Delhi District Court
State vs . Bablu on 20 September, 2010
1
State Vs. Bablu
FIR No. 618/05
IN THE COURT OF MS. BARKHA GUPTA : ADDITIONAL
SESSIONS JUDGE - IV: ROHINI (OUTER) : DELHI
Sessions Case No. : 98/08
FIR No. : 618/05
PS : S. P. Badli
Under Sections : 302/34 IPC
State Versus 1. Bablu
S/o Nanak Chand
R/o D - 1085, Gali No. 10,
Nathu Pura, Delhi.
2. Rajender Kumar (Proclaimed Offender)
S/o Sh. Mathura Singh
R/o D - Block, Gali No. 9,
Nathu Pura, Delhi - 110084
Date of Committal ----- 04/02/06
Date of Institution
before this Court ----- 04/02/06
Date on which reserved
for Judgment ----- 09/09/10
Date of Judgment ----- 20/09/10
Final Order ----- Conviction
U/s 302/34 IPC
JUDGMENT
1. The charge-sheet u/s 173 Cr.P.C. has been filed against the 1/55 2 State Vs. Bablu FIR No. 618/05 accused Bablu S/o Nanak Chand and Rajinder (Proclaimed Offender) S/o Mathura Singh for committing offence as punishable u/s 302/34 IPC on the allegations of causing death of Brij Pal amounting to murder in furtherance of his common intention along with the co-accused Rajinder (proclaimed offender).
2. The case of prosecution in brief is that on 20/08/05 at about 2:30 p.m., the accused Bablu along with the co-accused Rajinder Singh (Proclaimed Offender) in furtherance of their common intention had murdered Brij Pal (deceased) by inflicting repeated knife injuries on his person at a place in between Heena Mutton Shop and the STD Shop at DCP Colony, Ibrahim Pur, S. P. Badli, Delhi after which they ran away from the spot.
It is further the case of prosecution that Sanjay Kumar (PW3) on seeing that a dead body was lying at the spot had intimated the police officials whereupon DD No. 20A was recorded and the Investigating Agency came into motion in pursuance of which the Police officials reached at the spot and found the dead body of Brij Pal lying there after which detailed investigation was conducted during which the accused Bablu was arrested, however but the co-accused Rajinder could not arrested and was declared proclaimed offender by Ld. MM and after completion of necessary investigation, charge-sheet u/s 173 Cr.P.C. u/s 302/34 IPC was 2/55 3 State Vs. Bablu FIR No. 618/05 filed in the Court of the Ld. MM who after compliance of necessary provisions u/s 207 Cr.P.C. had committed the case to Sessions Court and my Ld. Predecessor vide order dated 17/03/06 had served charge on the accused Bablu u/s 302/34 IPC to which he had pleaded not guilty and claimed trial.
3. In the present case, the prosecution has examined 19 witnesses in all in order to bring home guilt of the accused Bablu namely Dr. Anil Sandilya (Babu Jagjivan Ram Memorial Hospital) as PW1, Ravi Kumar (Son of deceased Brij Pal) as PW2, Sanjay Kumar as PW3, Md. Asgar as PW4, Dharam Pal as PW5, HC Om Prakash as PW6, HC Narinder Singh as PW7, Subhash as PW8, Constable Madan as PW9, SI Ram Niwas as PW10, Constable Mukesh as PW11, SI Manohar Lal (Draftsman) as PW12, Constable Dalbir Singh as PW13, Inspector Satya Prakash Vashisht (Crime Branch) as PW14, HC Naresh Kumar as PW15, ASI Madan Gautam as PW16, SI Sir Mohan as PW17, SI Jagdish Rai as PW18 and ACP Jai Bhagwan as PW19 (It would be pertinent to mention here that Constable Rohtash and Constable Chunni Lal were also inadvertently examined as PWs 13 & 14 respectively instead of being examined as PWs 20 & 21) and thereafter, statement of the accused Bablu was recorded u/s 313 Cr.P.C. wherein he submitted that he is innocent and has been falsely implicated in the present case and also contended that he had not been knowing either the complainant or the deceased prior to the occurrence & has preferred not to 3/55 4 State Vs. Bablu FIR No. 618/05 lead evidence in defence.
4. I have heard the final arguments as advanced by Sh. P. K. Samadhiya, Ld. APP for the State and Ms. Bindiya Malhotra, Ld. Defence Counsel for the accused Bablu and have given my thoughtful consideration to rival submissions made by them and have also gone through the material as placed on record.
5. Ld. APP has vehemently argued that in the present case, the prosecution witnesses namely Ravi Kumar and Dharam Pal (who are the son & brother of the deceased) have supported the case of prosecution on all material aspects who have also identified the accused Bablu to be one of the assailants who had murdered Brij Pal.
Ld. APP has further argued that their versions have been corroborated on all material aspects by the ocular versions of other prosecution witnesses as well by the various documents as placed and proved on record. He has also submitted that the postmortem examination report of the deceased unerringly point out that Brij Pal had died due to the injuries inflicted on his person by the knife/churi used by the accused for stabbing him which was also recovered at the instance of accused Bablu in pursuance of his disclosure statement. He has further contended that the investigation was conducted fairly and there is nothing on record to show if the accused Bablu along with co-accused Rajinder (Proclaimed Offender) in furtherance 4/55 5 State Vs. Bablu FIR No. 618/05 of their common intention did not murder Brij Pal. He has prayed that since the prosecution has succeeded in bringing home the guilt of accused Bablu, hence he must be convicted for committing offence as punishable u/s 302/34 IPC.
6. Ld. Defence Counsel has vehemently rebutted the same contending that the accused Bablu is innocent who has been falsely implicated in the present case by the police officials solely to solve a murder case and he had not been knowing either the deceased or the complainant and has further argued that he had never inflicted any injuries on the person of Brij Pal nor murdered him. Ld. Defence Counsel has further submitted that Ravi Kumar (PW2) and Dharam Pal (PW5) relatives of the deceased who are interested witnesses and as such no reliance can be placed on their versions and also that their testimonies suffer from various contradictions. It is further contended on behalf of accused Bablu that other public witnesses have turned hostile and have not supported the case of prosecution on material aspects and since testimonies of PW2 & PW5 are not corroborated by any independent witness, hence they should be outrightly discarded.
Ld. Defence Counsel has also argued that the investigation was not fairly conducted and in fact the accused Bablu was lifted from his house so that the present case can be solved and has been falsely implicated. He has prayed that since the prosecution has miserably failed to bring home the guilt of accused Bablu, hence he must be acquitted of the charges as levelled 5/55 6 State Vs. Bablu FIR No. 618/05 against him u/s 302/34 IPC.
7. In rebuttal, Ld. APP has submitted that the contradictions in the testimonies of Ravi Kumar (PW4) and Dharam Pal (PW5) are very minor which have crept in due to lapse of time and as such they do not shake their basic versions. He has further submitted that guilt of the accused Bablu is established on record regarding murder of Brij Pal, hence he must be convicted u/s 302/34 IPC.
8. In the present case, the most material witnesses are Ravi Kumar (PW2) and Dharam Pal (PW5) and accordingly their testimonies are discussed on priority.
Ravi Kumar (PW2 - Son of the deceased Brij Pal) who is an eye witness of the occurrence has testified that on 20/08/05 around 2:00 - 3:00 p.m., he came from his Office to his house to take lunch where he had seen the accused Bablu (whom he had correctly identified) along with the co- accused Rajinder (Proclaimed Offender). He has further deposed that after some time, his father (Brij Pal) had left the house to purchase vegetables and both the accused persons also accompanied him and he at the instructions of his mother also followed them and was at some distance from them. He has also testified that on the way near the Bus Stand of Bus No. 134, Brahm Puri, Delhi, the accused Bablu caught hold of hands of his father and the co- accused Rajinder (Proclaimed Offender) had inflicted repeated knife injuries 6/55 7 State Vs. Bablu FIR No. 618/05 on his chest and stomach. He has further categorically testified that the accused Rajinder (Proclaimed Offender) had taken the said knife from the shop of Meat Seller which was nearby. He has further deposed that on seeing it, he got perplexed, went to his house and informed his mother after which he came back to the spot again and found that his father Brij Pal had expired and the accused Bablu and Rajinder had managed to escape. He has further deposed that his uncle (PW5 - Dharam Pal) also reached at the spot who telephonically informed the police officials who reached at the spot and recorded his statement Ex. PW2/A and also got the spot photographed as well lifted blood stained earth from the spot vide seizure memo Ex. PW2/B which was converted into pullinda and was duly sealed as well. He has very specifically deposed that after taking the churi from the Heena Meat Shop, the accused Rajinder inflicted repeated knife injuries on the chest, abdomen and neck of his father while the accused Bablu had caught hold of him, and he along with his uncle Dharam Pal (PW5) had immediately reached near his father while raising alarm at which point of time, the accused Bablu and Rajinder were also present there. He has also deposed that his father had started bleeding profusely and fell down and somebody had informed the police officials who reached the spot and seized the earth control and sample earth control vide memos Ex. PW2/C & D respectively and also seized two pairs of chappals which were found lying near the dead body of his father, converted them into pullandas and after 7/55 8 State Vs. Bablu FIR No. 618/05 sealing them with the seal of 'JB', he seized them vide memo Ex. PW2/E. He also testified that the Investigating Officer had also seized one purse containing some visiting cards and one wrist watch of the deceased vide seizure memo Ex. PW2/F and thereafter he along with the police officials went in search of the accused persons during which they also reached at the house of accused Bablu at Gali No. 10, DCM Colony where his elder brother Dilip met them and told that he might be available at Gali No. 4 whereupon, he along with the police officials reached at Gali No. 4 and at his instance and identification, the accused Bablu who was seen coming in the street was apprehended who made a disclosure statement Ex. PW2/G wherein he also disclosed that he could get the weapon of offence i.e. churi/knife recovered after which he led them to a place at Ganda Nala, DCM Chowk from where he got recovered one churi/knife and also confessed that the said churi/knife was used in commission of murder of Brij Pal. He has further deposed that the Investigating Officer also prepared the sketch of the said churi/knife, converted it into a pullinda, sealed it with the seal of 'JB' and seized it vide seizure memo Ex. PW2/I. He has further deposed that the accused Bablu was arrested and his personal search was also conducted vide memos Exhibits PW2/J and Ex. PW2/K respectively.
He has also identified the said churi/knife as P1, two pairs of chappals as Ex. PW2/1 & Ex. PW2/2, the wrist watch and the purse as Exhibits P3 & P4 respectively also submitting that the said wrist watch and the purse belonged to the Brij Pal (since deceased).
8/55 9State Vs. Bablu FIR No. 618/05 During cross-examination by the Ld. Defence Counsel for accused Bablu, he stated that prior to recording his statement, the statement of the accused Bablu was recorded by the Investigating Officer. He also stated that the accused Rajinder (Proclaimed Offender) used to visit them as he had an evil eye on his sister and denied if the accused Bablu also had an evil bad eye on his sister and did not report it earlier to the police officials.
During further cross-examination, he has clarified that he did not accompany but was only following his father and also that on the way, he had stopped for some time to talk to his Tau Dharam Pal (PW5) during which and both the accused persons and his father had gone a bit ahead. He has further stated that the spot i.e. the place of occurrence was a crowded place and also that the distance between the spot and the place where he was earlier talking to his uncle was about one km and denied if he had not seen the occurrence. He has also categorically denied if no churi/knife at the instance of accused Bablu was recovered in his presence in pursuance of his disclosure statement and denied if the accused Rajinder had not taken/picked up the said knife/churi from the Heena Meat Shop. He has also denied if he had not seen the accused Rajinder inflicting injuries with the said churi/knife Ex. P-1 on the person of his father or that the accused Bablu did not accompany Rajender (PO) at the relevant time. He has categorically denied if the accused Bablu had not caught hold of his father or that he has deposed falsely being son of the deceased Brij Pal and has further denied if he had allowed the real culprits to got scot free and has falsely implicated the 9/55 10 State Vs. Bablu FIR No. 618/05 accused Bablu in this case.
9. Dharam Pal (PW5 - brother of the deceased) who is also an eye witness has testified that the deceased Brij Pal was his younger brother and on 20/08/05 at about 2:30 p.m., he had gone to the chemist shop to take medicine and while he was going towards ganda nala, his nephew Ravi Kumar (PW2 - son of the deceased) met him. He has further deposed that both of them had seen that the accused Bablu (present in the Court) had caught hold of his brother Brij Pal (deceased) and the accused Rajinder (Proclaimed Offender) took one churi from the nearby meat shop and inflicted various injuries on his person. He has further testified that they immediately reached at the spot but both the accused persons along with the said churi/knife managed to escape. He has also deposed that Brij Pal who was bleeding profusely fell down and after some time, the police officials also reached at the spot who conducted investigation.
During cross-examination on behalf of accused Bablu, he has inter-alia stated that at about 2:30 p.m., he had gone to the shop of chemist to take medicine for Asthama and stated the distance between the place of occurrence and the place where he and Ravi Kumar (PW2) were earlier standing to be about one km. He also stated that the spot i.e. the place of occurrence was a residential area and there were a number of persons and also that his statement as well as the statement of Ravi Kumar (PW2) was 10/55 11 State Vs. Bablu FIR No. 618/05 recorded by the police officials after apprehension of the accused Bablu. He also stated that there was no relation between the accused Rajinder (Proclaimed Offender) and the daughter of the deceased. He has categorically denied if he had not seen the occurrence along with his nephew Ravi Kumar (PW2) and has further denied that since the real culprit could not be arrested, hence the accused Bablu has been falsely implicated in the present case.
10. Dr. Anil Shandil (PW1) has testified that on 21/08/05, at about 1:00 p.m., he had conducted postmortem examination on the dead body of Brij Pal and observed multiple incised stab wounds on its person which he described as :-
1. "Incise stab wound over right side chest 1cm from midline, 8.5cm from right nipple in 5th intercostal space size 3.5cm X 1.5cm into cavity deep with downward angle acute width clean cut well defined regular margins with dried up clots.
2. Incise stab wound 10cm from jugular notch 1.5cm from midline size 2.5cm X 1cm into cavity deep in 3rd intercostal space with downward margins with dried up clots".
He has further testified that the above injuries were mentioned by him in the postmortem report Ex. PW1/A wherein injury no. 1 was with respect to injury/stab wound that entered into the chest cavity of the deceased 11/55 12 State Vs. Bablu FIR No. 618/05 cutting through both his lungs and the left ventricle of heart correspondingly and also mentioned that his chest cavity was full of liquid blood and the clots were about 3.5 liters.
He also opined that all the said injuries were ante mortem in nature which were caused by sharp edged weapon and also that the cause of death of the deceased was hemorrhagic shock which resulted from the injury to his lungs and heart which was sufficient in ordinary course of nature to cause his death and has further testified that time since death was approximately about 24 hours.
He has further testified that on 01/09/05, he had received a sealed parcel which was duly sealed with the seal of 'JB' which contained one single edged knife with pointed tip and he prepared its sketch and also opined that the injuries as mentioned in the postmortem report Ex. PW1/A could have been caused by the said weapon or similar kind of weapon and thereafter he had kept the said knife in a parcel duly sealed it with the seal of the Hospital and handed it over to the Investigating Officer. He has also identified the churi/knife as Ex. P1.
He was not cross-examined by or on behalf of the accused Bablu on any aspect whatsoever and has preferred not to rebut either the post morterm report of the deceased or nature of injuries on the person of deceased or if they were ante-mortem in nature and were sufficient in ordinary course of nature and caused his death. He opined that they were 12/55 13 State Vs. Bablu FIR No. 618/05 caused by churi/knife Ex. P-1 or similar kind of weapon is also nowhere in dispute.
11. Sanjay Kumar (PW3) has testified that on 20/08/05, he had gone to the electronic shop, near DCM Chowk for some purchasing and at about 2:30/3:00 p.m., he heard a noise and came to know that someone was murdered and saw that one person was lying on the road in a pool of blood whereupon he telephonically informed the police officials from his mobile phone and has further testified that he has lost the said mobile phone. He has also stated that the police officials had also reached who had recorded his statement as well.
During cross-examination by the accused Bablu, he has stated that he had lost his mobile phone about five/six months earlier and he expressed his inability to tell its did not remember its complete number.
12. Mohd. Asgar (PW4) has testified that at the relevant time, he had gone to the shop of a barber for getting his hair cut and came out on hearing noise and saw that a dead body was lying on the ground. He has also deposed that due to fear, the barber had closed his shop and he also went to his house.
During cross-examination by the Ld. APP, he stated that the police officials neither met him nor ever recorded his statement and he had 13/55 14 State Vs. Bablu FIR No. 618/05 never told them if the knife used for slaughtering the animals/bakra was missing from his shop or that later on he came to know that the accused Rajinder Singh (Proclaimed Offender) had taken it or that the accused Rajinder Singh (Proclaimed Offender) and Bablu had murdered Brij Pal by inflicting injuries on his person with said knife. He has also denied if he had told to the police officials that on 21/08/05, the accused Bablu got the said churi/knife recovered from the bushes near nala or that he had identified the said churi to be the same as belonging to him.
The accused Bablu did not offer any cross-examination to him despite opportunity afforded.
13. HC Om Prakash {PW6 - MHC(M)} has testified that on 20/08/05, SI Jai Bhagwan (PW19) had deposited four sealed parcels/exhibits which were duly sealed with the seal of 'JB' in the Malkhana along with one wrist watch and one purse for which he made relevant entry at serial no. 5016 in Register No. 19. He has further deposed that on the same day, Inspector Jai Bhagwan (PW19) had also deposited one sealed parcel which was duly sealed with the seal of 'JB' and two other sealed parcels duly sealed with the seal of Hospital and one sample seal for which he made relevant entry at serial no. 5021 in Register No. 19 and has proved the photocopy of requisite record in Register No. 19 as Ex. PW6/A. He has further deposed that on 16/09/05, he had handed over seven sealed parcels & three sample seals to Constable Madan Pal (PW9) 14/55 15 State Vs. Bablu FIR No. 618/05 vide RC No. 189/21 for depositing them at the Office of FSL, Rohini.
He has also testified that on 27/12/05, the result from the Office of FSL along with the remnant parcels were received through Constable Chander Shekher and on 01/09/05, he handed over one sealed parcel duly sealed with the seal of 'JB' containing churi/knife to Inspector Jai Bhagwan (PW19) for seeking opinion of the concerned doctor and on the same day itself, the said parcel was again deposited in the Malkhana which was duly sealed with the seal of the Hospital.
During cross-examination on behalf of the accused Bablu, he stated that he did not obtain signature of Constable Madan Pal (PW9) in Register No. 19 to whom he had handed over the case property.
14. HC Narinder Singh (PW7 - the Duty Officer) has testified that on 20/08/05, he was posted at PS Samai Pur Badli from 4:00 p.m. to 1:00 a.m. and at about 5:35 p.m., he received a Rukka as sent by Inspector Jai Bhagwan (PW19) through Constable Mukesh Kumar (PW11), on the basis of which he recorded FIR of the present case and proved its copy on record as Ex. PW7/A after which he also made endorsement on the original rukka regarding registration of FIR which is Ex. PW7/B and also proved on record DD No. 25A regarding registration of FIR as Ex. PW7/C. He was not cross-examination by or on behalf of accused Bablu on any aspect.
15/55 16State Vs. Bablu FIR No. 618/05
15. Subhash (PW8) has testified that he was not present at the spot at the relevant time as he had gone to Sant Nagar for getting his Ration Card prepared and when he returned at about 3:30 p.m., he found that a dead body was lying near DCM Chowk, Ibrahim Pur, but he did not know that person.
During cross-examination by the Ld. APP, he inter-alia stated that he had not been knowing the accused Bablu or Rajinder (Proclaimed Offender), however he knew the deceased as he was also engaged in the work of preparing school bags. He also stated that "...there is a halal meat shop near my house. The said shop is in front of my house..."
During cross-examination by the accused Bablu, he stated that he had also told to the police officials that he did not know anything about the case.
16. Constable Madan (PW9) has testified that on 16/09/05, he was posted at PS S. P. Badli and as per the instructions of the SHO, he took four sealed pullindas which were duly sealed with the seal of 'JB' and three other pullindas which were sealed with the seal of BJRM Hospital along with three sample seals and FSL Form from MHC(M) and deposited them at the Office of FSL, Rohini vide RC No. 189/21/05. He has further testified that thereafter he obtained the receipt from the office of FSL which he handed over to the MHC(M). He also deposed that so long as the said sealed pullindas/case property remained in his custody, none tempered with them.
During cross-examination by the Ld. Defence Counsel, he denied 16/55 17 State Vs. Bablu FIR No. 618/05 if he had tempered with the said case property/exhibits.
17. SI Ram Niwas (PW10 - the Investigating Officer) has testified that on 20/08/05, he was posted at PS Samai Pur Badli and on receiving DD No. 20A which is Ex. PW10/A, he along with Constable Mukesh (PW11) reached at the spot at DCM Chowk, Near Ganda Nala, STD Shop near Heena Meat Shop, S.P. Badli where the SHO, SI Jagdish (PW18) and other staff had also reached in their official gypsy. He has further deposed that on the main road, in front of Heena Mean Shop and STD Shop, one dead body which was in a pool of blood was found lying and as such there were seven injuries on his chest, two injuries were near the nabhi, one injury was on the left side of neck and one injury was on the little finger of his left hand which were inflicted by some sharp edged weapon and name of the dead person was revealed as Brij Pal. He has further deposed that two pairs of chappals were also found lying scattered near the said dead body. He also testified that Ravi Kumar (PW2 - Son of deceased) and Dharam Pal (PW5-brother of deceased) also met them at the spot itself and SHO recorded statement of Ravi Kumar (PW2) who after inspection of the dead body, prepared a Tehrir and handed it over to Constable Mukesh (PW11) who went to PS and got the FIR registered. He has further testified that in the meantime, the Crime Team and the Dog Squad also reached at the spot and the scene of crime/spot was also got photographed. He has further deposed that in the meantime, Constable Mukesh (PW11) also returned at the spot who handed 17/55 18 State Vs. Bablu FIR No. 618/05 over the copy of the FIR and original Rukka to the SHO. He has also testified that he prepared the inquest papers and also recorded statements of witnesses regarding the identification of said dead body.
He has further deposed that during search of the dead body, one wrist watch (HMT) and one leather purse containing some visiting cards, a small telephone diary and some papers were recovered which were seized by the Investigating Officer vide memo Ex. PW2/B. He has further testified that two pairs of chappals were also found lying at the spot which were taken into possession, converted into pullinda and sealed with the seal of 'JB' after which they were seized vide memo Ex. PW2/E and has further testified that the blood sample, blood stained soil and earth control were also lifted from the spot which were converted in three separate pullindas and were duly sealed with the seal of 'JB' which are proved as Ex. PW1, Ex. PW2 & Ex. PW3 respectively which were seized by the Investigating Officer vide memos Ex. PW2/B, PW2/C and PW2/D respectively (each bearing his signatures at point 'X'). He has further testified that the Investigating Officer had also prepared the site plan, recorded the statements of witnesses including those of Ravi Kumar (PW2), Dharam Pal (PW5) and Subhash (PW8) as well.
He has further testified that the dead body of Brij Pal was shifted to the hospital under the supervision of Constable Rohtash and he along with the SHO, SI Jagdish Rai (PW18) and Ravi Kumar (PW2) left the spot in the official gypsy in search of the accused persons during which when they 18/55 19 State Vs. Bablu FIR No. 618/05 reached at Gali No. 4, Nathu Pura, they saw the accused Bablu there who was identified by Ravi Kumar and was overpowered by SI Jagdish Rai (PW18) after which he was interrogated and arrested vide arrest memo Ex. PW2/J and his Jamatalashi was also conducted vide memo Ex. PW2/K. He has further deposed that the accused Bablu had also made the disclosure statement Ex. PW2/G who led them to the spot and at his instance, pointing out memo Ex. PW10/B was also prepared and thereafter, they went to the police station and the accused Bablu was sent to lock up and his statement was also recorded by the SHO. He had identified two pairs of chappals as Ex. P2/1 & Ex. P2/2; the wrist watch and purse are identified as Ex. P3 and Ex. P4 respectively.
During cross-examination on behalf of accused Bablu, he stated that Ravi Kumar (PW2 - Son of deceased) and Dharam Pal (PW5 - brother of deceased) had also met them at the spot itself and even at the time of recording of disclosure statement of the accused Bablu, Ravi Kumar (PW2) was also present. He has also stated that none from the public persons had agreed to join the investigation or at the time of recording of his disclosure statement and denied if the accused Bablu did not make any such disclosure statement or if Ravi Kumar (PW2) was not present at the spot.
18. Constable Mukesh {(PW11 - who joined the investigation with SI Ram Niwas (PW10)} has deposed on his lines, hence his examination in chief is not repeated for the sake of brevity, however during cross-
19/55 20State Vs. Bablu FIR No. 618/05 examination by the accused Bablu, he stated that they reached at the spot at about 3:30 p.m. and also that the SHO had also reached there. He also stated that he took the Rukka at about 5:00 p.m. for registration of FIR and returned back with the copy of FIR at about 6:30/7:00 p.m.
19. SI Manohar Lal (PW12 - Draftsman) has testified that on 25/08/05, the Investigating Officer Inspector Jai Bhagwan (PW19) had called him and they reached at the spot i.e. DCM Chowk, Nathu Pura Road, DCM Colony, S.P. Badli where the complainant Ravi Kumar (PW2) was also present and at his pointing out, he took rough notes and measurements of the spot and prepared scaled site plan Ex. PW12/A. During cross-examination by the accused Bablu, he stated that they reached at the spot on that day at about 1:00 p.m. and returned back to the police station at about 3:00 p.m.
20. Constable Dalbir Singh (PW13) has testified that on 20/08/05, he was posted at the Mobile Crime Team, North-West District as a photographer and reached at the spot i.e. DCM Colony Chowk, Village Ibrahim Pur, S.P. Badli, Delhi along with the Crime Team where he took eleven photographs of the dead body from various angles and proved the positive photographs as Ex. PW13/A-1 to PW13/A-11 and their negatives as Ex. PW13/A-12 to Ex. PW13/A-22.
During cross-examination by the accused Bablu, he stated that the 20/55 21 State Vs. Bablu FIR No. 618/05 said information was received by them on wireless at about 3:00-3:15 p.m. and they reached at the spot in the Government vehicle at about 4:15 p.m.
21. Inspector Satya Prakash Vashisht (PW14) who was posted as In-charge, Crime Team, North-West District has testified that on 20/08/05, on receiving information, he reached at the spot, inspected it and observed that the dead body was of a male person who was aged around 40 years and had multiple wounds on his person and also that the photographer had taken photographs. He has further deposed that he did not find any chance prints at the spot and also that after inspection, he handed over his report Ex. PW14/A to the Investigating Officer. He has also deposed that on 21/08/05, he was again called by the Investigating Officer whereupon he along with the Crime Team reached at the spot and from a place which was about 25 yards from the spot, a knife/chhuri was recovered from the bushes and the Finger Print Expert ASI Madan Gautam (PW16) was also called who searched for the possible chance prints but no such prints could be traced on the said knife. He has also deposed that thereafter he prepared the Inspection Report Ex. PW14/B and handed it over to the Investigating Officer and the photographer also took the photographs.
During cross-examination by the accused Bablu, he stated that firstly the information was received on 20/08/05 at about 3:00 p.m. and was again recorded on 21/08/05 at about 5:00 p.m. which he recorded in the register maintained in their office.
21/55 22State Vs. Bablu FIR No. 618/05
22. Constable Rohtash (PW13 - inadvertently examined as PW13 instead of PW14) has testified that on 20/08/05, on the directions of the Investigating Officer Inspector Jai Bhagwan (PW19), he had shifted the dead body of Brij Pal to the mortuary of BJRM Hospital for conducting its postmortem examination and remained there till 21/08/05. He has further deposed that on 21/08/05, the Investigating Officer along with staff came at the said mortuary and after the postmortem examination on the dead body of Brij Pal was conducted, it was handed over to his legal heirs vide memo Ex. PW13/B and has also deposed that after postmortem examination, the doctor had also handed him over one sealed parcel containing clothes of the deceased and the blood sample which he handed over to the Investigating Officer who seized them vide memo Ex. PW13/A. The accused Bablu did not cross-examine him despite opportunity afforded on any aspect whatsoever.
23. Constable Chunni Lal (PW14) has testified that on 21/08/05, he was posted as a photographer at the Crime Team, North-West District and on receiving information, he along with SI S. P. Vashisth (PW14) who was the In-charge Crime Team, Finger Print Proficient - ASI Madan Gautam (PW16) and Constable Tej Singh (Dog handler) reached at the DCM Chowk, Ibrahim Pur where on the instructions of SI Jagdish Rai (PW18), he took photographs 22/55 23 State Vs. Bablu FIR No. 618/05 of the spot from various angles and handed them over to the Investigating Officer. He has proved on record the positive photographs as Ex. PW14/A1 to Ex. PW14/A5 and their negatives as Ex. PW14/A6 to Ex. PW14/A12.
The accused Bablu did not cross-examine him.
24. HC Naresh Kumar (PW15) has testified that on 20/08/05 on the instructions of senior officers, he had delivered the copies of the FIR at the Offices of the Ld. MM, DCP and other senior officers.
25. ASI Madan Gautam (PW16) has testified that on 21/08/05, he was posted at the Crime Team, North-West District as Finger Print Proficient/Expert and on receiving the call, he along with other members of the Crime Team had reached the spot i.e. Main Ibrahim Pur Road, DCM Colony Chowk, Ganda Nala, S.P. Badli, Delhi where the Investigating Officer along with SI Jagdish Rai (PW18), Constable Naresh (PW15), complainant Ravi Kumar (PW2) and the accused Bablu met them and by the side of Heena Meat Shop which was about 30 meters ahead in west direction and one blood stained knife was found lying in the bushes which he examined and observed blood prints/stains on the handle of the said knife and Constable Chunni Lal took photographs.
During cross-examination by the accused Bablu, he stated that the wireless message was received by the In-charge, Crime Team namely SI S. P. Vashisth (PW14) and they reached at the spot at about 5:30 p.m. where 23/55 24 State Vs. Bablu FIR No. 618/05 they remained for about an hour.
26. HC Sir Mohan (PW17) has deposed that at the relevant time, he was posted at the Police Control Room and received a call from telephone No. 9899543010 during which the caller had also disclosed his name as Sanjay and the said call was to the effect that a person was stabbed at 134 Bus Stop, Ibrahim Pur Mor (turn), DCM Colony Chowk on which he filled up the PCR Form No. 850 and has proved its copy on record as Ex. PW17A and also proved the certificate regarding destruction of original PCR Form as Ex. PW17/B and order of its weeding as Ex. PW17/C. No cross-examination was offered him by or on behalf of the accused Bablu.
27. ACP Jai Bhagwan (PW19) has testified that on 20/08/05, on receiving DD No. 20A at about 3:05 p.m. regarding stabbing at the DCM Chowk, Ibrahim Pur, Delhi, he along with SI Jagdish Rai (PW18) & Operator Constable Bijender Kumar reached at the spot in a Government gypsy No. DL1CG 6415 which was driven by HC Suresh Kumar and found that a dead body was lying in the middle of the road in front of Heena Halal Meat Shop and the STD Shop at DCM Chowk, near Ganda Nala Pulia, where ASI Ram Niwas (PW10), Constable Mukesh (PW11), Ravi Kumar (PW2) and Dharam Pal (PW5) also met him and he inspected the spot and the dead body and also observed seven wounds on its chest, two wounds near 24/55 25 State Vs. Bablu FIR No. 618/05 its naval (nabhi), one injury on the left side of neck and one injury on the little finger of the left hand. He has further deposed that he had also recorded statement of Ravi Kumar (PW2) which is Ex. PW2/A, attested it at point 'B' and prepared Rukka Ex. PW19/A and thereafter handed it over to Constable Mukesh (PW11) for getting the FIR registered and he left the spot at about 5:00 p.m. He has further deposed that he had also called the Crime Team and the Dog Squad through Wireless message whereupon SI Sat Prakash (PW14 - In-charge, Crime Team) along with the Crime Team and photographer Dalbir (PW13) arrived at the spot and in the meantime, Constable Suresh who was the Dog Handler also reached along with the dog. He has further testified that SI Sat Prakash (PW14) inspected the spot, prepared the inspection report and handed it over to him and the photographer also took various photographs of the spot and thereafter, he prepared the site plan at the instance of Ravi Kumar (PW2) which is Ex. PW19/B. He has further deposed that he got the dead body shifted to Mortuary of the BJRM Hospital through Constable Rohtash (PW13) and seized the blood lying at the spot in a gauze piece, kept it in a plastic jar, prepared its pullinda, sealed it with the seal of 'JB' and seized it vide memo Ex. PW2/B. He has also testified that the blood stained soil/road material was also lifted from the spot with the help of chhaini and hammer which were kept in a plastic jar and after converting them into pullinda, it was sealed with the seal of 'JB' and was seized vide memo Ex. PW2/C. He has further testified that the earth control was also lifted from 25/55 26 State Vs. Bablu FIR No. 618/05 the spot which was converted into pullinda and seized it vide memo Ex. PW2/D. He has also deposed that two pairs of sleepers (one of brown colour and one of blue colour) were also found lying near the said dead body which were also kept in a polythene and the mouth of the polythene was tied with a cloth strip and he sealed it with the seal of 'JB' and seized it vide memo Ex. PW2/E and also seized the the grey coloured leather wallet (having some visiting cards and sleeps and one small telephone diary) which was in the pocket of pant of the deceased and one wrist watch (HMT) which was on the left wrist of the deceased vide memo Ex. PW2/F. He has further deposed that he completed the inquest proceedings, prepared brief facts Ex. PW19/C, filled up Form No. 25.35 (1)(B) which is Ex. PW19/D, recorded statements of Ravi Kumar (PW2) and Dharam Pal (PW5) regarding identification of dead body of Brij Pal which are Exhibits PW19/E and Ex. PW19/F respectively and thereafter he along with Ravi Kumar (PW2), SI Jagdish Rai (PW18) and ASI Ram Niwas (PW10) left the spot and went in search of the accused persons during which when they reached at Gali No. 4, Nathu Pura, Delhi, on the identification of Ravi Kumar (PW2), the accused Bablu (correctly identified) was arrested and his personal search was also conducted vide memos Ex. PW2/J and Ex. PW2/K respectively and he also recorded his disclosure statement Ex. PW2/G and has further testified that the accused Bablu had also pointed out to the place of occurrence i.e. the spot vide memo Ex. PW10/B after which he also led them to the bushes near drain/nala at the DCM Chowk confessing that the knife/churi which was 26/55 27 State Vs. Bablu FIR No. 618/05 used by them as a weapon of offence in causing death of Brijpal would be found there but it could not be located on that day and they came back at the police station and the case property was deposited with the MHC(M) whereas the accused Bablu was sent to lockup after his medical examination. He has further testified that on 21/08/05, he reached at BJRM Hospital and got the postmortem on the dead body of deceased conducted after which the said dead body was handed over to Ravi Kumar (PW2 - his son) vide memo Ex. PW13/B. He further testified that after postmortem, the doctor had also handed him over one pullinda and one envelope which were duly sealed with the seal of 'FMT, BJRM Hospital' along with the sample seal which were seized vide memo Ex. PW13/A and thereafter, the accused Bablu was produced in the Court and two days' police custody remand was obtained after which he came back to the police station and deposited the exhibits with the MHC(M). He has further deposed that thereafter, during police remand of the accused Bablu, they along with accused Bablu again went to the bushes near the drain/nala at DCM Chowk in search of knife/chhuri from where at the pointing out of the accused Bablu, one blood stained churi which was found lying in the bushes was recovered, whereupon the Crime Team and the photographer were also called who took the photographs and efforts were also made to lift the finger prints from the handle of said churi/knife. He also testified that on measuring, the total length of the knife/chhuri which found 28.5cms (length of its blade was 17.5cms and length of handle was 11cms) and its sketch is proved on record as Ex.
27/55 28State Vs. Bablu FIR No. 618/05 PW2/H. He has further deposed that the said churi was wrapped in a cloth, converted into pullinda, sealed with the seal of 'JB' after which it was seized vide memo Ex. PW2/I and he also recorded statements of witnesses and thereafter, they went in search of the accused Rajinder but he could not be found at his house whereupon, they came back to the police station, deposited the said pullinda in the Malkhana and kept the accused Bablu in lockup and on next day, he was sent to judicial custody. He has further deposed that on 25/08/05, he had called SI Manohar Lal (PW12 - Draftsman) at the police station and they along with HC Rakesh visited the spot again where they had also called Ravi Kumar (PW2) and SI Manohar Lal (PW12) prepared site plan at his instance and handed it over to him. He has further testified that on 01/09/05, he collected the sealed pullinda containing knife from MHC(M) and went to BJRM Hospital where he moved an application Ex. PW19/E for seeking opinion of doctor regarding weapon of offence and the concerned doctor gave his opinion in this regard after which he handed him over the said knife duly sealed with the seal of hospital after which he deposited in the Malkhana and on 09/09/05, he obtained NBW of the accused Rajinder (who was later on declared Proclaimed Offender). He has further deposed that thereafter on 16/09/05, he got the exhibits of the case deposited at the Office of FSL, Rohini through Constable Madan (PW9) and recorded his statement as well and during further investigation, he collected photographs from the Crime Team, collected FSL Result as well and initiated proceedings u/s 82/83 Cr.P.C.
28/55 29State Vs. Bablu FIR No. 618/05 against the accused Rajinder and after completion of investigation, the charge-sheet u/s 173 Cr.P.C. was filed against the accused Bablu whereas the accused Rajinder was got declared Proclaimed Offender for whom, he had filed a supplementary charge-sheet. He has also identified the said knife/churi as Ex. P1 also stating that it was recovered at the instance of accused Bablu and has also identified two pairs of sleepers/chappals as Ex. PW2/1 and Ex. PW2/2, wrist watch and the purse found on the person of dead body as Ex. P3 and Ex. P4 respectively. He has also identified the blood sample on the cotton patti, blood stained earth control and the earth control which were lifted form the spot as Ex. P5, Ex. P6 & Ex. P7 respectively and has further identified the pant, banyan, shirt and underwear as worn by the deceased at the relevant time as Ex. P8 collectively.
During cross-examination on behalf of the accused Bablu, he stated that on that day, he reached at the spot at about 3:30 p.m. and except the complainant and Dharam Pal, no other public person joined the investigation. He has also stated that Constable Mukesh took the Rukka at about 5:00 p.m. and returned back around 7:00 p.m. and the Crime Team had reached at the sot at about 3:40 p.m. He has also stated that Constable Rohtash reached at the hospital at about 5:30/5:45 p.m. and he remained at the spot till about 9:00 p.m. and they reached at Nathu Pura at about 9:30 p.m. from where at the identification of Ravi Kumar (PW2), the accused Bablu was arrested and his disclosure statement was recorded at the corner of Gali No. 4 itself in the street light and they finally reached at the police 29/55 30 State Vs. Bablu FIR No. 618/05 station at about 11:30 p.m./12:00 (night). He also stated that the pullindas/exhibits were not got signed by any public person.
28. SI Jagdish Rai (PW18) has testified on the lines of the Investigating Officer ACP Jai Bhagwan (PW19), hence his examination in chief is not repeated for the sake of brevity, however during cross- examination on behalf of accused Bablu, he inter-alia stated that a common DD Entry regarding departure of all the police officials was recorded by the SHO. He has further stated that at the spot, no other public person except the son and brother of deceased met them and Constable Mukesh returned back after registration of FIR at about 7:00 p.m. He also stated that it took nearly two hours to life the exhibits from the spot and to conduct other proceedings and also that the statements of Ravi Kumar (PW2), Dharam Pal (PW5) and Subhash (PW8) were recorded at the spot by him as per dictation and instructions of the Investigating Officer and also that he had reduced into writing the disclosure statement of the accused Bablu as per directions of the Investigating Officer.
29. In the present case, the most material witnesses as examined by the prosecution are Ravi Kumar (PW2) and Dharam Pal (PW5), hence material portions of their testimonies are being discussed again even at the cost of repetition to appreciate the evidence on record against accused Bablu.
30/55 31State Vs. Bablu FIR No. 618/05
30. Ravi Kumar (PW2 - son of the deceased) is one of the most material witnesses being an eye witness has inter-alia deposed that at the relevant time, he had come to his house to take lunch and had seen the accused Bablu and Rajinder (Proclaimed Offender) in his house who were taking liquor and after sometime, his father left the house to purchase vegetables with whom both the accused persons also accompanied and on the instructions of his mother, he too followed them. He has also testified that he had seen that the accused Rajinder (Proclaimed Offender) had taken a chhuri/knife from the Heena Meat Shop whereas the accused Bablu caught hold of his father and the accused Rajinder had inflicted repeated injuries with the said churi/knife on his father (deceased) near the bus stop of bus no. 134, Brahm Puri, Delhi due to which his father bleeded profusely and fell down and he along with his uncle Dharam Pal (PW5) reached near him and raised alarm, however the accused Bablu and Rajinder managed to escape. He had also stated that he had been knowing the accused Bablu and Rajinder (Proclaimed Offender) prior to the occurrence and has also narrated at length the detailed investigation as conducted by the police officials in his presence.
It has also been placed on record during his cross-examination, that the accused Rajinder had an evil eye on his sister and so he used to come to their house. He has also stated that as per instructions of his mother, he had followed his father (i.e. the deceased) whom both the accused had accompanied and on the way though, he had stopped for about 10/15 minutes to talk to his Tau Dharam Pal (PW5), yet he has very categorically denied if 31/55 32 State Vs. Bablu FIR No. 618/05 he did not witness the occurrence or that the weapon of offence i.e. the churi/knife was not recovered in his presence at the instance of accused Bablu with which his father was murdered. He has also denied if the accused Rajinder did not pick up the said churi/knife Ex. P1 from the Heena Meat Shop or did not stab his father. He has also denied if at the relevant time, the accused Bablu was not with him or that he did not catch hold of Brij Pal i.e his father and facilitated the co-accused Rajinder (Proclaimed Offender) to inflict repeated knife injuries on the person of his father due to which he died.
31. Dharam Pal (PW5) has also inter-alia deposed that he along with Ravi Kumar (PW2) had seen the occurrence during which the accused Bablu had caught hold of his brother Brij Pal (since deceased) and the co-accused Rajinder (Proclaimed Offender) had inflicted various knife injuries on his person from the churi/knife which he picked up from the nearby meat shop.
During cross-examination on behalf of the accused Bablu, he has stated that by the time they could reach near Brij Pal (deceased), the occurrence had taken place but has categorically denied if he or Ravi Kumar (PW2) had not witnessed the said occurrence or that the accused Bablu has been falsely implicated in the present case.
32. It would also be important to discuss in brief, the testimony of Dr. Anil Shandil (PW1) who while conducting postmortem examination on 32/55 33 State Vs. Bablu FIR No. 618/05 the dead body of Brij Pal had observed several injuries on his person as :-
1. "Incise stab wound over right side chest 1cm from midline, 8.5cm from right nipple in 5th intercostal space size 3.5cm X 1.5cm into cavity deep with downward angle acute width clean cut well defined regular margins with dried up clots.
2. Incise stab wound 10cm from jugular notch 1.5cm from midline size 2.5cm X 1cm into cavity deep in 3rd intercostal space with downward margins with dried up clots."
He has also opined very specifically that all the said injuries on the person of deceased were ante mortem which were caused by sharp edged weapon and also that the cause of death was hemorrhagic shock which resulted from injury to his lung and heart which was sufficient in ordinary course of nature to cause his death and also stated that the time since his death was approximately 24 hours.
From his testimony, it is unambiguously placed on record that the said injuries were inflicted by a sharp edged weapon on the person of deceased Brij Pal which resulted in his death and the cause of his death was injury to his lung and heart which was sufficient in ordinary course of nature to cause his death. He has also opined after seeing the churi/knife Ex. P1 (as recovered at the instance of accused Bablu in pursuance of his disclosure statement), that the above injuries could have been caused by the said weapon or similar type of weapon.
33/55 34State Vs. Bablu FIR No. 618/05 It would be pertinent to mention at this juncture that he was not cross-examined by the accused Bablu on any aspect whatsoever and accordingly, the postmortem examination report of the deceased which is Ex. PW1/A is nowhere under dispute and contention of PW1 regarding nature of injuries as observed on the person of deceased Brij Pal, cause of his death and opinion regarding weapon of offence that such injuries were possible by said churi/knife or similar type of weapon is also nowhere in dispute at all. It cannot be lost sight of that the knife/churi Ex. P1 was recovered at the instance of accused Bablu in pursuance of his disclosure statement Ex. PW2/G and the injuries as shown on the person of deceased Brij Pal were also caused by a sharp edged weapon i.e. knife/churi and the said injuries as found on the person of deceased as deposed by Dr. Anil Sandilya (PW1) are corroborated on material aspects by Ravi Kumar and Dharam Pal (PWs 2 &
5) who have unanimously deposed that Brij Pal was inflicted knife injuries in his chest and stomach as well during which the accused Bablu had caught hold of him and co-accused Rajinder (Proclaimed Offender) inflicted injuries.
33. In the present case, as per contention of the Ld. Defence Counsel, Sanjay Kumar (PW3), Mohd. Asgar (PW4) & Subhash (PW8) are stated to have not supported the case of prosecution and did not witness the occurrence and reached to the spot only after the incident.
34/55 35State Vs. Bablu FIR No. 618/05 In fact, from the record, it is clear that Sanjay Kumar (PW3) on coming to know that a person was murdered, immediately informed the police officials from his mobile phone and as such he cannot be stated to have deviated on any material aspect from his earlier version as recorded by police officials.
As per version of Mohd. Asgar (PW4), he came out of the shop of barber (where he was getting his hair cut) only on hearing the noise and saw that one dead body was lying on the road whereupon he and the said barber closed their shops and went to their house and Subhash (PW8) has also stated that he was not present at the spot at the time of occurrence and when he returned at about 3:30 p.m., he saw one dead body lying at the spot.
Both these witnesses i.e. PW3 & PW4 though are shown to have deviated from their statements as recorded by police officials u/s 161 Cr.P.C. and have testified that they did not witness the occurrence. Thus statements recorded u/s 161 Cr.P.C. looses its sanctity once the narator of the same is examined on oath before the court. Moreover, it would also be appropriate to mention here that they are the shopkeepers who admittedly have nothing to do with the present case as they were neither related to the deceased in any manner nor are concerned with the outcome of the case. It has been laid down by the Hon'ble Apex Court in a catena of cases that the public persons who are not related with the case in any manner either do not come forward 35/55 36 State Vs. Bablu FIR No. 618/05 or do not narrate the true facts of the case many a times for which the reason is obvious that they do not want to indulge themselves in any sort of controversy also fearing that the accused may damage them and sometimes they consider that when the deceased was not related to them, then why should they take the trouble of inviting displeasure of the accused and his relatives and accordingly, on several occasions, such witnesses may not come forward in narrating the true picture of the occurrence. In the present case, after analyzing the versions of PW4 and PW8, it is revealed that they have denied having witnessed the occurrence or any knowledge about the case and have categorically deposed that they were not present at the spot at the relevant time. As discussed above, the court deem it fit to discard the testimonies of PWs 4 and 8 in the light testimonies of Ravi Kumar (PW2) and Dharam Pal (PW5) who have very clearly and unambiguously identified the accused Bablu to be one of the assailants, hence even if PW4 and PW8 have expressed their ignorance regarding the occurrence or have denied their presence at the relevant time, the same in considered opinion of Court does not collapse the case of prosecution.
It is a trite that a case has to be decided on the basis of evidence adduced by the witnesses during the trial and any previous statement made by any of such witness can be used by the defence for the purpose of only contradicting and discrediting a particular witness in the manner as laid down in Section 145 of the Evidence Act and under no circumstances can such previous statements be treated as substantive evidence.
36/55 37State Vs. Bablu FIR No. 618/05
34. In the present case, though Ravi Kumar & Dharam Pal were cross-examined at length for the accused Bablu yet the defence failed to bring on record any material on record even remotely to raise doubt regarding genuineness of case of prosecution or to show if at all, he was also not present at the spot at the relevant time with co-accused Rajinder (Proclaimed Offender) and deceased or if Bablu did not catch hold of Brij Pal while the co-accused Rajinder (Proclaimed Offender) inflicted repeated injuries by knife on his person or if at all the accused Bablu has been falsely implicated in this case. The said witnesses time and again have clearly narrated the manner in which Brij Pal was murdered and have specified the role played by the accused Bablu that when the co-accused Rajinder (Proclaimed Offender) took the churi from the nearby meat shop, the accused Bablu caught hold of Brij Pal and enabled and facilitated the co- accused Rajinder to inflict several injuries on the person of the deceased with the said knife.
During lengthy cross-examination, these witnesses have reiterated as to whatever they have already deposed in their examinations in chief and there is no whisper at all regarding false implication of the accused Bablu in the present case for murder of Brij Pal. It would also be appropriate to discuss that no motive of false implication of accused Bablu has been shown or even whispered on record and simply because Brij Pal was a habitual drunker or that only the co-accused Rajinder had an eye upon daughter of 37/55 38 State Vs. Bablu FIR No. 618/05 deceased does not exonerate the accused Bablu from commission of the offence who is proved to have also gone to the house of deceased along with the co-accused Rajinder at the relevant time and when the deceased went out to purchase vegetables, they also accompanied him and finding an opportunity, the accused Rajinder took the knife from the nearby meat shop and the accused Bablu caught hold of Brij Pal and facilitated the accused Rajinder to inflict injuries on the person of Brij Pal as a result of which he died in which regard the postmortem of deceased has been duly proved on record which proves that the deceased must have received injuries in the manner as described which resulted into his death. It seems very strange that one of the suggestions given to Ravi Kumar (PW2 - son of the deceased) is that he had allowed the real culprits to go scot free and has falsely named and implicated the accused Bablu, however no reason of his false implication is shown on record beside the fact that who actually committed the crime. There is no reason as to why Ravi Kumar (PW2). who had witnessed the murder of his father would implicate an innocent person in his murder and it seems unbelievable that he would let the real culprit escape and involve Bablu. It is clear and remains undisputed that at the relevant time, the accused Bablu had also visited his house who had also accompanied his father and on the way, while Ravi Kumar (PW2) & Dharam Pal (PW5) were at some distance, the accused Rajinder (Proclaimed Offender) had inflicted various stab injuries on the person of Brij Pal with knife while the accused Bablu had caught hold of him. There is no confusion or ambiguity so far as 38/55 39 State Vs. Bablu FIR No. 618/05 identity, presence and actus reus of accused Bablu is concerned and mens reus is evident from his conduct of catching hold of Brij Pal thereby facilitating and enabling Rajinder to stab him even at vital parts of his body.
35. Before proceeding further, at this juncture, in considered opinion of the Court, it would be appropriate to discuss the provisions of Section 300 IPC which is as under :-
As per Section 300 IPC :-
Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all possibility, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.39/55 40
State Vs. Bablu FIR No. 618/05
36. In the light of above discussion and considering the totality of peculiar facts and circumstances of the case as well, Ravi Kumar (PW2) and Dharam Pal (PW5) are the eye witnesses who have narrated the details regarding the commission of offence which is duly corroborated by PW1 who has proved the post morterm report. In considered opinion of the Court, it would be all the more appropriate also to examine the various circumstances and the evidence adduced on record to ascertain regarding the chain of circumstances. The circumstances as put forward are :-
(a) Circumstances to show that the accused Bablu, co-accused Rajinder (Proclaimed Offender) and the deceased Brij Pal were lastly seen in company of each other just prior to and at the time of occurrence.
(b) Opportunity & occasion available with the accused Bablu and co-
accused Rajinder (Proclaimed Offender) to cause of death of Brij Pal.
(c) Motive of the accused to commit the said murder.
(d) Conduct of the accused.
(e) Recovery of the case property i.e. the blood stained knife/churi as 40/55 41 State Vs. Bablu FIR No. 618/05 recovered at the instance of accused Bablu in pursuance of his disclosure statement Ex. PW2/G.
(a) Circumstances to show that the accused Bablu, co-accused Rajinder (Proclaimed Offender) and the deceased Brij Pal were lastly in company of each other just prior to and at the time occurrence :- As per material placed on record, it has been shown that the accused Bablu along with co- accused Rajinder (Proclaimed Offender) had gone to the house of the deceased Brij Pal on that day and in the meantime, being lunch hours, his son Ravi Kumar (PW2) also came to his house to take his meals and when his father Brij Pal (deceased) left for purchasing vegetables, both the accused persons namely Bablu & Rajinder (Proclaimed Offender) also accompanied him and on the instructions of his mother, Ravi Kumar (PW2) also followed them. It has also been shown that lastly the deceased Brij Pal was seen in the company of both the accused persons till he was murdered in which regard testimony of Ravi Kumar (PW2) or that of Dharam Pal (PW5) has nowhere been shattered or rebutted and no cross-examination was offered to the said witness to show if at the relevant time, the accused were not present along with the deceased Brij Pal at the spot. It has also been established from the evidence adduced on record that on the way, Dharam Pal (PW5 - brother of the deceased i.e. Tau of Ravi Kumar) met him as he had come to the shop of chemist to purchase medicines for asthma and on seeing Ravi Kumar (PW2), 41/55 42 State Vs. Bablu FIR No. 618/05 they entered into certain casual communication and both of them have witnessed that the accused Rajinder (Proclaimed Offender) had taken one churi/knife from a meat shop and the accused Bablu caught hold of Brij Pal who enabled and facilitated the co-accused Rajinder (Proclaimed Offender) to repeatedly stab injuries on the person of Brij Pal on various placed of his body including vital parts. It is clear that Ravi Kumar (PW2) and Dharam Pal (PW5) had witnessed the entire occurrence and within a short while they reached to the place of occurrence which has nowhere been rebutted despite the fact that both were cross-examined at length on behalf of accused Bablu and it needs to be discussed that such incidents within a few seconds or a few minutes and by the time one understands as to what is happening, it might get too late to react in a particular manner. One cannot be expected to behave in a particular & specified manner all the time when such an occurrence take place and in these circumstances, even if Ravi Kumar (PW2) did not stop or restrain the accused persons from inflicting injuries upon his father, the same is nothing unusual. From the record, it is clear that he was at some distance from his father and the accused persons and was following them and by the time he could understand as to what was happening, the accused had already stabbed his father and it is also clear that PWs 2 & 5 were not at such a long distance that they could not see as to what was happening. One can certainly see to a considerable distance and it definitely 42/55 43 State Vs. Bablu FIR No. 618/05 takes some time to reach there and in these circumstances as well as considering that Ravi Kumar (PW2) or his father Brij Pal (since deceased) were not aware of intentions of the accused persons, hence their behaviour which came to them surprise was beyond their imagination and control and it is clear that within no time, the co-accused Rajinder (Proclaimed Offender) took the knife/churi, and the accused Bablu caught hold of Brij Pal whereupon the accused Rajinder wounded him at several places. In these circumstances, Court is of the considered opinion that prosecution has succeeded in placing on record that lastly till the incident occurred, the deceased and accused persons were together.
(b) Opportunity & occasion available with the accused to cause of death of Brij Pal :-As already discussed above, the deceased at the relevant time was in the company of the accused persons who were going through a market and accordingly, the accused had the opportunity as well the occasion to inflict stab wounds on the person of Brij Pal as on the way itself, the co- accused Rajinder took the churi/knife lying at the meat shop whereupon the accused Bablu caught hold of him and Rajinder injured him repeatedly due to which Brij Pal had died.
43/55 44State Vs. Bablu FIR No. 618/05
(c) Motive of the accused to commit the said murder :- From the testimony of PW Ravi Kumar (PW2), it has been clearly shown that the co- accused Rajinder (Proclaimed Offender) had an evil eye upon his sister i.e. the daughter of the deceased Brij Pal due to which he also used to visit their house and on 20/08/05 also, both the accused persons had visited the house of the deceased who also went along with his father to the market while Ravi Kumar (PW2) followed them. Though, it is not transpired as to what communication took place between the accused persons and the deceased, but it is clearly placed on record that the accused Rajinder had inflicted knife injuries on the person of Brij Pal who was caught hold by accused Bablu. It has been laid down in a catena of cases that sometimes motive is not clear and sometimes the motive as shown is so trivial that it is difficult to believe if it can lead to such a ghastly offence as of murder. However, the human psyche is unpredictable and sometimes the issues which seem to very minor and negligible may take a dramatic turn and result in disasters. It seems that in the present case, some verbal communication or hot words must have exchanged between the deceased and the accused whereupon the accused must have got angry and as there was a meat shop on the way, the accused Rajinder (Proclaimed Offender) picked up a knife/churi from there itself and the co-accused Bablu helped him by overpowering the deceased and after 44/55 45 State Vs. Bablu FIR No. 618/05 controlling him, the co-accused Rajinder stabbed him resulting in injuries in his chest, lungs and heart as well which proved fatal and has been corroborated by the postmortem report of the deceased which is Ex. PW1/A which clearly describe that the injury no. 1 on the person of deceased from his lung to heart resulted in the death of Brij Pal which in itself was sufficient in ordinary course of nature to cause his death and said injuries were ante- mortem in nature. PWs 2 & 5 have been straightforwardly deposed about the occurrence in a very natural and convincing manner and in these circumstances, even if strong motive is not proved on record yet it does not collapse the case of the prosecution.
(d) Conduct of the accused :- As per record, PWs 2 & 5 witnessed the occurrence and raised a noise, both the accused persons escaped and preferred to run away from the spot and it would also be appropriate to mention that the identity of the accused Bablu or his presence at the spot is nowhere doubtful and was only during the course of investigation, that the accused Bablu was arrested on the identification of Ravi Kumar (PW2) which is also very material as except Ravi Kumar (PW2) no police official who conducted investigation was knowing the accused or in position to identify the accused to be the assailant which factum is nowhere shown to be not a true version.
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(e) Recovery of case property i.e. the blood stained knife/churi as recovered at the instance of the accused Bablu in pursuance of his disclosure statement Ex. PW2/G:- It is proved that during the course of investigation, the accused Bablu also made a disclosure statement and specified the place where the knife which was the weapon of offence and was used to murder the deceased was thrown but being wee hours of night, the same could not be located despite best efforts by the investigating agency during the police remand of the accused Bablu, the said knife/churi Ex. P1 was recovered at the instance of accused Bablu, in pursuance of his disclosure statement in the presence of Ravi Kumar (PW2) and the said churi/knife was blood stained and identified to be the same churi/knife with which Brij Pal was murdered. It would also be appropriate to state that Ravi Kumar (PW2) has also identified the said churi to be the weapon of offence as used by the accused in the commission of murder of his father which contention has nowhere been challenged. The said blood stained knife was recovered undoubtedly at the instance of accused Bablu in pursuance of his disclosure statement and as per FSL result (which is admissible U/s 293 Cr. PC), it is shown that human blood was detected on it which knife has been duly identified by the prosecution witnesses and as such it is clear that the injuries were inflicted on the person of Brij Pal with the said knife only.
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37. The testimonies of various witnesses which include the eye witnesses (i.e. PWs 2 & 5) and the police officials have already been discussed at length and the circumstances have already been appreciated.
Ravi Kumar (PW2) & Dharam Pal (PW5) are the direct witnesses who had witnessed the entire occurrence i.e. the murder of Brij Pal at the relevant time by the accused Bablu and co-accused Rajinder (Proclaimed Offender) and though the said witnesses were cross-examined at length on behalf of the accused Bablu yet nothing is on record to raise doubt regarding genuineness of case of prosecution or if at all the accused Bablu has been falsely implicated or if he was not present at the spot at the relevant time or he did not participate in commission of the murder of Brij Pal in furtherance of his common intention with co-accused Rajinder (Proclaimed Offender). The identity of the said accused Bablu or his presence at the spot and as such the presence of PWs 2 & 5 has also been duly established on record and is nowhere in dispute. It would also be not out of place to mention that weapon of offence i.e. the knife/churi was recovered at the instance of accused Bablu in pursuance of his disclosure statement which was found in the bushes near the Ganda Nala which place was certainly not easily accessible immediately and is admittedly not a place from where the said churi/knife was visible to all and it is proved to have been recovered at the instance of accused Bablu and that too without loss of time. It also needs to be noticed that it was only 47/55 48 State Vs. Bablu FIR No. 618/05 the accused Bablu who was aware of the whereabouts of the said knife/churi and neither Ravi Kumar (PW2) nor any of the police officials could have located it easily until they were apprised by the accused and further that the said knife was having blood stains on it which further suggest regarding commission of offence.
In fact, Sanjay Kumar (PW3) had immediately informed the police officials from his mobile phone regarding the occurrence when he saw the dead body lying in a pool of blood and came to know that he was stabbed whereupon the DD was promptly recorded and as such the death of Brij Pal by stabbing is not in dispute. During the detailed investigation, all the relevant documents which were prepared have been duly proved on record and there in no iota of doubt if the investigation was not conducted fairly qua the accused Bablu (the co-accused Rajinder could not be arrested and was accordingly declared Proclaimed Offender by the Ld. MM). In the present case, though Ravi Kumar (PW3) and Dharam Pal (PW5) were closely related to the deceased being his son and brother but they that certainly can not be termed as 'interested witnesses' as they are not shown to be interested in getting the accused Bablu convicted for which no animus is shown or no other reason at all is even whispered by the accused regarding his false implication and accordingly, though they were close relatives of the deceased, it cannot be concluded that they were necessarily partision 48/55 49 State Vs. Bablu FIR No. 618/05 witnesses or have falsely implicate the accused and hence there is no ground that their versions should not be relied upon.
It is well settled law that in the absence of independent witnesses, the evidence of the related witnesses cannot be thrown out at the behest or should not be relied upon for convicting the accused. What the law requires is, that where the witnesses are interested, the Court should scrutinize their evidence with much care and caution in order to exclude the possibility of false implication. Though, Raj Kumar (PW2) and Dharam Pal (PW5) are relatives of the deceased, yet no inference as such can be drawn regarding their interestedness in falsely implicating the accused Bablu and rather they are very natural witnesses whose presence at the spot and witnessing the entire occurrence is nowhere in dispute and there is no reason as to why they would leave the real culprits and involve the accused in such a serious offence. It would also be appropriate to mention that as such no motive of false implication has been suggested to them and also that when they had seen the occurrence then why should they not depose before the Court regarding it and after careful scrutiny of testimonies of PWs 2 & 5, Court is of the considered opinion that their versions do not suffer from any inherent and basic infirmities which go to the root of the matter and shake their basic versions.
49/55 50State Vs. Bablu FIR No. 618/05 Accordingly, after careful scrutiny of testimonies of various prosecution witnesses, Court is of the considered opinion that non-joining of independent witnesses during investigation or even at the time of recovery of knife is not vital to the case of the prosecution as after detailed scrutiny of evidence on record, nothing worthwhile has come in the cross-examination of material prosecution witnesses to disbelieve their presence or presence of the accused Bablu at the spot at the relevant time and the accused Bablu has not led any evidence nor has brought anything on record during cross- examination of witnesses to probablise that he was lifted from his house by police officials or regarding his false implication in the case or regarding planting the said knife/churi Ex. P1 as shown to have been effected at his instance in pursuance of his disclosure statement.
38. In the present case, after going through the testimonies of various witnesses as examined by the prosecution, nothing come out on record if their versions suffer from any grave infirmities which go to the root of the matter and shake their basic versions and though certain minor discrepancies have crept in here and there, but it cannot be lost sight of that no one can be reasonably expected to remember each and every detail of the case by heart & when a person is examined in the Court after lase of a considerable time, he is bound to forget something and may also add something but so long as it 50/55 51 State Vs. Bablu FIR No. 618/05 does not affect the merits of the case, the same is certainly immaterial and needs to be ignored. In the present case, as such no contradiction is placed on record or shown to have crept in the case of prosecution which go to the root of the matter and shake the basic version of witnesses as examined by the prosecution.
In the present case, the accused Bablu has not whispered any motive at all regarding his false implication in the present case. In the present case, no motive has ever been suggested to the witnesses whose testimonies are creditable and who are the natural witnesses who had no motive whatsoever to implicate the accused falsely.
It is also well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be prover and sometimes however, the motive is shroud in a mystery and it is very difficult to locate th same. If the evidence of the eye witness is credit- worthy and is believed by the Court and implicit reliance can be placed on them, the question whether there is any motive or not becomes wholly irrelevant.
It would be pertinent to mention here that though certain prosecution witnesses might have improved their versions at the trial over the 51/55 52 State Vs. Bablu FIR No. 618/05 story which they have put forward at the investigating stage, however it is held in a catena of cases that if there is corroboration on material aspects by unimpeachable evidence and also in the form of injuries suffered by the deceased which cannot be disbelieved, then there is no reason to disbelieve the prosecution witnesses.
It is also settled law that minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentence which is torn out of context here or there of the evidence, attaching undue importance, technical errors committed by the investigating officer do not go to the root of the matter and does not ordinarily permit rejection of the evidence as a whole and unless the reasons are weighty and formidable, it would be proper to reject the testimony on the ground of variations or infirmities in the matter of trivial details.
In considered opinion of the court, no infirmity can be attached to the testimonies of the witnesses who are examined by the prosecution merely because they were related to the deceased and to police officials simply because they belong to police force as they are found reliable which has been corroborated on all essential and material particulars by other evidence and doctors as adduced and proved on record.
In the present case, on the basis of material as placed on record, in 52/55 53 State Vs. Bablu FIR No. 618/05 view of above discussion and considering the totality of facts and circumstances, court is of the considered opinion that the witnesses examined by the prosecution are cogent, convincing and inspire confidence of the court in as far as they have come forward with true and clear picture of the occurrence and in fact, sufficient corroboration is available on record on all material aspects to the ocular testimonies of various witnesses as examined by the prosecution through documentary evidence as placed on record and the injuries on the person of deceased Brij Pal have been duly proved on record in which regard the postmortem has been exhibited which has nowhere been disputed or rebutted on any count whatsoever. It would also be pertinent to mention even at the cost of repetition that as discussed earlier, the recoveries at the instance of accused Bablu in pursuance of his disclosure statement have been duly proved on record. In the present case, no evidence has been led by the accused Bablu to show as to why evidence of prosecution witnesses must be disbelieved when it is otherwise reliable and no reason to falsely implicate him has been shown on record.
39. Considering the totality of facts and circumstance, on the basis of evidence as adduced by the prosecution, as placed on record, Court is of the considered opinion that: -
(1) There is direct evidence of PWs 2 & 5 regarding occurrence which has nowhere been rebutted or shown to be false or manipulated by the accused and also the circumstantial evidence from which the inference of guilt is 53/55 54 State Vs. Bablu FIR No. 618/05 sought to be drawn against the accused Bablu has been cogently and firmly established.
(2) Circumstances unerringly point towards the guilt of accused Bablu regarding committing murder of Brij Pal at the relevant date, time and place.
(3) Circumstances taken cumulatively form a chain so complete that there is no doubt at all if the accused Bablu had not caused death of Brij Pal at the relevant date, time and place.
42. It is proved on record beyond reasonable doubt that the accused Bablu had caused the death of Brij Pal amounting to murder on the aforesaid date, time and place, and his intention is revealed from his conduct itself that he caught hold of Brij Pal and facilitated accused Rajinder (Proclaimed Offender) to inflict repeated stabbings on his person including his chest as well and it is established that he died due to injuries inflicted on his chest and heart which were sufficient in ordinary course of nature to cause his death.
Accordingly, this court is of the considered opinion that the prosecution has succeeded in proving on record beyond reasonable doubt that the accused Bablu had caused the death of Brij Pal amounting to murder and as such no artificiality or exaggeration is observed in the testimonies of prosecution witnesses and the ocular versions of the prosecution witnesses have been duly corroborated on material particulars by various documents 54/55 55 State Vs. Bablu FIR No. 618/05 placed and proved on record. Accordingly in view of above, the accused Bablu is convicted for committing an offence punishable U/s 302/34 IPC. Let he be heard on point of sentence.
Announced in the open Court (BARKHA GUPTA)
on this 20th day of September, 2010 Additional Sessions Judge - IV
Outer District
Rohini District Courts
Delhi
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