Delhi District Court
State vs Golu @ Pankaj @ Sanjay on 31 January, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 09/10
State Vs Golu @ Pankaj @ Sanjay
S/o Shri Ashok Rao
R/o Jhuggi B9,
Nehru Camp, Govindpuri
New Delhi
(Presently in Judicial custody)
FIR No : 114/08
P.S. : Govind Puri
U/s. : 302/34 IPC
DATE OF INSTITUTION : 18.09.2010 (Initial date of
Institution: 09.04.2009)
JUDGMENT RESERVED ON : 25.01.2012
DATE OF DECISION : 31.01.2012
JUDGMENT:
1. Prosecution case in brief is that on receiving DD no. 40B dated 12.12.2008 ASI Ombir Singh alongwith Ct. Sunil reached the spot near jhuggi no. B9, Nehru Camp where they found that injured was already removed to hospital, thereafter, leaving HC Jaipal who also reached later on, he alongwith Ct. Sunil went to Safdarjung Hospital where deceased State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 1) Rahul was found admitted and doctor reported injuries caused are thermal burns by kerosene oil and found deceased Rahul unfit for statement. Further in hospital ASI Ombir recorded the statement of Smt. Chanda.
2. Smt. Chanda mother of deceased Rahul in her statement alleged on 12.12.2008 after taking dinner at around 9, she went to sleep alongwith her son Rahul and at around 10.30 p.m. she heard the noises and woke up and came out of her house and found lot of people gathered and her son Rahul also found sitting in burned condition. Thereafter, she alongwith her son in law Rakesh had taken deceased Rahul in private three wheeler to the hospital and further alleged on the way injured Rahul told her that he was called outside house by Suraj and Golu at around 10.15 p.m and Suraj had poured kerosene oil on him and Golu put fire on that and further requested for legal action against both the accused Golu and Suraj.
3. Pursuant to recording of this statement FIR u/s. 307/34IPC was registered.
4. During investigation ASI Ombir Singh called crime team who inspected the spot and further prepared the site plan at the pointing out of complainant Chanda and seized the exhibits from the spot. Further State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 2) recorded the statement of witnesses and arrested accused Golu @ Pankaj on 13.12.2008. On 14.12.2008, injured Rahul died in hospital due to burn injuries and the case was converted into 302 IPC and further investigation was handed over the inspector Kailash Bisht. Further postmortem of the deceased was conducted and coaccused Suraj was also arrested who was found juvenile and on completion of investigation filed chargesheet against the present accused Golu @ Sanjay @ Pankaj.
5. On committal charges against accused u/s. 302/34 IPC were framed to which he pleaded not guilty and claimed trial.
6. Prosecution for substantiating charge has examined 21 prosecution witnesses. PW3 kunti, PW4 Rakesh, PW5 Sheru, PW6 Chanda are family members of deceased and others are police officials and doctors. Brief summary of their deposition is as follows.
Deposition of family members of deceased:
7. PW3 Kunti sister of deceased Rahul deposed that at around 9.30 p.m. accused Suraj had given call to Rahul which was picked by her but he abused her thereafter she cut the phone and also slapped Rahul. Thereafter, Suraj came to call Rahul and asked that his tau is calling him. Thereafter, Rahul left with Suraj . She further deposed at around State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 3) 10.00 p.m. they heard the noise that cylinder has burst. Thereafter, she and her younger brother came out and later on her aunt viz., Sakun told her mother that deceased Rahul is burning in front of house of Lakhan tau and when they saw that her brother Rahul was burning they asked how it happened, then Rahul told that he was burnt by Suraj s/o Lambu @ Sanjay. Thereafter, her mother took Rahul to the hospital alongwith brother in law Rakesh and she made call to 100 number. She further deposed that she reached the hospital alongwith her maternal mother in law at 4.00 p.m. And her brother Rahul told that kerosene oil was poured by Suraj and enlighted by Golu. She further deposed coaccused Golu is not the same person whose name was disclosed by her brother and the said Golu is Golu @ Rakesh R/o Ludhiana and the present accused is also having name of Golu and is son of her maternal uncle. On being declared hostile, in cross examination by Ld. Addl. P.P. denied that her brother left the house alongwith Golu @ Pankaj and Suraj and further denied that after 10 minutes she heard the noise and Rahul burning and crying and also saw Golu and Suraj. She further denied that accused Suraj thrown plastic cane on seeing her and left the spot with Golu. She further denied that some public persons gathered and thrown water on her brother Rahul.
8. PW4 Rakesh deposed that on 13/14 December, 2008, he heard some noise (shorsharaba) at 10.00 p.m and came out after hearing the noise State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 4) from first floor and people told him that his brother in law Rahul was burned and after pushing the crowd he saw Rahul was badly burned and sitting near in front of Lakhan's house. On inquiry witness stated that Lakhan is pradhan of mohalla and also tau of Rahul. He further deposed he ran back to house and told this fact to his wife Chhaya and thereafter mother in law Chanda had also come to spot alongwith his sister in law Kunti and brother in law Sheru and lot of people gathered at spot and thereafter he wrapped rahul in blanket and took him to hospital and on the way Rahul disclosed that he was burned by Suraj s/o of Lambu and Golu. This witness pointed towards accused Golu, however, cannot clarify if the present accused is the same golu who was told by Rahul.
9. In cross examination he stated that his statement was recorded on 14.12.2008 but same was not read over by police to him. He further deposed that IO has taken him to SDM office and his statement was recorded in SDM office. He further deposed that he did not told the police that he was watching serial and was on first floor on that day. He further deposed that he had not told police that Rahul was sitting in front of Lakhan's house and ran back to his house to collect the blanket. He further deposed that there were other person in the locality who are also know by name of Golu and people of locality also told that ther is one relative of accused Suraj who is also known as Golu. It is correct that his mother in law got purturbed after seeing the condition of Rahul.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 5) He further deposed that he had taken Rahul to hospital but had not told doctor who had burned and further doctor had not asked Rahul in front of him neither took statement of Rahul in his presence.
10. PW5 Sheru s/o Suresh deposed that he does not remember the month date and year but incident took place in winter season and on that date he was present at his house and one Shashi uncle of deceased come out under influence of liquor and abused and threatened them on the day of incident. After hearing the noise he came out of his house and saw his younger brother was sitting in burned condition outside the house of Lakhan pradhan and thereafter, his mother Chanda alongwith his jija Rakesh had taken him to hospital in TSR. He further deposed that Suraj had threatened his brother that he will kill him one day prior to the incident. He further deposed that his brother Rahul told that at spot that he was burned by s/o Sanjay Lambu and Golu lighted him with fire. On seeing the accused, deposed that he is not the same accused who was told by his brother. On being hostile, in cross examination by Ld. Addl. PP he denied that accused is the person who was named by Rahul and accused is son of his maternal uncle. In cross examination he further deposed that the incident did not happen in his presence and the same statement which he deposed today was given to the police.
11. PW6 Chanda, mother of deceased Rahul deposed that on 12.12.2008 State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 6) after taking meal, his sons Rahul and Sheru went to watch TV and Suraj came to call his son Rahul and his son Rahul went alongwith him. After half an hour there was some noise in the area and she came out of her house and saw her son Rahul was sitting in burned condition and when she asked who has burned him, he told her that Shashi (tau ji of accused Suraj) tied his hand behind and put cloth in his mouth and then poured petrol on his body and Golu had lighted the matchstick but the present accused is not the same Golu as named by her son Rahul. She further deposed that while she was taking him to hospital Rahul told her that he was burned by Suraj, Golu and Shashi and further she told this fact to doctor also. On being declared hostile, in cross examination by APP she deposed that her thumb impression was taken by the police but the contents were not read over by the police to her and further denied her previous statement. She further denied suggestion that accused person present today had not burnt Rahul. She further denied that her statement Ex. PW6/A was recorded by the police on her dictation and further stated that accused Golu is also known as Pankaj @ Golu and his father's name is Ashok. She further denied that he was arrested at her pointed out. She was duly confronted with her supplementary statement and she further denied that her thumb impression was taken on arrest memo and personal search memo and volunteered that her thumb impression was taken at police post. She further deposed that accused Golu @ Pankaj s/o Ashok Rao is son of her brother and further stated it State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 7) is correct that in hospital she told the doctor that Suraj had poured the kerosene oil and Golu ablazed her son. She further deposed that she got the knowledge that Golu @ Pankaj arrested on 13.122008 and she went to police station next day after last rites and asked why police has arrested him and also made complaint on 12.01.2009 and further denied suggestion that she intentionally not identifying present accused. She further deposed that her thumb impression was taken in police station and made complaint to the higher police officials and there are 45 Golu's in Govindpuri area.
Deposition of Doctors:
12. PW1 Dr. Shishir, Sr. Resident Burns & Plastic Surgery, Safdarjung hospital deposed that on 12.12.2008 at around 11.00 p.m. one patient viz., Rahul brought by his mother Chanda and brother in law Rakesh with alleged history of burning by pouring kerosene oil over his body by Suraj neighbour and lighted by Golu (maternal uncle son) outside his house. He further deposed that patient was conscious and oriented but irritable. On local examination 97% deep thermal burns with facial and inhalational and opined the nature of injury as dangerous.
13. PW9 Dr. Sarvesh Tondon conducted the postmortem of deceased Rahul and on external examination found that there were superficial to State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 8) deep burns present all over the body except lower abdomen and opined that the cause of death hypovolumic shock due to dry, flame, thermal, antiburn, injuries and these injuries are sufficient to cause death in ordinary course of nature and further his scalp hair were preserved for detection of kerosene oil.
Deposition of police officials:
14. PW2 HC Bhagwan Singh, deposed that he was member of crime team, who inspected the spot but could not get any chanceprints and Ct. Kapil took photographs of the spot from different angels.
15. PW7 SI Mahesh Kumar deposed that prepared the scaled site plan Ex. PW7/A on 18.02.2009 at the instance of Smt. Chanda. In cross examination deposed that he prepared the site plan and Smt Chanda identified the place of occurrence and there was nobody from nearby houses and further denied suggestion that Smt. Chanda had pointed out that accused Golu @ Pankaj has been falsely implicated in the case and further denied suggestion that he had not visited the spot and prepared the site plan in police station itself.
16. PW8 HC Umed Singh deposed that at around 4.40 a.m on 13.12.2008 he received rukka and registered FIR u/s. 307/34 IPC.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 9)
17. PW10 HC Jaipal Singh deposed that on 12.12.2008 at around 10.30 pm on the direction of Sr. Officer went to the spot where he found that one boy burnt by kerosene oil was already removed to hospital and he further came to know the name of victim as Rahul and was burnt by Suraj and Golu. In the meanwhile ASI Ombir received a call from Safdarjung hospital and he after leaving him at spot went to Safdarjung hospital and came back at around 5 am. Crime team also reached there and ASI Ombir Singh lifted burnt matchstick from the spot and one plastic can which was lying on the spot was also lifted and arrested accused in the evening at around 5.30 pm.
18. In cross examination he deposed that 45 jhuggi wala informed them about Suraj and Golu burnt Rahul and IO had not recorded their statement in his presence. And left the spot at around 6 am. He further deposed that jhuggi no. E7 belongs to Suraj and complainant Chanda did not pointed towards jhuggi in his presence. He further deposed that he came to know after enquiry that Suraj and Golu were from same locality. He further deposed that no burnt clothes were found at the spot and we did not find any indication or material on the spot which suggests that victim had run after he was burnt. He further denied suggestion that it was told by Chanda to him and the IO that the parents State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 10) of Golu @ Nicky lives in Punjab and Golu had come to his maternal Grandmother Vidya Devi's house at E7.
19. PW11 SI Nafe Singh crime team Incharge deposed that he inspected the spot and photographs of spot was taken and no chance prints were found and prepared crime team report.
20. PW12 Ct. Hasan khan deposed that he received an information regarding the fact that deceased Rahul was admitted in Safdarjung hospital at around 2 pm on 12.12.08 and recorded the same vide DD no. 52 B and sent the same through Ct. Nathu to ASI Ombir Singh.
21. PW13 Ct. Ram Kumar recorded DD no. 40B at around 10.23 pm on 12.12.08 regarding incident of burning and on 14.12.2008 he received information that Rahul who was admitted in Safdarjung hospital died and the same information is recorded vide DD no. 33B.
22. PW14 Ct. Rajesh Kumar deposed that on 3.2.09 he took 3 sealed pulandas from MHC(M) to FSL Rohini on the direction of IO and deposited the same at FSL.
23. PW15 Ct. Kapil deposed that on 13.12.08 he went to spot alongwith members of crime team and took 3 photographs of place of occurrence.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 11) In cross examination he stated that he went to the spot at around 5 am and took the photographs on the asking of Incharge and IO also met them at spot and remained there for about 45 minutes. And no public person was found at the spot. He further denied suggestion that incident had taken place near a temple which is near H.No. 394 and took wrong photographs.
24. PW16 ASI Ombir Singh deposed that on receiving DD no. 40B at around 10.30 pm he alongwith Ct. Sunil reached the spot and came to know that injured Rahul was burnt by two boys and taken to safdarjung hospital by his mother and Jija . In the meanwhile HC Jaipal also reached and at around 2.15 am Ct. Nathu came to spot and handed over DD no.52 B thereafter, he left for Safdarjung hospital and at hospital met Smt. Chanda and her son in law Rakesh and further collected MLC of injured Rahul who was declared unfit for statement, then recorded the statement of Smt. Chanda and thereafter prepared the rukka and came back to spot alongwith Chanda and members of crime team also inspected the spot and he prepared site plan . And further found one plastic cane at the spot. And matchstick and matchbox were also lying at the spot which were seized. He further deposed that he arrested accused Golu @ Pankaj and got the information that injured Rahul died on 14.12.08 and further investigation handed over to Inspector Kailash. He further deposed that on 15.12.08 postmortem of dead body of Rahul was State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 12) conducted by Inspector Kailash.
25. In cross examination he deposed that when he reached the spot injured was already taken to hospital and found 1015 people at spot but had not noted their names Smt. Kunti sister of deceased at spot told that Rahul was burnt by Golu but had not recorded statement of Kunti in this regard. He further deposed that he did not inquire from Kunti on 12.12.08 about address of Golu and Suraj Vol., that she had disclosed that they were relatives of injured and living in same locality. He further deposed that it was told by Kunti that Rahul was found sitting in burning condition and as per his knowledge Kunti was eye witness. He further deposed that he left place of occurrence at around 2.40 am. And had not not taken any footprints or fingerprints from the spot. He further deposed that he cannot tell the name of doctor who declared patient unfit for statement. He further deposed on 14.12.08 he again went to hospital for recording statement of injured but doctor told him that patient was not fit for statement. He further denied suggestion that on 14.12.08 injured was fit for statement. He further deposed that he inquired from mother of injured who stated that Golu @ Sanjay with Suraj poured kerosene on deceased Rahul. He further deposed in complaint she has given name as Golu, not Golu @ Sanjay. He further deposed that accused was present in court was identified by Chanda as Golu @ Pankaj and he put the same name in arrest memo. He further State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 13) deposed that he did not conduct any inquiry for ascertaining that there was any other person in locality in the name of Golu. He further deposed that during his investigation complainant had not pointed out the house of co accused Suraj and he had not inquired about the boy Golu @ Nitesh who was living at the house of Suraj. He further denied suggestion that Golu @ Nicky was with Suraj during vacation as he had come to his grandmother's place. He further deposed that at the time of seizure of case property no public person was present nor got ready to be the witness of seizure memo. He further denied a suggestion that complainant Chanda had took objection on arrest of Golu @ Pankaj.
26. PW17 HC Ramesh Chand deposed that he alongwith IO Kailash on 15.12.08 went to mortuary Safdarjdung hospital where IO prepared inquest papers and got conducted the postmortem.
27. PW18 Nathu Lal deposed that on 13.12.08 on receiving DD no. 52B, he reached spot and further on receiving 52 B ASI Ombir went to Safdarjung hospital and came back at around 5 pm and crime team was also called which inspected the spot and plastic cane and burnt pieces of matchstick and matchbox were taken into possession and accused Golu @ Pankaj present in court was arrested on identification of Smt. Chanda. He further deposed when he reached spot no public person met nor any family member met them at spot. And further left the place of State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 14) occurrence in search of accused at around 5.45 am. And accused was arrested at around 5.30pm from RD marg near Puja Masala on pointing out of Smt. Chanda. He further deposed that there are 34 boys in the name of Golu in locality. He further deposed that IO interrogated other boys named as Golu and at that time he was not present. He further deposed that they had not taken any independent witness at the time of arrest of accused. He further denied suggestion that actual accused Golu @ Nicky @ Nitesh s/o Rakesh was not arrested in this case who was present at H.No. B7 Nehru Camp.
28. PW19 Ct. Sunil Kumar deposed that on 12.12.08 he alongwith ASI Ombir Singh reached the spot and some neighbours of Rahul told that Rahul was called from his jhuggi by two boys namely Golu and Suraj and who poured kerosene oil on Rahul and set him on fire and at spot cane of kerosene and some matchstick were found and one inquiry it was found that injured was already taken to hospital and after some time he alongwith ASI Ombir Singh went to Safdarjung hospital where injured Rahul was found admitted but doctor declared him unfit for statement. IO inquired from his mother Chanda in hospital and recorded her statement pursuant to which he prepared rukka and handed over the same to him for registration of FIR. And in the evening Chanda came to PS and they left for search of accused persons and on pointing out Chanda present accused Sanjay @ Golu was arrested from RD Marg.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 15)
29. In cross examination stated that they reached the spot at around 10.30 but he do not know whether any list was prepared by IO at spot or not. He further deposed that there was some eye witness at the spot but he cannot tell the name of those witnesses. He further deposed that it is correct that they came to know about name of accused at the moment they reached the place of occurrence. And IO inquired about the particulars of accused Suraj from sister of the deceased though they have not conducted any raid or search and further they came to know about the accused that he is resident of same locality. He further deposed that matchbox and plastic can were lying before jhuggi no. B8. He further denied suggestion that police had not conducted the raid in locality because police wanted to give chance to accused Suraj and their relative son Golu s/o Rakesh a chance to escape. He further deposed that they reached hospital at around 11.30 or so. He further deposed that no other person except him was present in hospital and he stayed in hospital for about 45 minutes. And also deposed that statement of Chanda was recorded in his presence. He further denied suggestion that police willfully avoided to write the name of addresses of accused to implicate the accused falsely. He further deposed that they have not searched the accused at his residential address and mother of deceased met him at PS in evening and he cannot tell by which source he got information about accused from place he was arrested. He further deposed that he cannot State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 16) tell whether any documentary proof of identity of accused was collected or not. It is correct that arrest memo bears name of Pankaj not Sanjay. He further denied suggestion that they have implicated present accused to save accused Suraj and his relative son Golu @ Nicky @ Nitesh.
30. PW20 Inspector Kailash Bisht deposed that he was handed over investigation of this case on 15.12.08. and he went alongwith ASI Ombir and Ct. Ramesh for conducting postmortem to hospital and prepared inquest papers and after postmortem handed over the dead body to Sheru brother of the deceased he further deposed that co accused Suraj surrendered before Juvenile Justice board on 6.1.09 and on completion of investigation prepared the challan.
31. In cross examination he stated that name of accused present in court is Pankaj @ Golu and further stated that it is correct that in chargesheet they have mentioned the name of accused as Sanjay @ Golu volunteered the name of accused is Golu @ Pankaj s/o Ashok Rao, but due to typographical mistake name of Golu is wrongly mentioned as Sanjay. He further deposed that he had not moved any application to remove typographical mistake. He further deposed that he had not filed any report on record which can prove that the name of accused is Golu @ Pankaj. He further deposed that complainant Chanda told the name of accused as Pankaj @ golu. He further deposed that it is correct that State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 17) name of father of accused Golu is not mentioned in FIR and also his residential address is not mentioned in FIR. He further deposed that it is correct that complainant Chanda has not mentioned name Pankaj @ Golu in her first statement dt. 13.12.08. He further deposed that he knew that complainant had filed an application u/s 156 (3) Cr.P.C before concerned MM challenging the arrest of present accused. He further deposed that medical board had decided over the fact of juvenility of co accused Suraj. He further deposed that Sheru disclosed in investigation that after incident crowd gathered at spot but had not disclosed name of any eye witness to him.
32. PW21 ASI Girvar Singh deposed that on 13.12.08 ASI Ombir deposited one sealed parcel containing plastic cane and also deposited containing one sealed parcel containing matchstick and on the same day Inspector Kailash had also deposited two sealed parcels.
33. Accused in his statement u/.s 313 Cr.P.C denied all the incriminating circumstances put to him and stated that his name is only Pankaj and police wrongly mentioned his name as Golu @ Sanjay and he was arrested by police from cricket ground on 13.12.08 in afternoon. He further deposed that he was arrested by police to put undue pressure on her paternal aunt Chanda as she was not inclined to withdraw her complaint against Suraj and his relatives Golu @ Nicky s/o Rakesh and State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 18) Smt. Sangeeta. Smt. Sangeeta is paternal aunt (bua) of accused Suraj. He deposed that police is giving undue favour by declaring accused Suraj as Juvenile. He further deposed that Golu @ Nicky is resident of Ludhiana and he can identify him if brought in his presence.
34. Accused in his defence has examined 3 defence witnesses.
35. DW1 Smt. Shakuntala stated that on 12.12.08 the boy was lying in the side of jhuggi in burnt condition and on inquiry he told that he was burnt by Suraj S/o Sanjay then his brother in law came and took him to hospital in auto rickshaw. She further deposed that she had heard that a boy had given a statement after one and half hour or so and also given name of one Golu s/o Rakesh. She further deposed that said Golu can be identified as he resides in Ludhiana and at that time he was residing at house of Sanjay who is his maternal uncle and further deposed that Golu and Sanjay both residing in same house. In cross examination he deposed that he was called for deposition by counsel of accused and incident took place at around 10.30 pm on 12.12.08 at about 10 ft away from her jhuggi and she know injured for last 2025 years. She further deposed that she had not come to court with Chanda and not met her for last 2 months. And at that time he was wearing underwear pant and upper portion of clothes were burnt. She further deposed that police persons had wrongly apprehended Golu @ Pankaj in this case. She State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 19) further deposed that she knows Golu @ Nicky s/o Rakesh who is from Ludhiana Punjab. And further denied that she has come to save accused Golu she further denied suggestion that accused Golu S/o Rakesh from Ludhiana is 6 years old boy and not 16 years and Chanda and she are from same locality used to do house hold job.
36. DW2 Aakash deposed that when he was playing cricket in front of PS , Pankaj was apprehended by police. He further deposed that accused was apprehended at around 2 pm on 13.12.08 but he do not remember whether Pankaj was batting or fielding. He further denied suggestion that there is no playground near PS. He further deposed that he did not inform anybody about arrest of Pankaj.
37. DW3 Ashok Rao father of accused stated that he works as a Priest of Temple and Chanda is his real sister and on 12.12.08 he heard the noise and came out and found deceased Rahul in burnt condition and in the meantime his sister Chanda and her son in law also came and in front of them he gave statement that he was burnt by Suraj S/o Sanjay. He further deposed that Chanda and her son in law took Rahul to hospital in auto rickshaw and incident took place between 1030 pm and injured was taken to hospital at around 11 pm. He further deposed that he reached the hospital in morning as his niece was alone in house therefore could not go in night to hospital. He further deposed that Chanda told him that State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 20) Rahul had deposed that Golu s/o Rakesh and Sonu s/o Satish are also involved in this burning. Golu s/o Rakesh is son of maternal aunt of Suraj and Sanjay is maternal Uncle of Golu s/o Rakesh. He further deposed that Sanjay approached Chanda in hosptial itself but Chanda denied and thereafter he went to PS and came with ASI Ombir and pressed Chanda for compromise but she denied, he further deposed that then IO left with Chanda and when he asked IO to let him accompany then, he denied and after some time Chanda came back and he received an information and police had arrested his son in unlawful manner. He further deposed that he and Chanda reached PS and objected the arrest but police failed to listen to their objection. He further deposed that Chanda filed an complaint u/s 156(3) and 200 Cr.P.C in court for illegal arrest of his son.
38. In cross examination he deposed that Chanda is his real sister and having good relations with Chanda and Kunti. And deceased Rahul was his bhanja s/o Chanda . He further deposed that he did not talk to Rahul when he was found in injured condition and people had talked to him. And he met Chanda next day in hospital at around 8/8.30 am. It is correct that by that time his son Golu was not arrested by police and Pankaj had not come to hospital to see Rahul . He further deposed that he came to know about arrest of accused at around 34 pm. He further denied that it is incorrect that police had arrested his son at instance of State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 21) Chanda. He further deposed initially when his son was arrested he never gave any complaint in writing neither Chanda gave any complaint in writing. He further denied suggestion that he won over his sister to save the accused. And further it is correct that Pankaj had not gone to see Rahul in hospital and also stated that he had not made any complaint to police when his son was arrested. He further deposed that Golu is son of Rakesh who is Damad of vidya Bai and Vidya had two Damads name of both are Rakesh. He further deposed on court question that Rakesh wife name is Sangeeta having 3 children one boy and two girls and name of boy is nicky @ golu aged around 18 years and he do not know the names of two girls. He further deposed that name of wife of second Rakesh is Arti having two children but he do not know the name of boy and girl . And the name of son of second Rakesh is Golu @ vicky and his age is around 23 years. He further denied that it is incorrect to suggest that son of Rakesh @ Golu is aged around 6 years and further correct that both Rakesh resides in Punjab and both Golu also resides in Punjab. He denied suggestion that Golu @ Nicky s/o Rakesh was not present in Delhi at the time of incident.
Material Exhibits:
39. Ex.PW13/A DD no. 40B recorded at 10.23 pm at PS Govind Puri regarding the information of burning of one boy. Ex.PW12/A DD no.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 22) 52B recorded on the night intervening 12/13.12.2008 at 2 am on information received from Safdarjung hospital that one Rahul was admitted in hospital in burnt condition by his mother Chanda. Ex.PW6/A statement of Ms. Chanda mother of the deceased Rahul recorded by the police pursuant to which rukka was prepared and FIR vide Ex. PW8/A was registered.Ex.PW16/C is the site plan of the spot. Ex.PW13/B DD no. 33A recorded at 8.50pm on 14.12.08 at PS regarding information from Safdarjung hospital that the injured Rahul died. Ex.PW7/A is the scaled site plan.
40. Ex.PW1/A is the MLC of deceased Rahul showing that he brought to hospital by his mother Chanda and brother in law Rakesh at 11 pm on 12.12.2008 with 97% burns, alleged history of pouring of kerosene oil over the body by one Suraj (neighbour) and lighted by Golu ( maternal Uncles' son) outside his house as told by patient's mother Chanda. The injuries opined to be caused by fire and dangerous in nature. Ex.PW16/A is the endorsement made by the doctor at around 3 am declaring patient unfit for statement. Ex.PW9/A is postmortem report of the deceased and it is opined in said report that death is caused due to hypo volumic shock due to dry, plain, thermal, antemortem burnt injuries and these injuries are sufficient to cause death in ordinary course of nature. And scalp hair were preserved for detection of kerosene oil.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 23)
41. Ex.PW6/A and Ex.PW5/A are the identification statements of the deceased by Sheru brother of the deceased and Chanda mother of the deceased. Ex.PW10/A is the seizure memo of matchsticks and matchbox on the spot. Ex.PW10/B is the seizure memo of plastic cane from the spot.Ex.PW16/D is the seizure memo of the exhibits of the deceased i.e, one sealed small parcel containing burnt hair of the deceased. Ex.PW10/C is the arrest memo of the accused Golu S/o Ashok on which accused signed as Pankaj . Ex.PW10/D is personal search memo of accused Golu @ Pankaj S/o Ashok. Ex.PW19/A is the disclosure statement of accused Golu @ Pankaj. Ex.PW11/A is the crime team report. Ex.PW15/A1 to 3 are photographs of spot and Ex.PW15/A4 are collectively negatives of photographs. FSL report dated 15.04.2009 showing residue of kerosene oil on Ex. 1,2 &3.
42. Ex.DW3/A (collectively) is the complaint u/s 200 Cr.P.C filed by the complainant Chanda against one Shashi @ Satish, Vicky @ Golu and station house officer alongwith application u/s 156(3)Cr.P.C and also annexed a complaint made to police commissioner on 12.01.09.
43. Ld. counsel for the accused vehemently argued that the present accused is falsely implicated by the police because PW6 Chanda had not come State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 24) under pressure of police to withdraw the name of the accused Suraj. Ld. counsel for the accused submitted that Golu as disclosed by Chanda is infact the Golu @ Rakesh R/o Ludhiana and Rakesh Kumar was son in law of Vidyawati relative of accused Suraj. Ld. counsel for the accused further submitted that PW6 Chanda has also filed a criminal complaint before the Magistrate court alleging therein that police falsely implicated the present accused and main accused is Golu S/o Rakesh R/o Ludhiana. Ld. counsel for the accused further submitted that none of the prosecution witnesses has identified the present accused in the court. Ld. counsel for the accused further submitted that there was no independent witness associated by the police at the time of arrest of accused and the present accused was playing cricket when he was apprehended by the police and DW2 duly corroborated that version. Ld. counsel for the accused further submitted that DW1 and DW3 had categorically stated in defence evidence that accused is Golu S/o Rakesh R/o Luhdiana and not the present accused ie., Golu @ Pankaj. Ld. counsel for the accused further submitted that police in itself is not clear that whether the name of the accused is Golu @ Sanjay or Golu @ Pankaj.
44. Ld. counsel for the accused further submitted that police had taken the thumb impression of Chanda on various papers and misutilized them and whole circumstance of recoveries and arrest of accused persons are State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 25) false and fictious. Ld. counsel for the accused further submitted that police had not tried to record the statement of the deceased despite the fact that he was conscious in the hospital as per MLC. Ld. counsel for the accused further submitted that PW6 Chanda had told to doctor name Golu but that Golu is maternal uncle son of accused Suraj and not of the maternal uncle of deceased Rahul that is present accused. Ld. counsel for the accused further submitted that PW6 had filed criminal complaint as well as representation to the police commissioner dated 12.01.2009 submitting therein that present accused is falsely implicated and real culprits were set free by the police. Ld. counsel for the accused further submitted that the police by taking money from accused Suraj had proved him juvenile before the court and Suraj is the main person who is responsible for the murder of deceased Rahul.
45. Ld. Addl. P.P. on the other hand submitted that PW3, 4, 5 and 6 clearly supported the prosecution case on the burning incident by accused Suraj and Golu though they have not supported the prosecution over the identity of present accused Golu in the court. Ld. Addl. P.P. further submitted that as the present accused is real son of brother of PW6 Chanda, mother of the deceased therefore, these witnesses turned hostile over the identity of accused before the court Ld. Addl. P.P. further submitted that PW6 categorically stated to the doctors in hospital when she alongwith PW4 taken the deceased to the hospital after the incident State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 26) that the said fire is caused by Suraj and Golu maternal uncle's son and later on try to improve it by saying that maternal uncle son is actually the maternal uncle son of accused Suraj, which is not at all reliable neither defence could able to prove the same. Ld. Addl. P.P. further submitted that accused was arrested on the instance of PW6 and all the police officials testimonies in this regard is unimpeached. Ld. Addl. P.P. further submitted that mere non supporting of PW3, 4, 5 and 6 over the identity of the accused do not in any way make the prosecution case unreliable and that part of the testimony of PW3, 4 and PW6 is not worth considering and testimonies of police officials in this regard is completely reliable. Ld. Addl. P.P. further submitted that PW6 had filed the complaint for false implication of the accused after one month of the incident and neither DW3 father of the accused and accused himself had made any representation of his false arrest. Ld. Addl. P.P. further submitted that entire defence of the accused is false and frivolous and prosecution able to prove its case against accused Golu @ Pankaj and he is liable to be convict for commission of offence u/s. 302/34 IPC.
46. Arguments heard. Record perused.
47. Prosecution case is that on the night of 12.12.08 at around 10 pm, deceased Rahul was called by accused Suraj (Juvenile) from his house, thereafter deceased Rahul came out of his house then accused Suraj pour State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 27) kerosene oil on him and present accused Golu put deceased on fire by lighting with matchstick thereafter, both ran from the spot. After hue and cry the neighbours and the entire family members including PW6 Chanda (mother of deceased), PW3 Kunti (sister of deceased), PW4 Rakesh (brother in law of deceased), PW5 Sheru (brother of deceased) gathered and deceased Rahul was taken to Safdarjung hospital in TSR by deceased mother PW6 Chanda and his brother in law(Jija) PW4 Rakesh.
48. At Safdarjung hospital PW1 Dr. Shishir examined the deceased and recorded the alleged history of the incident on the basis of the statement given by his mother (PW6) to the doctor that the deceased received burn injuries by pouring of kerosene oil by Suraj (neihgbour) and lighted by Golu (maternal uncle's son) outside his house. Doctor opined the patient to be conscious and oriented but irritable and found 97% deep burns both facial and inhalational on the body of the deceased. Thereafter, the police reached the hospital where patient was declared unfit for statement and PW16 ASI Om Bir Singh in hospital recorded the statement of PW6 Chanda pursuant to which FIR was registered and thereafter came back to spot from hospital and seized the matchsticks, matchbox and the kerosene cane lying on the spot. He further called the crime team at the spot who took photographs of the spot.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 28)
49. At around 5.30 p.m. on next day, accused Golu was arrested and during investigation accused Suraj was found to be juvenile and sent for trial to juvenile court. The prosecution relied upon the testimony of PW6 Chanda (mother of the deceased), PW3 Rakesh (brother in law of deceased), PW3 Kunti (sister of deceased) and PW5 Sheru (brother of the deceased) for the purpose of describing the entire incident and involvement of the present accused in the case.
Description of the incident:
50. PW3 Kunti sister of deceased Rahul in her deposition testified that at around 9.30pm accused Suraj had given call to Rahul which was picked by her but he abused her then she cut the phone and slapped Rahul . Thereafter accused Suraj came and called Rahul outside the house and after sometime heard the noise like cylinder burst and she alongwith her younger brother came out of the house and saw her brother Rahul burning and on this Rahul told him that he was burnt by Suraj s/o Lamboo @ Sanjay thereafter he was taken to hospital by his mother and brother in law and she informed at 100 number and at around 4am she went to hospital where Rahul told her that kerosene was poured by Suraj and lighted by Golu. She further deposed that present Golu is not the actual Golu and said Golu is Golu @ Rakesh resident of Ludhiana. On being declared hostile she denied that the deceased left the house with State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 29) Suraj and Golu.
51. This witness though had not identified Golu present in the court and stated that he is not the same Golu who has lighted his brother but stated that Golu is Golu @ Rakesh r/o Ludhiana but supported the prosecution case on the factum that such incident of pouring of kerosene oil and lighted by Golu had taken place and her brother Rahul was taken to hospital by PW6 Chanda and PW4 Rakesh.
52. PW4 Rakesh in his testimony also stated that on hearing the noise he was informed that his brother in law Rahul was burnt and he alongwith his wife had come to the spot and his mother in law Chand (PW6) , sister in law Kunti PW3 and brother in law Sheru PW5 came on the spot and he wrapped Rahul in blanket and on the way to hospital Rahul disclosed that he was burnt by Suraj S/o Lamboo and Golu, though this witness pointed towards accused golu but deposed that he cannot clarify that present accused is same Golu as told by Rahul. This witness in cross examination was not suggested any question that no such incident in the manner as suggested by prosecution took place and he was only suggested in cross examination that there was some Golu in locality who is relative of Suraj. This witness is not suggested that the actual Golu who caused fire is Golu @ Rakesh resident of Ludhiana. This witness also confirms that deceased Rahul disclosed that he was burnt by Suraj State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 30) S/o Lamboo and Golu.
53. PW5 Sheru brother of the deceased also deposed that on hearing the noise he came out of his house and saw his brother sitting in burnt condition in front the house of Lakhan Pradhan and his mother PW6 Chanda and brother in law Rakesh had taken him to hospital in TSR and on the way deceased Rahul told that he was burnt by son of Sanjay Lamboo and lighted by Golu. On being declared hostile he stated that accused is not the person who is named by Rahul and accused is son of his maternal Uncle and also stated that he had not seen the incident.
54. PW6 Chanda mother of the deceased also deposed that on that night on hearing noise she came out of her house and saw her son Rahul sitting in burnt condition who told her that Shashi tauji of accused Suraj tied his hand behind, put cloth in his hand and then poured petrol on his body and Golu had lighted the matchbox. She further deposed that she had taken the deceased to hospital and on the way he told her that he was burnt by Suraj, Golu and Shashi and also told this fact to doctor. On being declared hostile she disowned her statement given to the police and stated that her thumb impressions were taken on blank papers and also denied that present accused was arrested on her pointation. She further deposed when she got the knowledge of arrest of present accused i.e, Golu @ Sanjay who is son of her brother Ashok Rao went to the PS State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 31) and asked why he was arrested and made complaints to senior officers on 12.1.09. and further on being turned hostile she stated that it is correct that in hospital she stated to doctor that Suraj had poured kerosene oil and Golu ablazed her son.
55. This witness also confirms the incident of burning of deceased Rahul on said day and time but she implicated another person Shashi as an accused and also stated that present Golu is not Golu who is involved in said incident though admitted that she had told the doctor in hospital that Suraj had poured kerosene oil and Golu ablazed her son, but the said Golu was not present accused Golu @ Pankaj. Admittedly, the present accused Golu @ Pankaj is son of Ashok Rao (DW3) brother of PW6 Chanda.
56. All the 4 prosecution witnesses i.e, PW3, 4 ,5 & 6 are family members of deceased Rahul and they all confirmed that incident of burning took place at said time and day and PW4 & 6 took the deceased to the hospital. All the witnesses have involved Suraj and Golu but resiled in their testimony over the identity of present accused Golu but PW6 also implicated one other person namely Shashi which was not named by any other witness i.e, PW3,4 & 5.
57. Deceased was first examined at Safdarjung hospital by DR. Shishir who State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 32) prepared the MLC Ex.PW1/A and as per MLC this deceased is brought to hospital by mother and brother in law at around 11 pm on 12.12.08 with alleged history of pouring of kerosene oil over the body by one Suraj neighbour and lighted by Golu maternal uncle's son. In fact the present accused Golu is the maternal uncle's son of deceased Rahul but the defence tries to pose that the said Golu was the maternal uncle's son of accused Suraj. The veracity of the same will be discussed later. MLC also supports that deceased Rahul was brought by his mother and Rakesh. Till that time no police was involved in entire incident and also declared the patient unfit for statement at around 3 am when police came.
58. Therefore, from overall consideration of the statement of PW3,4,5 & 6 the burning caused by Suraj and accused Golu appears to be reliable and duly corroborated by the medical evidence which suggests that deceased was brought to the Safdarjung hospital by PW4 and PW6. Police proceedings:
59. As per prosecution case the police reached the spot on receiving information at PS at around 10.23 pm which was recorded vide DD no. 40B thereafter, a DD no.52B also recorded on information received from Safdarjung hospital and PW16 ASI Ombir also stated that on receiving State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 33) said DD no.40B he reached the spot and at around 2.15 am he went to Safdarjung hospital where he found deceased unfit for statement and there he recorded the statement of PW6 Chanda vide Ex. PW6/A and thereafter he came back to spot with Chanda and called the crime team members and at spot seized the plastic cane and matchsticks and matchbox. In this regard seizure memos of same were prepared. Photographs of spot showing kerosene cane and other articles were also taken by crime team. There is nothing material asked from this witness (PW16) that he has not seized said articles i.e, plastic cane, matchstick and matchbox from the spot. PW10 HC Jaipal Singh has also confirmed the seizure proceedings of matchstick and cane from the spot. PW18 Nathu Lal also deposed that crime team was called and inspected the spot and plastic cane, burnt sticks and matchstick and matchbox were taken from the spot. Members of crime team also deposed about photographs of spot. Testimony of police official remained unimpeached in cross examination over conducting of proceedings of seizure of matchstick, matchbox and plastic cane on the spot.
Circumstances of arrest of accused:
60. According to PW16 ASI Ombir Singh accused Golu @ Pankaj was arrested at the instance of PW6 Chanda. Arrest memo Ex.PW10/C shows that accused was arrested from RD marg near Puja Masala at State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 34) around 5.30 pm on 13.12.08 in presence of PW6 Chanda, Ct. Nathu and HC Jaipal Singh and his personal search was also conducted vide Ex. PW10/D which was also witnessed by these officers. PW10 HC Jaipal Singh also stated that accused was arrested at around 5.30pm from the said place and nothing material is asked from this witness in cross examination that accused was not arrested by prosecution in the manner relied. PW10 also witnessed that accused was arrested on the pointing out of Smt. Chanda. Nothing also came in cross examination of this witness that present accused not arrested at the instance of PW6 Chanda. PW19 Ct. Sunil Kumar also deposed that accused was arrested in his presence and there also came nothing material which dehors the prosecution story that accused was not arrested at the instance of complainant Chanda.
61. As far as the testimony of police officials is concerned it appears reliable over the factum that they have conducted the seizure proceedings of plastic cane and matchbox and matchstick from the spot and also arrested accused Golu at the instance of complainant PW6 Chanda.
Medical Evidence:
62. PW1 Dr. Shishir Sharma has first examined deceased Rahul and State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 35) prepared MLC Ex. PW1/A and in his testimony he has stated that there was smell of kerosene oil present on the body of patient and patient was conscious and irritable and on local examination there were 97% deep thermal burns with facial and inhalational and opined the injury as dangerous and the cause of injury is fire. Nothing is asked by defence in cross examination on the factum whether when the deceased brought to him was in a position to speak or not. PW9 Dr. Sarvesh Tandon who conducted the postmortem also stated that there were 97% superficial to deep burns present all over the body and accused died of the said fire injury which is sufficient in ordinary course of nature and preserved the scalp hair for preservation of kerosene oil and vide FSL report kerosene oil was detected on those hairs. This witness is also not cross examined by the defence.
63. Thus from medical evidence it is clear that the deceased died due to fire injury and it cannot be also inferred in favour of defence from medical evidence that accused was fit for statement when he brought to the hospital. Though, the defence had raised questions over the police investigation over the fact that despite opportunity the police had not recorded statement of deceased in hospital but defence has not asked any question to the doctors whether the patient was fit to give statement at any point of time or not. Thus, the defence version that police has not recorded statements of deceased despite being conscious cannot be State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 36) given any weightage in the present facts and circumstances. Defence of accused:
64. Even as per defence of accused the said incident of burning by Suraj and Golu do not appear to be in dispute. But prime defence of the accused that he is not Golu who had lit the fire and the said Golu was Golu s/o Rakesh r/o Ludhiana.
65. Perusal of the ordersheet dated 17.03.2010 recorded by my Ld. Predecessor wherein Ld. counsel for the accused submitted that present accused Golu is not Golu who is referred in MLC as maternal Uncle's son and Ld. Counsel for the accused submitted that maternal Uncle's son refers to other Golu s/o Rakesh who is maternal uncle's son of co accused Suraj and in this regard a report is sought by court from police and as per verification report filed by the police, Rakesh informed that their son Golu is around 6 years of age and further stated that as present accused Golu @ Pankaj is son of brother complainant mother and she herself identified the accused Golu and now under the pressure of his brother Ashok Rao she is involving other Golu and as far as for verification of one Golu r/o Ludhiana he submitted that he visited one Rakesh @ Rakesh Joshi who was having two daughters and son Nicky @ Nitesh around 14 years and residing permanently in Ludhiana for State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 37) 1012 years but there is no such nick name of Nitesh as Golu. As per report the claim of the complainant that Golu @ Nicky @ Nitesh is responsible is all false and frivolous and just to save her brother son i.e, present accused.
66. It is worth to be noticed that PW4 who is one of the main witnesses had not stated anywhere that the deceased was put on fire by accused Golu @ Rakesh r/o Ludhiana. PW5 younger brother Sheru also not stated in his testimony that his brother was put on fire by any person named Golu @ Rakesh r/o Ludhiana neither anything asked in cross examination of these witnesses that the deceased was put on fire by Golu @ Rakesh r/o Ludhiana. PW6 Chanda in her testimony though denied the identity of the accused but in her examination in chief she has not stated that her son was put on fire by some Golu @ Rakesh r/o Ludhiana. Even in cross examination of this witness it is not even suggested that his son was put on fire by one Golu @ Rakesh r/o Ludhiana.
67. PW6 Chanda on being turned hostile deposed that she had not stated to the doctor that Golu is the maternal Uncle son of deceased Rahul, whereas per his complaint filed u/s 200 Cr.P.C (Ex.DW3/A) the complainant (PW6) stated that at that time she was under impression that Golu was her brother's son when doctor inquired from her and therefore, she informed that her son has set on fire by Suraj and Golu.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 38) This averment of the complainant is inconsistent to the submission of Ld. Counsel for the accused made before the court where it is submitted that in fact PW6 had stated to the doctor that Golu is maternal son of accused Suraj.
68. Surprisingly, a suggestion is put to all the police officials one Golu @ Nicky @ Nitesh S/o Rakesh was the actual accused but this suggestion is not put to the prosecution witnesses PW3, 4,5 & 6 relatives of deceased.
69. A defence is raised in statement u/s 313 Cr.P.C by accused that his name is only Pankaj and he is arrested from the cricket ground and he was arrested just to put undue pressure on her paternal aunt PW6Chanda as she was not inclined to withdraw her complaint against accused Suraj and his relative Golu @ Nicky. But no such suggestion was put to any of the prosecution witnesses i.e, PW3,4,5, &6 that PW6 was put under pressure by police in their depositions.
70. Defence further examined DW1 Smt. Shakuntala who stated in examination in chief that deceased after burning incident told the name of Suraj s/o Sanjay and after one and half hour also heard name of Golu S/o Rakesh. No other prosecution witnesses had stated that deceased had given name of Suraj only and all the prosecution witnesses deposed despite favourable to defence over the identity of the accused that State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 39) deceased Rahul had named both Suraj and Golu simultaneously. DW3 Ashok Rao father of accused and brother of PW6 Chanda had deposed before the court that at the time of incident Rahul had given the name of Suraj only and, his sister Chanda and Rakesh took him to hospital. This witness also cannot be relied on that aspect because it is specifically stated by other witnesses that the deceased had given the name of accused Suraj and Golu at the same time. This DW3 has also involved one Satish @Shashi in the said incident and Golu s/o Rakesh. He stated that the name of accused is Golu @ Nicky aged around 18 years whereas as per verification report, Nicky @ Nitesh is around 14 years of age and not known by the nick name of Golu.
71. The incident as alleged to be taken place on 12.12.08 and the present accused was arrested on 13.12.08 but none of the witnesses has ever made any complaint to police or senior officers regarding false implication of present accused, first complaint was given by PW6 Chanda on 12.01.09 after a month of incident (Ex.DW3/A colly) in which she has stated that the said incident was committed by Satish, Golu s/o Vijay and Suraj s/o Sanjay and further submitted that Golu S/o Vijay r/o Jhuggi camp Govind Puri is responsible for the burning incident of her son which is inconsistent to their defence that actual Golu is Golu @ Nicky @ Nitesh s/o Rakesh from Ludhiana.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 40)
72. On total consideration of entire facts and circumstances as projected in defence by accused that the actual accused is Golu son of Rakesh from Ludhiana not at all reliable and the defence evidence in this respect is totally devoid of any merit and not worth consideration.
73. It is also raised in defence that the accused was arrested from playground while playing cricket but this fact was not put to any of the prosecution witnesses nor to PW6 Chanda . Further, it is unlikely when the cousin brother is lying in hospital and entire relatives are in hospital then accused who is a cousin brother will play cricket on the day of death of deceased Rahul. Entire defence as laid by the accused not worth consideration.
Motive:
74. PW5 Sheru in his examination in chief stated that Suraj had threatened his brother one day prior to the incident. PW3 Kunti also stated that night she received a call from Suraj who abused her. But there came nothing in the prosecution evidence why the accused persons had put on fire deceased Rahul.
75. On entire consideration of the evidence on record, nothing comes in the evidence that any of the prosecution witnesses had infact seen the State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 41) incident of burning or found the accused persons Suraj and Golu at the spot at that time. The only evidence prosecution able to lead that deceased Rahul immediately after the incident had disclosed to the prosecution witnesses that he was put on fire by Suraj and Golu. There is no further evidence on record that accused has made any other statement to doctor or police official.
76. But this circumstance that deceased Rahul told the name of Suraj and Golu to PW3,4,5 & 6 over incident of burning is reliable and credible. Though, these witnesses have not identified present accused as Golu in the court but the testimony of police officers in this regard is credible because as per their testimony the present accused was arrested at the instance of PW6 and as already discussed defence version on this factum is wholly unreliable, therefore, it cannot be inferred that accused was not arrested at the instance of Chanda PW6. Thus, even without support of PW3,4,5 & 6 over the identity of present accused, the prosecution able to prove the identity of present accused and his involvement in crime. Despite a small technical mistake wherein the accused is shown as Golu @ Sanjay which is duly clarified by IO that accused is infact Golu @ Pankaj which is also corroborated by various exhibits of arrest, disclosure and personal search etc. bearing name and signature of accused as Pankaj @ Golu.
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 42)
77. On overall appreciation of evidence, prosecution able to prove the factum that the deceased Rahul was put on fire by Suraj (juvenile) and present accused Golu @ Pankaj and the medical evidence corroborates the factum of fire injury (97% burns) and found it sufficient to cause death in ordinary course of nature. Despite the nonidentification of present accused by PW3, 4, 5 and 6, the testimony of police officials PW16, PW10, PW18 and PW19 over the arrest of the accused and his arrest on the instance PW6 reliable and they duly identified the present accused as Golu @ Pankaj. Defence as raised by the accused as already discussed is not at all reliable.
78. Though, from the testimonies of PW3, 4 5 and 6, it is not explicit that they have witnessed the incident but it is clear that just after the incident, deceased have named the accused to these witnesses and these witnesses are relatives of the deceased as well as the accused. The incident of burning is confirmed from their testimonies, which is also corroborated by the medical evidence. In these circumstances, thus, non proving of any motive is of no value. There is no possibility that these witnesses will falsely implicate their real cousin i.e, present accused at the time of the incident. Thus, no benefit of their subsequent nonidentification of accused in the court could be given to the accused in the present facts and circumstances. Testimonies of the police officials regarding the arrest of present accused and his identity is credible and worth relying State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 43) upon.
79. The enigma of PW6 Chanda mother of deceased Rahul is painful, as she confirmed the burning incident and also do not want the real assailants to go unpunished. Though made all out efforts to somehow save one assailant i.e, present accused Golu @ Pankaj son of her real brother Ashok Rao but unable to put mud in the eyes of law. And all her efforts goes in vain. Her agony is multiplied due to the fact that the main accused Suraj (Juvenile) is roaming freely because of the benefit of being juvenile.
80. Though the prosecution unable to prove the positive intention behind the offence but injury caused is of such a nature which is sufficient to cause death in ordinary course of nature.
81. In view of above discussion, prosecution able to prove the guilt of accused Golu @ Pankaj beyond reasonable doubt. Hence, present accused Golu @ Pankaj S/o Ashok Rao is found guilty of murder of deceased Rahul and liable to be convicted for offence u/s. 302/34 IPC. Accused be heard on point of sentence.
Announced in Open Court
On 31st January, 2012 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State vs. Golu @ Pankaj @Sanjay, SC no. 09/10 (Contd..page 44)