Delhi District Court
State vs 1. Kunwar Nawab Singh on 8 June, 2010
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 181/06
FIR No. 969/03
P.S. Tilak Nagar
U/s 452/307/34 IPC
State Versus 1. Kunwar Nawab Singh
S/o Prahlad Singh
R/o WZ102, Khayala Village,
Delhi
2. Manoj
S/o Prem Raj
R/o WZ102, Khayala Village,
Delhi
3. Megh Raj
S/o Daya Nand Chandela
R/o WZ102, Khayala Village,
Delhi
4. Daya Nand Chandela
S/o Prahlad Singh
R/o WZ102, Khayala Village,
Delhi
Date of Receipt : 04.11.2004
Date of Conclusion of arguments : 22.05.2010
Date of Decision : 03.06.2010
FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 1/36
JUDGMENT :
1. The accused persons Kunwar Nawab Singh, Manoj, Megh Raj and Daya Nand Chandela have been chargesheeted by PS Tilak Nagar for commission of offence under Section 452/307/34 IPC.
2. Story of prosecution in brief is that on 11.12.2008 at about 4.10 pm, an information was received at police station Tilak Nagar about attack on the house of MLA. On this information, DD no. 13A Ex. PW15/A was recorded, which was assigned to ASI Ishaq Mohd., who left the PS along with Ct. Sunil for the spot. At the spot, he came to know that injured had already been removed to DDU Hospital. He reached DDU Hospital, where one Sudesh Chandela met him and told that they had given a sum of Rs. 50,000/ to one Sufi on interest. Sufi went away to some unknown place without returning the money. They rented out his jhuggie. On 11.12.2003, their tenant told him that Manoj, nephew of Dayanand Chandela had put his lock on the jhuggie of Sufi. On this, he along with his father went to the house of Dayanand Chandela, which is situated opposite their house. From the street, he asked as to why the lock has been put on the jhuggie of Sufi. He was told that they also have to take money from Sufi. They also stated that they had given Rs. 51,000/ in the election to defeat Dayanand FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 2/36 Chandela. While they were exchanging hot words, in the meanwhile, Dayanand Chandela reached there in a car and he came out with a sword. Accused Nawab also came out having a sword. Accused Manoj and Meghraj also came there with dandas in their hands. Accused Dayanand Chandela exhorted "Maro Salo Ko". Sudesh Chandela and his father ran towards their house to save themselves. Dayanand Chandela, Nawab, Megraj and Manoj also entered their house. Dayanand Chandela gave a sword blow to Sudesh Chandela, which he stopped with his right hand. Accused Nawab also assualted him with sword. Accused Manoj and Meghraj also assaulted him with dandas. They also attacked his father Hargopal, his uncle Ram Gopal and his brother Ravinder, who came there to save him. On this statement of Sudesh Chandela, FIR was got registered. Injured were got medically examined, Their MLCs were collected. Accused persons were arrested. After completion of the investigation, the charge sheet against the accused persons was filed.
3. Copies were supplied to the accused persons. Ld. Metropolitan Magistrate, after complying the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable u/s 307 IPC is exclusively triable by the Sessions Court. FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 3/36
4. All the accused persons were charged for the offence punishable U/s 452/34 and 307/34 by my learned Predecessor. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
5. Prosecution in order to bring home the guilt of the accused persons, examined 21 witnesses. In this case, injured Ravinder was examined as PW1, complainant Sudesh Chandela, who was also the injured, was examined as PW2, injured Ram Gopal was examined as PW3 and injured Har Gopal was examined as PW4. Doctor was examined as PW7. After examining all the witnesses, prosecution evidence was closed.
6. Statement of accused persons were recorded u/s 313 Cr.P.C, wherein they denied the entire evidence. Accused Kunwar Nawab Singh stated that he is innocent and has been falsely implicated in this case because of political rivalry as witnesses are enimical against him. In fact, he was not present on the spot at the time of alleged incident and was admitted at Primary Health Center, Mehrauli. He also produced discharge slip regarding his admission there and discharge. He wished to lead evidence in his defence. FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 4/36
7. Accused Manoj Kumar also denied the entire evidence and stated that he was not present on the spot at the time of alleged incident and was admitted at Primary Health Center, Mehrauli along with accused Kunwar Nawab. He also produced discharge slip regarding his admission there and discharge. He wished to lead evidence in his defence.
8. Accused Megraj also denied the entire evidence and stated that he was falsely implicated in this case. He stated that on that day, Ram Gopal, Harpal, Sudesh and Ravinder and other accomplices attacked and entered their house after abusing and threatening him and his cousin Amit. Police came, after his father Dayanand Chandela informed the SHO about the attack on the house. At that time, Dayanand Chandela, Manoj Kumar and Kunwar Nawab were not present in the house. Dayanand Chandela was at Zonal Office at Rajouri Garden at that time and from there, he informed the SHO. PCR van reached the spot. He and Amit also sustained injuries. Aforesaid persons entered their house duly armed. Public persons intervened and tried to save them and in that scuffle, aforesaid persons got injured. All the allegations are false and FIR no. 970/03 at police station Tilak Nagar has been recorded on the statement of FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 5/36 his mother Smt. Dhanwati. He also wished to lead evidence in his defence.
9. Accused Dayanand Chandela also denied the entire evidence and stated that he has been falsely implicated in this case. At that time, he was present at Zonal Office of MCD, Rajouri Garden and he was having mobile no. 9818822281, on which he received a call from his house regarding attack by the aforesaid persons and he immediately informed the SHO. He met officials of MCD at that time and the police investigated and interrogated all those persons, with whom he met or he received the call on his mobile. He was not present at the spot at the alleged time of incident and he was falsely implicated in this case. He also wished to lead evidence in his defence.
10. Accused persons examined Sh. Prashant, Asstt. Ahlmad from the court of Sh. Manish Yaduvansi, Ld. M.M., Tis Hazari Courts, Delhi as DW1, who brought the judicial file of case FIR no. 970/2003, PS Tilak Nagar u/s 452/323/506/34 IPC titled as State Vs. Sudesh Chandela and Ors., and told that it is still pending.
11. Sh. Ramesh Chandra, Senior Pharmacist, Primary Health Center was examined as DW2. He deposed that patients Manoj son of Prem Raj FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 6/36 and Nawab Singh son of Sh. Prehlad were admitted in the Primary Health Center on 11.12.2003 and were discharged on 13.12.2003 and they were examined by Dr. A.K. Pandey. He also proved on record the copies of the relevant entry as Ex. DW2/1 and Ex. DW2/2.
12. Dr. A.K. Pandey was examined as DW3 and he stated that he examined the patients and admitted them in Primary Health Center, Mehrauli.
13. Sh. Bharat Bhushan Bajaj, Executive EngineerMCD was examined as DW4 and he stated that he saw Dayanand Chandela in the MCD office at around 3.00 or 3.15 pm and he left the office at around 3.45 pm.
14. Sh. D.C. Bansal, AE was examined as DW5 and he stated that at about 2.00 pm, he went to the office of Sh. S.K. Jain, SE and he talked with Dayanand Chandela on the mobile from the landline of Sh. S.K. Jain.
15. Sh. R.K. Singh, Nodel Officer, Bharti Airtel was examined as DW6 and he produced the call details of mobile phone bearing no. 9818822281 and according to the call details, the location of this FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 7/36 mobile phone was at Rajouri Garden at that time.
16. Sh. Lokesh Chandela was examined as DW7 and he stated that mobile no. 9818822281 is in his name and he handed over that mobile phone to Sh. Dayanand Chandela.
17. Sh. Manoj, Senior Manager, Bharti Airtel was examined as DW8 and he also deposed about the call details of mobile phone of Dayanand Chandela and tower location. In reply to a court question, he stated that it is correct that if there is a congestion while making call, then the call will be transferred to another tower and it will be registered with that tower only, where the channel is available.
18. Sh. Lal Mani, Deputy Secretary, Delhi Assembly was examined as DW9 and he produced the book published by Legislative Assembly, Delhi in the year 2003 containing details of the accused and the book is Ex. DW9/A. Thereafter, the defence evidence was closed and the case was fixed for final arguments.
19. I have heard arguments from the learned Additional Public Prosecutor for the State, learned Defence counsel for the accused persons and perused the record.
FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 8/36
20. Ld. Addl. PP submitted that in the present case, the police received the information vide DD no. 13/A and on receiving the information, ASI Ishaq Mohd along with Ct. Sunil reached the spot. There, he came to know that injured persons had already been removed to DDU hospital. PCR officials were examined as PW5 ASI Ganga Bishan and PW6 HC Radhey Shyam and they told that injured were removed to hospital by CATs Ambulance. There is no dispute about the same. ASI Ishaq Mohd went to the DDU Hospital, where he recorded the statement of Sudesh Chandela, who had been examined as PW1. Other injured Ravinder, Ram Goptal and Harpal were examined as PW1, PW3 and PW4. All the four injured persons have fully supported the prosecution case and corroborated each other. There are many contradictions in their testimonies, but it is an old case and the witnesses could be examined after a long gap, therefore, the natural variations due to lapse of time were bound to occur. These are not the major contradictions going to the root of the case or demolishing the entire case of the prosecution. All the four witnesses have identified the accused persons. They have also stated that accused Dayanand Chandela and Kunwar Nawab were armed with swords and other two accused Manoj and Meghraj were having dandas. The three witnesses i.e PW1 Ravinder, PW2 Sudesh FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 9/36 Chandela and PW4 Harpal specifically stated that dispute was with respect to a jhuggie, on which the lock was put up by accused Manoj. They went there to inquire as to why lock was put on that jhuggie and it was stated that they have given Rs. 51,000/ to Mahender Singh Sathi to defeat Dayanand Chandela and altercation started. In the meanwhile, accused Dayanand Chandela also arrived there in a car and he along with three accused persons attacked them and entered their house after armed with weapons. At that time, Dayanand Chandela and Kunwar Nawab were armed with swords and other two accused Manoj and Meghraj were having dandas and they attacked indiscriminately on all the four persons wounding them and causing injuries on various parts of their bodies. PW2 stated that all the four accused present in the court entered their house. Accused Dayanand hit a sword on back of his head, his right arm, left arm, palm of his right hand. He became unconscious. He also stated during his crossexamination by the Ld. Addl. PP that accused Nawab also hit him with the sword on his hand and accused Manoj and Meghraj gave him danda blows.
21. Other witness/injured Ravinder was examined as PW1 and he stated that : ".......... In the meantime, Dayanand came in his car, brought FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 10/36 swords from his house. Accused Nawab present in the court is brother of accused Dayanand. He also had a sword. Accused Manoj and Meghraj present in Court had dandas in their hands. Accused Dayanand hit sword on my brother Sudesh Kumar. Thereafter, accused Nawab gave a sword blow and then the remaining two accused gave danda blows. I came out to save my brother, on which accused Dayanand gave a sword blow to me also. My tao Ram Gopal who had a house in the neighbourhood was enjoins sun by sitting in front of house. He came to save my brother on which someone hit dandas to him. I did not see which accused gave danda blows to him. I raised noise, on which, Sunderpal son of my chacha took me to Khetarpal Nursing Home...."
This witness also supported the testimony of PW2 that PW2 was hit by Dayanand, and Kunwar Nawab with swords and other two accused Manoj and Megraj gave him danda blows and when PW1 and PW3 came forward to rescue them, they were also attacked. PW1 was given a sword blow by accused Dayanand and some one hit Ram Gopal with a danda.
22. Sh. Ram Gopal was examined as PW3 and he stated that : FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 11/36 "........ After about 24 minutes, accused Dayanand and Nawab came out from their house, both were armed with swords. On reaching there, they said how they dared to object about our locking the jhuggi. Then Dayanand exhorted that he is king of the area and how they dared to object us and said 'marro saalo ko'. Then, accused Dayanand and Nawab armed with swords entered the house of Harpal and attacked on Sudesh and Harpal with swords. Ravinder who also came down from the upper floor he was also attacked with sword. I also tried to intervene and save but I was also attacked with sword as accused Dayanand exhorted that 'marro saale ko, ye gawahee dega' and I became unconscious....."
23. Ld. Addl. PP submitted that PW3 corroborates the testimonies of PW1 and PW2 that when he came to save them, he was also attacked. He also stated that accused persons entered the house injured and they attacked Sudesh and Harpal with swords. Harpal was examined as PW4 and he stated that : "....... In the meanwhile, Dayanand also came there. Dhanwati abused. Dayanand came armed with a sword. Again said, when Dhanwati started abusing us, we came FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 12/36 back to our home. Nawab also took a sword and the other two accused today present in the court were having lathies in their hands. Dayanand and Nawab exhorted 'Maro salo ko again said Jaan se mar do, Main yahan ka raja hoon, kanoon jeb me rakhta hoon, koi kuch nahi bigad sakhta, Main ileka ka malik hoon.' All the four accused persons entered my house. Accused Nawab and Dayanand assaulted my son Sudesh Kumar with the swords on the head, shoulders and when he tried to save himself by raising his hand, his hand also cut. He sustained 27 injuries on his body. My son Ravinder came down stairs, Dayanand hit on his head with sword. Again said, Dayanand and Nawab hit him on his head and he fell down. Thereafter, Dayanand exhorted 'Isko bhi mar do, ye gawahi dega' Dayanand hit me on my head with the sword. I was also beaten with the lathies. Due to the injuries, I became unconscious. ........... My elder brother Ram Gopal came there and he was also assaulted. Accused Manoj Kumar and Meghraj hit him with the lathies on his face and Nawab assaulted with the sword, which landed on his right hand. After I became unconscious, I do not know what happened thereafter......"
FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 13/36
24. Ld. Addl. PP submitted that in this case, doctor was examined as PW7. MLC of injured Ram Gopal is proved as Ex. PW7/D, but the opinion about the nature of injuries on the person of injured Ram Goptal was not given as he was referred to Sushart Trauma Center. Xray report of injured Ram Gopal is Ex. PW7/E and no bony injury was found in the Xray report. Dr. Vinod gave the opinion as 'grievous' later on. MLC of injured Harpal has been proved as Ex. PW7/F and no bone injury was found. MLC of injured Sudesh Chandela has been proved as Ex. PW7/G and a fracture was noted on the proximal end of third metacarpal and fourth proximal phalanx and fracture was also noted at the midshaft of Ulna. Xray report of Ravinder is proved as Ex. PW7/H and MLC of Ravinder is proved as Ex. PW7/J and the opinion about injury was given as 'simple'. No incised wound or injury by sharp edged weapon was found, MLC of Sudesh Chandela was proved as Ex. PW7/K, wherein the doctor opined the nature of injuries as 'grivous blunt and sharp'.
25. Dr. Babita Garbial was examined as PW8 and she proved the MLC of Harpal Singh as Ex. PW8/A and she opined the nature of injury as blunt. She also told that injuries sustained by Harpal could be caused by simple fall.
FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 14/36
26. Ld. Addl. PP submitted that keeping in view all these facts, it is clear that all the four accused persons after being armed entered the house of injured, attacked them with swords and lathies and caused injuries on their person.
27. Ld. Addl. PP further submitted that accused Dayanand is claiming alibi that he was present at Zonal Office of MCD at Rajouri Garden at the relevant time. MCD office, where the accused alleged to be present, is not very far from the place, where the incident had taken place. DW4 has stated that he went to the office of Sh. S.K. Jain at about 3.00/3.15 pm for some work, where Dayanand met him and after about half an hour, he left the office i.e at around 3.45 pm. Ld. Addl. PP submitted that incident started at about 3.45 pm. The witnesses stated that accused reached there in a car except one witness Harpal, who stated that he was in the house. Even if, DW4 is believed, then the possibility of his reaching the spot while change of hot words was still going on, cannot be ruled out, because DW4 is also giving the approximate time. He stated that he reached the office of Sh. S.K. Jain at about 3.00/3.15 pm and after 30 minutes, Dayanand left the office, then it might be that he left the office at about 3.30 pm or 3.45 pm. Under these circumstances, the plea of alibi is of no help to accused Dayanand as the possibility of his reaching the FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 15/36 spot can not be ruled out and also when, all the witnesses are specifically saying that he was there and he attacked them with the swords. No doubt, the defence is trying to make out a case that there was previous enmity, but no such evidence has been brought on record except that there was some dispute between two. The witnesses have also stated that in fact, they were supporters of Dayanand Chandela before this election.
28. So far as the alibi of other two accused persons Kunwar Nawab and Manoj are concerned, they alleged that they were admitted in Primary Health Center, Mehrauli. Ld. Addl. PP submitted that no such evidence has been brought on record that they have gone to house of their cousin, even the cousin has not been produced in the witness box to prove this fact. Even otherwise, that Primary Health Center is not specialized hospital for treating the cases of gastroenteritis. Keeping in view the status of the accused persons, it is something unbelievable that having so acute gastroenteritis, they will be admitted only in a primary health center. It is a manipulated record. Even otherwise, the slips which have been produced after a gap of seven years are very new, which clearly shows that these have been manipulated later on only to create evidence. It is prayed that keeping in view the testimonies of the public witnesses examined as PW1 to FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 16/36 PW4, testimony of doctors examined as PW7 and PW8, it is clear that all the accused persons entered the house of the injured, attacked them indiscriminately with deadly weapons with intent to kill them, the onus which was on the prosecution has been discharged fully. It is prayed that all the accused persons be held guilty.
29. Learned defence counsel submitted that the onus to prove the guilt of the accused was on the prosecution, in which the prosecution has miserably failed. Prosecution had examined 21 witnesses, but they have not fully supported the prosecution case. There are many contradictions in the testimonies of the public witnesses. Even police witnesses have contradicted each other. Learned defence counsel submitted that genesis of the incident is not known and there is no evidence on record as to why quarrel started. Prosecution has tried to build up a story that PW3 Ram Gopal gave a sum of Rs. 50,000/ to one Sufi, but no such evidence has been brought on record, even Sufi has not been examined. There is no such evidence on record that any such amount was ever given to Sufi or was due. According to the story,the jhuggie was rented out to one Deepak and Deepak has also not been produced in the witnessbox. It was Deepak, who told that Manoj has put the lock, but that important evidence has been withheld by the prosecution deliberately as no such incident has taken FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 17/36 place. Learned defence counsel submitted that infact there was a political rivalry as has come in the evidence of PW1 itself and entire family of the accused and of the complainant were fighting election against each other, wherein the accused and his family members were winning always, which was not tolerated by the complainant and they attacked the house of Dayanand Chandela, which is also evident from DD no. 13A, which was the first information received by the police about the incident. DD no. 13A has been proved on record as Ex. PW15/A, according to which, some persons have attacked on the house of MLA. Police came into action on this information. This information was sent by the family members of Dayanand Chandela himself. Dayanand Chandela also talked with the SHO Ins. R.K. Ojha about this fact, who has been examined as PW16 and he also supported the fact that Dayanand Chandela informed him on telephone. First information was received at 4.10 pm according to DD no. 13A, which support the defence of the accused that their house was attacked. It was also admitted by the PW1 to 3 that about 30 to 40 persons were present near the house of Dayanand Chandela. In fact, the complainant attacked the house of accused persons, though Dayanand Chandela, Kunwar Nawab and Majon were not there. Public persons intervened and due to reaction of the public, they sustained injuries, but the complainant being eniminal towards the FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 18/36 accused persons falsely named them and implicated them in the present case. The complainant attacked the accused persons and they also lodged a complaint against them, on the basis of which, FIR no. 970/03 was registered against the complainant and other persons and photocopy of the FIR has been proved on record as Ex. PW 16/DX, wherein Sudesh Chandela, Ravinder, Harpal, Ram Gopal. Devender Kumar, Surender Singh @ Maddi son of Late Khazan Singh and Surender Singh son of Chainpal and Jaswinder were the accused persons.
30. Learned defence counsel submitted that so far as the accused Dayanand Chandela is concerned, he was not even present on the spot and was in the area of Rajouri Garden as is evident from the call details proved on record by the prosecution itself as Ex.PW20/B and Ex. DW8/DA. Even prosecution witness PW16 stated that he verified about the presence of the accused Dayanand Chandela on the spot and he was not present there. Defence has also examined DW4 Executive Engineer from the MCD, who stated that he met Dayanand Chandela in the office and when he went to the office of Sh. S.K. Jain on 11.12.2003 at about 3.00/3.15 pm and Sh. Dayanand Chandela remained there for about half an hour. Thereafter, he left the office at about 3.45 pm. Learned defence counsel submitted that FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 19/36 from the evidence, which was collected and verified by the prosecution itself, as is evident from the testimony of PW16, it is clear that Dayanand Chandela was not on the spot at the relevant time.
31. Learned defence counsel further submitted that other two accused Kunwar Nawab and Manoj were also not present on the spot and they were admitted at Primary Health Center, Meharuli. In this regard, DW 2 and DW3 have been examined and discharge slips have been proved as DW3/1 and Ex. DW3/2. Dr. A.K. Pandey has also been examined as DW3, who stated that both the patients were admitted in Primary Health Center on 11.12.2003. Manoj was admitted at 11.00 am and Kunwar Nawab was admitted at 11.45 am. They were discharged on 13.12.2003 at about 10.00 am, meaning thereby that they were also not there. The defence witnesses have also stood through the test of crossexamination and there is no reason to disbelieve their testimonies. So far as, accused Megraj is concerned, in fact, he and Bittoo have been attacked by the complainant, wherein he sustained injuries and was admitted in the hospital.
32. Learned defence counsel submitted that there are also material contradictions in the testimonies of the witnesses. PW1 stated that Dayanand Chandela came in his car and brought sword from his FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 20/36 house, whereas PW4 stated that Dayanand Chandela was inside his house. According to PW4, Manoj Kumar, Megraj and Nawab were there and Dayanand Chandela was inside the house, thereby confronting PW1 and PW2 that Dayanand Chandela arrived there in a car. Ld. Defence counsel submitted that according to PW2, he was attacked by Dayanand Chandela with sword, who hit on his head, right arm, left arm and palm of his right hand. During crossexamined by the Ld. Addl. PP, he also stated that Nawab also hit him with sword, but there is no such injury on the person of Sudesh. MLC of Sudesh has been proved on record as Ex. PW7/K, wherein the doctor has changed the injuries from CLW to CIW only to make out a case as there is clear overwriting at injury no. 2. It is submitted that all the injuries have been manipulated and there is no mention on the MLC that there was loss of consciousness as alleged by PW2.
33. Learned defence counsel submitted that so far as the PW1 is concerned, he also stated that he was attacked with the sword. This fact is also stated by PW3, but no injury with the sharp edged weapon was found on the person of PW1 as is evident from the MLC proved on record as Ex. PW7/J.
34. PW4 Harpal Singh also alleged that he was also present on the spot FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 21/36 and was attacked with swords and dandas, but there is no sharp edged injuries on his person and all the injuries were found to be simple and blunt. PW4 also stated that Sudesh sustained 27 injuries and MLC of Sudesh has been proved as Ex. PW7/K, which shows that there were only eight injuries and not 27 as deposed by PW4, which clearly shows that PW4 was deposing falsely. MLC of Ram Gopal has been proved as Ex. PW7/D. There is also no mention that any injury with sharp edged weapon was found and there were only blunt injuries. CT Scan has also not been proved on record, so far as PW4 is concerned to prove the nature of injuries.
35. Leanred defence counsel submitted that there are also contradictions as to at what time, the statements were recorded. According to Ex. PW12/A i.e. Crime Team Report, which was prepared on the spot between 5.00 to 7.00 pm, names of the injured were mentioned and PW12 SI Manoj Kumar stated that he mentioned the names of the injured in his report as told to him by ASI Ishaq Mohd, meaning thereby that ASI Ishaq Mohd was present on the spot, when crime team reached there. ASI Ishaq Mohd was examined as PW21 and he stated that he was in the hospital at about 4.45 pm or 5.00 pm and remained there upto 7.15 pm, meaning thereby, there was no possibility of his meeting with crime team between 5.00 pm to 7.00 FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 22/36 pm. In fact, in this case, the FIR was registered at about 7.15 pm and till that time, Mohd. Ishaq was not knowing as to who was the injured. He was also not present on the spot. In fact, investigation was carried out by one SI Rajesh, who was no where in the picture before registration of the FIR as deposed by him and all the exhibits, blood stained earth and blood samples were lifted before registration of the FIR. Rather he deposed falsely that he does not know anything about FIR no. 970/03 and he has not investigated the same, whereas he is the investigating officer of that case, which is clearly evident from the list of the witnesses annexed to the charge sheet, copy of part of which has been proved on record. All these facts clearly show that police concocted the story.
36. Learned defence counsel submitted that in this case, one witness examined as PW10 Ct. Chander Mani falsifies the entire story of the prosecution, who stated that he went to DDU Hospital with ASI Ishaq Mohd from the PS at about 3.30 pm. Learned defence counsel also submitted that site plan of the place of occurrence is not correct, which is also admitted by the witnesses themselves. It is prayed that keeping in view all these contradictions and the fact that defence has been able to prove the plea of alibi, so far as the accused Dayanand Chandela, Kunwar Nawab and Manoj are concerned, benefit of the FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 23/36 same be given to the accused persons and they be acquitted. So far as accused Megraj is concerned, prosecution has not been able to prove its case against him. Keeping in view all the major contradictions, no independent witness has been joined and the witnesses have also made considerable improvements, it is prayed that benefit of the same be given to the accused persons and they all be acquitted. Ld. Counsel in support of his arguments has relied upon the following judgments :
(i) Gurcharan Singh and another v. State of Punjab, 1956 SC 460
(ii) State of Haryana Vs. Prabhu, AIR 1979 SC 1019
(iii) Sakharam v. State of M.P., 1992 Cri. L.J. 861
(iv) State of Punjab vs. Krishan Dev & Ors. 1996 (1) CCC 435 (HC)
(v) Bejoy Singh vs. State of West Bengal, AIR 1990 SC 814
(vi) Chunni vs. The State 1996 Cri. L.J. 489
(vii) Kamlesh Dinubhai Amin and others v. State of Gujarat and etc, 1996 Cri. L.J. 2843
(viii) Suresh Chandra v. State of U.P. 1990 Cri. L.J. 2479
(ix) Ram Bhajan and others vs. State of U.P., 1996 Crl. L.J. 566
(x) Harkirat Singh v. State of Punjab, AIR 1997 SC 331
(xi) State of U.P. v. Madan Mohan and others, AIR 1989 SC 1519
(xii) Jagabandhu Mahanta vs. The State 1985 Cri. L.J. 575
(xiii) The State of Maharasthra v. Bhaurao s/o Doma Udan and others, FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 24/36 1996 Cri. L.J. 673
(xiv) State of Punjab vs. Rakesh Kumar alias Painta, AIR 1998 SC 2383
(xv) Makhan v. State of Rajasthan, 1989 Cri. L.J. NOC 14 (Raj.) (xvi) State of U.P. vs. Moti Ram and another, AIR 1990 SC 1709
37. After hearing the arguments and going through the material collected on record, I found that in the present case, there are four injured persons. PW2 is the complainant and PW1, PW3 and PW4 are the injured persons. House of the injured and accused persons are situated opposite to each other. Both families were knowing each other even prior to the incident. It has come in the evidence that they also fought election against each other, but it is also on the record that election was fought only after six months of this incident on the seat, which was vacated by Dayanand Chandela as he won the election of MLA. It is on the record that before the election of 2003, they were neutral and there was no enmity between the two. Relevant portion of the testimony of PW1 is reproduced here under : "..... It is correct that Daya Nand Chandela had won the election of MLA in 2003 against Mahender Singh Sathi. About 6/7 months the seal of the councellor become vacant and I fought that election against accused Meghraj. That FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 25/36 election was won by accused Meghraj. In the election of MLA in the year 2003, we remained neutral and did not support any candidate."
Therefore, this argument by the learned defence counsel that they were fighting elections against each other, wherein family of the accused was winning and complainant was loosing was not there at the time of present incident and it started later on, hence this arguments that there was any previous enmity is not supported by any evidence.
38. In this case, three accused persons have claimed alibi. It is a well settled principle of law that plea of alibi is a good defence, if proved. The onus was on the upon the accused persons to prove the same and mere probability does not serve the purpose. It is duty of the person who pleads alibi to prove it beyond reasonable doubt as held in State of Kerala v. Anilachandran @ Madhu AIR 2009 SC 1866 and Vijayee Singh v. State of U.P., AIR 1990 SC 1459. Accused Dayanand Chandela claimed that he was in the Zonal office of MCD, Rajouri Garden as deposed by DW4, but DW4 at that time also stated that Dayanand Chandela left the office within 30 minutes. He stated that he met him at about 3.00/3.15 pm and he left the office at around 3.45 pm. It is also important to note that distance between the FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 26/36 two places i.e. MCD office and place where the incident has taken place is not very far away and the witnesses have also given the time of occurrence and even there is only 10 minutes gap between the two time, then presence of the accused Dayanand Chandela on the spot as deposed by the witnesses is proved. It is also important to note that PW1 and PW2 deposed that accused Dayanand Chandela arrived there in a car. No doubt, PW4 stated that he was inside the house, but all these witnesses stated that he brought sword from inside the house. Under these circumstances, in my opinion merely by saying that he was in the office and also showing the call details that he was in the area of Rajouri Garden does not serve any purpose, particularly when, mobile phone does not prove the presence of that particular person in that area. More so, when the mobile phone was not in the name of Dayanand Chandela and is in the name of DW7 and distance between the two places is also not much. Therefore, I am of the opinion that so far as the accused Dayanand Chandela is concerned, he has failed to substantiate and prove his plea of alibi.
39. So far as the other two accused persons are concerned, they stated that they had gone to the house of their cousin and after taking food, they became ill and also had acute gastroenteritis. In this regard, I agree with the arguments of the learned Addl. PP on this aspect that FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 27/36 Primary Health Center is not a specialized hospital for treatment of gastroenteritis, hence their admission in the PHC is itself doubtful. The cousin has also not been produced in the witness box to depose that they came there at the relevant time, where they took food and suffered from gastroenteritis. No other family member of the cousin had suffered the same problem after taking the same food. Even record i.e. Discharge slip, which has been proved and which are alleged to be seven years old, appears as New and same again creates a doubt. Therefore, I am of the opinion that these accused have also failed to prove the plea of alibi beyond doubt.
40. There are certain contradictions in the testimonies of the witnesses, but it is to be taken note that witnesses have been examined after a long gap and minor discrepancies here and there are bound to occur. It is also important to note that every person has different way of seeing, noticing and registering the facts, which they see and perceive and then reproduction of the same. Here, the four persons of the family sustained injuries and all of them were not in the same situation. They noticed whatever was happening to them and in front of them. It is not possible that every person was seeing and noticing everything every time, therefore, certain contradictions were bound to occur. The three witnesses are consistent on the point that accused FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 28/36 Dayanand Chandela brought the sword from inside the house. Though, PW2 was confronted with his statement recorded by the police, which is Ex. PW2/A, wherein it is mentioned that accused came there in a car with the sword. In my opinion, it is not a major contradiction as to whether he was carrying the sword or brought the same from his house, the major issue is that who attacked whom and where. All the four witnesses are consistent that accused persons entered their house and attacked them. Photographs in this regard are also on the record, which have been proved as Ex. PW18/16 to Ex. PW18/30. The photographs show the veranda of the house of the accused and also inside the house of the complainant and blood is lying all over. As discussed above though, the defence is trying to make out a case of previous enmity, but there is no such evidence. There is no reason on record to show that PW1 to PW4 would depose falsely against the accused persons and would let off the actual culprits go scot free. There are exaggerations also in the testimony of PW4 that PW2 sustained 27 injuries,but in my opinion, when a person himself is being beaten indiscriminately and he saw his son being attacked with sword, such contradictions are not of much importance. Injuries on the person of PW2 has been proved as grievous caused by blunt and sharp edged weapon, which also supported the testimony of PW2. PW2 has stated that he was FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 29/36 attacked by Dayanand Chandela as well as Kunwan Nawab with the swords and by other two accused persons with lathies. They also stated that Dayanand Chandela exhorted that "Maro salo ko" and PW3 and PW4 also told the same words, which according to them, were exhorted by Dayanand Chandela. PW1 also stated that Kunwar Nawab also exhorted, but they were confronted with their statements recorded u/s 161 Cr.P.C. All the four witnesses have corroborated each other on the major points besides minor contradictions, which in my opinion are not going to the root of the case. So far as non examination of Sufi and Deepak are concerned, in my opinion, that is not fatal to the prosecution case as they were not the eyewitnesses to the incident. So far as the nonexamination of the public witnesses is concerned, police witnesses stated that no public person wanted to be involved in a dispute of two families, therefore, they do not come forward. So far as the discrepancies in the site plan is concerned, that in my opinion, though important, but on this ground only, the entire case of the prosecution cannot be thrown out. IO should have taken care to prepare the correct site plan of the scene of occurrence, which has not been done. It is well settled principle of law that negligence of IO is not fatal in every case.
41. Learned defence counsel also submitted that there is no recovery of FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 30/36 the weapon of offence in the present case, therefore, benefit be given to the accused persons. But in my opinion, merely because the weapon of offence in this case could not be recovered does not mean that entire case of the prosecution be thrown, even otherwise, complainant and other witnesses have supported the prosecution case. In my opinion, nonrecovery of the weapon of offence is not fatal.
42. Learned defence counsel has also pointed out the discrepancy in the time and mentioning the name of the injured in the report submitted by the Incharge, Crime Team Ex. PW12/A. PW12 has stated that names were told to him by ASI Ishaq Mohd., whereas ASI Ishaq Mohd, was not on the spot at the relevant time. It is important to note that there were other persons also on the spot. No doubt, PW12 specifically stated that names were told to him by ASI Ishaq Mohd, but it was not such a fact, which was not known to the other persons, therefore, mentioning of the names of the injured in the report does not mean that records were manipulated.
43. Keeping in view of the above discussion, I am of the considered opinion that prosecution has successfully proved its case beyond doubt that all the accused persons entered the house of the FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 31/36 complainant while armed with weapons, which is evident from the facts on the record and testimonies of the witnesses and they were armed with weapons i.e. Swords and lathies, I therefore, hold all the four accused persons guilty for the offence punishable u/s 452/34 IPC and u/s 307/34 IPC and they all be convicted accordingly.
Announced in open Court
on today i.e. 04.06.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE
ROHINI : DELHI
FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 32/36
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI S.C. No. 181/06 FIR No. 969/03 P.S. Tilak Nagar U/s 452/307/34 IPC State Versus 1. Kunwar Nawab Singh S/o Prahlad Singh
2. Manoj S/o Prem Raj
3. Megh Raj S/o Daya Nand Chandela
4. Daya Nand Chandela S/o Prahlad Singh ORDER ON THE POINT OF SENTENCE 08.06.2010 Present: Ld. APP for the State.
All the four convicts in person with counsel Sh. Ajay Burmen. Arguments heard on the point of sentence and perused the file. FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 33/36
Ld. Counsel for the convicts submitted that convicts are not the previous convicts ; all the convicts are from the respectable families having deep roots in the society ; all the convicts are married having children ; convicts Dayanand Chandela and Megraj are also serving the people as convict Dayanand Chandela is a member of Legislative Assembly and convict Megraj is a Municipal Councilor ; convict Megraj is also having minor child ; Ld. Defence counsel also submitted that all the convicts are facing trial for the last more than seven years. Learned defence counsel submitted that as all the convicts were not previously convicted, benefit of Section 4 of Probation Offender's Act and Section 360 of Code of Criminal Procedure may kindly be given to the convicts and they be released on probation It is prayed that a lenient view be taken against them. In support of his arguments, ld. Defence counsel has relied upon the following judgments :
1. Sanjay v. State, 2004 [3] JCC 1536
2. Harbans Singh and another v. The State, Crime 1985 (1) III 548
3. Khem Chand vs.State Crime 1987 (2) VII 753
4. Hari Kishan & State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127 Ld. Addl. PP for the state submitted that in the present case, all the convicts attacked the complainant party with dangerous weapons and caused injuries to them. One of the accused is a Member of Legislative FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 34/36 Assembly and he should have shown more restrain keeping in view of his own position. It is prayed that no leniency be shown to them and maximum punishment be awarded to them.
Keeping in view all these submissions and the fact that convicts are not previous convicts and all are respectable persons of the society and are married having families to support and one of the convict is member of legislative assembly and other is a Municipal Councilor and also the fact that all the convicts have caused injuries on all the four persons with dangerous weapons, I am of the opinion that the convicts are serving the people as one of them is Municipal Councilor and other is Member of Legislative Assembly and they should have shown more restrain instead of attacking the complainants and that also with swords and lathies. No doubt that they are not the previously convicts, but keeping in view all these facts, I sentence all the convicts to undergo three years rigorous imprisonment for the offence punishable u/s 452/34 IPC along with fine of Rs. 10,000/ each, in default of payment of fine to further undergo six month R.I. All the convicts are further sentenced to undergo three years rigorous imprisonment for the offence punishable u/s 307/34 IPC along with fine of Rs. 50,000/ each, in default of payment of fine to further undergo six month R.I. Both the sentence shall run concurrently.
Benefit of Section 428 Cr.P.C be given to the convicts. FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 35/36
If the fine is realized, a sum of Rs. 2,00,000/ be paid to the complainants. Their bail bonds cancelled. Sureties discharged.
Copy of judgment and copy of order on the point of sentence be given to all the convicts dasti. Case property be destroyed after the period for filing the appeal is over or no appeal is preferred.
File be consigned to record room.
Announced in open Court
on today i.e. 08.06.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE :
DELHI
FIR no. 969/03 : PS Tilak Nagar : State Vs. Kunwar Nawab Singh etc. Page 36/36