Delhi District Court
The State vs Raghu Raj S/O Sh. Vijay Bind on 17 July, 2012
-1-
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03, OUTER DISTRICT
ROHINI COURTS:DELHI
FIR No. : 359/2007
PS : Sultan Puri
U/s : 302/323/324/34 IPC
Unique Case ID : 02404R0 658912007
In the matter of
The State
Versus
1. Raghu Raj S/o Sh. Vijay Bind,
R/o Z-307, Narayan Vihar,
Prem Nagar-II, Delhi.
2. Radhey Shyam S/o Sh.Vijay Bind,
R/o R/o Z-307, Narayan Vihar,
Prem Nagar-II, Delhi.
3. Giriraj @ Giraj S/o Raj Nath Yadav,
R/o Z-16, Narayan Vihar,
Prem Nagar-II, Delhi.
...ACCUSED
Session Case No. : 209/08
Date of Institution : 26.05.2007
Date of Committal :22.06.2007
Date of reserving judgment/order : 10.07.2012
Date of pronouncement : 17.07.2012
J U D G M E N T
1. Accused persons namely Raghu Raj, Radhey Shyam and Giri Raj were sent up by police of PS Sultan Puri to stand trial for offence punishable U/s 302/323/324/34 IPC.
2. The brief facts of the prosecution case are that on 04.03.2007, on the receipt of DD No.32, Prem Nagar Delhi, regarding quarrel by way of phone at PP, SI Puran Pant along with Ct. Dinesh and Ct. Surender reached at Z-Block, Prem Nagar-II, Delhi, where ASI Krishan Kumar along with Ct. Rajbir met at the spot. The injured were already removed to SGM Hospital FIR No. : 359/07, PS : Sultan Puri Page 1 of 45 -2- by public persons in the private vehicle. ASI Krishan Kumar and Ct. Surender left at the spot on account of 'Holi' Festival. SI along with Ct. Dinesh reached at the hospital and obtained the MLC of Babu @ Hari Prasad, who was declared brought dead by the doctor had incised wound over right side of neck and dead body was shifted to mortuary. Other injured were also found admitted in the hospital, namely, Netrapal, Dharambir and Ravi. In the meantime, Shambhu Nath S/o Ram Avadh Pal came and made his statement that he is the eye witness. He stated that on account of 'Holi' Festival, it was his holiday and after celebrating Holi, he took bath at about 5:00 p.m and was shaving outside his house. Hari Prasad S/o Gopal, his neighbourer, also came and sat with him. In the meantime, accused Raghu Raj and Giri Raj, who also lives in the same colony came to him and Raghu Raj told him that you and Bulli, drive vehicle and on account of that the slab of the drain in front of his house got broken. On this, he said that he had not broken the same. On this Raghu Raj, gave slap to him. Both of them were armed with dandas. Hari Prasad @ Babu tried to make Giri Raj and Raghu Raj understand. On this, they got angry and said that he is the supporter of Shambhu and Bulli and they would firstly deal with him. Both of them pushed Hari Prasad and started beating with dandas. In the meantime, brother of Raghu Raj, namely, Radhey Shyam also came armed with chhura (knife) in his hand. Raghu Raj on his arrival said that Radhey Shyam they will not leave Babu alive. On this Raghu Raj and Giri Raj held Babu and Radhey Shyam gave blow on his neck. On raising alarm, mohalla people FIR No. : 359/07, PS : Sultan Puri Page 2 of 45 -3- Dharambir, Ravi and Netrapal and father of Babu Sh. Gopal also came there. They tried to save Babu. On this Radhey Shyam waved the chhura in all directions blindly, which resulted in injury to Dharambir, Netrapal and Ravi. Bulli also arrived at the spot and in the Maruti Esteem Car of Bulli, Hari Prasad @ Babu, Netrapal, Ravi and Dharambir were taken by him. Bulli and father of Hari Prasad, namely, Gopal went to SGM Hospital, where doctor declared him brought dead. On the basis of the same, FIR was registered. Thereafter, the investigation was entrusted to Inspector Ravinder. The place was got inspected and crime team was called. Photographs were got done. One piece of card board, which apparently had blood was seized and taken into possession. The seat cover of Maruti Esteem Car was also taken into possession. Accused Raghu Raj and Radhey Shyam after the incident got themselves admitted in ESI Hospital, Basai Darapur. Accused Raghu Raj and Radhey Shyam were arrested after their treatment and Giri Raj was also arrested. The knife used in the offence was recovered at the instance of Radhey Shyam. Blood sample of Radhey Shyam and Giri Raj were taken.
3. Postmortem on the dead body was got conducted. The doctor gave the cause of death as shock as a result of haemorrhage consequent to stab incised wound. Injuries were antemortem. Doctor also gave the opinion, regarding the weapon of offence and opined injury could have been caused by the knife or similar weapon.
4. After completion of the investigation, accused persons were FIR No. : 359/07, PS : Sultan Puri Page 3 of 45 -4- charge sheeted for offence punishable u/s 302/323/324/34 IPC.
5. After supplying the necessary copies to the accused persons, the case was committed to the court of session vide order dated 22.06.2007 by Ld. Metropolitan Magistrate.
6. My Ld. Predecessor, after finding prima-facie case, charged the accused persons Raghu Raj, Radhey Shyam & Giri Raj for offence punishable U/s 323/324/302/34 IPC vide order dated 20.07.2007, to which, they pleaded not guilty and claimed trial.
7. The prosecution in support of their case examined as many as twenty three (23) witnesses :-
8. The prosecution examined following material witnesses :-
i. PW-1 Sh. Shambhu Nath, the complainant, who proved his statement Ex.PW1/A. He was declared partly hostile by the prosecutor, but on his cross examination, he admitted the suggestions, regarding his statement given to the prosecution. He identified the piece of card board Ex.P1, seat cover Ex.P2 and knife Ex.P3.
ii. PW-2 Sh. Netra Pal is injured and eye witness. He was also partly declared hostile, as he had not partly supported the prosecution.
iii. PW-5 Sh. Ravi is also the injured and eye witness.
iv. PW-7 Sh. Dharambir is also injured and eye witness.
v. PW-9 Sh. Gopal is also the eye witness and father of FIR No. : 359/07, PS : Sultan Puri Page 4 of 45 -5- the deceased.
vi. PW-4 Sh. Avdesh, who removed the injured to the hospital and proved seizure memo Ex.PW4/A of blood stained seat cover.
9. The prosecution also examined following formal witnesses : -
i. PW-3 Sh. Ram Kumar, who identified the dead body and proved the statement Ex.PW3/A and receipt of handing over of dead body Ex.PW3/B. ii. PW-6 SI Manohar Lal, draftsman, who proved the scaled site plan Ex.PW6/A. iii. PW-8 Dr. Brijesh Singh, who examined the deceased, when he was brought to the hospital and proved the MLC Ex.PW8/A and also proved MLC of Dharambir Ex.PW8/B. He identified the hand writing of surgeon, who gave nature of injury. He also proved the MLC of Netrapal Ex.PW8/C and proved the nature of injuries, given by another doctor. He also proved the MLC of Ravi, which was prepared by Dr. Nadeem as Ex.PW8/D. iv. PW-11 SI Ramo Devi, who received the information regarding quarrel and filled the PCR form Ex.PW11/A. v. PW-12 HC Mohan Singh, who was the duty officer, who recorded the formal FIR on the basis of rukka, Ex.PW12/A and particulars of FIR on rukka FIR No. : 359/07, PS : Sultan Puri Page 5 of 45 -6- Ex.PW12/B. He also proved the DD entries Ex.PW12/C, regarding the receipt of rukka and registration of FIR.
vi. PW-13 Dr. Sanjay Kaushik, who proved the MLC of Raghu Raj Ex.PW13/A. vii. PW-14 SI Satpal from crime team, who inspected the spot and got prepared the crime team report, Ex. PW14/A. viii. PW-15 Dr. Manoj Dhingra, who conducted the postmortem on the dead body and found one stab incised wound of size 5½ x 3 cm present over supraclavicular region near neck. 4 cm from mid line. 20 cm above and medial to right nipple. 11 cm from left nipple and below from tip of right shoulder on exploration would was entering into chest cavity after cutting muscle and subcutaneous tissue and blood vessels and entered into the upper lobe of right lung with the cutting lung tissues of size 3 x 1 x 1 cm. Margins of the wound are clean cut and well defined one end is acute and one blunt. He proved his postmortem report Ex.PW15/A and also proved his opinion regarding the weapon of offence Ex.PW15/B. ix. PW-17 ASI Ramesh Chander, who was the photographer of the crime team, who took photographs and proved the same Ex.PW17/A & FIR No. : 359/07, PS : Sultan Puri Page 6 of 45 -7- Ex.PW17/B and its negatives Ex.PW17/A1 & Ex.PW17/B1.
x. PW-10 Ct. Narender, the DD writer, who recorded entry regarding the quarrel as Ex.PW10/A and received the information regarding the admission of Raghu Raj and Radhey Shyam in ESI Hospital Basai Darapur, Delhi as Ex.PW10/B. xi. PW-20 HC Ramesh Kumar, the MHC(M), with whom the personal search of accused Giriraj and case property deposited and proved the entry in register No.19, as Ex.PW20/A, Ex.PW20/B and Ex.PW20/C. xii. PW-21 Dr. Brijesh Singh, who proved the MLC of accused Radhey Shyam, examined by Dr. M.P. Singh, as Ex.PW21/A. He also proved the MLC of accused Giri Raj, prepared by Dr. Arun Kumar, as Ex.PW21/B. xiii. PW-22 Sh. V. Shankarnaraynan, the Senior Scientific Assitant (Biology), FSL Rohini, who proved his biological report as Ex.PW22/A.
10. The prosecution also examined following witnesses of arrest and investigation :
i. PW-16 SI Krishan Kumar, to whom DD entry No.32 was marked to him for enquiry and reached at the spot.FIR No. : 359/07, PS : Sultan Puri Page 7 of 45 -8-
ii. PW-18 Inspector Puran Pant, who had reached at the spot firstly and recorded the statement of eye witness and prepared rukka after making endorsement on the said statement Ex.PW18/A and proved the seizure memo of cardboard by I.O Ex.PW18/B and proved seizure of the seat cover of rear seat of Maruti Esteem Car Ex.PW4/A. iii. PW-19 HC Surender Singh, who also reached at the spot on the receipt of initial information. He deposited the exhibits to FSL.
iv. PW-23 is the I.O, who prepared the site plan, Ex.PW23/A, inquest proceedings Ex.PW23/B, seizure of two parcels and sample seal given by the doctor Ex.PW23/C, and proved the arrest of accused Raghu Raj from ESI Hospital Ex.PW23/D, his personal search Ex.PW23/E and his disclosure statement Ex.PW23/F. Arrest of accused Giri Raj Ex.PW23/G, his personal search Ex.PW23/H and his disclosure statement Ex.PW23/J. He also proved seizure of blood stained cloths of Giri Raj and Raghu Raj as Ex.PW23/K & Ex.PW23/L. He also proved seizure of blood sample of accused Raghu Raj Ex.PW23/M. He also proved arrest of accused Radhey Shyam from his house Ex.PW23/N, his personal search memo Ex.PW23/O and disclosure statement Ex.PW23/P. He is also the witness of recovery of chhuri (knife) at the instance of accused FIR No. : 359/07, PS : Sultan Puri Page 8 of 45 -9- Radhey Shyam and proved the sketch of chhuri Ex.PW23/Q, seizure memo of cloth parcel Ex.PW23/R, cloth of Radhey Shyam Ex.PW23/S, his blood sample taken in the hospital and seized the same vide seizure memo Ex.PW23/T and also proved the request for subsequent opinion as Ex.PW23/U. He also identified the cloth of Raghu Raj i.e one T- shirt of red colour with white strips and one tracksuit pajama with blood stains Ex.P5 & P6. He also identified the cloth of accused Radhey Shyam i.e one shirt light brown colour and one half pant Ex.P3 & P4. He also identified the cloth of accused Giri Raj i.e one white shirt checkdar and one pant of sky blue colour Ex.P7 & P8. He also identified 'chhuri' as Ex.P9.
11. After conclusion of the trial, statement of accused persons u/s 313 Cr.PC was recorded wherein they denied the prosecution evidence and claimed innocence.
12. Accused Raghu Raj stated in his statement u/s 313 Cr.PC that he has been falsely implicated in this case along with his brother Radhey Shyam at the instance of Shambhu and Avdesh and SI Puran Pant. On 04.03.2007, at about 5:00 p.m, Shambhu, Avdesh, Netrapal, Ravi, Dharamvir along with other accomplices had come to his house which is at Z-Block, Sukhi Nehar, near DSM School, Prem Nagar-II and after breaking the door of his house beaten him, Radhey Shyam, his son Rohit and other family members with lathis, dandas and other weapons.
FIR No. : 359/07, PS : Sultan Puri Page 9 of 45 -10-They had sustained severe injuries. They were immediately admitted in ESI Hospital by his son Rohit. Shambhu to save himself and his aforesaid accomplices, falsely implicated him and his brother for the murder of Hari Prasad. He (Shambhu) along with his accomplices would have killed Hari Prasad.
13. Accused Radhey Shyam also similarly denied the prosecution evidence and similarly stated as stated by Raghu Raj.
14. Accused Giri Raj also denied the prosecution evidence and stated that he has nothing to do with the incident and at the alleged time of incident, he was not present at the spot. He has been falsely implicated in this case at the instance of Shambhu and his accomplices by the police officials. He did not make any disclosure statement and police forcibly obtained his signatures on blank papers and later on manipulated the same. Nothing was recovered at his instance and he is innocent.
15. Accused persons Raghu Raj and Radhey Shyam lead evidence in their defence and examined as many as 10 defence witnesses. Accused Giri Raj had not produced any evidence in his defence.
16. DW-1 ASI Krishan Pal, who proved the reply of RTI, Ex.DW1/A. DW-2 Sh. Dalbir Singh, Assistant Ahlmad in the court proved the certified copy of the complaint U/s 200 Cr.PC Ex.DW2/A. DW-3 Dr. P.K. Jain, Incharge Casualty, ESI Hospital, proved the admission of accused Radhey Shyam and Raghu Raj in the hospital and their MLC Ex.PW21/DA and Ex.DW3/A. DW-4 Dr. J.P. Singh, Surgical Specialist, ESI FIR No. : 359/07, PS : Sultan Puri Page 10 of 45 -11- Hospital proved the discharge slip given by Dr. B Saikia as Ex.DW4/A and Ex.DW4/B. DW-5 Sh. Hira Lal, Assistant/ Head Clerk proved the register and as per the register Rohit was attended in the casualty and proved his prescription Ex.DW5/A & register entry Ex.DW5/B.
17. DW-6 ASI Narender Kumar proved the record of RTI Cell Ex.DW6/A and PCR form as Ex.DY. DW-7 HC Ranbir Singh proved the complaint made by Rohit as Ex.DW7/A, acknowledgment of DCP Office Ex.DW7/B and complaint diary register Ex.DW7/C. DW-8 Sh. Munna Thakur, Nursing Orderly, Tihar Jail Hospital, proved the record of the jail and as per the same accused Radhey Shyam remained admitted in Jail Hospital from 11.03.2007 to 04.05.2007 and proved the record Ex.DW8/A. DW-9 Smt. Ranjan Bala Ranjan, lab Technician from SGM Hospital, who proved the testing of blood sample of Rohit, which was in her handwriting Ex.DW9/A, OPD card, issued by the hospital Ex.DW9/B and DW-10 Sh. Rohit Kumar, on behalf of accused Radhey Shyam and Raghu Raj, who proved the photocopy of the application Ex.DW10/A and photographs Ex.DW10/B.
18. I have heard Sh. A. K. Srivastava, Ld. Addl. PP for the state and J.K. Srivastava, Ld. Counsel for accused Raghu Raj and Radhey Shyam and Sh. Baliram Yadav, Ld. Counsel for accused Giri Raj. I have gone through the record.
19. PW1Shambhu Nath, the complainant testified on the line of complaint that on 04.03.2007, he was residing at Z-Block, FIR No. : 359/07, PS : Sultan Puri Page 11 of 45 -12- Naraina Vihar, Prem Nagar, Delhi. On the day of 'Holi' Festival, after playing the colours, he had taken late bath and was standing outside his house and shaving at about 5:00 p.m. Hari Prasad @ Babu, who was neighbour came and sat near him and they started talking. In the meantime, accused Giri Raj and Raghu Raj came there and told him that he had damaged the slab which covered the drain outside their house. They accused him of breaking the slab, as he used to drive his vehicle in the gali. Accused Giri Raj slapped him. They were both carrying dandas in their hand. Hari Prasad, who was present with him tried to counsel the accused persons. Accused persons told him that he was taking undue favour of him and said that they will teach him a lesson. They started beating Hari Prasad with dandas. Hari Prasad was pushed down by the accused persons and he was lying on the floor (ground). In the meantime, accused Radhey Shyam reached there carrying a knife. Radhey Shyam said that Hari Prasad should not be spared and he stabbed with knife on the right side of his neck. Accused Raghu Raj and Giri Raj had caught hold of Hari Prasad, when Radhey Shyam had stabbed him. He raised alarm and Dharamvir, Ravi, Netrapal and Gopal reached there. They tried to save Babu but Radhey Shyam threatened them by waiving the knife blindly in all directions. Dharamvir, Netrapal and Ravi received injuries by the knife at the hands of Radhey Shyam. In the meantime Bulle @ Avdesh took out his Maruti Esteem Car and took PW1, Dharamvir, Ravi and Hari Prasad and Netrapal to SGM Hospital. At the hospital, Hari Prasad @ Babu was declared brought dead.
FIR No. : 359/07, PS : Sultan Puri Page 12 of 45 -13-20. He was cross-examined by the prosecutor. However, on being cross-examined, he admitted the suggestion that Giri Raj and Raghu Raj had accused him and Gulle (Bulli) to have damaged the slab by driving the vehicles in the gali. He also admitted that Raghu Raj had slapped him and also admitted that Radhey Shyam reached there and accused Raghu Raj exhorted him not to spare Hari Parsad. He also admitted that Hari Prasad after being stabbed had fallen on the ground and a gatta (cardboard) was lying there. The gatta had also been stained with blood. The said gatta was seized by the police. He stated that he forgotten certain facts because of lapse of time.
21. This witness was examined in the court on 29.10.2007 after about seven month of the incident, which is not after long delay.
22. PW-2 Netrapal testified that on 04.03.2007, on the day of 'Holi' Festival, they were celebrating Holi and were sitting near the spot, where they had lit the Holika on the previous night. It was about 5:00 p.m. In the meantime, they heard some noises from the side of house of Babu and reached there and saw that Giri Raj and Raghu Raj were hitting Babu with fist and kicks. Accused Radhey Shyam also reached there carrying a knife. Radhey Shyam randomly moved his knife, stabbing Babu and also injuring him. Ravi and Dharamvir were also present at the spot and they also received stab injuries at the hands of Radhey Shyam. After receiving injuries in his side, he lost consciousness.
FIR No. : 359/07, PS : Sultan Puri Page 13 of 45 -14-23. He was also declared hostile by the prosecutor. However, in the cross-examination, he admitted the suggestion that his statement was recorded by the police in the present case, but voluntarily stated that he was not conscious at that time. He stated that he does not know, if Babu is also called as Hari Prasad. He stated that he did not state to the police that Babu is alias Hari Prasad and was confronted. He however stated that he did not see if accused Raghu Raj and Giri Raj were hitting the deceased with dandas. He admitted that Radhey Shyam reached the spot and he first attacked Babu on his neck with a knife. He also admits that he himself, Dharamvir, Ravi and Gopal tried to save Babu and then accused Radhey Shyam moved his knife causing injuries to all of them. He, however, stated that he does not know, if he along with Ravi, Dharambir, Babu, Gopal and Shambhu were shifted to SGM Hospital by Bulle. He was confronted with this portion of his statement. He state in reply to suggest that he also does not know, if Babu had been declared brought dead by the doctor at the hospital.
24. PW-5 Ravi testified that on the day of Holi Festival, he was present near his house. At about 5:00 p.m, he heard the noise from the gali and came out in the gali and saw that accused Raghu Raj and Giri Raj were beating Hari Prasad @ Babu with dandas. He along with Netrapal and Dharamvir tried to intervene and save Hari Prasad. Accused Radhey Shyam came there armed with a chhura. Accused Raghu Raj exhorted him that Hari Prasad @ Babu should not be spared. On the exhortation, accused Radhey Shyam stabbed Hari Prasad and FIR No. : 359/07, PS : Sultan Puri Page 14 of 45 -15- thereafter accused Radhey Shyam also started attacking them and when they tried to save Hari Prasad, Ravi, Netrapal and Dharamvir also received injuries. Father of Hari Prasad was also present there. One Bulli of their mohalla also came there, who brought his Esteem Car and the injured Hari Prasad was shifted to SGMH Hospital in the car. Ravi along with Dharamvir and Netrapal also accompanied in the same car to the hospital. In the hospital, Hari Prasad @ Babu was declared dead by the doctors. He also stated that accused Giri Raj, Raghu Raj and Radhey Shyam ran away when the public started gathering (sic) there and in that process they also fell down and received injuries and ran away. Public gathered there.
25. PW-7 Dharamvir testified that on the day of Holi Festival in the year of 2007, it was Sunday, he was present in his house after celebrating the festival of Holi. He was standing at the gate of his house and on that day at about 5:00 p.m, he heard a noise in the gali and he went towards the place from where the noise was coming. He saw that the resident of their locality Hari Prasad @ Babu was made to lie (sic) on the ground and accused Raghu Raj and Giri Raj were beating him with danda. He along with Ravi and Netrapal tried to save Hari Prasad. Accused Radhey Shyam also reached there. He was having chhura in his hand. Accused Raghu Raj exhorted Radhey Shyam that Hari Prasad @ babu should not be spared. On this accused Radhey Shyam started stabbing Hari Prasad and he also attacked all of them when they tried to save Hari Prasad. Ravi and Dharampal also received injuries. He also received injuries on his right FIR No. : 359/07, PS : Sultan Puri Page 15 of 45 -16- forearm near the elbow joint. The crowd also started collecting there. Accused Raghu Raj, Giri Raj and Radhey Shyam ran away from the spot. One Bulli of their mohalla also reached there, who brought his Esteem Car. One Shambhu of their locality was also present there. The injured Hari Prasad @ Babu was shifted to the hospital in the car of Bulli. He was also accompanied them in the car of Bulli to the hospital He was treated in the hospital. He also became unconscious in the car.
26. PW-9 Sh. Gopal, the most important witness, who is the father of the deceased. He stated that on the occasion of Holi Festival, he was present in his house. He heard a noise from the gali.. He came out at about 5:00 p.m. He saw his son Hari Prasad @ Babu was beaten by accused Raghu Raj and Giri Raj with kick and fist. He also raised alarm. Accused Radhey Shyam stabbed his son Hari Prasad @ Babu on his neck. Some other people also came there and try to save his son Hari Prasad. Dharamvir, Ravi, Netrapal, Shambhu also reached there. His injured son Hari Prasad was shifted to hospital in the car of Bulli. His son was declared dead in the hospital. He identified his dead body.
27. Deceased was shown as brought by Gopal, the father of the deceased in MLC. In the MLC of Dharamvir, he was brought by Gopal, the uncle. On local examination, incised wound 3 x 1 x 1 cm over right elbow was found and nature of injury was given simple. In the MLC of Netrapal, on local examination he was found to have incised wound over right lumber region 3 x 2 x 1 cm and nature of injury was given as simple. In the MLC of Ravi, brought by HC Gyan, on local examination, he was FIR No. : 359/07, PS : Sultan Puri Page 16 of 45 -17- found to have CLW 3 x 0.5 x 0.5 cm over lateral region. Dharamvir, Netrapal and Ravi are injured witnesses.
28. Ld. Defence counsel submitted that there are material inconsistencies in the testimony of the witness, who alleged to be the eye witnesses. The accused persons have been falsely implicated in this case. Accused persons had sustained serious injuries. Same has not been explained. It is also submitted that the place of occurrence is also not proved by the prosecution. The alleged blood stained gatta is small piece of card board, which is removable and blood was not taken from the earth. It is further submitted that instead the accused persons had came to their house and attacked and broken their house and caused serious injury to them. Further, it is submitted that there is no common intention between Radhey Shyam and other accused persons, and therefore, 34 IPC is not attracted.
29. It is further submitted that even in the case of Radhey Shyam, it was sudden fight and the same falls in the exception 4(2) section 300 IPC.
30. In order to appreciate the submissions, it is necessary to have some over view of the spot. The rough site plan Ex.PW23/A shows the spot at point A, where the quarrel took place and deceased was stabbed. It is in front of H.No. Z-305 and point B is the place, where the blood stained card board was recovered. It is at the corner of the street away from the spot. Point C is the place, where the broken sewage slab, which is in the other street, which leads to Sukhi Nehar and is in front of H.No. FIR No. : 359/07, PS : Sultan Puri Page 17 of 45 -18- Z-307. As per the site plan house numbers are not in sequence. The scaled site plan, Ex.PW6/A shows point A is the place in front of H.No. Z-305, where the quarrel took place and point B is the place, where accused persons again attacked the deceased with danda and blood was found on paper of gatta and shown the distance between A & B as 1575 and point C is shown in front of house of Ganga Sahay, where open sewage main hole was found and the street leads to main road.
31. Now, coming to the testimony of the witness PW1 Shambhu Nath in his cross-examination stated that accused persons and deceased Hari Prasad had previous enmity, but he does not know the cause. He admits that the dispute as regards slab was only with him and Bulle @ Avdesh. He stated that he was slapped by Raghu Raj and not by Giri Raj. When he was lead by the prosecutor, after declaring him hostile, he stated that he was slapped by Raghu Raj. He stated that he was raising alarm when Raghu Raj and Giri Raj were beating Hari Prasad and was collecting the persons to save the injured from the accused persons. Both were giving danda blows to Hari Prasad. Giri Raj had given danda blows to Hari Parsad on leg, back and everywhere (sic) else. After he fell down. Accused Giri Raj had only caught hold him. He stated that Gopal was sitting on charpai (cot) outside his house. By the time he reached near Hari Prasad, he had been stabbed. Gopal had reached the place, where Babu had received injuries, after he had been injured. He stated that he cannot say as to where Babu expired. He might have expired at the spot or on the way to hospital.
FIR No. : 359/07, PS : Sultan Puri Page 18 of 45 -19-The place of occurrence is opposite his house in the gali. The place of occurrence is just outside the boundary wall of his house. He was sitting on the said wall with Babu. Giri Raj did not hit any other persons except Babu. He stated that Hari Prasad after being hit by Giri Raj and Raghu Raj was not hit by danda after he had fallen down. He voluntarily stated that he was caught hold by Giri Raj and Raghu Raj, when Radhey Shyam stabbed him. The house of Gopal is separated by five fit wide gali from his house. Danda in the hand of Giri Raj was about 3 feet long. In his cross-examination on behalf of Raghu Raj and Radhey Shyam, he stated that his statement was recorded near the Gypsy of the I.O, near the main gate of the hospital. Radhey Shyam reached immediately thereafter at the place with knife. He stated that Radhey Shyam had received injuries by falling in a sewer drain, when he was trying to escape from the spot. He denied the suggestion that he along with Ravi, Avdhesh, Netrapal, Ram Kumar and Dharamvir had gone to the house of Raghu Raj to fight with him or that they had caused injuries to Radhey Shyam, in which the fight had ensued and Raghu Raj as well as Hari Prasad had received stab injuries. He also stated that Gopal was present when his statement was recorded. All neighbours had collected at the spot after the occurrence. He stated that he does not know Rohit S/o Raghu Raj and denied that Rohit had also received injuries in the same occurrence at their hands.
32. PW-9 Sh. Gopal stated in his cross-examination that distance between the spot and his house is about 50-60 feet. Spot is FIR No. : 359/07, PS : Sultan Puri Page 19 of 45 -20- towards North side from his house. There are two build houses and one vacant plot in their line of houses upto the spot. He stated that police had not reached at the spot, when his son was lying injured in the gali. At that time, when Hari Prasad received stab injury, he was present at the spot and took him to the hospital. He stated that he does not know what happened thereafter. However, he denied the suggestion that murder of deceased Hari Prasad was committed by Ravi, Dharamvir, Netrapal or that in the said conspiracy Avdesh @ Bulli were also involved. In cross-examination on behalf of Raghu Raj and Radhey Shyam, he stated that he does not know, who got admitted his son Hari Prasad in the hospital. He stated that police met him in the hospital at the time of admission of his son Hari Prasad. In his presence, no statement of any witness was recorded in the hospital. He remained in the hospital till 9:00 p.m. he had not received any injury in the incident. He stated that his statement was recorded in the PS on the same day at about 12:00 p.m. He denied the suggestion that he was not present at the spot.
33. It is submitted by Ld. Defence Counsel that the conduct of PW Gopal is unnatural. He was sitting right near the occurrence, outside his house when his son was stabbed, yet he had not made efforts to save him and no injury has been sustained by him in the process. It is also submitted that there are inconsistency in his testimony from Shambhu, who claims that his statement was recorded in the presence of father of the deceased.
FIR No. : 359/07, PS : Sultan Puri Page 20 of 45 -21-34. With respect to the conduct of father of the deceased was aged about 64 years, when he was examined in the court and on account of the age and the fear of himself sustaining the injury, one may not immediately rushed to intervene. Moreover, the reaction of one person differs from another in an incident. It also depends upon educational socio economic condition of one. Keeping in view the educational socio-economic background, age, I find that there is nothing unnatural in his conduct. As regards the inconsistency in the testimony of Shambhu that his statement was recorded in the presence of the father of the deceased and father of the deceased denies the same is also not much significant, given the socio economic background of the witness and the lack of understanding of the proceedings.
35. Now, let's examine the other set of witnesses, who sustained injuries in the incident. PW Netrapal was partly hostile towards the prosecution, but the point on which he turned hostile and did not support the prosecution is minor in nature, that whether his statement was recorded, where he stated that name of Babu also known as Hari Prasad or that he along with Ravi, Dharamvir, Babu, Gopal and Shambhu were shifted to SGM Hospital by Bulli or that Babu was declared brought dead by the doctors. However, he had supported the prosecution after being cross-examined by the prosecutor. In his cross- examination, he stated that the place of occurrence is in third parallel gali from his house and he reached the spot on hearing noises. After receiving the stab injuries, he fell down at the FIR No. : 359/07, PS : Sultan Puri Page 21 of 45 -22- spot and became unconscious (sic) and was shifted to the hospital by some neighbour. He regained consciousness in the hospital. He does not know, if Shambhu was present at the spot or not. He does not now, which part of the body of Babu had been caught hold by Giri Raj. He did not notice if the clothes of Giri Raj were stained with blood. He did not see any danda in the hands of accused persons. In his cross-examination on behalf of other accused persons, he stated that he had consumed alcohol on the day of occurrence though in small quantity. None of the persons named in his examination-in-chief had joined him in the drinking session. His relations had already left, when he heard the noises. A large crowd was already present, when he reached the spot, the number may be about hundred. He however denied the suggestion that Dharamvir, Ravi, Shambhu and Babu had gone to the house of Radhey Shyam to quarrel with him or that they had all caused severe injuries to Radhey Shyam, Rohit son of Raghu Raj and also Raghu Raj with dandas or that they had left Radhey Shyam at the spot thinking as dead. He stated that weapon of offence was not shown to him by the police. He stated that Babu had received injuries on the front side of his neck.
36. PW-5 in his cross-examination stated that he was sitting outside the house, when he heard the noise of commotion. The spot of occurrence is one gali away from his house in between there is a chowk. It took two minutes for him to reach the spot from his house. When, he reached the spot, accused Giri Raj was beating deceased Hari Prasad @ Babu with danda. The accused FIR No. : 359/07, PS : Sultan Puri Page 22 of 45 -23- Giri Raj was beating deceased after making him fall on the ground and he had received injuries on his body. He had not counted the number of danda blows received by the deceased. He stated that he was present at the spot when accused Giri Raj was giving danda blows to deceased. He tried to extricate the deceased from the danda blows but he did not receive any injury in the said process. In his cross-examination on behalf of the other accused stated that he along with father of Babu, Dharamvir and Babu were present, when they were taken to the hospital by Avdesh and besides above persons nobody else was in the vehicle. He stated that he does not remember whether the police had recorded the statement of anyone in the hospital and stated that Avdesh, Dharamvir and Naterapal were only present from their locality and there was no one else present. He does not know that due to plying of taxi in the gali by Shambhu and Avdesh, the slabs of the gali had broken and people had complaint to them regarding the same. He does not know whether Hari Prasad had complaint to Raghu Raj that his brother had sustained fracture due to fault of Avdesh and Shambhu. He stated that they started in the vehicle for the hospital at 5:30 p.m and returned back from the hospital at around 9:30 p.m in the night. He stated that he does not remember, who had taken the deceased Hari Prasad into the emergency ward, as being injured, he was taken inside the emergency ward prior to him. When, Hari Prasad was taken inside the emergency ward, at that time Shambhu, Avdesh, Netrapal and father of Babu were present. Police was not present there.
FIR No. : 359/07, PS : Sultan Puri Page 23 of 45 -24-37. PW-7 Dharamvir, the another injured. He in his cross-
examination stated that he was standing outside his house, when he heard the noise of commotion. His house is only one gali away from the spot. It took him two minutes in reaching the spot from his house. His statement was not recorded on the same day, but it was recorded on the next day. He cannot say on which side of body of Babu he had received the injuries. He tried to save Babu from Giri Raj, who was assaulting him with danda. He did not receive any danda injury. He was also treated for the injuries in the hospital. He stated that blood was lying at the spot. In his cross-examination on behalf of other accused persons, he stated that he accompanied the injured Hari Prasad, when he was taken to hospital. He was unconscious at that time. He regained his consciousness in the hospital. He does not know how many persons in total were in the car, as he was unconscious. He made to sit in the car. Police had not come to the hospital in his presence. He does not know, till what time, he remained in the hospital. He was told by Ravi that he had been removed in the same car to the hospital, as was Hari Prasad.
38. As per the postmortem report, the deceased had sustained only one antemortem external injury i.e stab incised wound of the size of 5½ x 3 over super clavicle region near neck, but there are no other injuries on his other part of the body external or internal. PW-1 claimed that the injured was given beatings with danda and was pushed down and was lying on the floor. PW-2, however, claims that Babu was being beaten by fist and FIR No. : 359/07, PS : Sultan Puri Page 24 of 45 -25- kicks and he did not see the danda in the hands of Raghu Raj and Giri Raj, although he was declared hostile on that aspect. PW5 Ravi also claims that the deceased was being beaten by the danda by both the accused persons. Dharamvir also claims so. Gopal whereas claims that Raghu Raj and Giri Raj were beaten his son with kick and fist blows. Therefore, the witnesses, who have claimed that the deceased was being beaten by danda are stating false to that effect and are exaggerating the incident. However, the witnesses, who had stated that deceased was being beaten by fist and kicks may be stating true, as the beatings given by fist and kicks may not result external or internal injury, which are noticeable. The testimony of other witnesses does not find corroboration from the medical evidence i.e postmortem report. However, the entire testimony of those witnesses cannot be rejected as they are injured witness and their presence at the spot is not doubtful.
39. Now, coming to the other aspect of the matter, regarding sharing of common intention. All the witnesses are consistent that accused Radhey Shyam came and stabbed the deceased with knife blow on his neck. However, the question is whether he shared the common intention with other two accused of causing the said injury? PW1 stated that they were beating Hari Prasad and pushed him down and was lying on the floor and thereafter in the meantime Radhey Shyam came there with knife. Radhey Shyam said that Hari Prasad should not be spared and stabbed him. Accused Raghu Raj and Giri Raj had caught hold him, when accused Radhey Shyam had stabbed him. In his cross-
FIR No. : 359/07, PS : Sultan Puri Page 25 of 45 -26-examination, however he stated that only Giri Raj had caught hold him after he fell down. In his further cross-examination he stated that Hari Prasad had fallen on his back after being hit by Giri Raj and Raghu Raj. He was not hit by danda after he had fallen down. However, voluntarily stated that he was caught hold by Giri Raj and Raghu Raj when Radhey Shyam stabbed him.
40. PW-2 Netrapal stated that accused Radhey Shyam came when the deceased was being beaten by other two accused, carrying a knife . Radhey Shaym randomly moved his knife, stabbing Babu and also injured him. However, he was declared hostile, but he admitted the suggestion of the prosecutor that Radhey Shyam reached at the spot and he first attacked Babu on his neck with a knife. This witness had not stated that Radhey Shyam was exhorted by other two accused or other two accused had held the deceased, while he gave the stab blow.
41. PW-5 Ravi stated that when Radhey Shyam came there armed with chhura, Raghu Raj exhorted him that Hari Prasad @ Babu should not be spared. On this exhortation, accused Radhey Shyam stabbed Hari Prasad and thereafter accused Radhey Shyam also started attacking other, when they tried to save him.
42. PW-7 testified that the injured was being beating by Raghu Raj and Giri Raj. In the meantime, Radhey Shyam reached with chhura. Raghu Raj exhorted him that Babu should not be spared. On that, he started stabbing Hari Prasad @ Babu. PW-9 Gopal, the father of the deceased stated that Raghu Raj and Giri FIR No. : 359/07, PS : Sultan Puri Page 26 of 45 -27- Raj were beating his son. Radhey Shyam stabbed his son on neck. Some other persons came to save him. He does not say that while the blow was given by Radhey Shyam deceased was held by other two accused or was exhorted by Raghu Raj. There are material inconsistency on the issue of exhortation and holding the deceased while Radhey Shyam gave the knife blow. Exhortation is even otherwise weak type of evidence. In view of material inconsistency, it cannot be believed that the exhortation was given by the accused Raghu Raj and Giri Raj or held him to facilitate the stabbing by Radhey Shyam. The medical evidence has also not supported that they gave danda blow on the body of the deceased. Therefore, I am of the opinion that the accused Giri Raj and Raghu Raj did not share the common intention with Radhey Shyam for causing blow of knife on his neck or caused any injury to deceased.
43. Now, coming to the incident as a whole against the accused Radhey Shyam. As regards, the place of occurrence, there are inconsistency between the witnesses, let's examined the same. As per PW-1, the place of occurrence was just outside his house. According to him, I.O had also seized blood stained earth from the spot, whereas admittedly no blood stained earth was seized in the present case. PW-2 also stated that he had heard the noise from the side of house of Babu. The house of Babu is opposite to the house of Shambhu Nath PW1. In his cross-examination, he categorically denied that the place of incident is not opposite to his house in the gali. The place of occurrence is just outside the boundary wall of his house.
FIR No. : 359/07, PS : Sultan Puri Page 27 of 45 -28-However, he stated that hundred of persons of crowd were present and their number must be 100. PW-5 also stated that spot of occurrence is one gali away from his house and between in the chowk. PW-7 only states that he went towards the place from where noise was coming. His house is away one gali from the house and took two minutes to reach there. He also claims that blood was lying at the spot. He denied the suggestion that they had gone to the house of Raghu Raj and attacked them.
44. PW-9 Gopal stated that he heard the noise from the gali and came out at 5:00 p.m. He saw that his son was beaten. He further stated that the distance between the spot and his house is about 50-60 feet and spot is towards North side from his house. There are two built houses and one vacant plot in their line of houses upto the spot. Therefore, there are inconsistency between Shambhu and Gopal with respect to the place of occurrence. However, other witnesses have not been cross- examined on this aspect. I.O has categorically denied that the place of occurrence has been fabricated. According to this witness as per the site plan, the place of occurrence is according to him the place of occurrence should be at point B and not A, as claimed by Shambhu. This is the place from where the small piece of card board having blood stained was lifted.
45. It has been argued at length that no blood stained has been lifted, although, there were blood stains and the place of occurrence is fabricated. It was admittedly day of 'Holi' Festival and colour was played during the day. It was a thickly populated place and large number of crowd had gathered after FIR No. : 359/07, PS : Sultan Puri Page 28 of 45 -29- incident. One of the witness said that it was more 100 of people had collected. Therefore, the possibility of getting the blood stained earth at the place of occurrence was a very remote. The blood if any would have been lost in the movement of the people and also would have mixed with the colours of the festival, although the possibility that the small cardboard, which is a removable article could have been planted to make the spot of occurrence cannot be ruled out. However, the testimony of Gopal clearly points towards the spot, as the same placed where the card board was found. Therefore, it is proved by the prosecution that at point B, the occurrence took place and deceased was stabbed by Radhey Shyam.
46. Another inconsistency with respect to the fact that as to who has taken the injured to the hospital has been pointed out. PW-4 testified that on the day of occurrence, he heard the noise from gali at about 4:35-5:00 p.m and came out and saw Hari Prasad was lying in the injured condition in the gali. Netrapal, Ravi and Dharamvir were also present there. They were also in injured condition. Gopal, father of deceased Hari Prasad was also there. He shifted all the injured persons in his Esteem Car, bearing registration No. DL1C-4851 to SGMH Hospital, Mangol Puri, Delhi. Hari Prasad had expired in the hospital and other were treated in the hospital. The police officials also torn out the pieces of rear seat of Esteem Car, where blood of Hari Prasad had fallen down. He was declared hostile by the Ld. Addl. PP, in which he admits the suggestion of the prosecution that there was a commotion between the deceased FIR No. : 359/07, PS : Sultan Puri Page 29 of 45 -30- and the accused party and Raghu Raj and Radhey Shyam had warned Shambhu and Hari Prasad to get repair the cover of main hole. In his cross-examination, he stated that there were six persons including him in the car. On the front seat, Netrapal was sitting. On the rear seat Shambhu, Dharamvir and Gopal were sitting and Hari Prasad @ Babu was lying on their lap. He stated that he cannot tell the distance between the spot and the hospital.
47. It was contended that the injured was lying in the lap of other injured, their clothes must have been blood stained, but they were not taken into possession. It was also pointed out that there are some inconsistency that how many person were in the car, but such inconsistencies are minor in nature. The testimony of this witness finds corroboration from the medical evidence. As per the FSL result, seat cover, which was Ex.P2 found the blood stains. The blood group of B was found on the seat cover. The blood gauze of deceased was found to have been blood, but there was no reaction. Blood was found on the blood sample of the accused persons, but neither its origin nor grouping could be opined as it was putrefied.
48. Now, coming to the recovery at the instance of accused Radhey Shyam of weapon of offence. PW-23 deposed that on 11.03.2007, accused Radhey Shyam was arrested and he made disclosure statement in pursuance of the disclosure statement, he got recovered one chhura from water collected near his house. Its sketch was prepared and opinion qua the weapon of offence i.e chhuri was taken from the doctor, who opined that FIR No. : 359/07, PS : Sultan Puri Page 30 of 45 -31- the injury could have been caused by such or similar weapon.
49. As regards the version of arrest and recovery from the accused persons, PW-18 Inspector Puran Pant testified that on the day of incident itself he received a message, received by I.O through HC Gyan, regarding the admission of two accused Raghu Raj and Radhey Shyam in ESI Hospital. He along with I.O and constable reached there, where HC Gyan met. He informed regarding the admission of two accused, who were undergoing treatment and also handed over the MLC to him. Thereafter, Inspector Ravinder Singh called two constables, namely, Ct. Ramakant and Ct. Ramphal and deputed both of them at the ESI Hospital. In his cross-examination, he stated that the information was received regarding the admission of Raghu Raj and Radhey Shyam at 1:00 a.m (night). He admitted that the MLC was handed over to Inspector Ravinder Singh in his presence at 2:30 a.m. However, he does not know when both the accused persons were discharged from the hospital. He had not met both the said accused in ESI Hospital. He had come back from ESI Hospital to PP Prem Nagar at 3:30/4:00 a.m. He had verified DD No. 44, after reaching at PP Prem Nagar, which was recorded, regarding the information received from ESI Hospital. He admitted that whenever any constable/police official is deputed, it is recorded in the register and changing of duties is also recorded in the register. He, however, stated that he does not know if Rohit S/o Raghu Raj was also lying admitted along with his father Raghu Raj and uncle Radhey Shyam in the ESI Hospital, when he visited the said hospital.
FIR No. : 359/07, PS : Sultan Puri Page 31 of 45 -32-He did not meet the doctor, but he cannot say whether the I.O had met with any doctor at the said hospital or not. However, HC Gyan has not been cited as witness or examined.
50. PW-23 stated that HC Gyan informed him that accused Raghu Raj and Radhey Shyam admitted in the hospital. On receiving information, Inspector Puran Pant reached at hospital, where HC Gyan handed over the MLC to him. Both were found admitted and under treatment, hence no interrogation was made. Two constables were deployed for the surveillance. On the next day, he along with Ct. Dinesh and Ct. Surender reached at ESI Hospitral Basai Darapur. Accused Raghu Raj found discharged from the hospital but he was present in the hospital under the surveillance of constables deputed there, he was interrogated and arrested. On the instance of accused Raghu Raj, accused Giri Raj was apprehended from Pratap Vihar and cloth of them were seized. On 11.03.2007, Radhey Shyam was apprehended from his house and arrested and recovery was effected from his instance. In his cross-examination, he stated that HC Gyan met him at 1:00-1:30 a.m (mid night) in the intervening night of 4/5.3.2007. He had not made inquiry from the doctors regarding the injuries about accused Raghu Raj and Radhey Shyam, as both the accused persons were under treatment and doctor was busy in their treatment. He does not remember, if he had mentioned about the injuries and fracture on the body of Raghu Raj and Radhey Shyam, in his report/challan U/s 173 Cr. PC. He admitted that information was recorded by HC Gyan in DD No.44 (PP Prem Nagar), FIR No. : 359/07, PS : Sultan Puri Page 32 of 45 -33- which was received from police control room. As per MLC Raghu Raj and Radhey Shyam were brought to the hospital by Rohit. He does not know whether Rohit had also received injuries or he was also treated there in the same hospital. He stated that when he visited ESI Hospital, Basaidarapur, Delhi, at that time accused Raghu Raj and Radhey Shyam were under treatment and were not in a fit condition to make a statement.
51. On 05.03.2007, when he visited ESI Hospital, accused Radhey Shyam refused to give his statement on the ground that he was in pain and simply confessed his guilt verbally. He had given the directions to the duty officer to depute two constables at ESI Hospital, Basaidarapur for the surveillance of accused Raghu Raj and Radhey Shyam. He stated that he had not arrested Radhey Shyam from the said hospital. He stated that he had ordered the surveillance of the injured/accused Radhey Shyam and Raghu Ran only for 05.03.2007. The said order was oral one and it was not a formal order. He, however, could not say whether the surveillance continued up till 11th of March, 2007. As per MLC of Radhey Shyam and Raghu Raj at ESI Hospital, Radhey Shyam was admitted on 04.03.2007 at about 6:45 p.m, brought by Rohit. He had CLW over forehead and injury over right leg and Raghu Raj had injury over forehead on right side. He was also admitted by Rohit with the history of assault by 15 persons. He has brought at about 5:00 p.m. The discharge slip of Raghu Raj is also placed on record. He has shown to be discharged on 05.03.2007. The I.O. had full knowledge regarding admission of Raghu Raj and Radhey Shyam in the FIR No. : 359/07, PS : Sultan Puri Page 33 of 45 -34- hospital and left them under the surveillance of the constables and it is therefore not believable that Raghu Raj and Radhey Shyam were not arrested from the ESI Hospital, whereas Radhey Shyam has been stated to have been arrested from his house. It is not believable despite being named accused, the police had not kept him under their custody and merely put them under surveillance for one day. The continuation of admission for about 5 days of accused Radhey Shyam would show that he had also sustained serious injuries. At this stage, I would like to go through the some defence evidence, which are of nature which cannot be disputed. The discharge slip of accused Radhey Shyam Ex.DW4/A shows that he was admitted on 04.03.2007 and discharged on 10.03.2007. He had fractured over left shoulder and fracture on left Tibia and another important evidence is that of Tihar Jail Hospital record, Ex.DW8/A, which is in respect of accused Radhey Shyam. It shows that Radhey Shyam remained admitted in the jail hospital on 11.03.2007 and was discharged on 28.04.2007, which would clearly show that Radhey Shyam had sustained injury and was in serious condition and was not fit to be discharged at that stage from ESI Hospital. Therefore, the version of arrest of Radhey Shyam from his house and recovery in pursuance of his disclosure at his instance is highly doubtful and the same cannot be believed.
52. The prosecution therefore has succeeded in proving that the accused Radhey Shyam armed with knife and had given one serious blow on the neck of the deceased, which resulted into FIR No. : 359/07, PS : Sultan Puri Page 34 of 45 -35- the death of deceased.
53. Now, the question arises whether the accused had the intention to cause such injury and whether on account of sudden fight, the case falls under the exception 4 to the section 300 IPC. In this case, there was one stab wound of the size of 5½ cm x 3 cm present over supra clavicular region near neck, 4 cm from mid line, 20 cm above and medial to right nipple, 11 cm from left and below from tip of right shoulder. On exploration wound is entering into chest cavity after cutting muscles and subcutaneous tissues and blood vessels and ended into upper lobe of right lung with the cutting lung tissue of size 3 x 1 x 1cm. Margin of the wound are clean cut and well defined one end acute and one blunt. The place of injury near is neck and the force applied was such that the knife had entered into the upper lobe of right lung and had cut the lung tissue after entering into the chest cavity, would clearly shows that the accused Radhey Shyam had the intention to commit murder, as the place of injury such and the force applied in the injury is such that he only intended one result i.e the death of Hari Prasad, which resulted in the same.
54. Now, the next question is whether the same would fall in the category of sudden fight under Exception 4 of S.300 IPC. The essential ingredient to fall in the exception are if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without the accused having taken undue advantage or acted in a cruel and usual manner. In this case, as per the facts, the quarrel took place between Giri FIR No. : 359/07, PS : Sultan Puri Page 35 of 45 -36- Raj and Raghu Raj, who were beating the deceased. Radhey Shyam joined them after sometime armed with knife and straight away gave the fatal blow to Hari Prasad, which would clearly show that there was premeditation on the part of Radhey Shyam, as he was not even the party of the sudden fight. He joined the same with a knife and before reaction of anyone gave the blow. Therefore, this does not fall in exception 4 of the section 300 IPC.
55. Dharamvir and Netrapal had received incised wound, whereas Ravi had sustained clean lacerated wound. The injury of Ravi not possible with the sharp edged object. The accused Radhey Shyam had waived knife and caused injury with knife to Dharambir and Netrapal. Therefore, the offence U/s 324 IPC is proved against Radhey Shyam in respect of voluntarily causing the injury to Dharamvir and Netrapal.
56. Now, coming to the defence of the accused Radhey Shyam, the defence primarily revolves around the version given by DW10 on behalf of accused Radhey Shyam and Raghu Raj. He testified that Raghu Raj, is his father and Radhey Shyam, is his uncle. On the day of incident, he along with his family comprising of his father, mother, two sisters, and tau ji were residing at H.No. Z-307, Narayan Vihar, Prem Nagar-II, Near Sukhi Nahar, Sultan Puri, Delhi. On the day of incident, it was festival of Holi. After playing Holi colours, they all i.e his father Raghu Raj, Radhey Shyam, his mother and sisters came back to their house and thereafter took bath and were taking rest at about 2:30 p.m. On the same day at about 4:45/5:00 p.m, FIR No. : 359/07, PS : Sultan Puri Page 36 of 45 -37- when they were taking rest, the door of their house was knocked, and when he saw through the window, he found that Sambhunath and Bhulli along with 10-15 persons were standing outside his house. He asked them as to what happened, on this they asked him to open the door as they wish to play Holi. He refused them and told them that they had already taken bath and taking rest. But they insisted upon and asked him to inform his father and uncle in this regard. He asked his father who told him to refuse as they had already taken bath. He passed the same to the Sambhunath and others. But they told that they just want to put tika of Holi only. He also refused for the same. But they insisted upon and started beating the door as a result of which some crack was developed in the door. On this, his father asked him to open the door. So, he opened the door and on this they all entered in the house and they were having dandas and rod in their hand and some sharp weapon also and started beating all of them. His uncle Radhey Shyam sustained fracture injury in his leg and serious injury in ribs and head, which was bleeding profusely. His father had also sustained serious injury on his head and other parts of the body. He also sustained injury on his forehead and hands and blood was profusing from his injuries. His mother and sisters had also sustained injuries. He somehow managed to escape and immediately called the police over 100 number from his mobile bearing connection no. 98733-13255. On seeing him calling police, they fled away. Then, he removed his father and his uncle in the auto to emergency, ESI Hospital, Basai Darapur. He took his uncle on his lap as he was unable to move FIR No. : 359/07, PS : Sultan Puri Page 37 of 45 -38- because of fracture in his leg and made him to sit in the auto. He took his father and uncle to ESI Hospital because they are registered in the ESI Hospital. Doctors immediately examined them. He also got treated himself from the said hospital in the emergency ward vide OPD Casual Ticket. His father remained admitted in the said hospital up till 5th March 2007, when he was got relieved by the police. His uncle Radhey Shyam remained admitted in the said hospital up till 10th March, 2007 when he was got relieved by the police. Despite the advise of the doctor that they needed treatment and bed rest, the police got relieved them with malafide intention. The doctor of ESI Hospital made enquiries from him when he got admitted his father and uncle as to how they sustained injury. He told them the entire incidents as stated above. Police neither recorded statement of his uncle nor his father in his presence in the ESI Hospital.
57. On the day of incident, his mother also visited the ESI Hospital at about 8:30 p.m. She told him that after half an hour of his departure, police arrived and taken her and his sister to the police station wherein an official namely, Puran Pant had asked his mother to send Rohit to police chowki to meet police official Puran Pant. She also told him that the police had put lock on their house. He and his mother requested the police to open the lock of their house but they told that investigation is going on. He had moved an application to DCP to open the lock after taking the photograph of the house and proved the photocopy of the application Ex.DW10/A, its acknowledge FIR No. : 359/07, PS : Sultan Puri Page 38 of 45 -39- Ex.DW7/B and the photograph Ex.DW10/B. Thereafter, the lock was opened by the police on his application to the DCP. He had also filed complaint in the court Ex.DW2/A. He had got tested his blood group in the hospital vide OPD ticket Ex.DW9/A & Ex.DW9/B. Police falsely implicated his uncle and his father in this case. The blood group of this witness was taken as shown in OPD card on 22.06.2010 at SGM Hospital. The photograph Ex.DW10/B depicts lock on the main door of the house, but the door is intact.
58. DW-3 Dr. P.K. Jain, Incharge Casualty, ESI Hospital proved the MLC of Radhey Shyam and Raghu Raj. DW-4 Dr. J.P. Singh, Surgical Specialist, ESI Hospital proved the MLC and discharged slip. He stated that patient Radhey Shyam was having fracture on his right leg and was unable to move and was confined to bed till he was discharged. The patient was discharged in normal course. DW-5 Sh. Hira Lal, Assistant/Head Clerk, who brought the record i.e casualty register, where patient Rohit was attended in the casualty, who proved the casualty/emergency prescription, dt. 04.03.2007 Ex.DW5/A and copy of the register Ex.DW5/B. The jail admission record has already been discussed was also proved.
59. Another evidence is with respect to an application, moved in RTI, wherein reply was given by DCP, wherein as per the report received from SHO PS Sultan Puri, no such PCR call was made by Rohit Kumar through mobile, whereas as per Ex.DY, the PCR form shows that the call was made from mobile No. 9873313255 shows that DSM School, Prem Nagar FIR No. : 359/07, PS : Sultan Puri Page 39 of 45 -40- ke pass jhagda. In the cross-examination of DW-10, he admitted that Ld. MM dismissed his complaint U/s 156(3) Cr. PC and he had not given any evidence before Ld. MM on the complaint filed by him on 14.11.2007. He denied the suggestion that he concocted the story and created a false defence. Apparently, the SHO in the earlier RTI had not given the correct reply and in the subsequent RTI reply was given that call was made.
60. Now, the question arises whether the version given by the defence witnesses can be believed. The time of occurrence is around the same time, which this witness claims that it took place at his house, whereas as per the prosecution it took place at a different place. The witness has taken the steps by filing the complaint to the police is a son of one of the accused and closely related to the other accused, but even after expiry of after five years has not led any evidence. The call made by him to the police was quarrel near the DSM School. Rough site plan and scaled site plan does not show those places. However, the I.O was cross-examined on this aspect. He denied the suggestion that the place of incident is far away from DSM School mentioned in DD No.32, PP Prem Nagar and voluntarily stated that the said DD recorded at the PP/PS always the landmark is mentioned, while giving the information and in this case, a landmark was the DSM School, which is near the place of incident. A school or permanent temple are commonly the landmark of one area and particularly in an unauthorized colony, where the houses are not having house number in serial FIR No. : 359/07, PS : Sultan Puri Page 40 of 45 -41- as in the present case and people built the houses in hazardous manner. In such locality, the landmark is important. However, it appears that the information given by the present witness Rohit is also at near DSM School and similar is the information recorded in DD No.32A, regarding quarrel at near DSM Public School. Although, the DSM Public School has not been shown in the site plan, but no capital can be made out it by the accused persons. The prosecution has placed on record the MLC of both the accused persons, who had sustained injuries, received the treatment and some of the witnesses have also explained the injury. PW-5 Ravi stated that accused Giri Raj, Raghu Raj and Radhey Shyam ran away when the public started gathered there and in that process they also fell down and received injuries and ran away. One another witness has said that Radhey Shyam had fell in the open main hole and had sustained injury. Although, the version of these witness may not be truthful to this effect, yet the injury sustained by the accused persons may be on account of the retaliation after the commission of murder in the hands of the accused persons.
61. The prosecution has not concealed the injuries on the accused persons. It is not necessary to the prosecution to explain each and every injury on the persons of the accused persons and in the manner it is sustained. The Defence of the accused persons does not inspired any confidence. On the other hand, the prosecution has succeeded to prove their case beyond reasonable doubt against accused Radhey Shyam whereas the prosecution has failed to prove their case against accused Giri FIR No. : 359/07, PS : Sultan Puri Page 41 of 45 -42- Raj and Raghu Raj beyond reasonable doubt. Accordingly, accused Giri Raj and Raghu Raj are acquitted of the charges.
62. As per discussion above, I am of the opinion that prosecution has succeeded in proving offence punishable u/s 302 IPC and 324 IPC against accused Radhey Shyam beyond reasonable doubt. Accordingly accused Radhey Shyam convicted for said offences.
63. Let accused Raghey Shyam be heard on quantum of sentence.
Announced in the open court GURDEEP SINGH
today i.e. on 17.07.2012 ASJ-03/Outer/Rohini/Delhi
17.07.2012
FIR No. : 359/07, PS : Sultan Puri Page 42 of 45
-43-
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 359/2007 PS : Sultan Puri U/s : 302/323/324/34 IPC Unique Case ID : 02404R0 658912007 ORDER ON SENTENCE - RADHEY SHYAM 31.07.2012 Pr.: Sh. Anil Kumar Gupta, Ld. Substitute Addl. PP for State.
Convict Radhey Shyam in j/c with counsel.
Heard.
It is submitted that convict is aged about 54 years and is not a previous convict. He has three daughters, out of them two are married and one is of marriageable age, one school going son aged about 14 years and one married son, and wife and old aged ailing father. He is only person to support his family. Further, it is submitted, that this case does not fall in the category of rarest of the rare cases. Therefore, lenient view be taken.
On the other hand, Ld. Substitute Addl. PP for the state submits that the convict be given maximum punishment.
The Hon'ble Supreme Court in many cases has reiterated that life imprisonment is the rule and death penalty is the exception to be given only in the rarest of the rare case. In Lehna V. State of Haryana, 2002 SCC (Cri) 526, it was held that the death penalty can be awarded when:
FIR No. : 359/07, PS : Sultan Puri Page 43 of 45 -44-(1)When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2)When the murder is committed for a motive which evinces total depravity and meanness, e.g., murder by hired assassin for money or reward, or cold-
blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
(3)When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of "bride burning"
or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4)When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5)When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
In this case the convict has been held guilty for offences punishable u/s 324 IPC and 302 IPC.
In order to find out whether the case falls under the category of rarest of the rare cases, mitigating circumstance and aggravating circumstance has to be weighed. In the present case only one blow was given to the deceased, which take out of the case from the rarest FIR No. : 359/07, PS : Sultan Puri Page 44 of 45 -45- of the rare category.
Keeping in view the totality of the facts and circumstances of the case, I am of the opinion that ends of justice would met in sentencing the convict to undergo rigorous imprisonment for life for offence punishable U/s 302 IPC and fine of Rs. 10,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of six months.
The convict is further sentenced to undergo rigorous imprisonment for period of one year for offence punishable U/s 324 IPC and fine of Rs. 3,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of 15 days.
The fine, if recovered, shall be paid as the compensation to the family of the deceased.
The benefit of Section 428 Cr.P.C be given to the convict.
All the sentences shall run concurrently.
Copy of the judgment and order on sentence be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. Document, if any, be returned after cancellation of endorsement, if any. File be consigned to record room.
Announced in the open court today i.e. on 31.07.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/ Delhi 31.07.2012 FIR No. : 359/07, PS : Sultan Puri Page 45 of 45