Delhi District Court
State vs Kishan @ Vicky S/O Late Sh. Umrao Singh ... on 3 February, 2011
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJII, NORTH, DELHI
SESSIONS CASE NO: 98/2009
FIR No: 377/05
P.S. Sadar Bazar
U/S: 302 IPC
DATE OF INSTITUTION: 21.12.2009
DATE ON WHICH ARGUMENTS
HEARD AND RESERVED FOR
JUDGEMENT :29.01.2011 DATE ON WHICH THE JUDGMENT HAS BEEN DELIVERED: 03.02.2011 STATE VERSUS
1. Kishan @ Vicky S/o Late Sh. Umrao Singh (A1), H. No. 2284/8, Bagichi Ragunath, Sadar Bazar, Delhi
2. Anil S/o Sh. Hari Kishan (A2), H. No. 2284/2, Bagichi Ragunath, Sadar Bazar, Delhi
3. Vikas @ Kali S/o Sh. Suresh Kumar (A3), H. No. 2284/10, Bagichi Ragunath, Sadar Bazar, Delhi
4. Pradeep @ Dheru (A4) (Juvenile) S/o Dharamvir Solanki
5. Krishan @ Raja (A5) S/o Late Sh. Manohar Lal, R/o H. No. 2024, Basti Zulahan, Sadar Bazar, Delhi 2
6. Karan Dayal (A6), S/o sh. Rameshwar Dayal R/o 880/2, Mahalaxmi Garden, near Railway Station, Gurgaon
7. Vicky @ Kane (A7) S/o Late Sh. Manohar Lal, R/o H. No. 2024, Basti Zulahan, Sadar Bazar, Delhi (PO)
8. Hari Kishan Garg (A8) S/o Sh. Parmeshwari Dass,
9. Manoj Garg (A9), S/o Sh. Mammu Lal
10.Yashoda Nandan (A10) S/o Late sh. Chunni Lal APPEARANCES:
Mr. G. S. Guraya, Ld. Addl. Public Prosecutor for the State Mr. R. S. Gupta, Advocate for the accused Anil Mr. Manoj Sharma, Advocate for the accused Kishan Mr. Jagdish Chandra, Advocate for the accsued Hari Kishan Garg and Manoj Garg Ms. Dolly, Advocate for the accused Vikas Mr. Rajesh Sharma, Advocate for the accused Yashoda Nandan @ Nandi 03 .02.2011 JUDGMENT:
1. Accused persons namely Kishan @ Vicky S/o Late Sh. Umrao Singh (A1), Anil S/o Sh. Hari Kishan (A2), Vikas @ Kali S/o Sh. Suresh Kumar (A3), Krishan @ Raja (A5), S/o Late Sh. Manohar Lal, Karan Dayal (A6), S/o sh. Rameshwar Dayal and Vicky @ Kane (A7) were initially arraigned for trial by the Prosecution for entering into a criminal conspiracy to kill Lalit @ Jojo along with one Pradeep @ Dhera (Juvenile) (A4) (and facing trial before the Juvenile Justice Board) and, thereafter in pursuance 3 thereof for committing murder of Lalit @ Jojo on 20.11.2005 by giving him stab injuries.
2. It is also pertinent to mention here that accused persons namely Hari Kishan Garg (A8) S/o Sh. Parmeshwari Dass, Manoj Garg (A9), S/o Sh. Mammu Lal and Yashoda Nandan (A10) S/o Late sh. Chunni Lal were arrayed in Khana No. 2 of the charge sheet, neither arrested nor sent for trial as investigation concluded that they had no role in the episode. The issue regarding taking of cognizance and issue of process against the three accused persons put in khana no. 2 mentioned above was agitated before the Ld. Committal Court of Sh. Mukesh Gupta, Ld. MM (as he was then) who after hearing the parties passed a detailed order dt. 06.10.2006 wherein it was observed that there were no grounds to summon the above mentioned three accused persons. The said order was challenged in Criminal Revision no. 791/06 and the Hon'ble Mr. Justice Sunil Gaur, Judge, High Court of Delhi, New Delhi vide order dated 16.02.2009 found no merits in the same and while dismissing it inter alia observed that the order would not stand in the way of Trial Court exercising the power u/s 319 Cr.PC, if the situation so demanded.
3. The matter did not rest there and after the case was committed to the Sessions, the issue was agitated before Sh. H. S. Sharma, Ld. ASJ, Delhi who vide order dated 21.08.2007 declined to summon the above said three accused persons dismissing the application u/s 193 Cr. P.C filed by the complainant Vicky.4
4. During the course of the trial, out of 22 witnesses that were examined by the prosecution, it came out in the evidence of PW 7 Ashok Kumar, PW8 Sanjay, PW 11 Shyam Sunder and PW 12 Vicky Kumar brought out that the three accused persons namely Hari Kishan Garg, Manoj Garg and Yashoda Nandan had also been directly involved in committing the murder of deceased Lalit @ Jojo. An application u/s 319 Cr.PC was then moved on behalf of complainant Vicky and the same was supported by the Ld. Addl. PP for the State as well which came to be allowed vide order dated 04.02.2010 by this Court and accordingly accused persons namely Hari Kishan Garg, Manoj Garg and Yashoda Nandan i.e A8 to A10 were also issued process to face trial in this case.
FACTS
5. In order to proceed further for a decision in this case, it would be necessary to dwell on the facts. The charge sheet brings out that on 20.11.2005 at about 11p.m DD no. 34 was lodged with PP Ahata Kidara PS Sadar Bazar Ex.PW 17/A on information by ASI Balbir Singh (Retd.) PCR Van Sugar55 through wireless that "one man has been stabbed in Gali Barna Pahari Dhiraj R/o 4051 who was being taken to hospital, and there was an apprehension of disturbance of public peace and tranquility and request was made for sending police party". The investigation was marked to ASI Ajmer Singh (PW 17) who along with Ct. Ajay Kumar (PW 18) reached the spot at Gali Barna where in the meantime Inspector V. S. Malik Addl. SHO (PW 31) also reached with Reserved Police Force and staff SI Amar Singh, ASI Prem Dutt, Ct. Mohan Singh, Ct. Dhanpal; that 5 some people were found present near Jai Durga Mandir and there was blood splattered at three places near the slope of Jai Durga Mandir; about 5060 steps away near shop no. 3796 of M/s P. R. Steal and about 95100 steps near Pathwari Mandir shown at point A, B, C and D in the site plan Ex. PW 31/B; that no one present was able to give any detail about the said incident and therefore staff was deputed at the spot to preserve the place of occurrence and Inspector V. S. Malik along with ASI Ajmer Singh, Ct. Ajay Kumar reached Bara Hindu Rao hospital; in the meanwhile DD no. 36 had been lodged at 12:30pm at PP Ahata Kidara within the jurisdiction of PS Sadar Bazar Ex.PW 17/B to the effect "that the man who was earlier reported to have been stabbed and taken to Bara Hindu Rao had been declared brought dead by the doctor at Bara Hindu Rao Hospital". The MLC of deceased Lalit Kumar @Jojo S/o Ramesh Chand was obtained which revealed that at about 11:05pm on 20.11.2005 he had been declared dead and there were six injuries and the nature of injuries were incised inflicted with some sharp edge weapons. The blood stained shirt of the deceased sealed in a parcel sealed with the seal of HRH was taken into custody vide memo Ex.PW 21/A; PW31 Inspector V. S. Malik made inquiries from ASI Balbir Singh Incharge of PCR Van that brought the injured to the hospital but he informed that the deceased had not been able to give him any information regarding the incident. Anyhow the rukka Ex.PW 31/A was written and Ct. Ajay Kumar (PW 18 ) was sent to lodge the present FIR which was lodged at 1:10 am (night) on 21.09.2005 Ex.PW 3/A.
6. During the course of investigation, the Mobile Crime Team was 6 called at the spot , photographs were taken , blood samples and earth control were taken into custody which were sealed with the seal of VSR and deposited in the Malkhana. The dead body was sent for postmortem and statement of witnesses u/s 161 Cr.P.C. were recorded. The prosecution case is that during this time on 20.11.2005 at about 11:40p.m DD no. 37 was also lodged at PP Ahata Kidara on an information from Lady Harding Hospital communicated by Duty Officer that one boy Anil S/o Hari Kishan R/o 2284/2 Bagichi Ragunath, Sadar Bazar had been admitted in an injured condition by his friend Vicky. On the said information relayed to PW 31 Inspector V. S. Malik, he along with SI Rakesh Kumar, Ct. Ravinder Kumar reached Lady Harding Hospital where MLC of injured Anil was obtained which communicated that he had been given incised injury on his left thigh with a sharp object. The statement of Krishan @ Vicky who was present thereat EX. PW 27/B was recorded. The gist of which is as follows:
"about 15-16 days back near Diwali Lalit @ Jojo had taken his mobile phone and he had not returning the same despite repeated requests and demands; that Lalit @ Jojo was stronger than him and therefore it was difficult to manage overpower him and, therefore, he discussed the matter with his friends Anil Kumar, Raja and Karan who assured him that they would talk to Lalit @ Jojo to see that his mobile phone is returned; that on 20.11.2005 at about 10:30pm he along with Anil, Raja and Karan met Lalit @ Jojo in Gali Barna and Lalit @ Jojo was requested to return the mobile phone which infuriated Lalit @ Jojo and he started slapping him besides giving fist blows and on that Anil , Raja and Karan intervened in the melee and there was a free fight; taht he was terrified and ran away towards Gali Barna, Nala road and after sometime he saw Anil in blood come out of Gali and screaming for help and he also saw Raja and Karan coming towards him; Anil told him that he had been stabbed by Lalit @ Jojo therefore he along witb Raja and Karan brought Anil to Lady Harding Hospital". On the said statement FIR No. 377/05 u/s 302 IPC Ex. PW 3/A was lodged and the blood stained shirt, pant and banyan of accused Anil were also seized and later when accused Anil was interrogated, he revealed that at the time of the incident were present his friends Krishan, Raja and Karan, Pradeep @ Dhera, Vicky, Vicky @ Kana and in the quarrel Lalit @ Jojo was stabbed. 7
7. The prosecution case is that during the course of investigation, the seven accused persons A1 to A7 were arrested one by one. Suffice to state that the gupti / knife Ex.PX1 was recovered at the behest of accused Pradeep Dheru (Juvenile) and further the mobile phone i.e Sim card that was the bone of contention was also recovered at the behest of accused Krishan @ Vicky Ex.PX7. I may hasten to add that the charge sheet is very lengthy which also reveals antecedents of deceased Lalit @ Jojo who was a boy aged about 24 years and had been involved in several criminal cases. That the deceased was an orphan and PW 7 Ashok Kumar, PW8 Sanjay, PW Ved Prakash were his uncles who were not satisfied with the investigation and they lodged a complaint with the police albeit belatedly alleging that their nephew Lalit @ Jojo had been stabbed by accused Hari Kishan Garg, Manoj Garg and Yashoda Nandan since deceased was having an affair with the daughter of accused Manoj Garg namely Ruchi Garg.
8. The investigation into their complaints revealed that Jagdish, Ashok and Ved Prakash had been political rival of accused Hari Kishan Garg, Manoj Garg and Yashoda Nandan and there had been pending several civil as well as criminal cases between two. The police on its part probed the matter and sent the three accused persons A8 to A10 to undergo polygraph tests besides the complainant Jagdish, Ashok and Vicky and Shyam Sunder and the polygraph report which is Ex. PW29/H1 to H10 revealed that the witnesses were not truthful or evasive about the 8 events. Anyhow the investigation led to the preparation of charge sheet as against the accused A1 to A7.
CHARGE
9. It is needless to state that initially accused A1 to A7 were charged for entering into criminal conspiracy as per Section 120 B of IPC to kill Lalit @ Jojo and in pursuance thereof committing his murder by stab injuries u/s 302 of IPC to which they pleaded not guilty and claimed trial.
10. Subsequently, after accused A8 to A10 were summoned to face trial all the accused persons were charged for entering into a criminal conspiracy and pursuant thereto committing murder of Lalit @ Jogo to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
11. It may be reiterated that at the stage when accused A8 to A10 were summoned, there had been examined 22 witnesses out of the total 35 witnesses. After their summoning PW 7 Ashok Kumar, PW8 Sanjay, PW 11 Shyam Sunder and PW 12 Vicky Kumar were recalled and cross examined on behalf of the accused A8 to A10. Counsel for A8 to A10 stated at the Bar that there was no necessity to recall and examine the remaining witnesses who were police witnesses or the doctors that was recorded. It would bear repetition that the main prosecution witnesses were PW 7 Ashok Kumar, PW8 Sanjay, PW 11 Shyam Sunder and PW 12 Vicky Kumar and I shall dwell upon their evidence later on in this judgement.
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12. The following witnesses were examined as Medical witnesses:
PW4 was Dr. C. B. Dabas, Head of the Department, Forensic Medicine, HR Hospital who conducted the postmortem on the body of the deceased on 21.11.2005 and proved the report Ex.PW4/A besides giving an opinion about the weapon of offence as per sketch Ex.PW 4/C which opinion is Ex.PW 4/B; PW22 was Dr. Jitender Bali who on 20.11.2005 was CMO (Casualty) HR Hospital and examined the injured Lalit @ Jojo and proved the remarks on the MLC Ex.PW 22/A that he was brought dead; and PW 30 was Dr. Pankaj Dhingra, CMO Lady Harding Medical College who proved the MLC of the injured accused Anil Ex.PW 30/A;
13. PW 28 was one Deepak Kalra, Nodal Officer from Bharti Airtel. He proved the call records of mobile no. 9871105054 from 01.09.2005 to 30.11.2005 Ex.PW 28/A1 to A8. The prosecution case is that the said mobile connection belonged to accused Kishan @ Vicky (A1) and the call records displayed that he was using IME no. 357060002755950 that was in the use of deceased Lalit @ Jojo on his mobile no. 9810456062 and shown in the call records Ex.PW 28/C1 to C7 fromthe period 15.10.2005 to 30.11.2005.
14. The following witnesses were examined as police witnesses :
PW1 was Ct. Rajesh Kumar who was posted as Constable in PS Sadar Bazar and deposed that on 21.11.2005 he joined the investigation when the accused Kishan @ Vicky A1 was arrested vide memo Ex.PW 1/A personal search memo Ex.PW 1/B . He deposed that pursuant to disclosure 10 statement by accused A1 blood stained shoes, T shirt, pant Ex.P1 to P3 respectively were recovered besides mobile chip Ex.PW 1/D; PW2 was Ct. Narender. He was Duty Officer at HR Hospital. He deposed that at about 11:05pm PCR brought injured Jojo who was declared brought dead and the blood stained shirt was given to him by the doctor with the seal of the hospital that was handed over to IO vide memo Ex.PW 2/A; PW 3 was ASI Satpal. He was posted as Duty Officer at PS Sadar Bazar and deposed that at about 1:10p.m rukka was brought by Ct. Ajay pursuant thereto FIR Ex.PW 3/A was recorded. He proved his endorsement on the rukka Ex.PW 3/B and sending the DD to SHO for investigation vide DD 5A and 6A Ex.PW 3/C and PW 3/D. PW5 was SI Dharampal. He deposed that on instruction by SHO V. S. Malik, he made department entries Ex.PW 31/A and Ex. PW 5/A on 20.11.2005; PW6 was Inspector Devender Singh who on 04.01.2006 prepared the scaled site plan Ex.PW 6/A as per instruction of inspector V. S. Malik; PW 9 was HC Raj Pal photographer with the Mobile Crime Team who deposed that on 21.11.2005 he went to the place of occurrence and took photographs Ex.PW 9/1 to 9/15 as per instructions of the IO and proved the negatives which are Ex.PW 9/16 to PW 9/30; PW 10 was SI Subey Singh, Incharge Mobile Crime Team who inspected the place of occurrence and gave a report Ex.PW 10/A; PW 14 was Ct. Mohan Singh. He was associated in the investigation of this case on the day/night of occurrence along with Inspector V. S. Malik and others. He deposed going to the hospital and later coming back to the place of occurrence where the blood sample, earth control etc. were seen and seized from the spot; PW 15 was Ct. Raj Singh. He was special messenger who on the 11 night of occurrence delivered the copy of the FIR to the residence of the Ilaka Magistrate ; PW 16 was SI Prem Dutt. He was also associated with the Inspector V. S. Malik and others in the investigation during the relevant time;PW17 was ASI Ajmer Singh who at the cost of repetition, reached the place of occurrence on receiving DD 34 Ex. PW 17/A and conducted the initial investigation; PW 18 was Ct. Ajay Kumar. He was associated in the investigation on 20.11.2005 and deposed taking the rukka to the police station and getting the FIR recorded. He also deposed that on 21.11.2005, the dead body of the deceased was handed over to the relatives vide memo Ex.PW 18/A. He then deposed joining the investigation on 16.02.2006 with the successor IO V. P. Arya (PW 29) ; Pw 19 was Ct.
Yashpal. He was associated in the investigation on 20.12.2005 when the accused Krishan @ Raja surrendered in the office of District Investigation Unit (DIU)North who was then arrested vide memo Ex.PW 19/A, personal search memo Ex.PW 19/B, and on interrogation accused made disclosure statement Ex.PW 19/C pursuant to which the place of occurrence was pointed out vide memo Ex.PW 19/D. PW19 further deposed that the accused Kishan @ Raja also took the police party to the place where surgical blade used during the incident had been thrown but the same was not found. He also deposed that he took 16 sealed parcels forwarded as per direction of Inspector Ved Prakash (PW29) to CFSL Hyderabad and deposited the same there; PW20 was Ct. Vijender. He deposed that the place of occurrence was pointed out by accused Krishan @ vicky on 22.11.2005; Pw 21 was ASI Balbir Singh (Retd) who on the night of incident was Incharge PCR Van. He deposed that one boy Sanjay came running to 12 him and disclosed that his brother had been stabbed and the injured Lalit along with his brother Sanjay were taken to HR Hosital where the injured was declared brought dead. He proved the log book entries which are Ex.PW 21/A to 21/C; PW24 was HC Dalip Singh. He was associated during the investigation on 24.11.2005 when on the pointing out of accused Krishan @ vicky, accused Pradeep @ Dhiru was arrested and gupti / knife Ex.PX1 was seized vide memo Ex.PW 24/D. He also deposed that both the accused then came back and brought the police to the place of occurrence and pointed out the same vide memo Ex. Pw 23/C; PW 25 was Ct. Jitnder. He joined the investigation along with Inspector V. S.Malik during which time accused Pradeep @ Dhiru was arrested; PW 26 was Ct. Pradeep associated during the arrest of accused Karan Dayal and thereafter at this behest leading to the arrest of the Vicky @ Kana and Anil ; PW27 was Inspector Rakesh Kumar who on 20.11.2005 was Incharge of the Police Post Ahata Pidara who had also joined the investigation with the other police officers; PW29 was Inspector Ved Prakash Arya who took over the investigation of the case on 28.11.2005 while posted as Inspector (DIU) North, Delhi' Lastly, the investigation Officer Inspector V. S.Malki was examined as PW 31.
STATEMENT OF THE ACCUSED
15. On the close of he prosecution evidence, accused Kishan @ Vicky S/o Late Sh. Umrao Singh (A2), Anil S/o Sh. Hari Kishan (A3), Hari Kishan Garg (A8), Manoj Garg (A9) and Yashoda Nandan (A10) were examined as per Section 313 Cr.P.C. The statements of the other accused 13 persons was dispensed with since there were found no incriminating evidence as against them on the record. So far as the accused Krishan @ Vicky is concerned on putting the incriminating material he denied the prosecution case and he pleaded that he was innocent and falsely implicated in this case. So was the defence of the accused Anil.
16. In so far as the accused Hari Kishan is concerned, he denied the prosecution case and stated that he was the Mandal i.e Block President of the BJP of the area, and Ved Prakash who is the uncle of the deceased Jojo and relative of other prosecution witnesses, wanted to contest for the Area Counselor but due to their criminal background, he did not support his candidature and therefore the witnesses were nursing a grudge against him and falsely implicated him along with his nephew . The same was the defence of his nephew Manoj Garg on the putting incriminating evidence. Accused Yashoda Nandana on the putting incriminating evidence also denied the prosecution case and stated that there had been pending 67 criminal cases between his family and family of Ved Prakash and for that reasons he has been falsely implicated in this case.
17. I have given my thoughtful consideration to the submissions made by Ld. Addl. PP for the State and Ld. Defence Counsel for the accused persons. I have also meticulously perused the judicial record. REASONS
18. At the outset, it must be stated that there is no iota of evidence led on the record as regards accused A3 Vikas @ Kali, A5 Kishan @ Raja; 14 A6 Karan A7 Vicky @ Kana by the prosecution. None of the witnesses examined by the witnesses have ascribed any role to them in the commission of the crime. It may also be indicated that the police witnesses as well as the medical experts examined by the prosecution were not cross examined on behalf of any of the accused persons. In fact, nothing was asked from them and the evidence of the police witnesses besides medical witnesses is uncontroverted and unrebutted.
19. The entire case against the accused persons delicately hinges on the testimonies of PW 7 Ashok Kumar, PW8 Sanjay, PW 11 Shyam Sunder and PW 12 Vicky Kumar in the Court. I pen delicately since their version of the incident is not supported by the prosecution through the investigating officers. The ld. defence counsel have strongly argued that the evidence of the witnesses dehor the police witnesses can not be accepted as they were interested witnesses, speaking out of political ill will and mutual hatred.
20. Anyhow, let us scan their evidence. PW12 Vicky was examined in chief twice on 03.07.2009 and later after taking cognizance of offence against A8, A9 and A10 as per Section 319 of Cr.PC on 01.06.2010 and the evidence on the two dates in "examination in chief" is ditto without any variation as such. PW 12 Vicky (also examined PW 23) deposed that he was present in the house of his cousin Lalit @ Jojo at about 9:30pm on 20.11.2005 when the accused Vicky A1 called Lalit by his name to come outside the house for some discussion. He deposed that Lalit @ Jojo accompanied accused A1 and he followed them and as soon as A1 reached near the shop of Kamal Pahalwan in Gali Barna he shouted 15 "MAINE APNA KAAM KAR DIYA HAI"i.e, (I have done my job). PW12 Vicky then deposed that he saw Hari Kishan , Yashodanandan and Manoj Garg at the corner of Gali Barna where a steel shop was located and accused Hari Kishan Garg caught hold of Lalit @ Jojo by his right hand and accused Manoj caught hold of Lalit by his left hand and accused Hari Kishan exhorted to Yashodanand 'MAARO SALEY KO(i.e., kill the rascal); On that exhortation, accused Kishan @ Vicky A1 assaulted Lalit on his chest with some sharp edged weapon, accused Yashodananda assaulted Lalit in his stomach with a knife and accused Anil A2 also assaulted Lalit with a sharp pointed weapon on his right side face; He further deposed that when accused Yashodanand tried to assault Lalit second time, he missed and it struck on left leg of accused Anil who got injured.
21. The said version of the incident is not fully corroborated by PW11 Shyam Sunder. PW11 Shyam Sunder was examined in chief on 03.07.2009 before summoning u/s 319 Cr.PC and later on 04.05.2010 and "examination in chief" is ditto without any variation. The version of the incident as given by PW11 is that he was in search of his cows and moved up to the corner of Gali Barna when he heard some one shouting 'BACHAO BACHAO'(help) and he saw accused Hari Kishan had caught hold of both hands of Lalit and accused Manoj who was nephew of accused Hari Kishabn gave a Lalkara 'MARO SALEY KO AAJ YAH BACHNA NAHI CHAHIYE" (kill the rascal, don't spare him) and that Yashodananda took out a big knife and stabbed in the abdomen of Lalit.
22. There is nothing in the evidence of PW11 Shyam Sunder that accused Kishan @ Vicky A1 and accused Anil A2 played any role in the 16 stabbing or inflicting injuries upon the deceased Lalit @ Jojo. What also bears in my mind is that if the evidence of PW 11 and pw12 is believed that incident of quarrel happened at one place near PR Steels at Gali Barna, and if that is so, it is not explained how come there was blood at four different places mark A,B,C and D in the site plan Ex. PW 31/B.There is apparent contradiction on this issue as between the evidence of PW11 Shyam Sunder and PW12 Vicky Kumar. PW 7 and PW8 too have not ascribed any role to A1 and A2. The statement of A1 Ex. PW 27/B made to the police in the hospital, referred above, is not admissible in evidence u/s 24 and 25 of the Indian Evidence Act. Reference here can be made to the decision by the Apex Court in the Case of Aghnoo Nagesia v. State of Bihar, 1966 Cr.L.J.100. Mere fact that A2 was admitted in hospital with a sharp incised wound on his leg too cannot by itself prove nothing.
23. The defence plea is that PW11 Shyam Sundar was never present at the scene of occurrence as he was introduced later or planted in order to give semblance of credibility to their malicious concoction. PW11 Shyam Sunder when examined in the Court made a material improvement over his statement u/s 164 Cr.P. Ex.PW 11/A that he heard the noise / alarm "MUJHE BACHAO BABA HARI KISHAN YASHODA JAAN SE MAAR RAHA HAI". He then revealed in his statement Ex.PW 11/A that both Hari Kishan and Yashodanandan threatened him that he should run away from the spot else he would also be killed but such version was not supported by PW12. In the statement Ex.PW 11/A, no role was ascribed by him to accused Manoj Garg. Infact, PW12 Vicky Kumar stated that PW11 Shyam Sunder was not at the spot when the incident occurred. The evidence of 17 PW 12 Vicky Kumar is not reliable because when the incident occurred he did not raise alarm nor called his relatives or family members for help who were residing very close to the place of occurrence nor called the police.
24. Further, there is merit in the plea of the defence that PW7 Ashok and PW8 Sanjay were not present at the time of occurrence. Both PW7 Ashok and PW8 Sanjay admitted in their cross examination that they had not seen the actual occurrence and had reached after the incident of stabbing had already occurred. PW7 Ashok deposed that he was informed about the quarrel by PW11 Shyam Sunder and he immediately reached the spot where he was told by injured Lalit @ Jogo that he had been stabbed by Hari Kishan Garg, Manoj Garg and Yashoda Nandan. However, PW7 was confronted with his statement Ex.PW 7/C to the police in which he stated that his nephew Lalit @ Jojo was lying in blood who told him that Brahmchari along with 23 boy had stabbed him and this was done at the behest of Hari Kishan Baba and Pappu since he had been involved with one Ruchi Garg daughter of accused A9 Manoj Garg.
25. So far as PW 8 Sanjay is concerned, he deposed that when he reached the spot, there were 1015 persons present at the spot who were raising a commotion that accused Hari Kishan Garg, Manoj Garg and Yashoda Nandan besides 34 persons had assaulted and stabbed Lalit @ Jojo and thereafter had run away. Now this evidence could be admissible falling in the realm of res gestao but it is doubtful if he reached the scene of crime on that day soon after the incident. PW8 Sanjay did not have any talks with the injured Lalit nor he deposed that the injured Lalit @ Jojo told him anything while PW7 says that injured was conscious all the time. 18 Evidence of PW8 Sanjay that he had accompanied injured Lalit @ Jojo in a PCR Gypsy was not supported by PW7 Ashok or PW21 ASI Balbir Singh and even the MLC Ex.Pw 22/A does not indicate that injured / deceased was brought to the hospital by PW 8 Sanjay. They were not even found at the hospital by PW 31 Inspector V. S. Malik along with ASI Ajmer Singh (PW17) who had reached there in no time. It is, therefore, doubtful if PW 8 Sanjay was present at the seen of occurrence; and the evidence of PW7 that he was informed by the deceased that he had been stabbed by A8.A9 and A10 is a material improvement over his statement to the police.
26. Perusal of the judicial record further reveals that statements of PW 12 Vicky and PW8 Sanjay u/s 161 Cr.P.C. were recorded on 10.12.2005 much after the occurrence. They were the near relatives of the deceased residing in a joint family in the same house and never sent any written complaint to the police during the interregnum to inform about their part of the story. They never had any complaints again the police as well. Perusal of the record also shows that a complaint was lodged with his Excellency, the Lieutenant Governor of Delhi by Jagdish Chand (uncle of the deceased and father of PW8) in which he made allegations that his nephew had been killed by some persons at the behest of Baba Hari Kishan Garg, Manoj Garg, and Yashodanandan since deceased was having an affairs with daughter of Manoj Garg. Another complaint had been lodged by Jagdish Chand with DCP, Civil Line, Delhi on 25.11.2005 again alleging that his nephew Lalit had been killed in pursuance of criminal conspiracy hatched by Baba Hari Kishan Garg, Manoj Garg, and Yashodanandan. The 19 inference that drawn is that in the said complaints the allegation was that it was a contract killing and nothing was alleged that the accused Baba Hari Kishan Garg, Manoj Garg, and Yashodanandan had individually or collectively played any active role in inflicting stab injuries on the deceased Lalit @ Jojo. It couldn't be that his own son PW8 and nephew PW 12 Vicky residing in the same house failed to tell him their story of the incident. It bears repetition that the police in the charge sheet gathered evidence to the effect that there were pending several civil as well as criminal cases between the two factions: one led by the complainant party and the other faction led by the accused persons. The police did not find any substance or truth in their complaints. To my mind, the evidence led by PW 12 Vicky Kumar and other prosecution witnesses does not inspire confidence and they were interested witnesses holding grudges and ill will against the accused persons and in such background of the case, their evidence is not credible and most probably a cock and bull story to wreck vengeance.
27. In the said view of the discussion, as no iota of evidence has been led against the accused persons namely Vikas @ Kali S/o Sh. Suresh Kumar (A3), Krishan @ Raja (A5), S/o Late Sh. Manohar Lal, Karan Dayal (A6), S/o sh. Rameshwar Dayal and Vicky @ Kane (A7) they are acquitted of the charges framed against them. Their bail bonds are are cancelled and their sureties discharged. Further, in view of the discussion above, the prosecution has also miserably failed to prove its case beyond reasonable doubt against the accused persons namely Kishan @ Vicky S/o Late Sh. Umrao Singh (A1), Anil S/o Sh. Hari Kishan (A2), Hari Kishan Garg (A8) S/o Sh. Parmeshwari Dass, Manoj Garg (A9), S/o Sh. 20 Mammu Lal and Yashoda Nandan (A10) S/o Late sh. Chunni Lal. Therefore, they are also acquitted of the charges framed against them. Their bail bonds too are cancelled and sureties discharged. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (DHARMESH SHARMA)
COURT TODAY i.e 03.02.2011 ASJII / NORTH, DELHI
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