Delhi District Court
State vs . 1. Fakir Chand Son Of Jay on 27 March, 2009
1
In the court of Sh. Bhupesh Kumar Addl. Sessions Judge,
Fast Track Court (WEST), DELHI
SC No. 15/08
State Vs. 1. Fakir Chand son of Jay
Dayal R/o Jhuggi No.18,
Indira camp No.4, Vikas Puri
New Delhi.
2. Pramod @ Babua son of
Roshan Lal
R/o Jhuggi No.15,
Indira camp No.4, Vikas Puri
New Delhi.
3. Wazir son of Jay Dayal
R/o Jhuggi No.18,
Indira camp No.4, Vikas Puri
New Delhi.
4. Jai Dayal son of Rati Ram
R/o Jhuggi No.18,
Indira camp No.4, Vikas Puri
New Delhi.
FIR No. : 311/2000
P.S. : Vikas Puri
U/s : 302/324/34 IPC
Date of filing of challan : 19.10.2000
Date of final arguments : 17.03.2009
Date of decision: : 27.03.2009
JUDGMENT
2
1. In nutshell case of the prosecution is that on 22.7.00 Ram Niwas alongwith his family members was present at his jhuggi at Indira Camp No.4 within the jurisdiction of PS Vikas Puri. At about 10 pm he heard accused Fakir Chand son of Jai Dayal was abusing him outside his jhuggi. At this Ram Niwas came out from his jhuggi to enquire from Fakir Chand as to why he was abusing him. In the meantime co-accused Jai Dayal, Wazir Chand son of Jai Dayal, and Pramod @ Babu who were hidden around the spot suddenly appeared and caught hold Ram Niwas. Thereafter, accused Fakir Chand repeatedly inflicted knife blow on the neck and other bodily parts of Ram Niwas. On receiving said injuries, Ram Niwas became unconscious and fell on ground, then accused Pramod @ Babu took knife from accused Fakir Chand and again stabbed Ram Niwas who was lying on the ground. Amit son of Ram Niwas and Smt. Savitri wife of Ram Niwas intervened to rescue him from the clutches of the accused persons. In this process even Amit sustained knife injuries at the hands of accused persons. Other public persons also gathered at the spot. Thereafter all the accused persons ran away from the spot alongwith knife. PCR was called who took Injured Ram 3 Niwas and Amit to hospital. Intimation in this regard was sent to PS Vikas Puri which was recorded vide D.D.No.23A. The same was handed over to SI Sunil Kumar who alongwith const. Rajender went to the spot where they came to know that PCR van has already taken the injured to DDU hospital. No eye witness met them at the spot. Thereafter SI Sunil Kumar alongwith Constable Rajender went to DDU hospital where they received MLC bearing No. 5649 pertaining to injured Ramniwas who was opined to be unconscious. The MLC bearing No.5757 pertaining to injured Amit was also obtained. Amit was opined to be fit for statement. Statement of Amit was recorded. On the basis of statement of Amit and report on MLCs rukka was prepared by SI Sunil Kumar on the basis of which FIR U/s 307/34 IPC bearing No.311/2000 was registered at PS Vikas Puri. Investigation of case was entrusted to IO. During investigation at the pointing out of Amit unscaled site plan was prepared. Blood sample and blood stained earth was taken. Accused Wazir Chand and Jai Dayal were arrested and the clothes worn by them were taken into possession. On the next day at about 7.59 pm on receipt of information regarding death of Ram Niwas offence U/s 302 IPC was added to the 4 investigation. The further investigation of the case was carried out by Insp. M.S. Malik SHO PS Vikas Puri. The dead body of deceased Ram Niwas was handed over to his relatives after post mortem. The blood sample of deceased Ram Niwas was taken by the concerned doctor which was taken into police possession on 24.7.00. Accused Fakir Chand and Pramod were also arrested on 24.7.2000 at 11.15 p.m. near Karkara Restaurent, Vikas Puri. Efforts were made to recover the weapon of offence but the same could not be recovered. The scaled map was prepared. The articles seized were sent to FSL, Malviya Nagar for expert opinion. The statements of witnesses were recorded and after completing the other investigation charge-sheet U/s 302/324/34 IPC was presented against the accused Fakir Chand, Wazir Chand , Pramod @ Babu and Jai Dayal in the court of concerned MM. After supplying the copies of charge sheet to accused persons in compliance of section 208 CrPC, the case was committed to the court of Sessions for trial.
2. Charge U/s 302/324 readwith section 34 IPC was framed against all the accused by my Ld. predecessor's court on 17.1.2001 to which all the accused pleaded not 5 guilty and claimed trial.
3. The prosecution has examined 17 witnesses in support of its case. PW 4 is complainant Amit. He submitted to the effect that on 23.7.00 at about 10 pm he was present in his house alongwith his father, sisters and brothers. They heard accused Fakir Chand was abusing his father. On hearing noise, his father came out of the house. He himself and his mother also came out from the house. His father asked accused Fakir Chand as to why he was abusing him. Thereafter they saw that the accused persons Wazir, Jai Dayal and Pramod who were hiding in gali also came there and all of them caught hold his father from his back side. Thereafter accused Wazir Chand started stabbing his father blindly with knife on his neck and other parts of the body. His father fell down on the ground. Thereafter accused Pramod took knife from Fakir Chand and also stabbed his father while he was lying on the ground. Many public persons gathered on spot. He alongwith his mother tried to save his father from the hands of the accused persons. He was also stabbed by Fakir Chand and he sustained injury on his right hand and near waist. Thereafter all the accused 6 persons ran away from the spot with knife. He informed the police and PCR van came and spot and took his father to the hospital. He proved his complaint to the police as Ex. PW4/A. The witness further submitted that the IO has seized the blood stained earth in his presence and sealed the same with the seal of SK and took the same in possession vide Ex. PW4/B which bears my signature at point A. IO prepared site plan. Then they again went to DDU hospital and IO seized the blood stained clothes of his father vide seizure memo Ex. PW4/E and arrested accused Jai Dayal and Wazir Chand. Their blood stained clothes were also seized by IO SI Sunil Kumar vide Ex. PW4/C and Ex. PW4/D. The personal search memo of accused Jai Chand is Ex. PW4/F and personal search memo of Wazir Chand is Ex. PW4/G. Both memos bear his signatures at point A. On the next day his father expired and after post mortem he had taken the dead body of his father vide Ex. PW4/O. On 25.7.00 he again joined the investigation and accused Pramod and Fakir Chand were arrested from Karara Restaurant near Sonia cinema. Both accused made disclosure statement. Disclosure statement of Fakir Chand and Pramod are Ex.PW4/H and Ex. PW4/J respectively which bears his 7 signature at point A. The disclosure statement of accused Jai Dayal and Wazir are Ex. PW4/K and Ex.PW4/L which bears his signature at point A. Personal search of accused Fakir Chand was also conducted vide Ex. PW4/M. On 15.9.2000 at his instance one Sardarji of police department had prepared scaled map. During the evidence of this witness one sealed parcel No.3 sealed with the seal of CFSL was produced and opened and the witness has rightly identified one T shirt and lungi in parcel pertaining to accused Jai Dayal and the same are Ex. P1 and P2. Another sealed parcel No.2 sealed with the seal of FSL was opened. It was containing one pant of blue colour, one baniyan jalidar and one shirt of white colour. The witness has rightly identified the same and stated that they belong to accused Wazir Chand and proved the same as Ex. P3, P4 and P5 respectively. Then another sealed parcel sealed with the seal of FSL was opened which was containing one jeans pant of blue colour and one shirt of white coloured blood stained. The witness has rightly identified the same and stated that they were belonging to him and both are Ex. P6 and P7 respectively. Another sealed parcel bearing No.8 with the seal of FSL was opened which was containing one shirt 8 blood stained. On looking at the shirt the witness submitted that it belongs to his father and was also proved on record as Ex. P8.
4. PW5 Smt. Savitri Devi is wife of deceased Ram Niwas. She has made similar deposition to that of the complainant i.e. PW4 Amit and rightly identified the accused persons in the court. She further submitted that earlier also accused persons quarreled with her husband over the issue of Nali and the matter was compromised by calling panchayat.
5. PW8 is eye witness Dalpat Singh. He stated to the effect that he knew all the four accused as they all reside in his neighbourhood. On 23.7.00 at about 10 or 1.30 pm he was lying on "Charpai" inside his jhuggi as he was not well. On hearing noise he came outside his jhuggi and saw deceased Ram Niwas lying in Gali outside the door in injured condition. He saw the persons running from there. It was dark. He cannot tell their names. Ram Niwas sustained injuries on neck, back and other portion of the body. He took injured Ram Niwas alongwith other persons to DDU hospital. He further submitted that he 9 does not know that who has caused injuries to Ram Niwas. He has asked Ram Niwas as to who had caused injuries to him but he could not speak. Ram Niwas died in the hospital. The witness was cross examined by Ld. Addl. PP with permission of the court as he was resiling from his earlier statement but even during cross examination by Ld. Addl. P.P. for the State the witness has not stated anything against accused persons.
6. PW 10 is Mithu Lal. He supported the case of the prosecution to the effect that on 22.7.2000 at about 10 pm all the accused hurled abuses to Ram Niwas , caught hold him and grappled with him. He ran to make phone call at 100 No. when he returned, he saw Ram Niwas was lying immersed with blood on ground. When he had gone to make phone call to the police , accused Pramod @ Babu was also with him. All the accused persons including accused Pramod @ Babu had run away from the spot. Ram Niwas was taken to hospital but inspite of best efforts by the docor Ram Niwas was died in the hospital. He has not seen with his own eyes how the deceased Ram Niwas received injuries. The witness was cross-examined by Ld. Addl. PP with permission of the court on the 10 ground that he was resiling from his earlier statement. During cross-examination the witness admitted it to be correct that he has stated in his statement to the police that on the night of 22.7.2000 at about 10 pm when he was taking meal he heard some noise and he came out from his house and saw that accused Fakir Chand had been giving abuses to Ram Niwas loudly. Further that when Ram Niwas had come out from his jhuggi with his family he asked Fakir Chand as to why he was abusing him and at that time the other accused persons namely Wazir, Jai Dayal and Pramod @ Babu were also standing there. Witness further stated it to be correct that all the three accused persons Wazir, Jai Dayal and Pramod @ Babu caught hold of Ram Niwas. But further he has not supported the case of prosecution.
7. PW6 is Ram Saran father-in-law of deceased Ram Niwas who has identified the dead body of Ram Niwas at DDU hospital. He stated to the effect that he identified the dead body of deceased Ram Niwas and signed the inquest report Ex.PW6/A which bears his signatures at point A. He also identified his signatures on Ex.PW6/B. He had signed there on blank paper.
118. PW1 is Dr. Rakesh Bhardwaj. He submitted to the effect that on 22.7.2000 he was on duty as CMO at DDU hospital. Dr. Aditya Goyal, Dr. Simon and Dr. Mahipal were also on duty on that day in said unit/shift. He has seen the said doctors while writing and signing during his official course of duty. He has seen the MLC No. 5649 of Ram Niwas prepared by Dr. Semon. The MLC is Ex. PW1/A which bears the signatures of Dr. Simon at point A. He also identified the signatures of Dr. Aditya Goal at point B.
9. MLC bearing No. 5757 dated 22.7.2000 of injured Amit son of Ram Niwas was prepared by Dr. Mahipal. The same is Ex. PW1/B which bears signatures of Dr. Mahipal at point A and that of Dr. Aditya at point B.
10. PW2 is Dr. Aditya Goel. He submitted to the effect that on 22.7.2000 he was posted as CMO in DDU hospital, casualty. MLC Ex. PW1/A in respect of patient Ram Niwas was prepared by Dr. Simon in his presence which bears his signature at point B. He identify whose signature and handwriting of Dr. Simon. On the same 12 day one injured Amit was also brought to the hospital at about 11.30 pm and MLC of Amit was prepared by Dr. Mahipal in his presence. MLC Ex. PW1/ of injured Amit is in the handwriting of Dr. Mahipal which bears signature of Dr. Mahipal and he also signed the said MLC at point B.
11. PW3 is Dr. L.K. Barwa who has conducted the post mortem examination on the dead body of deceased Ram Niwas and on examination the following injuries were found:-
i) stitched wound on left parital area size 5 cm.
ii)Stitched wound just below right ear lobe placed vertically length 4 cm.
iii)Stitched wound in front of injury No.2 placed vertically extending from right angle of the mandible down words size 11 cm.
iv)Stitched wound on the right forearm on his dorsal aspect near elbow size 8 cm.
v) Stitched wound on back nap of neck slightly on the left side size 4 cm.
vi)Stitched wound on the right buttock size 3 cm.
He further submitted that he has opined that he 13 has opined the injury No.3 and 5 were individually and others collectively sufficient enough to cause death. The death was due to haemohragic shock resulting from injury No.3 and 5. The sample blood was preserved , sealed and handed over to police alongwith sample seal. The witness has proved the detailed post mortem examination report as Ex. PW3/A which bears his signature at point A.
12. PW11 is Dr. Pradeep Soni. He submitted to the effect that on 22.7.2000 he was working as Sr. Resident surgery in DDU hospital. On that day patient Ram Niwas son of Tanwar was referred to surgery department. He was operated upon but he expired on the next day. He made his endorsement on MLC Ex. PW1/A encircled as Ex. PW11/A which is in his handwriting and bears his signatures at point A.
13. PW16 is Dr. Vijoy Kumar. He submitted to the effect that he was working as CMO in DDU hospital, Delhi. Dr. M. Pertin has left the services of DDU hospital and his present whereabouts are not known. He is well conversant with his handwriting and signatures since he 14 has seen him writing and signing. He can identify his signatures. He has seen the death report in respect of Ram Niwas prepared by Dr. M. Pertin and the copy of the same is Ex. PW16/A. He identified the signatures of Dr. M. Pertin at point A.
14. PW7 is Const. Jagdish. He submitted to the effect that on 27.9.2000 he took the sealed pullanda from MHC(M) and took the same to FSL Maiviya Nagar vide RC No. 116/21. So long as the sealed pullanda remained in his custody they were not tampered with in any manner.
15. PW12 is Duty Officer SI Sahi Ram. He has proved the copy of D.D. No.23A as Ex. PW12/A, copy of the information at serial No.63B of roznamcha B as Ex.PW12/B, copy of D.D. No.73B as Ex. PW12/C and copy of FIR Ex. PW12/D and the witness has proved the copy of D.D No.27A as Ex. PW12/E.
16. PW13 is Draftsman , Insp. Devender Singh. He submitted to the effect that on 15.9.2000 at request of IO he visited the spot and inspected the spot at the instance of Amit was was present there. There he took the rough 15 notes and measurements and on the basis of these rough notes and measurements, he prepared scaled site plan Ex. PW13/A on 30.9.2000 which bears his signature at point A. the scale used in the preparation of scaled site plan is 2 cm = a meter.
17. PW 15 is HC Dharambir. He submitted to the effect that on 23.7.2000 he was posted as MHC(M) at PS Vikas Puri. On that day IO SI Sunil Kumar and Insp. M.S. Malik deposited 9 sealed parcels. On 27.9.2000 he handed over all the nine parcels to Const. Jagdish in order to deposit the same at FSL Malviya Nagar which were taken by const. Jagdish vide RC No.116/21 and deposited with FSL. So long as the case property remained in his possession it was not tampered with in any manner. He has made the entries of the above said case property in register No.19 at serial No.1615 and photocopy of the same is Ex. PW15/A and entry of sending the nine sealed packets to FSL is Ex. PW15/B.
18. PW9 is const. Rajender. He is a witness who through out joined the investigation initially alongwith SI Sunil Kumar and after the death of injured Ram Niwas 16 with Insp. M.S. Malik. He has supported the case of the prosecution on all material points.
19. PW14 is SI Sunil Kumar. He is a witness who conducted the initial investigation of the case. He stated to the effect that on 22.7.2000 he was posted as SI at PS Vikas Puri. On that day on receipt of D.D. No.23A he alongwith const. Rajender had gone to Jhuggi, Indira Cmp No.4, Vikas Puri where it was revealed that quarrel had taken place and injured was reported to have been removed to DDU hospital. He alongwith const. Rajender reached at DDU hospital where he collected the MLC of injured Ram Niwas and Amit. Amit gave his statement which is Ex. PW4/A and he made endorsement Ex. PW14/A and sent Const. Rajender to the PS for registration of the case on the basis of which FIR bearing No.311/2000 U/s 307/34 IPC was registered at DDU hospital. At DDU hospital ASI Ashok met him who has brought accused Jai Dayal and Wazir for treatment. Amit had identified accused Jai Dayal and Wazir and stated that they have caused injuries to his father Ram Niwas. He left ASI Ashok and he alongwith PW Amit returned to spot. He prepared the site plan at the instance of Amit 17 and the site plan is Ex. PW14/B. In the meantime, const. Rajender returned to the spot and handed over copy of FIR and rukka to him. He got the scene of incident photographed. He lifted sample soil from opposite jhuggi No.18, Indira Camp and same was sealed after keeping the same in a polythene and was taken into possession vide seizure memo Ex. PW4/B. Blood was also lifted from there and was kept in a vial alongwith blood stained soil and also sealed and was taken into possession vide Ex. PW9/A. Thereafter Const. Rajender and PW Amit had gone to DDU hospital alongwith him where ASI Ashok informed that treatment of accused Wazir Chand and Jai Dayal was in progress. One Savitri also met him in the hospital. On 23.7.2000 at about 4 am ASI Ashok informed him that treatment of accused Wazir Chand and Jay Dayal was over and they were discharged from hospital and gone to their houses. He arrested them at the instance of Amit and conducted personal search of both the accused vide Ex. PW4/F and Ex. PW4/G. He interrogated both the accused persons who disclosed that weapon of offence was taken by another accused. He prepared the pointing out memo at the instance of accused Jai Dayal and Wazir. The pointing out memo is 18 Ex. PW14/C. The clothes of accused Jai Dayal and Wazir Chand were taken into possession vide separate memo Ex. PW4/C and Ex. PW4/D. The clothes of deceased Ram Niwas were handed over to him in hospital which were taken into possession by him vide memo Ex. PW4/E. Then he returned to the PS and case property was deposited in the malkhana. On the next morning at about 8 am the information was received from DDU hospital that injured Ram Niwas who was admitted on 22.7.2000 was expired vide D.D. Ex. PW12/C. On receipt of the information that Ram Niwas has expired , section 302 IPC was added and investigation was handed over to SHO PS Vikas Puri Insp. M.S. Malik. Then he alongwith Insp. M.S. Malik and const. Rajender again reached at DDU hospital where SHO M.S. Malik has conducted proceedings U/s 174 CrPC. Statement of the witnesses were recorded. Amit had produced his blood stained clothes and same were kept in a packet and sealed with the seal of SK and were taken into possession vide seizure memo Ex. PW4/P. The post mortem on the dead body of deceased was conducted and dead body was handed over to relatives of the deceased vide memo Ex. PW4/O. On 24.7.2002 accused Fakir Chand and Pramod were 19 arrested. Their arrest memos were prepared as Ex. PW9/D and Ex. PW9/E and their personal search was conducted vide Ex. PW9/F and Ex. PW4/M. The clothes of Fakir Chand which he was wearing at the time of incident were also taken into possession after converting the same into sealed packet vide memo Ex. PW9/G. Doctor had handed over the blood sample of the deceased which was taken into possession vide Ex. PW4/N. Accused Pramod has given his statement Ex. PW4/J; disclosure statement of Jai Dayal is Ex. PW4/K, statement of accused Wazir Chand is Ex. PW4/L and statement of accused Fakir Chand is Ex. PW4/M. Accused Fakir Chand and Pramod had pointed out the placed of occurrence and to this effect memo Ex. PW9/H was prepared. The witness has rightly identified the case property in the court.
20. PW 17 is Insp. M.S. Malik. He is a witness who conducted the investigation of the case after the death of injured Ram Niwas. He has also supported the prosecution version on all material points and proved all the documents prepared by him including inquest report Ex. PW7/A, application to the MS, DDU hospital for 20 conducting post mortem examination of accused Ram Niwas as Ex.PW17/B and rightly identified the accused persons present in the court as well as the case property. PE was closed.
21. Statement of all the four accused were recorded U/s 313 CrPC wherein all the accused have impleaded false implication and innocence and further submitted that they intend to lead defence evidence.
22. Three witnesses were examined by the accused persons in their defence. DW1 is Smt. Ramayan Devi. She stated to the effect that she is Pradhan of camp No.4 of BJP. Around five years back on Saturday at about 10 pm she was present at her shop. Somebody informed her about the quarrel in the basti. She immediately went there. There was crowd in the street near jhuggi No.19 or 20 of Jai Dayal. Street bulb was broken and there was complete darkness. Daughter of Jai Dayal came out of jhuggi who received injuries on her forehead. Her younger brother was also in injured condition. She directed Pramod to call the police on telephone. Police reached there. The elder brother of Fakir Chand had 21 gone to the village of his elder sister at Najafgarh. Police came there and took Wazir Chand , Nirmala and their father Jai Dayal to PS. She had not seen anything thereafter regarding the incident.
23. DW2 is Baniya Khan. He stated to the effect that on 22nd day of 2000 it was Saturday and at about 10 pm Jai Dayal used to sleep in jhuggi No.19 and his wife and daughter used to sleep in jhuggi No.18. Fakir Chand had gone to Najafgarh. His younger brother was studying in the jhuggi of Babua. There was a quarrel inside the jhuggi of Jai Dayal. He is not aware as to who were quarreling inside the jhuggi. Mithan Lal and Babua had gone to call the police at No.100. PCR van came there and daughter of Jai Dayal and Jai Dayal were removed by PCR to DDU hospital. He had not seen anybody in injured condition.
24. DW3 is Sh. Bhagwan Dass. He submitted to the effect that on 22.7.2000 it was Saturday. At about 10 or 10.30 pm he was taking meal in his house. He heard noise of abuses and saw Ram Niwas coming out of his house who was being beaten by Savitri. She was armed with lathie. He asked Mithu Lal and other persons to 22 inform the police. Mithu Lal had gone to give a ring to PCR. Amit was armed with 'Kirpan' and electric bulb was hanging temporarily and the same was broken on account of accidental blow given by lathie of Savitri as a result of which it became darkness. Therefore he could not see as to who had given blow to whom. At that time it was drizzling. DE was closed.
25. I have heard the arguments of Ld. Addl. P.P. for the State and Smt. Mansi Sahu, Ld. counsel for all accused persons.
26. Ld. Addl. P.P. for the State submitted that the FIR in this matter was by name against all the accused persons. The complainant Amit was examined as PW4. He has fully supported the case of prosecution. He had identified all the accused persons in the court and specifically deposed the role played by each accused during the commission of crime. PW5 is Smt. Savitri who is wife of the deceased. She has also identified all the accused in the court and supported the version of the prosecution on all material points. The evidence of both these witnesses corroborated by evidence of PW8 Dalpat 23 Singh, PW10 Mithu Lal, both independent witnesses. The deceased succumbed to the same injuries is proved from the evidence of PW1 Dr. Rakesh Bhardwaj, PW2 Dr. Aditya Goel and even by PW3 Dr. L.K. Barwa who has conducted the autopsy on the dead body of the deceased. The other material witnesses examined by prosecution have also supported the version of the prosecution. On the basis of these submission it is submitted that the prosecution has been able to prove its case beyond reasonable doubt.
27. On the other hand, Ld. counsel for all accused persons has submitted that prosecution has failed to prove its case against accused persons beyond reasonable doubt as the case of prosecution suffers from material infirmities and material contradictions.
It was submitted that no public witness was joined to the investigation and the public persons who have been examined have not supported the case of prosecution. PW4 Amit and PW7 Savitri are the son and wife of deceased. Therefore, no reliance can be made on the statements of these two witnesses who were relatives 24 of the deceased and were interested witnesses.
It was contented that the identification of the accused persons have not been proved by prosecution beyond reasonable doubt. On this score, it was submitted that the place of incident was Jhuggi cluster area which was densely populated. The incident has taken place at 10.00 p.m. as alleged and as per the evidence of prosecution witnesses, at the relevant time it was drizzling. The prosecution has failed to bring on record the source of light by which the prosecution witnesses were able to identify the accused in the present matter. Since it was total dark and raining, there is no question of identification of the accused persons. The accused persons have examined three witnesses i.e. DW1 Smt. Ramayan Devi, DW2 Baniya Khan and DW3 Bhagwan Dass out of which DW1 and DW3 have stated that on spot the electric bulb was broken and there was complete darkness. Hence, the accused persons are entitled for benefit of doubt on the ground that identification of accused persons is beyond reasonable doubt.
Regarding the accused Jai Dayal that he has not played any role in the alleged commission of crime. He himself was a victim and sustained injuries at the hands 25 of Amit. He has not caused any injury to the deceased.
About accused Pramod it was submitted that he was not present at the spot when the alleged incident took place. He alongwith PW10 Mithu Lal went to make telephone to the police and this fact came in evidence during the cross examination of PW10 Mithu Lal. Moreover, there is nothing on record to suggest that he was having any ill will or grudge against deceased or any family member of deceased to participate in the crime.
Regarding accused Fakir Chand it was submitted that he was not present at his house and he has gone to his sister's house on the alleged night of the incident.
On score of role of accused Wazir Chand it was submitted that he was also not present at spot at the time of alleged incident.
28. It was further contended that the prosecution has failed to prove the common intention between accused persons to commit the offence. There is nothing on record which suggest that there was prior meeting of minds between the accused persons to cause death of deceased.
It is further submitted that as per the material 26 prosecution witnesses the deceased has not sustained any injury with any broken glass etc. But on the other hand as per the postmortem examination report, the deceased has also sustained injury on his buttock with glass. As per medical jurisprudence, the injury on the buttock even can cause death if medical assistance is not provided on time. The other injuries sustained by the deceased were not sufficient to cause death. There is every possibility that the deceased might have been given blow of glass like broken bottle on the buttock by somebody else due to which he has succumbed to the injuries later on. Since the eye witness have not stated qua injuries sustained by deceased on the buttock, therefore, it is transpires that the medical evidence is not corroborating with the testimonies of the eye witnesses.
It was further contended that the weapon of offence have not been recovered in this matter. It was vehemently argued that in this matter the cross case was registered against complainant party i.e. against Amit and Savitri and in the said case the accused Jai Dayal and his daughter have sustained injuries at the hands of Amit and the FIR against Amit and Savitri was recorded prior to the present FIR. It cause suspicion that how the weapon of 27 offence which earlier was in the hands of Amit was changed its hand. When the weapon of offence was in the hands of Amit, then there is no question of any recovery of weapon of offence from the accused persons and this was the reason that the weapon of offence was not recovered in the present matter.
It was vehemently argued that the motive to commit crime is absent in this matter and in the absence of the motive no such heinous crime can be committed.
It was argued that the deceased was conscious when he was taken to hospital. As per evidence of PW8 Dalpat Singh, who has even talked to him while they were on the way to hospital. Further, as per the case of prosecution, the deceased has died at 7.15 a.m. on the next day. The prosecution has failed to prove that why dying declaration of the deceased has not been recorded.
The blood stained clothes of accused Jai Dayal were taken and were sent for serological examination. But the clothes of Jai Dayal were not blood stained with the blood of deceased and it was the blood of accused Jai Dayal himself whose blood group was happened to be of the same group to that of the deceased.
The photographs of the spot were taken but were 28 not brought on record by the prosecution on the ground that same has been misplaced. It was an important evidence.
It was further argued that the site plan proved by prosecution is not correct site plan to that of the spot.
29. I have heard the arguments on behalf of Ld. Addl. P.P. for the State and Smt. Mansi Sahu, Ld. counsel for all accused besides going through the material on record carefully.
30. The first contention of Ld. counsel for accused was that no public witnesses was joined to the investigation and no reliance can be made on the testimony of PW4 Amit and PW5 Savitri who were son and wife of the deceased respectively because they were relatives of deceased and were interested witnesses. On this score, it is found that apart from PW4 Amit son of the deceased, PW5 Savitri wife of the deceased, PW8 Dalpat Singh and PW10 Mithu Lal both public witnesses were examined in this matter. PW8 Dalpat Singh has not supported the case of prosecution on the actual occurrence and identification of the accused persons. But 29 one fact remained in his evidence that he has stated the exact place, time and date of incident and further to the fact that some incident took place in the vicinity where he was residing and Ram Niwas has sustained injuries in this incident.
PW10 Mithu Lal has identified all the accused persons supporting the case of prosecution to the effect that accused Fakir Chand was abusing Ram Niwas and at that time accused Jai Dayal, Pramod and Wazir were standing there and thereafter all the accused persons had caught hold Ram Niwas. Hence, at thrash hold, I do not find any force in the arguments of Ld. counsel for accused persons that no independent witness was joined to the investigation.
Now the question arises if PW4 Amit and PW5 Savitri can be termed as interested witnesses. In case Brijpal Singh vs. State, 1994 Cr. LJ 2082 (SC), Hon'ble Supreme Court has, inter alia, hold that even if the witnesses are interested witnesses yet when they received injuries during the occurrence, their presence at the place of occurrence is established and when there are no material discrepancies in their evidence and the said evidence is corroborated by medical evidence, their 30 evidence cannot be rejected on the ground of their interestedness.
In case Dalbir Kaur vs. State of Punjab AIR 1977 Supreme Court of India 472, Hon'ble Supreme Court of India has hold that a close relative who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness'. The terms 'interested' postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason.
Now coming to the present case, it is found that PW4 Amit and PW5 Savitri have categorically submitted that on the day of incident at about 10 p.m. they were present in the jhuggi alongwith deceased Ram Niwas, they heard accused Fakir Chand was abusing Ram Niwas by calling his name outside the jhuggi. At this Ram Niwas came out from his jhuggi to enquired into in this regard from accused Fakir Chand, but suddenly accused Wazir, Jai Dayal and Pramod who were hiding nearby immediately came there and caught hold Ram Niwas. Then accused Fakir Chandi repeatedly inflicted knife blows to the person of Ram Niwas as result of which he 31 fell on the ground. Thereafter, accused Pramod took knife from Fakir Chand and again gave knife blows to Ram Niwas who was lying on the ground.
Though these witnesses were cross examined at length but the presence of both of them was not denied at all during cross examination. Further, the time, date and place of incident was also remained undisputed. Ld. counsel for accused persons has failed to extract anything favourable to accused persons regarding the manner in which the event took place on spot. There is nothing on record which suggest that both these witnesses who happened to be close relative of deceased were having some grudge against the accused persons to falsely implicate them by leaving the real culprits. Moreover Amit himself has sustained injuries in the incident. There is nothing on record which suggests that he sustained injuries at the hands of some other persons or the injuries were self inflicted. The entire evidence of both these witnesses found to be natural, consistent, trustworthy and found to be corroborating each other. In these circumstances in view of the abovesaid judgments and facts and circumstance of the present case, both these witnesses cannot be termed as interested witnesses.
32I find no force in the arguments of Ld. counsel for accused in this regard.
31. Further, the contention of Ld. counsel for all accused was that the prosecution has failed to prove identification of the accused persons and their presence on spot. In this regard admittedly the incident took place at 10.00 p.m. in thickly populated area and at the relevant time it was drizzling. But as matter of record the FIR in this matter was registered on the complaint Ex. PW4/A of complainant Amit who was examined as PW4. He has also sustained injuries at hands of accused persons as per case of prosecution. The FIR in the instant case is by name against all the four accused. PW4 complainant Amit has rightly identified all the four accused when he appeared in the witness box in the Court. He was cross examined at length and on calling explanation during cross examination regarding the installation of electric meter in the jhuggis, he has replied that there was no electricity meter installed in the jhuggis. Except this explanation no further explanation in any manner regarding the availability of electric light was called from the witness. Neither any suggestion was put to this 33 witness that it was complete dark and he has wrongly identified the accused persons in the court. Accordingly the evidence of PW4 Amit on the score of identification of all accused persons is found to be fully reliable and trustworthy and no ground is found to doubt his testimony in this regard.
Regarding evidence of PW5, it is found that the witness has identified all the accused persons in the Court. She was also cross examined at length but during cross examination no explanation whatsoever was called from her regarding the identification of accused persons. Neither any explanation was called from the witness on the score of source of light in which she has identified all the accused. Even no suggestion was put to the witness that she has wrongly identified the accused persons in the court on the ground that at the time of incident there was complete dark. In these circumstances no ground is found to discard the testimony of PW5 regarding identification of the accused persons.
PW 10 is Mithu Lal. This witness has ostensibly supported the case of prosecution to the extent that he has seen the accused Fakir Chand abusing Ram Niwas and when Ram Niwas came out to his jhuggi with his 34 family members he asked accused Fakir Chand as to why he was abusing him. And thereafter other three accused present Wazir , Jai Dayal and Pramod caught hold Ram Niwas. This witness has thereafter not stated the manner in which the deceased has sustained injuries at the hands of the accused persons, but one fact remained on record that he has identified all the accused in the court. The witness has also stated that Pramod had gone alongwith him to make telephone call and that he was given slap by SHO and he was enquired into by SHO that what weapon was in the hand of the Amit. What is the effect of the evidence of this witness on the case of prosecution would be discussed later on. But at this stage on score of presence and identification of all accused persons at spot. His evidence has been scrutinized carefully. It is found that on score of availability of light and explanation was called from this witness during cross examination to which he has replied that the electric meters were not installed at their jhuggis but immediately thereafter the witness stated that they take electricity from the pole wire. If the contention of Ld. counsel for accused is admitted to be correct that the bulb outside the jhuggi of deceased was broken even then there is nothing on 35 record which suggest that there was no light on spot from the other jhuggis. Even though as per evidence of PWs no proper meters were installed in the vicinity. But the inhabitants of vicinity were otherwise fetching the electricity directly from the poles. This fact has even admitted by the accused persons first on the ground they have not disputed during cross examination of eye witnesses and secondly that defence witnesses examined by the Ld. counsel for accused also stated that electric bulb installed near the jhuggi was broken. It transpires that the accused have also impliedly admitted the installation of electric wires and bulbs in the area. The evidence of the prosecution witnesses is found to be consistent and cogent.
The evidence of defence witnesses perused. DW1 Ramayan Devi and DW3 Bhagwan Das have categorically stated that electric bulb was broken and there was complete dark. The evidence of DW1 perused carefully. During cross examination this witness stated that she has not seen as to who caused injuries to whom and that she had simply heard that the quarrel was going on but she has not seen with whom but quarrel was going on. The evidence of this witness transpires that at the time of 36 incident she was not present at the spot. Once it is found that she was not present at spot, her evidence is liable to be brushed aside. DW3 Bhagwan Das stated during cross examination that at the relevant time of incident he was taking meal at his house and when he came out Savitri was armed with Lathi and Amit was armed with Kripan. The electric bulb was hanging temporarily there was broken incidently with the blow of Lathi given by Savitri. This witness claimed himself to be eye witness but the question arises if he had happened to be eye witness and gave different version of the incident then why he has not asked the police to join him to the investigation. During cross examination the fact came on record that he was maternal uncle of accused Pramod. It is not the rule of law that no reliance can be made on the defence witness but it depends upon the facts and circumstances of each case. As discussed earlier, Ld. counsel for accused persons has failed to shake the testimonies of all the material witnesses regarding the availability of light and identification of the accused persons. Moreover, no such defence has been taken by accused persons during cross examination of PWs or when their statements were recorded U/s 313 Cr. P.C. In these eventualities I have no 37 hitch to reach at the conclusion that no reliance can be made on the testimonies of the defence witnesses on this score. Further the reliance can be made in Nathni Yadav vs. state of Bihar, AIR 1997 SC 1808, wherein Hon'be Supreme Court has hold that if the light then available, though meagre, was enough for the assailants why should we thing that same light was not enough for the injured who would certainly have pointedly focused their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander.
This discussion leads to the conclusion that prosecution has succeeded in proving the identification of the accused persons on spot beyond reasonable doubt. Once the identification of the accused persons on spot is proved then their presence on spot automatically stands proved. Regarding accused Jaydayal it is found that as per case of prosecution when on hearing the abuses of accused Fakir Chand Ram Niwas came out of his jhuggi, he alongwith accused Wazir Chand and Pramod caught hold Ram Niwas and then Fakir Chand inflicted knife injuries in person of Jaidayal. This role of the accused was not disputed at all during cross-examination and as such the evidence of PW4 Amit and PW5 Savitri remained 38 unshaken in this regard. Even no suggestion was put to both these material witnesses that he has been falsely implicated being victim himself.
32. Regarding accused Pramod it is found that PW 10 Mithu Lal stated to the effect that when some scuffle took place he alongwith accused Pramod went to make phone call to the police and when they returned they found that Ram Niwas was lying on ground in injured condition. As a matter of record the FIR against the accused Pramod and other accused is by name. The evidence of PW4 Amit and PW5 Savitri regarding the identification, role of each accused and on other material points remained unshaken and unimpeached. This witness has ostensibly supported the case of prosecution upto a particular moment but has denied witnessing the actual instance. It seems the witness has intended to favour the accused persons particularly the present accused Pramod. The part of the statement of the witness that when he went to make telephone to the police accused accompanied him is found to be demonstrably incorrect and doubtful. But it does not mean that his whole testimony is liable to be rejected as it is well settled law of land that the court must 39 separate grain of the chaff. Hence considering the entire evidence on record no undue importance can be attached to evidence of this witness as pointed out and accused Pramod is found to be not entitled for any benefit on this ground.
33. Regarding accused Fakir Chand it was submitted that he was not present at spot and he has gone to his sisters house one day prior to the incident. This fact came in the cross examination of PW8 Dalpat who has not supported the version of the prosecution on material points but again as per evidence of PW4 Amit and PW5 Savitri Devi it is found that his present at spot has not been disputed at all. Neither any suggestion was put to both these witnesses that this witness was not present at spot as he has gone to his sister's house. Hence no reliance can be made on the PW8 Dalpat Singh that he had no knowledge if accused Fakir Chand had gone to his sister's house one day prior to the incident by discarding the evidence of PW4 Amit and PW5 Savitri. The same is found in the case of accused Wazir also as his presence was also not disputed at any stretch of time during the cross examination of PW4 Amit and PW5 Savitri.
4034. Further, Ld. counsel for accused persons had submitted that deceased has succumbed to injuries sustained by him on his buttock as the pieces of glass were found in the said injury. On this score, it is found that Dr. L.K. Barwa who has conducted the postmortem of deceased was examined as PW3. During cross examination of this witness, the explanation regarding injuries sustained by deceased on buttock was called, to which he has replied that such type of injury could be possible with the broken piece of glass and that injury is also possible if person falls on broken glass piece. But no further explanation regarding the circumstances under which he has opined the injury no. 3 and 5 as fatal. Admittedly, in this matter none of the material witness has stated that any injury with any sort of glass was also caused. In these circumstances the ocular evidence is not corroborating the medical evidence qua the injury sustained by deceased on his buttock. But as per the evidence available on record, the deceased after sustaining knife injuries fell on ground and there is every possibility that he might have sustained injury on his buttock during said period or during the course he was 41 shifted to the hospital.
The main contention of Ld. counsel for accused was that the deceased has died due to the injuries sustained by him with glass on his buttock. In case Baso Prasad and ors. vs. State of Bihar, 2007 (III) RCR Cri. 994, it was inter alia, hold by hon'ble Supreme Court that when some discrepancies are found in the ocular evidence viz a viz. Medical evidence, the defend should seek for an explanation from the Doctor. He should be confronted with the charge that he has committed a mistake.
In the instant case no explanation was called from PW3 Dr. L.K. Barwa who has conducted postmortem examination of the dead body of the deceased. Even no suggestion was put to PW3 Dr. Barwa that he has given wrong opinion regarding cause of death of deceased and that deceased had died only due to the flow of excessive blood from the injury no. 6 sustained by the deceased on his buttock. The proper course was to seek explanation from PW3 on this score. In these eventualities the opinion of Dr. L.K. Barwa that the deceased has died due to injury no. 3 and 5 cannot be brushed aside and there is no ground to discard the opinion of the Doctor in this 42 regard. The arguments advanced by Ld. counsel for accused are found to be without any merit.
35. It was further submitted that the prosecution has failed to prove common intention between accused persons. On this score evidence of PW4 Amit, PW5 Savitri and PW10 Mithu Lal again perused. All these witnesses have categorically stated that accused Fakir Chand was abusing Ram Niwas outside his jhuggi and when deceased Ram Niwas came out from his jhuggi remaining three accused who were hiding nearby came there and caught hold the deceased. PW4 Amit and PW5 Savitri further submitted that thereafter accused Fakir Chand repeatedly gave knife blows to the deceased and when he fell down, accused Pramod took knife from accused Fakir Chand and again gave knife blows to him. When PW4 Amit has intervened to rescue his father he was also given knife blows as a result he sustained injuries in his person. After committing the crime of the accused fled away from the spot. The common intention has been defined in Section 34 of IPC which is as under :-
Acts done by several persons in furtherance of common intention - when a criminal act is 43 done by several person in furtherance of common intention of all each of such persons is liable to that act in the same manner as if it were done by him alone.
In case Nandu Rantogi @ Nandji Rastogi vs. State of Bihar, 2003 SCC (Cri.) 171, it was hold by Hon'ble Supreme Court that in order to Section 34 of IPC that to attract Section 34, I.P. Code, it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate acts, similar or diverse.
36. In the present matter, the presence of all these accused at spot was not denied and this fact was also not denied that the accused persons have not participated in the commission of crime in any manner as stated by this witness in his examination in chief. During cross examination of this witness by Ld. counsel for accused Pramod his evidence to the effect that accused Wazir, Jai Dayal and Pramod were hiding in Gali and Fakir Chand also came there and they all caught hold his father from 44 backside. This version was confronted with his statement Ex. PW4/A where the fact that all these accused persons have caught hold the deceased from the backside is not mentioned but it has been mentioned that all these three accused persons whom were hiding immediately came on front and caught hold his father. Further the statement of this witness to the effect that accused Pramod has caused injuries to his father on neck and hip was also confronted with his earlier statement Ex. PW4/A. But one fact remained in Ex. PW4/A that this witness has stated in his statement to the effect that when his father fell on the ground, the accused took knife from accused Fakir and gave knife blow to his father who was lying on the ground. In these circumstances it is found that even though the statement of this witness was confronted when his early statement Ex. PW4/A. It is found that there was no material improvement in his statement which should be ground to discard his whole testimony. Further the presence of accused Pramod on spot was not disputed during cross examination and even this fact was also not disputed that accused has neither caught hold the deceased alonwith accused Wazir and Jai Dayal and that he has not given knife blow to the deceased while he 45 was lying in injured condition on ground. Even no suggestion was put to his witness in this regard during his cross examination. PW5 Savitri Devi also deposed on the similar lines to that of PW Amit. She was cross examined at length by Ld. counsel for accused Fakir Chand, Wazir and Jai Dayal and separately by Ld. counsel for accused Pramod. But the presence of accused on spot or the manner in which the accused persons have committed the offence as came in the examination in chief of this witness was not disputed at all. The evidence of PW 10 Mithu Lal also perused. This witness has supported the case of prosecution upto the fact that after hearing the abuses of accused Fakir Chand when Ram Niwas came out from his jhuggi he was caught hold by accused Wazir, Jai Dayal and Pramod. Though this witness has denied of witnessing any further incident but the evidence of this witness upto the fact that accused Fakir Chand was abusing the Ram Niwas when Ram Niwas came out from his jhuggi and the remaining accused caught hold him remained un-impeached and unshaken. This discussion lead to the conclusion that all the accused persons had prior meeting of mind to commit the offence and executed their plan accordingly which shows that they 46 were having common intention in the present crime. I do not find any force in the contention of Ld. counsel for accused that common intention was missing.
37. It was further contented by Ld. counsel for accused that weapon of offence was not recovered. A cross case FIR was registered against the complainant party before the registration of FIR in the present case. In the other FIR against complainant party the PW4 Amit has caused injuries with knife. The weapon of offence has not been recovered in this matter. It cause suspicion that how the weapon of offence which was earlier in the hands of Amit has changed its hands. In this regard it is found that FIR in the present matter is 311/00 and the FIR registered against Amit and Savitri which is pending trial in this court is 312/00. It shows that the FIR in the present mater was registered earlier to the FIR registered against Amit and Savitri. Otherwise also in the criminal matters the criminal liability is an individual liability and the prosecution is required to prove each case beyond reasonable doubt. When there are two separate FIR and separate trials the evidence of one case cannot look into in another matter unless it is ordered for. In the other 47 matter if any weapon of offence was shown in the possession of PW Amit then the said matter is to be dealt independently and the facts and evidence of the other matter cannot mingled with the facts and evidence of the present matter. Hence I do not find any force in the contention of Ld. counsel for accused that the prosecution has failed to prove that how the knife in the possession of Amit has changed its hand. Regarding the non recovery of weapon of offence in the instant case it is found that as per case of prosecution the accused were not apprehended at spot. The accused Jai Dayal and Wazir were arrested on 23.7.00 at 4.00 a.m. at DDU Hospital whereas accused Pramod and Fakir Chand were arrested on 24.7.2000 at 11.15 p.m. near Karkara Restaurent, Vikas Puri. The incident took place at 10.00 p.m. on 22.7.2000 at Indra Camp 4, Vikas Puri which shows that the accused were not apprehended on spot and were apprehended and formally arrested in this matter later on. Had the accused been apprehended on spot then position might have been different but since they were apprehended later on from some other spot shows that the accused were having sufficient time to destroy weapon of offence. As per disclosure statement 48 Ex. PW4/K of accused Jai Dayal, accused Fakir and Wazir fled away from the spot alongwith knife and as per disclosure statement Ex. PW4/J accused Pramod when he and accused Fakir fled away from spot they boarded into blue line bus at outer ring road, Vikas Puri and accused Fakir has concealed the Chhuri beneath the rear seat of bus and thereafter they de-boarded the bus at Nangloi. In these eventualities the similar disclosure statement was made by accused Fakir Chand which is Ex. PW4/H. Moreover, the postmortem examination report Ex. PW3/A reveals that the deceased Ram Niwas has sustained injury with sharp edged weapon except injury no. 6. Eye witness PW4 and 5 stated that accused persons have used knife during the commission of offence. All the entire evidence in this regard corroborating each and every fact and in these eventualities if the weapon of offence is not recovered, it is not fatal to the case of prosecution.
38. It was further argued by Ld. counsel for accused that the motive to commit the crime is absolutely absent in this matter and in absence of motive no such henious crime can be committed. In this regard the evidence of 49 PWs perused carefully. In this regard it is found that PW5 Savitri stated that accused persons had earlier quarrel with her husband over the issued of a 'Naali' and the matter was compromised by calling 'Panchayat'. Here the evidence is corroborated by evidence of PW8 Dalpat who has stated that Ram Niwas and accused persons were in animical terms and many times quarrel took place between them prior to the day of incident and the Panchayat was held and the matter was compromised between them. He has further submitted that he was also member of the Panchayat when the matter was compromised between deceased and the accused persons. Therefore, as per the case of prosecution the motive was over the dispute between the complainant party and accused persons over a Naali. In case Nathuni Yadav Vs. State of Bihar , AIR 1997(SC)1808, Hon'ble Supreme Court has inter alia, hold that motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessirily be proportionally grave to do grave crime. Many murders have been committed without any known or prominent 50 motive.
In the present mater as per evidence of PW5 Savitri corroborated by the evidence of PW8 Dalpat there was a motive for the accused person to commit the offence. Even though the motive is negligible but it depends upon the facts and circumstances and state of mind of the each individual. Considering the facts and circumstances of the present case and the finding in the abovesaid judgment, I do not find any substance in the contention of Ld. counsel for accused on this ground that in the absence of motive no case is made out against the accused.
39. Ld. counsel for accused also stressed upon that dying declaration of the deceased was not recorded, though it was came in the evidnece of PW8 that the deceased in injured condition has talked to him with they were on the way to hospital. The evidence of PW8 perused carefully. This witness has nowhere stated that he has talked to Ram Niwas on the way to hospital. The relevant portion of the evidence of this witness is as that "I had asked Ram Niwas as to who has caused injury, but he could not speak". Thereafter Ram Niwas dies in the 51 hospital. The evidence of this witness clearly transpires that the deceased Ram Niwas when being trasported to the hospital, he was unable to speak. Further MLC Ex. PW11/A reveals that when the injured Ram Niwas was medically examined he was unconscious. It shows that at any stretch of time Ram Niwas fit to make dying declaration. Hence, if the dying declaration of deceased has not been recorded, it is not fatal to the cause of prosecution considering the facts and circumstances of the present case.
40. Ld. counsel for accused further submitted that blood stained clothes of accused Jai Dayal were taken and was sent for serelogical examination. But the blood on the clothes of Jai Dayal was not of the deceased and it was blood of the accused Jai Dayal himself whose blood group was happened to be of the same group to that of the deceased. In this regard it is found that the clothes of accused Jai Dayal were taken into possession vide seizure memo Ex. PW4/C by PW14 SI Sushil Kumar. But nothing came in his evidence that said blood on the said clothes was of accused Jai Dayal himself and he has ever asked PW14 in this regard. Even the accused has not specifically 52 disputed this fact when his statement was recorded U/s 313 Cr. P.C. Here it is further necessary to mention that the accused Jai Dayal has not brought on record anything that his blood group was also same to that of deceased Ram Narain. As per provision of Evidence Act the person who has specific knowledge of thing has to prove the same. Hence if the blood group of the accused Jai Dayal was same to that of deceased Ram Niwas then it was for accused Jai Dayal to bring this fact on record. Moreover the accused cannot granted any benefit only on this ground by discarding the direct evidence on record.
41. Regarding photographs, it is found that PW14 who has conducted initial investigation, he has submitted that he has got the photographs of spot. But the photographs were not brought on record. It is not the rule of law and is not mandatory that the scene of occurrence should be photographed. Moreover nothing has been argued that how and in what manner the photographs would help the accused persons. If the photographs have not been brought on record due to any reason, considering the entire facts and circumstances and evidence on record it is not fatal to the case of 53 prosecution.
42. It was further argued that the site plan proved by prosecution was not correct to that of the spot of incident. Ld. counsel for accused has not elaborated his contentions that on what ground she argued that the site plan was not correct. Hence no further discussion is required in this regard.
43. In order to prove its case the prosecution was required to prove that on 22.7.00 at about 10.00 p.m. at Indra Camp 4, Vikas Puri accused Fakir Chand, Pramod, Wazir and Jai Dayal in furtherance of common intention committed murder of Ram Niwas and caused simple injuries with sharp edged weapon in person of complainant Amit.
44. In view of Section 300 of 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 injuries as the offender knows to be likely to cause the death of the 54 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 fourthly if the person, committing the act knows that it is so imminently dangerous that it must, in all probability 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.
To hold a person guilty for offence of murder the prosecution is required to prove
i) the death of a human being has actually taken place;
ii) such death has been caused by, or in consequence of , the act of the accused;
iii) such act was done with the intention of causing death; or it was done with the intention of causing such bodily injuries as
(a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or the accused caused death by doing an act known 55 to him to be so imminently dangerous that it must in all probability caused (a) death, (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
In the present matter the entire evidence again scrutinized carefully. PW4 Amit complainant and injured and PW5 has categorically stated that on the day of incident at about 10.00 p.m. they were present in their jhuggi alongwith deceased Ram Niwas. At that time they heard accused Fakir Chand was abusing loudly by calling the name of Ram Niwas and when Ram Niwas came out from jhuggi to enquired into from accused Fakir chand that why he was abusing him, the remaining accused namely Wazir, Jai Dayal and Pramod who were hiding nearby came there and caught hold Ram Niwas. Immediately, thereafter accused Fakir Chand who was having knife in his hand repeatedly gave knife blows on the neck and other bodily parts of deceased Ram Niwas. On receipt of these injuries when he fell down on ground, accused Pramod took knife from accused Fakir Chand and again stabbed Ram Niwas who was lying on the ground. When PW4 Amit tried to intervene he was also 56 given knife blows. The evidence of both these witnesses though related to the deceased is found to be natural and consistent as discussed above. The whole chain of events took place on spot reveals that the very intention of the accused persons was to kill Ram Niwas or to cause such bodily injuries sufficient to cause death. There was prior meetings of mind of the accused persons and in order to execute their ill will, first accused Fakir induced Ram Niwas to come out from his jhuggi by abusing him and the remaining three accused concealed their presence by hiding themselves around the spot. The intention of the accused persons was not simply to cause injuries to the deceased but was to commit his murder and this fact reflects from the conduct of the accused Pramod that he even inflicted the knife injuries to Ram Niwas who was lying on the ground in injured condition. This also reflects the knowledge of the accused persons that they might have been under apprehension that Ram Niwas may survive and as such more injuries were inflicted in his person though he was lying on the ground. Though the deceased has not died immediately on spot but after sustaining the injuries he never regained consciousness and ultimately succumbed to the injuries. The manner in 57 which the deadly weapon knife has been used, the manner in which the injuries have been inflicted shows the mansrea of accused persons.
Further, as discussed above the complainant Amit appeared in witness box as PW4, his mother appeared in witness box as PW5. In the evidence of both these witnesses the presence of all accused on spot and their identification has not been disputed at all. The prosecution has proved the identification of all the accused as discussed above.
The evidence of PW4 Amit and PW5 Savitri is corroborated with evidence of PW8 Dalpat Singh and PW10 Mithu Lal. The accused persons were having grudge against the deceased over the "Nali" as discussed earlier. Ram Niwas has succumbed to the injuries he has sustained at the hands of the accused persons is corroborated from the evidence of PW3 Dr. L.K. Barwa, who inter alia, held the injury no. 3 and 5 as the cause of death. Some variations between the ocular evidence and the medical evidence over the injury on the buttock of the deceased with the glass has already been discarded in earlier discussion.
In case Ankeri vs. State of Rajasthan, AIR 1994 58 SC 842, it was hold that the intention is state of mind which has to be inferred from the fact and circumstances of each case particularly the nature of weapon and how it was used and the injuries inflicted.
1. The entire evidence on record shows that the prosecution has succeeded in proving the ingredients of section 300 IPC beyond reasonable doubts and it was a case of murder.
2. The accused were also charged U/s 324/34 IPC for causing simple injuries with sharp edged weapon in person of Amit.
In case of injured Amit it is found that his evidence is fully reliable and trustworthy to the effect that he has sustained injuries at the hands of accused persons when he intervened to rescue his father from the hands of the accused persons and his evidence is corroborated from the MLC wherein the injury on the person of witness/injured has been opined as simple sharp.
3. In light of above discussion it is found that the prosecution has succeeded in proving its case beyond 59 reasonable doubt against all the accused persons U/s 324/34 of IPC for causing simple injuries in person of Amit and 302/34 IPC for causing death of deceased Ram Niwas.
4. Let they be heard on point of sentence.
(Bhupesh Kumar) ASJ(FTC)/West/ Tis Hazari Courts/Delhi 27.3.09 (Announced in open court) 60 In the court of Sh. Bhupesh Kumar Addl. Sessions Judge, Fast Track Court (WEST), DELHI SC No. 15/08 State Vs. 1. Fakir Chand son of Jay Dayal R/o Jhuggi No.18, Indira camp No.4, Vikas Puri New Delhi.
2. Pramod @ Babua son of Roshan Lal R/o Jhuggi No.15, Indira camp No.4, Vikas Puri New Delhi.
3. Wazir son of Jay Dayal R/o Jhuggi No.18, Indira camp No.4, Vikas Puri New Delhi.
4. Jai Dayal son of Rati Ram R/o Jhuggi No.18, Indira camp No.4, Vikas Puri New Delhi.
FIR No. : 311/2000
P.S. : Vikas Puri
U/s : 302/324/34 IPC
Order on Sentence :
1. I have heard the arguments of Ld. Addl. P.P. for the State and Ms. Mansi Sahu, Ld. counsel for accused 61 on point of sentence.
2. Ld. Addl. P.P. for the State submitted that the prosecution has succeeded in proving that all the accused in furtherence of their common intention have committed the murder of young person aged abut 35 years. There was prior meeting of minds between the convicts to commit the murder. The act of the convict persons was so gruesome that they have not spared the victim who fell on the ground after sustaining injuries and the convicts again gave knife blows to the victim. The manner in which the offence has been committed is rarest of the rare. It was vehemently argued that the maximum punishment should be awarded in this matter so that it could have a deterrent effect on the society. The reliance was made in case of Bantu Vs. State of U.P., 2009 AD (Cri) SC 175.
3. On the other hand, Ld. counsel for convicts has submitted that the offence committed in the present 62 matter cannot be termed as a brutal or cold blooded murder as the deceased has not died on spot. The deceased has succumbed to the injuries at about 7.30 a.m. on next day whereas the alleged incident took place at 10.00 p.m. on the earlier night. The deceased died at hospital. Had the act of the convicts so gruesome then there was no reason to leave him alive at spot. Therefore, the alleged act cannot be termed as rarest of the rare.
It was further submitted that convict Jai Dayal is father of the convicts Fakir and Wazir. The family of Jai Dayal consist of his wife, two sons out of which one son i.e. convict Fakir Chand is married and his daughter. Both the sons and Jai Dayal himself are in custody in this matter. They are the only male members and the female members of their family are living alone since more than eight years. They were the only bread earner. The convict Jai Dayal is aged about 50 years.
Further, regarding convicts Fakir Chand, Wazir 63 and Pramod it was submitted that all of them are young persons. They are in custody in this matter for last more than eight years. They have suffered the agony of trial for more than eight years. The reliance was made in case Maru Ram vs. U.O.I, AIR 1980 Supreme Court 898, and in case Aftab Ahmed Khan vs. State of Hyderabad, AIR 1954 SC 436.
4. On the behalf of all the convicts it was submitted that lenient view may be taken.
5. I have heard the arguments of Ld. Addl. P.P. for the State and Ld. counsel for convicts besides going through the material on record carefully.
6. Admittedly, as stated by Ld. Addl. P.P. for the State the deceased Ram Niwas was aged about 35 years when he lost his life. Further, that at the time of commission of offence when convict Fakir Chand caused knife injuries in person of deceased Ram Niwas, he was caught hold by 64 the remaining three convicts. On receipt of said injuries Ram Niwas fell on the ground. Thereafter, convict Pramod took knife from Fakir Chand and again stabbed Ram Niwas who was lying on the ground. It is also a factual position that Ram Niwas has not lost his life on the spot but he was shifted to hospital where he died on the next morning at about 7.30 a.m. In case Bantu Vs. State of U.P., 2009 AD (Cri) SC 175 , the allegations against the convict were that first he committed rape upon five year old victim girl and after committing rape he has thrust a stick of Dhaincha in the vagina of the victim as result of which she had died. In the said matter Hon'ble Supreme Court has by considering the facts of the case found the same to be rarest of the rare category.
7. In case Maru Ram vs. U.O.I, AIR 1980 Supreme Court 898, Hon'ble Supreme Court has hold that the rehabilitation and reformation of criminal has the main 65 component of the penal policy as social defence.
In case Aftab Ahmed Khan vs. State of Hyderabad, AIR 1954 SC 436, it was held by Supreme Court that as matter of convention though not as matter of strickt liability that ordinarily the extreme penalty should not be imposed.
In case Rajender Prasad vs. State of U.P., AIR 1979 Supreme Court of India 916 it was hold by Supreme Court that the retributive theory has its day and is no longer valid. Deterrence and reformation are the primary social goals which make deprivation of life and liberty as penal penacea.
8. In the present matter the nature of the weapon used is knife and only one knife has been used. The injuries has been inflicted by two convicts only and the manner in which the injuries were inflicted does not show that it was a cold blooded murder. The convicts Wazir, Fakir and 66 Pramod are of young age. All the male family members of convict Jai Dayal are in custody in this matter. There is nothing on record which shows that the convicts are involved in any other criminal matter of similar nature.
Further, the act of the convicts does not show that they are threat to the society. All these circumstances are the mitigating circumstances in favour of the convicts.
Further, considering the manner in which the offence has been committed the case cannot be termed as rarest of the rare case. The findings of the judgment in case Bantu vs. State of UP 2009 AD (Cri) SC175 are not applicable to the facts of the present case. Considering the facts and circumstances and in the light of above discussions, it is found that the life sentence would be the adequate punishment for all four convicts for committing offence U/s 302 IPC.
9. In the light of above discussions, all the convicts are sentenced to undergo life imprisonment with fine of 67 Rs. 5000/- each for offence U/s 302/34 IPC in default of payment of fine SI for six months. The convicts shall further undergo sentence to RI for one year with fine of Rs.3000- each U/s 324/34 IPC. In default SI for three months each. Both the sentences shall run concurrently.
Copy of judgment and order on sentence be supplied to the convict free of cost. File be consigned to record room.
(Bhupesh Kumar) ASJ(FTC)/West/Delhi 31.3.09 (Announced in open court)