons have been charged for commission of murder of the deceased after committing robbery upon him and Ram Karan @ Rudra Pratap (PW-2), in conspiracy with each other. As per the testimony of Ct. Sanjay Kumar (PW-15) and Ram Karan @ Rudra Pratap (PW-2), dead body of the deceased was found lying between the cemented sleepers near the railway track on 09.07.2009. Jagdev Vishwakarma (PW-4) and Vivek Vishwakarma (PW-1), father and elder brother of the deceased respectively duly identified the aforesaid dead body to be of the deceased. Their statements Ex.PW-4/A and Ex.PW-1/A were also recorded in this regard and after the postmortem examination the dead body of the deceased was handed over to them vide receipt Ex.PW-1/B.
27. Dr. Santosh Kumar (PW-8) deposed on behalf of Dr. Sushil Kumar Chaurasia who had expired in a road accident. Dr. Sushil Kumar Chaurasia had conducted the postmortem examination on the dead body of the deceased on 11.07.2009. PW-8 duly identified his handwriting Sessions Case No.57732/2016 Page 26/68 and signatures on the postmortem examination report Ex.PW-8/A. As per the said report, deceased had sustained six external injuries on various parts of his body i.e. left cheek, left forearm, back of elbow joint of right hand, right side of chest, two bruises on right clavicular region and clean incised wound over left side of his chest. Further, on internal examination of head of the deceased, sub-
scalp hematoma was found present on the right frontal of size 6x4 cm and on left parito temporal of size 8x5 cm of redish brown colour. On internal examination of the chest, on exploration, injury no. 6 was found to be penetrating the inter-costal of muscle, pericardium, and whole thickness of anterior wall of left ventricle of heart. There was collection of approximately 1.2 ltr clotted and liquid blood in the thoracic cavity and all the surrounding tissues were stained. Both lungs were pale. On internal examination of abdomen, approximately 15 ml semi liquid of creamish colour was found and intestinal loops were distended with gases and all viscera was also pale.
28. Vide postmortem examination report Ex.PW- 8/A, the cause of death was opined to be Sessions Case No.57732/2016 Page 27/68 hemorrhagic shock subsequent to stab injury to the heart which was sufficient to cause death in the ordinary course of nature. The external injuries no. 1 to 5 were opined to be possible in scuffle. All the injuries were ante-mortem in nature and same in duration.
29. Dr. Ajay Sharma (PW-18) identified the handwriting and signatures of Dr. Sidharth Kumar on MLC Ex.PW-18/A whereby Rudra Pratap was medically examined on 08.07.2009. As per MLC Ex.PW-18/A, the nature of injuries sustained by Rudra Pratap (PW-2) were simple and the kind of weapon used was blunt. PW-2 also sustained clean lacerated wound (CLW) of size 1 cm x .5 cm x .5 cm approx. on frontal bone of right side of his scalp.
30. In view of the testimonies of above- mentioned prosecution witnesses, it is established that Raj Kumar @ Bablu son of Jagdev Vishwakarma, met with a homicidal death on 08.07.2009. The stab injury sustained by the deceased was sufficient to cause his death in ordinary course of nature. Ram Karan @ Rudra Sessions Case No.57732/2016 Page 28/68 Pratap (PW-2) had also sustained injury on his person on 08.07.2009.
31. Points for determination no. 1 to 4 are decided accordingly.
Points for determination no. 5 & 6 :
32. To bring home the charge to the accused persons, the prosecution got examined 31 witnesses. The testimonies of prosecution witnesses are analysed under the following heads:-
(i). Eye-witness testimony :
33. The case of the prosecution is primarily based on the eye-witness account of Ram Karan @ Rudra Pratap (PW-2). PW-2 deposed about working in TATA Company as a watchman alongwith other watchmen including the deceased, Raj Kumar @ Bablu, Raju @ Din Dayal Pandit and Jai Prakash who used to perform duties at different towers of TATA Company. On 08.07.2009, PW-2 and other employees had received their monthly salary. PW-2 received a sum of Rs. 6000/- as his salary and after receiving the same all of them had come to Tower situated at Phase-II Naraina where PW-2 used to Sessions Case No.57732/2016 Page 29/68 reside. All of them had taken leave on that day. After reaching at Phase - II Naraina at around 1 p.m, all of them had gone to sleep and got up around 5- 5.15 p.m. PW-2 further deposed that Bablu Vishwakarma and Jai Prakash had gone to market for purchasing articles for preparing dinner and after they returned, they alongwith one Raju Tiwari had started preparing dinner. Further, the deceased and PW-2 had gone to answer the natures' call alongside the railway track which was situated just behind the said tower. PW-2 further deposed that the deceased was walking ahead of him. Both were carrying water bottle in their hand. When both of them were on the railway track, three boys came from the front side and caught hold of them. PW-2 further deposed that accused Mahesh and Ajay had caught hold of deceased where accused Ravi had caught hold of him. PW-2 correctly identified all the three accused persons present in the court on that day. He further deposed that all the three accused persons started beating both of them and accused Ajay started searching pocket of his pant. When PW-2 resisted accused Ajay beat him with stone on his forehead as a result of which blood Sessions Case No.57732/2016 Page 30/68 had started oozing out of his forehead. Further, accused Ravi took out a knife from his pocket and threatened him to hand over whatever he had. PW-2 took out his purse containing Rs. 6000/- and some documents and handed over the same to accused Ravi. PW-2 further deposed that accused Ravi was holding him by his collar at that time and somehow he got himself freed from the clutches of accused Ravi by tearing of shirt and ran away to save himself. When PW-2 reached near the boundary of railway line and looked back, he saw that accused Ravi was giving a knife blow to Raj Kumar @ Babloo (deceased) while accused Ajay and Mahesh were holding him. The deceased was also screaming in loud voice. PW-2 further deposed that he had run towards the nearby factory and informed the guard standing there who called the police at 100 number. Thereafter, PW-2 had gone to call his other friends namely Jai Prakash, Din Dayal and Bablu Vishwakarma and took them to the place where the said incident had taken place but the deceased could not be found there. Meanwhile, the police had also reached there and PW-2 was taken to DDU hospital by the police officials where he Sessions Case No.57732/2016 Page 31/68 was treated and received several stitches on his wound. PW-2 further deposed that on the next morning i.e. on 09.07.2009 he alongwith police officials searched for the deceased who was found lying amongst the cemented sleepers near the railway track.
34. PW-2 also proved his statement Ex.PW-2/A which was recorded by the police. The site plan of the place of occurrence was also prepared at his instance. PW-2 had also identified his purse in TIP of the case property before the Magistrate and proved his statement Ex.PW-2/C in the said proceedings. The purse Ex.P-1 was also identified by PW-2.
35. In his cross-examination, PW-2 stated that he used to live in the tower at the place where machines used to be kept which was like a room. He clarified that they would not go daily to ease themselves on the railway track but as the main office of the company was closed on that day, they had gone to ease themselves on the railway track. On further cross-examination, PW-2 stated that accused Ravi was wearing a T-shirt on which "Om Bhole" was written though he could not observe Sessions Case No.57732/2016 Page 32/68 the clothes of other accused persons. He also stated that he was carrying a water bottle with him which had fallen on the railway track during the incident but it was not at the spot when the police had come over there. PW-2 further clarified that the guard of the company situated near the railway track had telephoned at 100 number from his (PW-2) mobile phone. On further cross-examination, PW-2 stated that he had not seen any blood stained stone at the spot with which he was hit nor he could see any blood stain between the place of quarrel and the place of recovery of dead body. PW-2 also clarified that he used to keep his entire money inside his pocket and not at the place where he used to reside. He also stated his mobile number to be 99991 66914 with which the said guard had made call to the police at 100 number. He further stated that the deceased was also carrying money at that time.
36. The prosecution also got examined Bablu (PW-5) who was also working as watchman on the tower of TATA company at the relevant time and was with PW-2 and deceased on that day. Deceased was his cousin brother. PW-5 corroborated the testimony of PW-2 about receiving salaries and Sessions Case No.57732/2016 Page 33/68 preparation of meal on the said day. PW-5 further deposed about the deceased and PW-2 going to ease themselves on the railway track as the toilet of the company was closed on that day. PW-5 deposed that after sometime PW-2 had returned to the tower in injured condition and was perplexed at that time. PW-2 had told them to accompany him saying that the deceased was being beaten up and also informed that he had already got the police informed at 100 number. Jai Prakash also made a call at 100 number. Further, police officials who had reached at the spot searched for the deceased who could not be found at the railway track and as PW-2 was in injured condition, police officials took him to DDU hospital for treatment. Later on, while searching again the dead body of the deceased was found amongst the sleepers lying near the railway track. PW-5 further deposed about the police officials lifting blood from the spot, recording statement of PW-2 and other proceedings conducted there.
37. In his cross-examination, PW-5 stated that PW-2 and deceased and Jai Prakash had not taken their salaries in his presence but they had told him Sessions Case No.57732/2016 Page 34/68 that they had received the salaries. He further stated that there was no quarrel between the deceased and PW-2. He had seen water bottle at the spot which the deceased and PW-2 had taken with them while leaving to ease themselves, however, the police had not seized the said bottle. On further cross- examination, PW-5 stated that there were blood spots between the place of recovery of blood stained articles and place of recovery of dead body. The spots of blood were at 2-3 steps away from the dead body. On further cross-examination PW-5 reiterated about preparation of food around 5 p.m - 5.30 p.m, PW-2 and the deceased leaving the place at about 7 p.m and after about 15 minutes, PW-2 coming back to the house with blood oozing from his forehead. He further stated about finding the dead body of the deceased on the next day of the incident when a search was made by them near the railway tracks.
38. A conjoint reading of testimonies of Ram Karan @ Rudra Pratap (PW-2) and Bablu (PW-5) would show that PW-2 identified all the accused persons categorically while deposing in the court. Both, he and the deceased were given beatings by Sessions Case No.57732/2016 Page 35/68 the accused persons. Accused Ajay had hit PW-2 with a stone on his forehead as a result of which blood had also oozed out of his forehead. The deposition of PW-2 about seeing accused Ravi giving a knife blow to the deceased while accused Ajay and accused Mahesh were holding the deceased is categorical and could not be impeached in his cross-examination. Similarly, the testimony of PW- 2 regarding accused Ravi taking out a knife from his pocket and threatening him to give whatever he had and PW-2 handing him over his purse containing Rs. 6000/- also remained uncontroverted. PW-2 also identified his purse Ex.P-1 in TIP of the case property. PW-5 also corroborated the sequence of events deposed by PW-2 regarding receiving the salary, preparation of meal and deceased and PW-2 going to ease themselves on the said day. PW-5 also deposed about PW-2 returning to the tower in injured and perplexed condition. No material contradiction could be brought forth by the Ld. Defence Counsel in cross-examination of PW-2 and PW-5.
39. As per the testimony of Shri Mohinder Virat, Ld. MM (PW-14), accused Ravi had refused to Sessions Case No.57732/2016 Page 36/68 undergo TIP. PW-14 had also conducted TIP of the purse Ex.P-1 which was duly identified by PW-2. As per the testimony of Shri Vijay Shanker, Ld. MM (PW-27) accused Ajay also refused to undergo TIP whereas accused Mahesh was duly identified by witness Ram Niwas Gupta though witness Ram Karan could not identify him during TIP.
40. As far as the fact that PW-2 did not see any blood stained stone at the spot with which he was hit or did not see any blood stains between the place of quarrel and the place where the dead body was lying or the water bottle being not found at the spot, are concerned suffice it to say that none of the afore-said facts is sufficient to doubt the unshattered and categorical deposition of PW-2 regarding the incident and the identity of accused persons. Moreover, PW-5 deposed in clear terms that he had seen the water bottle lying at the spot which the deceased and PW-2 were carrying with them though the police had not seized the same. The testimony of PW-5 about the sequence of events and PW-2 returning in an injured condition also could not be impeached by the Ld. Defence Counsel.
Sessions Case No.57732/2016 Page 37/68(ii). Investigation witnesses:
41. To corroborate the testimonies of PW-2 and PW-5 and to prove investigation, the prosecution got examined Ct. Dipa (PW-10) who on 08.07.2009 at about 20:22:29 p.m, had recorded the information regarding snatching of Rs. 5000/- and stabbing of a person at A-18, Phase-II, Loha Mandi Naraina in his PCR form. She also produced the PCR form Ex.PW-10/A. The mobile no. 99991 66914 deposed by PW-2 finds mention in PCR form Ex. PW-10/A.
42. Ct. Sarika (PW-9) on the night intervening 08/09.07.2009 at about 5:23:15 a.m received a call from one Raju about one dead body lying at plot no. 36/2 Loha Mandi Naraina which she recorded in PCR form Ex.PW-9/A.
43. SI O.P Mandal (PW-13) deposed about receiving DD no. 59 B Ex.PW-13/A on 08.07.2009 at about 9.08 p.m which was regarding stabbing of a person and the snatching of Rs. 5000/- from him from A-3, Phase-II Naraina, Loha Mandi. PW-13 alongwith Ct. Ashok reached at the said address and came to know that the injured was removed to Sessions Case No.57732/2016 Page 38/68 DDU hospital by the PCR Van. At about 10.40 p.m PW-13 received DD No. 36 A Ex.PW-13/B about one injured namely Rudra Pratap son of Lalu who was admitted in the DDU hospital.
44. HC Ramesh Chand (PW-22) was posted as Incharge at Zebra - 65 PCR van and had received a call around 9.08 p.m from control room that at A-3 Phase-II Naraina Loha Mandi, one person was stabbed and a sum of Rs. 5000/- was robbed. PW- 22 reached at the said spot where the injured was found who was taken to DDU hospital.
45. HC Ram Chander (PW-3) was posted at DDU hospital on 08.07.2009 when PCR officials admitted Rudra Pratap Singh in injured condition in the Emergency of DDU hospital vide MLC no. 13250/ 09. PW-3 had informed the duty officer of police station Kirti Nagar through telephone vide DD No. 36 A.
46. ASI Narender Singh (PW-6) deposed about receiving a call from DDU hospital vide DD No. 26 B Ex.PW-6/A at about 11.15 p.m consequent upon which he reached at the said hospital and obtained MLC of Rudra Pratap son of Lallu. PW-6 further deposed that the said patient was discharged after Sessions Case No.57732/2016 Page 39/68 treatment and the DD was kept pending vide DD no. 8 B Ex.PW-6/B. PW-6 had handed over the MLC to Inspector C.L Meena, IO of the case on 10.07.2009.
47. Ct. Amjad Khan (PW-7) produced the original DD register containing DD No. 26 B Ex.PW-6/A and DD No.8B Ex.PW-6/B. He also deposed that the copies of afore-said DD was in his handwriting which he had handed over to the IO. The original DD No. 26B was in the handwriting of Ct. Dev Swaroop.
48. HC Rajeev Tyagi (PW-19) was working as duty officer at PS Kirti Nagar on 09.07.2009 and had recorded FIR Ex.PW-19/A on the basis of rukka sent by Inspector C.L Meena through Ct. Vinod. He also made endorsement on the rukka Ex.PW-19/B and handed over the copy of FIR alongwith original rukka to Ct. Vinod for handing over the same to Inspector C.L Meena.
49. Ct. Ajeet Singh (PW-16) had delivered the copies of the FIR on 09.07.2009 to the offices of DCP West, Joint CP (SR) PHQ and Ld. Magistrate at Tis Hazari.
Sessions Case No.57732/2016 Page 40/6850. SI Gulshan Kumar (PW-12), incharge of crime team had gone to the spot on 09.07.2009 on receiving information about the murder in the area of PS Kirti Nagar. The spot was situated in between the railway line near Industrial Area Naraina and Kirti Nagar railway station. PW-12 deposed about finding a dead body of a male at empty place near the sleepers of cement. PW-12 instructed the photographer to take the photograph of the spot and of the dead body from different angles. He inspected the spot and prepared the site inspection report Ex.PW-12/A which was handed over to the IO. In his cross-examination, PW-12 stated that he had not seen any water bottle at the spot nor he detected any blood spots on the railway line. He also could not find any knife at the spot.
51. Ct. Raj Kumar (PW-11) was posted as a photographer in the crime team of West District on 09.07.2009. He alongwith PW-12 had reached at the spot where a dead body was found lying amongst sleepers of cement near railway line. PW- 11 had taken seven photographs Ex.PW-7/B1 to Ex.PW-7/B7and also produced their negatives Ex.PW-11/A-1 to Ex.PW-11/A-7.
Sessions Case No.57732/2016 Page 41/6852. SI Manohar Lal (PW-20) had prepared the scaled site plan of the spot i.e. railway track behind A-40 Naraina Industrial Area, Phase-II within area of police station Kirti Nagar, Delhi (Ex.PW-20/A) on 21.07.2009 at the instance of Inspector C.L Meena, IO of the case.
53. ACP Kul Bhushan Sharma (PW-21) had conducted further investigation of the present case. He had made efforts for tracing accused Ajay and accused Mahesh but in vain. He had also obtained NBWs against both the said accused persons.
54. HC Ajeet Singh (PW-29) had executed process u/s 82 Cr.P.C in respect of accused Ajay and accused Mahesh whereas HC Mahender Kumar (PW-30) had taken the process u/s 83 Cr.P.C against both the afore-said accused persons but the same could not be executed as no movable or immovable property belonging to the said accused persons could be found.
(iii). Arrest of the accused persons:
55. Ct. Shiv Prasad (PW-17), HC Ghanshyam (PW-23), Ct. Sanjeev (PW-24), Inspector C.R Meena (PW-26) and Inspector C.L Meena (PW-31) Sessions Case No.57732/2016 Page 42/68 were examined by the prosecution regarding arrest of all the three accused persons. As per the testimony of PW-17 and PW-31, accused Ravi @ Rambo was arrested on 11.07.2009 at the instance of one Ram Niwas Gupta from inside the Satyam Park situated near Kirti Nagar Railway Station who was found sitting on an iron bench inside the said park. As per the testimony of PW-31 around 500meter away from the spot of incident, there was a shop (Thia) of a junk dealer where one Ram Niwas Gupta who used to work there, had met him and told to have witnessed the incident while he was going towards his house at Naraina. The said Ram Niwas Gupta had told PW-31 that he had earlier also seen the accused persons as they used to roam around near the railway track. PW-31 recorded the statement of Ram Niwas Gupta and had instructed him to intimate as and when he see the accused persons in the area and consequently on 11.07.2009 while PW-31 and PW-17 alongwith other police officials met with Ram Niwas Gupta near Kirti Nagar Railway Station, he informed about the presence of one of those three persons which were seen by him while committing the Sessions Case No.57732/2016 Page 43/68 offence. After accused Ravi @ Rambo was apprehended and interrogated, he confessed his involvement in the present case vide disclouser statement Ex.PW-17/D and the purse of the deceased (Ex.P6) previously exhibited as Ex.P-1 containing cash of Rs. 1800/- (three currency notes in the denomination of Rs. 500/- each and three currency notes in the denomination of Rs. 100/- each) was also recovered from his possession. The said purse was also containing a traveling railway ticket from Jhansi to Nizamuddin Railway Station (Ex.P4), one mobile phone bill pertaining to the deceased and one photograph of Ram Karan @ Rudra Pratap (Ex.P5). At the time of apprehending the accused Ravi @ Rambo, PW-31 directed him to muffle his face and also handed over one piece of cloth to cover his face. Thereafter, vide application Ex.PW-31/F, the TIP proceedings of accused Ravi @ Rambo was allowed but he refused to join the TIP proceedings.
56. Both, PW-17 and PW-31 were cross- examined by the learned Defence Counsel, however no contradictions could be brought forth in their testimonies regarding arrest of accused Sessions Case No.57732/2016 Page 44/68 Ravi @ Rambo and recovery of purse Ex.P6 from his possession with its contents. In cross- examination, PW-31 explained that he had met with Ram Niwas Gupta on 09.07.2009 during investigation and had also recorded his statement u/s 161 Cr.P.C. He further stated that said Ram Niwas Gupta had expired and his death was verified by him. For this reason, Ram Niwas Gupta could not be examined by the prosecution.
57. PW-17 had also joined investigation with PW-26, PW-23 and PW-24 on 08.03.2011. As per their testimonies, both accused Ajay and accused Mahesh were arrested on that day from a place near wine shop Kirti Nagar, Lakkar Mandi on the basis of secret information. PW-17 and PW-23 had apprehended both the accused persons Ajay and Mahesh at the instance of secret informer when they arrived near the wine shop. Both the accused were arrested vide arrest memo Ex.PW-17/F and Ex.PW17/G. Their personal search was conducted vide memo Ex.PW-17/H and Ex.PW-17/J. PW-26 also deposed that both the said accused persons remained in muffled face and on 18.03.2011 he moved an application to conduct their TIP. The Sessions Case No.57732/2016 Page 45/68 accused Mahesh was identified during TIP proceedings whereas accused Ajay @ Golden refused to participate in the TIP proceedings. Vide TIP proceedings Ex.PW-27/D, accused Ajay @ Golden refused to participate in TIP proceedings. He did not give any reason for not participating in the said proceedings. As per TIP proceedings Ex.PW-27/E, accused Mahesh @ Maheshwa was duly identified by witness Ram Niwas Gupta whereas witness Ram Karan could not identify him.
58. The testimonies of the afore-said prosecution witnesses could not be impeached in any material terms in their cross-examination by the learned Defence Counsel. In cross-examination, PW-26 explained that he had come to know about the address of accused Ajay during investigation after enquiring from different persons as well as secret informer. It is pertinent to note here that all the three accused persons were identified in categorical terms by the eye-witness Ram Karan (PW-2). Both accused Ravi @ Rambo and accused Ajay refused to participate in TIP proceeding without assigning any plausible reason, and adverse inference, therefore, is to be raised against them for not Sessions Case No.57732/2016 Page 46/68 joining the TIP proceedings. As observed above, accused Mahesh @ Maheshwa was duly identified by witness Ram Niwas Gupta who could not be examined due to his demise during trial.
(iv). Defence Witnesses
59. As far as the testimony of defence witnesses namely, Ms. Kavita (DW-1), Rakesh (DW-3) and Rakhpal (DW-4) are concerned, the same are not trustworthy for the reason that DW-1 is sister of accused Ajay, DW-3 is brother of accused Mahesh and DW-4 is father of accused Ravi who all deposed about one fact that the accused persons were lifted by the police from their respective houses. None of the defence witnesses could explain in their cross-examination why no written complaints were lodged by anyone of them regarding wrong apprehension and arrest of the accused persons. DW-3 in his examination-in-chief deposed that on 08.03.2011 some police officials had come to his house in uniform whereas in his cross-examination, DW-3 stated that the police officials were in plain clothes. DW-3 had not asked about their particulars or from which police station Sessions Case No.57732/2016 Page 47/68 they had come. No opposition was raised by any one of them when the said police officials had taken the accused from their house. Despite consulting advocate, no action was initiated regarding lifting of the accused persons from their houses nor any complaint was made to any higher police authority or court of law in this regard.
60. DW-2 merely produced the dossier of accused Ajay Ex.DW-2/A.
61. In the present case, accused Ravi @ Rambo , accused Ajay @ Golden and accused Mahesh Kumar @ Maheshwa have been sent up for trial for commission of different offences who have been charged with such offences. Hence, it would be appropriate to analyse the testimonies of prosecution witnesses relating to a particular charge, which is as under:-
Charge under Section 394/397 IPC read with Section 34 IPC:
394. Voluntarily causing hurt in committing robbery - If any person, in committing or in an attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with Sessions Case No.57732/2016 Page 48/68 imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempt to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
62. In view of the testimony of PW-2 and PW-5 as discussed above, it is evident that there is no dispute about the identity of the accused persons who committed robbery upon PW-2 and the deceased and also used knife in commission of offence. The ocular testimony of PW-2 could not be impeached at all by the learned defence counsel in cross-examination. Moreover, an adverse inference is also to be raised against accused Ravi @ Rambo and accused Ajay @ Golden for not participating in TIP proceedings without any reasonable or plausible reason. The reliance placed by the learned defence counsel on Chandan (supra) case and Rajender Kumar (supra) case are not of any help to the accused persons in view of the unimpeachable ocular testimony of PW-2. The fact Sessions Case No.57732/2016 Page 49/68 that any knife could not be recovered at the instance of any of the accused persons in the present case, is not fatal to the case of the prosecution. Even otherwise, as per the settled proposition of law as reiterated in Yogesh Singh v. Mahabeer Singh & Others, AIR 2016 SC 5160, the non-recovery of weapon of offence is not fatal to the case of the prosecution if other clinching evidence of eye-witnesses are available on record.
63. It would be pertinent here to refer Section 34 of IPC which is as under:
34.Acts done by several persons in furtherance of common intention- when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
64. In view of above-mentioned provision, to apply Section 34 IPC, apart from the fact that there should be two or more accused persons, two factors must be established; (i) common intention and (ii) participation of accused in the commission of an offence. It requires a pre-arranged plan and pre-
Sessions Case No.57732/2016 Page 50/68supposed prior concert and therefore, there must be prior meeting of mind. It is also clear that if some act is done by the accused persons in furtherance of common intention of co-accused, he is equally liable like his co-accused (reliance placed on Jai Bhagwan v. State of Haryana, AIR, 1999, SC 1083; Ramashish Yadav v. State of Bihar, 1999 (8) SCC
555).
65. In view of unimpeachable and categorical ocular evidence of PW-2, such non-recovery of knife is of no help to the accused persons more so, when accused Ajay @ Golden and accused Mahesh @ Maheshwa had absconded and could be arrested after substantial period of time. PW-2 duly identified his purse Ex.P-6 which was recovered from the possession of accused Ravi @ Rambo alongwith its contents including a sum of Rs. 1800/-. No contradictions worth the name of it could be brought in the testimonies of PW-17, PW- 23, PW-24, PW-26 and PW-31 regarding arrest of accused persons.
66. In the entire facts and circumstances, it is evident that the prosecution succeeded in proving the charge under Section 394/397 read with Section Sessions Case No.57732/2016 Page 51/68 34 IPC against all the three accused persons beyond reasonable doubt. The accused persons namely, Ravi @ Rambo, Ajay @ Golden and Mahesh @ Maheshwa are accordingly held guilty for commission of offence punishable under Section 394/397 IPC read with Section 34 IPC and are convicted.
Charge under Section 302/34 IPC :
It would be appropriate to reproduce section 302 IPC which is as under-
302. Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
67. The relevant part of Section 300 IPC which defines 'Murder' reads as follows:-
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the Sessions Case No.57732/2016 Page 52/68 death of the person to whom the harm is caused , or -
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
68. Further, the relevant part of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:-
299.Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
69. In the given facts and circumstances of the present case, it is to be seen whether the accused persons committed the offence of 'murder' or the offence of 'culpable homicide not amounting to Sessions Case No.57732/2016 Page 53/68 murder'. In this regard, long back in Reg V. Govinda (1877) ILR 1 Bom. 342, Hon'ble Justice Melvill compared and distinguished the provisions of Section 299 and 300 of IPC. Later on, the Hon'ble Supreme Court in its landmark judgment titled as State of Andhra Pradesh v. R - Punnayya & Anr - 1977 AIR 45 elaborately dealt with the distinction between Section 299 and Section 300 of IPC. The relevant paragraphs of the said judgment are extracted as under:
The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in various clauses of ss. 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:
Section 299 IPC Section 300 IPC
A person commits Subject to certain
culpable homicide if exceptions, culpable
the act by which the homicide is murder if
death is caused is done the act by which the Sessions Case No.57732/2016 Page 54/68
- death is caused is done -
Intention
(a) with the intention (1) with the intention of
of causing death; causing death;
or or
(b) with the intention (2) with the intention of
of causing such bodily causing bodily injury as
injury as is likely to the offender knows to be
cause death; likely to cause the death
or of person to whom the
harm is caused;
or
(3) with the intention of
causing bodily injury to
any person and the
bodily injury intended to
be inflicted is sufficient
in the ordinary course of
nature to cause death;
or
Knowledge
(c)with the knowledge (4) with the knowledge
that the act is likely to that the act is so cause death eminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of using death or such injury as is mentioned above.
Clause (b) of s. 299 corresponds with clause (2) and (3) of s 300. The distinguishing feature of Sessions Case No.57732/2016 Page 55/68 the mens rea requisite under cl. (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health and condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of cl. (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of cl. (2) is borne out by illustration (b) appended to s. 300.
Clause (b) of s. 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under cl.(2) of s. 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of rupture of the liver or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
In clause (3) of s. 300, instead of the words 'likely to cause death' occurring in the corresponding cl.(b) of s.299, the words Sessions Case No.57732/2016 Page 56/68 'sufficient in the ordinary course of nature' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between cl.
(b) of s.299 and cl.(3) of s.300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in cl.(b) of s.299 conveys the sense of 'probable' as distinguished from a mere possibility. The words 'bodily injury sufficient in the ordinary course of nature to cause death' mean that death will be the 'most probable' result of the injury having regard to the ordinary course of nature.
For cases to fall within cl.(3), it is not necessary that the offender intended to cause death, so long as death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant & Anr v. State of Kerala AIR 1966 SC 1874 is an apt illustration of this point.
In Virsa Singh v. The State of Punjab - (1958) SCR 1495, Vivian Bose, J. speaking for this court, explained the meaning and scope of clause (3) thus;
"The prosecution must prove the following facts before it can bring a case under s. 300 3rdly. First, it must establish, quite objectively, that a bodily injury is present;Sessions Case No.57732/2016 Page 57/68
secondly, the nature of the injury must be proved. These are purely objective investigation. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be proved that the injury of the type just described made up of the three elements set out above, was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender".
Thus, according to the rule laid down in Virsa Singh's case (supra) even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to s. 300 clearly brings out this point.
Clause (c) of s.299 and cl. (4) of s.300 both require knowledge of the probability of the causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that cl. (4) of s.300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons - being caused from his eminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of Sessions Case No.57732/2016 Page 58/68 probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as afore-said.
From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused had done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to 'culpable homicide' as defined in s.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s.300 Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in s.300. If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder', punishable under the first or second part of s.304, depending respectively on whether the second or the third clause of s.299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in s.300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s.304 Penal Code.
Sessions Case No.57732/2016 Page 59/6870. Applying the above-mentioned exposition of law on the subject to the facts of the present case, in the light of testimonies of prosecution witnesses and the documentary evidence led by the prosecution, it is established that the death of Rajkumar@Bablu (deceased) was caused by the accused persons as there is a direct causal connection between his death and the infliction of injuries with knife by the accused Ravi@Rambo on the person of the deceased while accused Ajay@Golden and accused Mahesh@Maheshwa were holding him. As per postmortem examination report Ex.PW-8/A,the injury no. 6 inflicted with the knife was found to be penetrating the inter- coastal of muscle, pericardium, and whole thickness of anterior wall of left ventricle of heart which was sufficient to cause death in ordinary course of nature.
71. The accused persons, in furtherance of their common intention,extended beatings to the deceased while robbing him and, on meeting with resistance in their attempt, inflicted injury upon the deceased with knife which is a dangerous weapon. The intentional infliction of knife injury to the Sessions Case No.57732/2016 Page 60/68 deceased and the resultant puncture of the left ventricle of the heart was opined by the doctor Dr. Santosh Kumar (PW-8) to be sufficient to cause death in the ordinary course of nature, thereby bringing the case within clause Thirdly of section 300 IPC.
72. From the above-mentioned application of settled principles of law to the facts of the present case, the end result is that the offence committed by the accused persons was 'murder' as defined under clause Thirdly of section 300 IPC.
73. It is evident that none of the Exceptions contemplated under section 300 IPC applies to the facts of the case.
74. In these circumstances, it is evident that all the three accused persons are responsible for causing death of the deceased. All the three accused persons are accordingly held guilty for the offence punishable under Section 302 IPC read with Section 34 IPC and are convicted.
75. The points for determination no. 5 & 6 are decided accordingly.
Sessions Case No.57732/2016 Page 61/68Charge under Section 174-A IPC :
76. Accused Ajay @ Golden and Mahesh Kumar @ Maheshwa were also charged with commission of offence punishable under Section 174-A IPC. Section 174-A IPC is reproduced as under:-
174-A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section(1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration had been made under sub-
section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
77. As per record, during proceedings of the case, process under Section 82 and 83 Cr.P.C were issued against both accused persons namely, Ajay @ Golden and Mahesh @ Maheshwa. As per the testimony of PW-29 HC Ajeet Singh, the process under Section 82 Cr.P.C was duly executed on 14.09.2010 in respect of accused Mahesh @ Maheshwa at his H. No. A-278 Sangam Colony, Sessions Case No.57732/2016 Page 62/68 Pandav Nagar, Delhi, requiring him to appear before the court concerned on 25.10.2010. Similarly, on 14.09.2010 itself process under Section 82 Cr.P.C was duly executed in respect of accused Ajay @ Golden at H. No. D-508, Pandav Nagar, Delhi requiring him to appear before the court concerned on 25.10.2010. PW-29 also deposed that the announcement in this regard was also made by beating the drum. One Vijay Kumar, cousin brother of accused Ajay @ Golden had also met with PW-29 at that time. PW-29 had also pasted copy of the processes on the door of their respective houses as well as on the notice board of the court. PW-29 proved his report Ex.PW-29/A and Ex.PW-29/B in this regard. He had also recorded the statement of said Vijay Ex.PW-29/C.
78. In cross-examination, PW-29 stated that he had made enquiry about whereabouts of the accused persons after going to their residential addresses though he had not recorded the statement of any neigbourer. PW-29 could not remember how much amount was paid to the drum beater for making public announcement. It is worthy to note that the cross-examination of PW-29 was Sessions Case No.57732/2016 Page 63/68 conducted on 19.04.2017 whereas he had executed process under Section 82 Cr.P.C on 14.09.2010. After such a long gap of time it is not expected that he would remember this particular fact. No other substantial point could be brought on record by the learned defence counsel so as to raise doubt on the veracity of the testimony of PW-29.
79. As per record, vide order dated 21.12.2010 both the accused persons namely, Ajay @ Golden and Mahesh Kumar @ Maheshwa were declared proclaimed offender by Ms. Vandana Jain, Ld. MM. As far as the reliance placed by the learned defence counsel on Mahender Singh Dahiya (supra) case, Abdul Rehman (supra) case and Nazrul Islam (supra) case is concerned suffice it to say that the order whereby both the accused Ajay @ Golden and Mahesh @ Maheshwa were declared proclaimed offenders, was never challenged. Even otherwise, perusal of the record reveals that the learned Metropolitan Magistrate had declared both the accused persons as proclaimed offenders after recording the testimony of HC Ajeet Singh (PW-
29) and after recording due satisfaction that both the accused persons had absconded. Therefore, Sessions Case No.57732/2016 Page 64/68 none of the cited judgments is of any help to the accused persons.
80. Therefore, in the above-discussed facts and circumstances, it is clear that both accused Ajay @ Golden and Mahesh Kumar @ Maheshwa failed to appear at the specified place i.e. before the court of Ms. Vandana Jain, Ld. Metropolitan Magistrate, Room no. 118, First Floor, Tis Hazari Court, Delhi at the specified time i.e. at 10 a.m on 25.10.2010 as required by proclamation under Section 82 Cr.P.C upon which a report Ex.PW-29/A and Ex.PW-29/B was given on account of their failure to appear despite publication of the said proclamation under Section 82 Cr.P.C, Ms. Vandana Jain, Ld. Metropolitan Magistrate vide order dated 21.12.2010 declared both accused Ajay @ Golden and Mahesh Kumar @ Maheshwa as proclaimed offenders. Accordingly , both the accused persons are held guilty for commission of offence punishable under Section 174-A IPC and are convicted.
81. The point for determination no.7 is accordingly decided.
Sessions Case No.57732/2016 Page 65/68Charge under Section 120-B IPC :
Section 120B IPC prescribes punishment for criminal conspiracy which is as under-
120B. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2).xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
82. All the three accused persons were charged for commission of offence punishable under Section 120B IPC, however, the prosecution could not lead any evidence to establish any prior meeting of mind between the accused persons to commit the offfence in the present case. There is no evidence available on record to establish that all the three accused persons conspired together to commit an offence, except their disclouser statements which are not legally sustainable. Therefore, all the three accused persons stands acquitted of the Sessions Case No.57732/2016 Page 66/68 charge for the offence punishable under Section 120-B IPC.
83. The point for determination no.8 is decided accordingly.
Conclusion
84. The upshot of the entire discussion is that all the three accused persons namely, Ravi @ Rambo son of Rakh Pal, Ajay @ Golden son of Vishnu and Mahesh @ Maheshwa son of Shiv Kumar are held guilty for commission of offence punishable under Section 394 IPC read with Section 34 IPC and are hereby convicted. The accused persons are also liable for minimum punishment as per Section 397 IPC.
85. All the three accused persons are also held guilty for commission of offence punishable under Section 302 IPC read with Section 34 IPC and are hereby convicted.
86. Accused persons namely, Ajay @ Golden and Mahesh Kumar @ Maheshwa are held guilty for commission of offence punishable under Section 174-A IPC and are hereby convicted.
Sessions Case No.57732/2016 Page 67/6887. However, all the three accused persons stand acquitted of the charge for the offence punishable under Section 120-B IPC.
88. Let the convicts namely, Ravi @ Rambo, Ajay @ Golden and Mahesh Kumar @ Maheshwa be heard on the quantum of sentence.
(Pronounced in the open (Kuldeep Narayan) Court on 18-07-2018). Addl. Sessions Judge (Pilot Court) West : Court No. 33: Tis Hazari Courts Delhi Sessions Case No.57732/2016 Page 68/68