Delhi High Court - Orders
Bijender @ Vishnu vs State Nct Of Delhi on 18 December, 2020
Author: Vipin Sanghi
Bench: Vipin Sanghi, Rajnish Bhatnagar
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 926/2018
BIJENDER @ VISHNU ..... Appellant
Through Mr. Aditya Kumar Dubey, Advocate
with Ms. Anurag Rana, Advocate.
versus
STATE NCT OF DELHI .... Respondent
Through Mr. Ashish Dutta, APP for the State
$~3
+ CRL.A. 927/2018
IRSHAD @ BABLOO ..... Appellant
Through Mr. Aditya Kumar Dubey, Advocate
with Ms. Anurag Rana, Advocate.
Versus
STATE NCT OF DELHI .... Respondent
Through Mr. Ashish Dutta, APP for the State
$~4
+ CRL.A. 928/2018
PARVEEN ..... Appellant
Through Mr. Aditya Kumar Dubey, Advocate
with Ms. Anurag Rana, Advocate.
versus
STATE NCT OF DELHI .... Respondent
Through Mr. Ashish Dutta, APP for the State
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:21.12.2020
16:29
$~5
+ CRL.A. 934/2018
RAHUL ..... Appellant
Through Mr. Aditya Kumar Dubey, Advocate
with Ms. Anurag Rana, Advocate.
versus
STATE NCT OF DELHI .... Respondent
Through Mr. Ashish Dutta, APP for the State
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
ORDER
% 18.12.2020 The hearing has been conducted through Video Conferencing. CRL. M. (BAIL) 8320/2020 in CRL.A. 926/2018 CRL. M. (BAIL) 8329/2020 in CRL.A. 927/2018 CRL. M. (BAIL) 8316/2020 in CRL.A. 928/2018 CRL. M. (BAIL) 8328/2020 in CRL.A. 934/2018
1. By this common order, we shall dispose of the above mentioned 4 applications U/s 389 (1) of Cr.P.C. filed by the above mentioned appellants seeking suspension of sentence and grant of bail during the pendency of appeals.
2. Briefly stated, the facts of the case are that on 30.12.2016, an Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:21.12.2020 16:29 information was received in police station through PCR call vide DD No. 39-A, that the son of caller namely Chanchal has been stabbed in his house by some persons. On the receipt of this information, the IO reached BJRM Hospital alongwith staff and met Smt. Meena Devi, mother of the deceased and recorded her statement, wherein she stated about an incident of quarrel at about 11:30 a.m. between her deceased son Chanchal and one Vikram and his associates. This fact was told to her by deceased Chanchal. On the same day, at about 9:00 p.m. her son Chanchal was watching T.V. and she was preparing food. In the meanwhile, someone knocked at the door and her son opened the main gate and she also came out of the kitchen. The moment the gate was opened, Vikram entered in the house alongwith Irshad @ Babloo, Vishnu, Rahul, Jacky, Kalu, Bapu @ Praveen and 5-6 other boys. Vikram stabbed Chanchal and others held her son Chanchal. He tried to escape but he was again held and stabbed. During this period, she kept on requesting the assailants to spare her son. In the meanwhile, her daughter Neeru and Sushma also came at the spot and they all took the injured to BJRM hospital in E-rickshaw. In the hospital, Chanchal was declared dead by the doctors.
3. On the statement of Smt. Veena Devi, FIR No.694/16 U/s 302/120-B IPC was registered and investigation went underway. After the completion of investigation, charge sheet was filed. Vide impugned judgment dated 18.08.2018, the Ld. Trial Court convicted the appellants U/s 147, 148 and 302 read with 149 IPC.
4. We have heard the Ld. counsel for the appellants, Ld. APP for the State and perused the records of the case.
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:21.12.2020 16:295. The Ld. counsel for the appellants has made common submissions on behalf of all the appellants. It is urged by the Ld. counsel for the appellants that the investigation in this case has not been fairly conducted. It is further urged that the appellants have been falsely implicated in the case and the main perpetrator of the crime namely Vikaram, Shiva, Kalu and 3 others are absconding at the instance of the police officials. He further urged that the cause of death of the deceased is by sharp edged weapon which has been used by Vikram and according to the prosecution dandas were recovered from the appellants and no injuries by dandas have been found on the vital parts of the deceased. He further argued that the dandas alleged to have been recovered from the appellants have been planted and no DNA could be isolated from the said dandas to link them with the alleged offence. He further argued that no independent witness has been joined by the prosecution and only family members of the deceased have been made witness who have criminal antecedents. It is further argued that there was no occasion for the deceased to have told the names of his assailants to his mother and sisters because seeing the nature of injuries he must have succumbed to death at the spot. He further urged that one Narender S/o Ram Kishan who was the real culprit was killed by the deceased's family and in respect of the said offence FIR No. 0204 dated 23.03.2017 was lodged at police station Bhalswa Dairy which clearly shows that Narender who is one of the accused in the present case has been falsely implicated which falsifies the entire case of the prosecution. He further urged that the appellants herein were not a part of the fight which initially took place between the deceased and Vikram who is absconding.
Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:21.12.2020 16:296. The state has filed the status report and the Ld. APP for the state has argued on the lines of the said report.
7. It is urged by the Ld. APP that PW 11 is the mother of the deceased and is a natural witness who was present in the house at the time of the incident. He further submitted that PW 13 and PW 15 have deposed about the incident, which took place in the morning of 30.12.2016 at about 11:30 a.m. which resulted in the incident which took place on the night of the same day. He further urged that when Chanchal was being removed to the hospital in injured condition, he disclosed the names of Vikram, Vishnu, Shiva (brother in law of Vikram), Jacky, Kalu, Rahul and Irshad as his assailants. He further urged that PW 11 to PW 15 have withstood the test of cross examination and their testimonies have been consistent and corroborative. He further urged that the statement made by injured Chanchal to PWs, who were removing him to the hospital amounts to an oral dying declaration and the testimonies of PW 11 to PW 15 are also consistent in this regard. He further urged that dandas have been recovered at the instance of the appellants and danda recovered at the instance of accused Narender had the DNA which matched with the DNA of the deceased. He further urged that PW 11 who is the eye witness of the incident has assigned roles to the appellants and there is no dispute with regard to the identification of the appellants as they are from the same locality.
8. In the instant case, the incident has been witnessed by PW 11, who is the mother of the deceased who is the natural witness of the incident as she was present in the house at the time of the incident and it is not expected from her to let the real assailants, who caused death of her son to escape and Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:21.12.2020 16:29 implicate innocent persons who have nothing to do with the said offence. We have gone through the testimonies of PW 11 to PW 15 who have categorically deposed that Chanchal had disclosed the name of his assailants while he was being removed to the hospital. Deceased Chanchal had given oral dying declaration and the Ld. Trial Court has found the same to be trustworthy and believable, while observing that the testimonies of PW 11 to PW 15 in that regard are corroborative and consistent. We, at this stage of bail, do not want to deeply delve into the testimonies of these witnesses, so as to believe or disbelieve them in regard to their testimonies in support of oral dying declaration of deceased Chanchal.
9. It has also been argued by the counsel for the appellants that as per the post-mortem report, cause of death is the injuries which have been inflicted with sharp edged weapon and not by the blunt blows, if any, given by the dandas, so, the appellants could not have been convicted under section 302 IPC. As far as this contention of the counsel for the appellants is concerned, the same has no force in it because the appellants have been convicted with the aid of section 147/148 and 149 IPC and as far as the inconsistencies if any between the ocular testimony of PW 11 with regard to the use of dnada is concerned as against the medical evidence, we are not inclined to express any opinion at this stage, so, as to credit or discredit the ocular evidence or the medical evidence.
10. The counsel for the appellants have also vehemently argued that one Narender who is one of the accused has been falsely implicated which is evident from the fact that the family of the deceased had killed some another Narender thinking him as one of the assailants which itself falsify the case of Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:21.12.2020 16:29 the prosecution. We do not agree with this contention of the counsel for the appellants, and in any case, FIR has been registered against the family of the deceased, they would face its consequences. Registration of the FIR against the family of the deceased does not in any way mitigate the offences alleged to have been committed by the appellants.
11. In the instant case, the appellants have been sentenced to undergo rigorous imprisonment for life and they have only undergone a period of less than 4 years of incarceration, so keeping in view the entire facts and circumstances, we are not inclined to suspend the sentence of the appellants at this stage. All the applications are, therefore, dismissed.
12. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of the case.
VIPIN SANGHI, J RAJNISH BHATNAGAR, J DECEMBER 18, 2020 Sumant Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:21.12.2020 16:29