Delhi District Court
State vs 1. Neeraj @ Karan on 16 July, 2016
IN THE COURT OF SH. SANJAY BANSAL:
ADDITIONAL SESSIONS JUDGE-03 (East):
KARKARDOOMA COURTS: SHAHDARA: DELHI.
S.C. No: 285/2016
(Case ID No.: 02402R0191262009)
State Versus 1. Neeraj @ Karan
S/o Sh. Pappu Podwal @ Bharat Raj
R/o Jhuggi No. 202,
B-18, Indira Camp,
Kalyan Puri, Delhi.
2. Sonu @ Matka
S/o Sh. Mam Chand @ Mangu
R/o H. No. D-46, House of Charan Singh,
Kondli, Delhi.
3. Vikas
S/o Sh. Jagdish
R/o Jhuggi No. 1102,
B-18, Indira Camp,
Kalyan Puri, Delhi.
FIR No. : 51/2009
PS. : Kalyan Puri
U/s. : 302/307/396/397/412/34 IPC
Chargesheet Filed On : 11.06.2009
Chargesheet Allocated On : 06.07.2009
Chargesheet Received In
This Court On : 06.02.2014
Judgment Reserved On : 02.07.2016
Judgment Announced On : 16.07.2016
JUDGMENT:
1. The abovenoted three accused persons have been sent up for trial on the allegations that they alongwith two others (tried separately being juveniles) looted complainant Mool Chand and his nephew Jitender and while committing the loot, they SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 1 of 44 killed Jitender.
2. FIR in the present case was registered upon statement of Mool Chand. He, in his statement, alleged that he and his nephew Jitender, on 16.03.2009, were coming to Gazipur Dairy Farm to purchase a cow. Both of them were having Rs.10,000/- in total. When they were going to Gazipur Dairy Farm from Gazipur Khatta, four boys surrounded them. Two of them were having knives and the other two caught hold of them. The boys who were having knives asked complainant and his nephew to handover everything and when complainant showed little resistance, one of them caused knife injury in the chest of nephew Jitender and the other tried to cause injury to complainant but he somehow saved himself and received injury on the left thigh. Thereafter all the boys took away money and mobile phones and fled away. Complainant took his nephew on his shoulders and came to Shamshan Ghat and made a PCR call to 100 number from the mobile of the Storekeeper of the Shamshan Ghat. Police came and took them to hospital where Jitender was declared brought dead. FIR was registered u/s 307/302/397/394/34 IPC.
3. After registration of FIR, statement of one eye witness Suraj Pal was recorded u/s 161 CrPC, and from the said statement, it came out that there were actually five boys who committed the said offence. Thus supplementary statement of complainant Mool Chand was recorded who also clarified that due to shock of the incident, he could not properly tell that there were five persons who committed the offence. After these statements, Sec. 394/34 IPC was converted to Sec. 396 IPC. SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 2 of 44
4. The Investigating Officer (IO) took various steps during the investigation, such as he seized incriminating materials from the spot, got conducted the postmortem, got prepared site plan, recorded statements of witnesses etc.
5. On 18.03.2009, first arrest was made on the basis of secret information and one X-1 (name withheld as he was found to be juvenile) was arrested who confessed to his involvement. Mobile phone make Nokia 3500 which belonged to the deceased was also recovered from him. He disclosed involvement of four of his associates namely Neeraj @ Karan, Vikas, X-2 (name withheld as he was also found to be juvenile) and Sonu @ Matka. Search was made for other accused persons.
6. On 19.03.2009, co-accused Sonu @ Matka was arrested and from him mobile phone of complainant was recovered.
7. Both these accused were identified by complainant in judicial TIP.
8. On 30.03.2009, the remaining three accused were arrested by the staff of Police Post, Majnu Ka Tila, u/s 41.1 (a) CrPC. On 02.04.2009, these three accused were formally arrested in the present case. All these three accused refused to join the TIP proceedings. However, complainant identified them on 23.04.2009 when complainant had come to Karkardooma Court. PC remand of accused Neeraj and X- 2 was obtained. Both these accused got recovered one Chopper and one Chhura, respectively, from a place near Gazipur Khatta and near Veterinary Hospital. Opinion was also sought from the concerned doctor regarding use of the weapon/chopper and it was opined that the weapon got recovered by accused Neeraj was used in SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 3 of 44 causing injury to the deceased.
9. Sec. 412 IPC was also added regarding recovery of the case property. As per the investigating agency, it was accused Neeraj who caused the fatal injury to deceased Jitender and it was accused X-2 who caused injury to complainant Mool Chand. Role of accused Sonu @ Matka was that he had caught hold of deceased Jitender and X-1 had caught hold of Mool Chand while role of accused Vikas was that he had taken out money from the pocket of deceased.
10. After completion of the investigation, chargesheet was filed against accused Neeraj @ Karan, Vikas and Sonu @ Matka for the offences punishable u/s 302/307/397/396/34 IPC. Separate proceedings were filed against the remaining two accused who were found to be juveniles.
11. Copies of the chargesheet were supplied to accused persons by learned MM and after compliance of provisions of Sec. 207 CrPC, case was committed to the court of Sessions.
12. Vide order dated 09.10.2009, passed by my learned predecessor, charges under Sections 302/34, 307/34, 397/34 and 412/34 IPC was framed against all these three accused persons to which they pleaded not guilty and claimed trial.
13. To prove the charge, prosecution examined as many as 32 witnesses. Those witnesses are as under:
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COMPLAINANT/INJURED/MATERIAL/PUBLIC WITNESS(ES)
14. Complainant Mool Chand was examined as PW-4. He is the most material witness. He deposed about the incident. He deposed that on 16.03.2009, he alongwith his nephew Jitender had left their house for going to Gazipur Dairy Farm for purchasing cow. He was having Rs.10,000/- and due to safety reasons, he had kept Rs.3000/- with him (which were in denomination of Rs.100); and he had given Rs.7000/- to Jitender (which were two currency notes of Rs.500 denomination and rest of Rs.100 denomination). He deposed that he was having mobile phone make Nokia 1650 having connection no. 9761671082 and Jitender was having mobile phone Nokia 3300 (as typed in the evidence but infact it was Nokia 3500) having connection no. 9917165677. He deposed that there was safety thread in his mobile phone. He deposed that they had taken Tempo to Lal Kuan, Ghaziabad and from there they took another tempo for Delhi. The tempo driver alighted them behind Murga Mandi CNG Pump, Khoda Colony. He deposed that from there, he and Jitender were walking on foot to Gazipur Dairy Farm via Khatte Wala Road. He further deposed that at about 2 pm, when they reached at the end of Khatte Wala Road towards Shamshan Ghat side, two persons came out from behind the wall of nala and were having knives. He deposed that one of them caught hold of Jitender and the other inflicted knife blow upon Jitender. He stated that it was accused Sonu who had caught hold of Jitender and it was accused Neeraj who had inflicted the knife blow. He identified both these accused. He further narrated that three more boys came from behind. One of them caught hold of him (PW-4) and the other boy SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 5 of 44 gave knife blow to him but he caught his hand to save himself. However, he received injury on his left thigh. PW-4 clarified that it was accused X-1 who had caught hold of him and it was accused X-2 who inflicted knife blow on him (Both X-1 and X-2 were tried as juveniles). Regarding role of accused Vikas, PW-4 stated that accused Vikas had taken out money from the pocket of Jitender. PW-4 deposed that at the time of the incident, accused persons had asked them to hand over their belongings and that they (accused) attacked when they (PW-4 and Jitender) resisted. PW-4 stated that Jitender had sustained injury on his chest. He further stated that he had seen Jitender had started bleeding. The offenders took away their mobile phones and cash of Rs.10,000/- and they ran towards Khatta side. PW-4, thereafter, lifted Jitender and took him towards main road side. He deposed that he made a call from mobile phone of Shamshan Ghat Storewala to 100 number and police came there and took them to hospital.
15. He deposed that at the hospital, Jitender was declared brought dead. PW-4 was given treatment. He deposed that police recorded his statement. He proved his statement as Ex.PW4/A.
16. He deposed further that from the hospital, he was brought to the spot where IO inspected the spot and crime team was also there. He deposed that the mobile phone safety thread of his phone was lying there. One key ring of deceased Jitender was also found at the spot. He stated that IO had also lifted sample soil and blood stained soil from the spot. His blood stained clothes were seized vide memo Ex.PW4/B. The safety thread of his mobile phone was also seized vide memo SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 6 of 44 Ex.PW4/C. PW-4 also proved the TIP proceedings as Ex.PW4/D (regarding accused X-1) and Ex.PW4/E (regarding accused Sonu @ Matka).
17. PW-4 also clarified that initially he had told to the IO that there were four boys, but later on he had told the IO that they were five who had committed the offence. He deposed that site plan was prepared at his instance. PW-4 further deposed that on 04.04.2009, he had come to Karkardooma Court for some work where he saw the three accused persons. He stated that IO met him and PW-4 told the IO about the accused persons.
18. He also identified his mobile phone Nokia 1650 as Ex. P-1, mobile phone of deceased Jitender Nokia 3500 as Ex. P-2, key ring of deceased Jitender as Ex. P-3, his own clothes i.e. T-shirt black colour and pants sky blue colour as Ex. P-4 and safety thread of mobile phone as Ex. P-5. He also identified photographs of the spot as Ex. PW5/A-1 to A-14 and photographs of deceased as Ex.PW5/A-16 to A-20. The IMEI numbers of the mobile phones were also tallied with seizure memos and found correct.
19. Another public witness is PW-6 Brijesh Tiwari. He is the person who was running store at the Gazipur Shamshan Ghat. He deposed that one person had come to him for help at about 2:30/3:00 pm on 16.03.2009 and he provided him his mobile phone and the said person made call to 100 number. He deposed that PCR Van had also come at his shop. This witness was declared hostile and was cross- examined by learned Addl. PP. He denied that two persons had come to him at that SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 7 of 44 time and not one. He was confronted with his statement recorded by the police. He admitted that it was told to him by the said person that Rs.10,000/- had been looted from them.
20. PW-8 Suraj Pal is the next public witness. He deposed that on 16.03.2009 at about 1:45 pm, he was going to the house of his friend at Khoda Colony and when he was passing through Gazipur Khatta, he saw that five persons had caught and apprehended two persons and they were doing loot-paat with those two persons. He also saw that one of the five offenders was also having a knife. He deposed that he had left from there and did not see any person inflicting knife injuries to the said two persons. This witness was also declared hostile. He was confronted with his previous statement and he denied that he had witnessed infliction of the knife injury. However, he admitted that he had identified accused Neeraj @ Karan on 05.04.2009 before the IO. He also admitted that accused Vikas and Sonu were also with accused Neeraj at the time of commission of the offence. He explained that he could not identify these accused earlier due to presence of the crowd in the court room.
21. However, in cross-examination conducted on 30.09.2010 on behalf of accused persons, he reversed his stand and stated that he could not identify any of the accused. He was re-examined by learned Addl. PP regarding fact of identification and explained that he had weak eyesight and due to that he could not see the accused persons properly when he had identified them during cross-examination by the Addl. PP earlier.
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22. Another public witness is PW-9 Sonu Kumar. He deposed that in 2008, he had purchased mobile phone Nokia 3500-C and sold the same to deceased Jitender for Rs.5400/-.
MEDICAL/EXPERT WITNESSES
23. PW-1 Dr. Shalini Gupta had examined body of deceased Jitender on 16.03.2009 vide MLC Ex.PW1/A. She deposed that the patient was brought dead. She had also examined complainant Mool Chand vide MLC Ex.PW1/B.
24. PW-7 Dr. Arvind Kumar had conducted postmortem on the body of deceased on 14.03.2009. He found an incised stab wound fresh of the size 6.6 cm x 0.4 cm x cavity deep on the right side of the chest. He opined the time of death as 18- 20 hours and the cause of death as, "hemorrhagic shock due to ante mortem injury to right lung and its vessels produced by single edged sharp cutting/stabbing". His report is Ex.PW7/A. He also deposed about giving subsequent opinion on the application of the IO. The subsequent opinion is Ex.PW7/B. As per subsequent opinion, he opined that injury no.1 present in the PM report Ex.PW7/A could be caused by weapon under examination (chopper). The subsequent opinion is Ex.PW7/C. INVESTIGATION WITNESSES
25. PW-10 ASI Jamaluddin was posted with PCR East Zone. He had reached at Shamshan Ghat, Gazipur, Delhi. He deposed that he saw two persons SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 9 of 44 lying in pool of blood in injured condition in front of Sanchar Store (but actually it is Sanskar Store and appears to be typographical error). Blood was oozing out from the chest of one of the injured and there was injury mark on the thigh of another injured. He deposed that he took both of them to LBS hospital. He came to know names of both of them as Jitender and Mool Chand respectively. He deposed that Jitender was declared brought dead. He deposed that SI Harpal Singh also reached the hospital. Thereafter he left to his base point.
26. PW-12 SI Harpal Singh had reached the spot from PS Kalyan Puri after receiving DD No.24-A. He deposed about meeting one Brijesh at Sanskar Store. He also went to LBS hospital where he obtained the MLC of Jitender and Mool Chand. He also got sealed parcel from the hospital. He deposed about arrival of Inspector Mahinder Kumar alongwith staff. He handed over MLCs and parcels to him. He deposed that thd IO/Inspector Mahinder Kumar seized the parcels relating to deceased Jitender vide memo Ex.PW12/A.
27. He further deposed that on 02.04.2009, he got the file for further investigation. He deposed about formally arresting accused Neeraj @ Karan, Vikas and X-2. Memos are Ex.PW12/B and C. He also recorded disclosure statement of accused Neeraj and Vikas vide memo Ex.PW12/D and E. Accused Neeraj disclosed that he had concealed the weapon towards Gazipur Khatta and can get it recovered.
28. PW-13 Ct. Yogender Kumar had accompanied the IO/Insp. Mahender Kumar during the investigation. He deposed about investigation conducted on various SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 10 of 44 dates. He deposed about seizure of sealed parcel in his presence from the LBS Hospital vide memo Ex.PW12/A. He deposed about preparation of inquest papers and seizure of sealed parcel by the IO containing blood gauze piece vide memo Ex.PW13/A. He deposed about arrest of accused X-1 at the instance of secret informer on 18.03.2009. He deposed that mobile phone make Nokia was recovered from accused X-1 and was seized vide memo Ex.PW13/B. He further narrated that accused X-1 was told to keep himself in muffled face vide notice Ex.PW13/C. He deposed about recording of disclosure statement Ex.PW13/D of said accused. Copy of the arrest memo of accused X-1 is Ex.PW13/E and copy of his personal search memo is Ex.PW13/F.
29. He further deposed that accused X-1 took the police team to the house of co-accused Sonu @ Matka but he was not found there. Thereafter accused X-1 took them to Nithari Village where accused Sonu @ Matka was apprehended. Mobile phone make Nokia was recovered from him which was seized vide memo Ex.PW15/C.
30. PW-13 deposed about arrest of accused Sonu @ Matka and conduct of his personal search. He also deposed that accused Sonu was kept in muffled face after giving notice Ex.PW15/D.
31. PW-13 also deposed about investigation conducted on 05.04.2009. He deposed that Accused X-2 and Neeraj were taken to Shamshan Ghat, Gazipur. Both the accused persons took the police party to the place of incident and pointing out SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 11 of 44 memos were prepared which are Ex. PW 13/G & H prepared at the pointing out accused Neeraj and X-2 respectively. He deposed that thereafter accused Neeraj & X-2 took them to a distance of 200 meters towards Gazipur Khatta to a spot behind wall of Animal Hospital and pointed out the place where they had dumped chopper and knife. He deposed that accused Neeraj dug out soil and took out one chopper. IO prepared its sketch Ex.PW13/I after its measurement and was converted into a sealed pullanda with the seal of RL which was seized vide memo Ex.PW13/J. He deposed that accused X-2 also took out a knife from the soil which was at a distance of 3-4 feet and IO prepared its sketch Ex.PW13/K. Knife was converted into a sealed parcel with the seal of RL and seized vide memo Ex.PW13/L. PW identified case properties i.e. mobile phone Nokia 3500 Ex. P-2 recovered from accused X-1; another mobile phone Nokia 1650 recovered from accused Sonu @ Matka; chopper Ex. P-4 recovered from accused Neeraj and knife recovered from X-2.
32. PW-15 HC Shri Bhagwan deposed about joining of investigation in the intervening night of 18/19.03.2009. He deposed about arrest of accused Sonu @ Matka at the pointing out of co-accused X-1 vide memo Ex.PW15/A and personal search vide memo Ex.PW15/B. He also deposed about recovery of mobile phone from accused accused Sonu, giving him notice to keep himself in muffled face and recording of disclosure statement Ex.PW15/E. He also identified mobile phone as Ex.PW15/1 (already Ex. P-1) recovered from accused Sonu.
33. PW-18 SI Tirath Ram deposed about arrest of three boys namely accused Neeraj, Vikas and X-2 on 30.03.2009. He deposed that on that date, he was SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 12 of 44 posted at PP Majnu Ka Tila. He along with SI Narender, Cts. Narender, Gajender and Hamender were on anti-snatching duty near Chandgi Ram Ka Akhara. He deposed that three boys were seen coming on foot from ISBT side. On seeing the police officials, said boys had turned back and started going on fast steps. On suspicion, police team chased them and apprehended them. They could not explain satisfactorily about their conduct and were taken to the Police Post. During interrogation, they disclosed about their involvement in the commission of robbery of 16.03.2009. PW18 deposed that SI Narender informed the concerned SHO. All the three accused were arrested (Arrest memo of all these accused persons are Ex.PW12/B, 12/C and 29/B respectively).
34. PW-20 Ct. Mohd. Javed joined the investigation of this case. He deposed about investigation conducted on 16.03.2009. He identified his signatures on Ex.PW4/C and 3/B. Further, he deposed about investigation of 02.04.2009. He identified the bunch of keys Ex. P-3 (Colly). He identified one T-shirt and pants which were already Ex. P-4. He also identified mobile phone dori/safety tag Ex. P-5, blood stained earth Ex. P-6, earth control Ex. P-7; another earth control Ex. P-8 and blood stained earth Ex. P-9.
35. PW-21 Inspector Narender Singh was also posted at PP Majnu Ka Tila. He also deposed about arrest of accused Neeraj, Vikas and X-2 and about conduct of their personal search vide memos Ex.PW23/D to I and their disclosure statement Ex.PW23/A & B (there are no exhibits Ex.PW21/A to H as clarified during evidence of PW-21 dt. 12.01.2015).
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36. PW-25 Ct. Amrik Singh deposed about the investigation done on 05.04.2009. He deposed about preparation of pointing out memos at the pointing out of Neeraj & X-2. He also deposed about recovery of Chopper and knife at the pointing out of these two accused persons. He also identified the case property.
37. PW-26 HC Sher Pal Singh deposed that on 02.04.2009 he had taken accused Neeraj from Lock Up to the court . He deposed that he told accused Neeraj to keep himself under muffled face but he did not follow the instructions.
38. PW-27 Ct. Jitender also deposed similarly with respect to accused Vikas. In the like manner, PW-28 Ct. Ramender Singh deposed about accused X-2.
39. PW-29 HC Rajesh deposed about investigation conducted on 16.03.2009. He deposed that he had gone to the spot along with Inspt. Mahender Kumar. His evidence is also on the same lines as of PW13. He identified his signatures on Ex.PW4/B & C. He also deposed about investigation conducted on 17.03.2009 and stated that inquest proceedings were prepared on that date. He further deposed about investigation conducted on 18.03.2009 and narrated the circumstances in which accused X-1 and Sonu @ Matka were arrested. He deposed that X-1 was arrested at the pointing out of secret informer. Secret information is Ex.PW29/A. He identified his signature on various other memos in respect of these two accused persons. He also deposed about recovery of mobile phone from two accused persons. He identified the case property and arrest memo of X-2 Ex.PW29/B; and disclosure statement of said accused as Ex.PW29/C. He also SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 14 of 44 participated in the proceedings conducted on 05.04.2009 at the spot and at the place of recovery of chopper and knife.
40. PW-31 Inspt. Mahender Kumar is the IO. He deposed about the investigation. PW-31 had reached the spot alongwith HC Rajesh Tyagi, Ct. Javed and Ct. Yogender after receipt of information vide DD No.24-A (Ex.PW3/A). He lodged a departure entry vide DD No. 26-A which is Ex.PW31/A. At the spot, he met Brijesh Tiwari, the shopkeeper who informed PW-31 that PCR had taken two persons to LBS Hospital. PW-31 also reached the hospital and met SI Harpal Singh. PW-31 collected the two MLCs from SI Harpal Singh. Thereafter he deposed about various steps taken during the investigation on that day. PW-31 prepared rukka Ex.PW31/B and got the case registered. He lifted incriminating materials from the spot. He also prepared site plan Ex.PW31/C at the instance of Mool Chand/PW-4. He deposed about sealing and seizing clothes of Mool Chand. He identified his signatures on various memos.
41. He also deposed about investigation conducted on 17.03.2009. He proved the inquest papers as Ex.PW31/D (various documents forming part of inquest papers were marked as Ex.PW31/D-1 to D-4). He got conducted postmortem and handed over the dead body to the family members.
42. Thereafter he deposed about investigation conducted on 18.03.2009. He deposed that he received the secret information about one person involved in the incident would come at Sochalaya of 18-Block, Indira Camp, Kalyan Puri. He reduced the information into writing. He deposed that they took positions and after some time, SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 15 of 44 one person, whose name later on was revealed as X-1, came there and was apprehended. From search of X-1, mobile phone make Nokia 3500 of black colour was recovered. One SIM card of Hutch company was also found. He deposed that accused X-1 confessed his guilt and disclosed names of his associates as X-2, Sonu @ Matka, Neeraj @ Karan and Vikas. He deposed about arresting accused X-1 and seizing the Nokia mobile phone. He corroborated PW-13 regarding preparation of various memos and he identified his signatures thereon.
43. He also deposed about arrest of other accused persons vide different memos. He corroborated fact of recovery of mobile phone make Nokia 1650 black & white colour from right pocket of pants of accused Sonu. He further corroborated PW- 15 in this regard.
44. He also deposed about moving applications for TIP which are Ex.PW31/F and G on 23.03.2009. TIP was fixed for 26.03.2009. He deposed that injured Mool Chand identified accused X-1 and Sonu @ Matka. Application for copies of the TIP proceedings is Ex.PW31/H. He deposed about receiving information on 31.03.2009 from Chowki I/C Majnu Ka Tila about arrest of three accused persons. He arrested all of them formally before the court on 02.04.2009. He moved applications for TIP. He deposed that accused persons did not keep their faces muffled at the time of their appearance before the learned MM. On 05.04.2009, PW-31 moved application for PC remand of accused X-2 and Neeraj @ Karan. The said application is Ex.PW31/I. He deposed that both these accused pointed out the place of incident and also got recovered the chopper and the knife from the nearby area. PW-31 SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 16 of 44 prepared sketch of the chopper got recovered by accused Neeraj @ Karan. He identified his signatures on various memos in this regard. Accused X-2 got recovered a knife. PW-31 identified his signatures on various memos regarding the same as well. He deposed that accused Neeraj @ Karan, X-2 and Vikas refused to join the TIP. Applications regarding these TIP proceedings are Ex.PW31/K-1, K-2 and K-3.
45. He deposed that on 30.04.2009, injured Mool Chand came to the PS and produced documents regarding ownership of mobile phone which were seized vide memo Ex.PW31/L. The receipt is Ex.PW31/L-1 and bill is Ex.PW31/L-2. He also deposed about getting prepared scaled site plan.
46. He further deposed about obtaining Post Mortem report. He also proved his application seeking subsequent opinion which is Ex.PW31/M and obtained subsequent opinion Ex.PW7/C. He deposed about sending exhibits to the FSL. He also filed the challan. The FSL results are Ex.PW31/N and O. He identified accused Sonu @ Matka, and Neeraj @ Karan. Identity of accused Vikas was not disputed during his evidence. He identified the case properties also. FORMAL WITNESSES
47. PW-2 HC Basti Ram had recorded the FIR being the Duty Officer. Computerized copy of the FIR No. 51/09 is Ex.PW2/A. He had also made endorsement on Ex.PW2/B.
48. PW-3 HC Hushiyar Singh deposed about receiving information at 2:41 SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 17 of 44 pm on 16.03.2009 that PCR had received information from mobile number 9810713528 regarding stabbing incident. PW-3 recorded this information vide DD No. 24-A which is Ex.PW3/A. He also made a departure entry regarding Inspector Mahender Kumar, Ct. Javed, Ct. Yoginder and HC Rajesh vide DD No.26-A which is Ex.PW3/B. He also proved the record of DD No.31-A and 29-A as Ex.PW3/C and D.
49. PW-5 Ct. Sanjeev was photographer with the crime team and deposed about taking photographs of the spot/dead body on 16.03.2009. He took 20 photographs which are Ex.PW5/A-1 to A-20. The negatives are Ex.PW5/A-21 (Colly.).
50. PW-11 Inspector/Rajesh Sinha was Incharge Crime Team. He deposed about visiting the spot on 16.03.3009 alongwith his staff. He conducted the inspection there and got the same photographed. He found mobile safety thread which was blood stained, two spots of blood stains, and one bunch of keys containing three keys. He also visited the LBS hospital and saw the body of deceased and got it photographed.
51. PW-14 Ct. Sudesh had taken Special Report to senior police officers and also to jurisdictional Magistrate. He deposed that he had given the report to the jurisdictional Magistrate at his residence at about 6 p.m. On 16.03.2009.
52. PW-16 Ms. Sunena Sharma was learned MM who conducted TIP proceedings in respect of accused Sonu @ Matka on 26.03.2009. Proceedings regarding identification of witness by the IO are Ex.PW16/A, and TIP proceedings in respect of this accused are Ex.PW4/E (marked as exhibit in testimony of PW-4). SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 18 of 44 Certificate of correctness is Ex.PW16/B. She also deposed about conduct of TIP of accused X-1 on the same date. Same are Ex.PW4/D. During both proceedings, complainant correctly identified the accused persons namely Sonu @ Matka and X-1.
53. PW-17 Sh. V.K. Gulia, learned MM, also dealt with TIP applications for accused X-2, Vikas and Neeraj @ Karan. All these three accused refused to join TIP proceedings and records of that aspect are Ex.PW17/A to I.
54. PW-19 HC Sonu Kaushik was Asstt. Draftsman. He deposed that on 23.04.2009, he visited the spot and prepared rough notes and prepared scaled site plan Ex.PW19/A. He handed over the same to the IO on 12.05.2009 and destroyed the rough notes.
55. PW-22 HC Rajender was deputed as Duty Officer at PS Kalyan Puri. He deposed about receipt of information from SI Rajender (PW-21) about apprehension of three boys. He recorded the same vide DD No. 27-A (Ex.PW22/A).
56. PW-23 Ct. Hemender also deposed about arrest of three boys namely Neeraj, Vikas and X-2 by officials of PP Majnu Ka Tila. He deposed that accused X-2 made disclosure statement Ex. PW23/A, accused Vikas made disclosure statement Ex. PW23/B, and accused Neeraj made disclosure statement Ex. PW23/C. This witness also proved the memos Ex.PW23/D to I i.e. arrest memos and personal search memos of these three accused.
57. PW-24 Ct. Pradeep Kumar had taken the exhibits to FSL on SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 19 of 44 25.05.2009 and deposited the same there in intact condition.
58. PW-30 HC Prahlad was deputed as Computer Operator and he had issued certificate Ex.PW30/A under Sec. 65-B Indian Evidence Act.
59. PW-32 W/Ct. Pooja deposed about receipt of information on 16.03.2009 at about 14:37 Hours. The record is Ex. PW 32/A and certificate Ex. PW 32/B under Sec. 65-B Indian Evidence Act. Ex. PW 32/A-1 is another copy of the PCR Form which was lying on the file.
60. There was some overlapping in giving exhibit numbers to material objects. The clothes of PW-4 Mool Chand are Ex. P-4 (colly.) but chopper got recovered by accused Neeraj @ Karan was also given exhibit number as Ex. P-4. Similarly, mobile phone Nokia 1650 is Ex. P-1 but it was again given number as Ex.PW15/1 in evidence of PW-15.
STATEMENT(S) OF THE ACCUSED PERSONS
61. Statements of the three accused persons were recorded under Sec. 313 CrPC. Accused Neeraj @ Karan pleaded that he was innocent and was lifted from his house and implicated falsely in this case. He also pleaded Karan is not his alias name. Accused Sonu @ Matka also pleaded that he was also lifted from his house and kept three days in the Police Station. He stated that no recovery was effected from him. Accused Vikas stated that he was not concerned in the crime. He also pleaded that he was lifted from his house but could not tell when. SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 20 of 44 DEFENCE WITNESS(ES)
62. All accused persons led evidence in his defence.
63. DW-1 is Om Prakash. He is father-in-law of accused Vikas. He deposed that on 01.03.2009 accused Vikas married his daughter and in that year Holi festival was on 11.03.2009. He also deposed that on 10.03.2009 he had taken his daughter and son-in-law to his village and they remained there till 20.03.2009. He also deposed that on 25.03.2009, he came to know about implication of accused Vikas in this case. He proved one marriage invitation card as Ex. DX-1.
64. Accused Neeraj examined DW-2 Sh. Vinod Kumar. He deposed that on 28.03.2009 at about 10:00/10.30 a.m. some police officials came in Gypsy and were taking away Neeraj, his neighbour. He deposed that when he reached the house of Neeraj, he had come to know that Neeraj had been taken away by the police. He also went to PS Kalyan Puri with Usha, mother of accused. Police officials informed them they had detained Neeraj for inquiry. He also deposed that Neeraj was kept in the police station for three days and then implicated falsely in this case.
65. Accused Sonu examined Smt. Angoori Devi as DW3. She is mother of accused Sonu. She deposed that on 17 th March, (she does not remember the year), she had visited the house of her daughter at Nithari Village on the occasion of Mundan ceremony of her grandson. She also deposed that her elder daughter Geeta and her son Sonu were also with her and at about 9 p.m. police officials of PS Kalyan Puri came there and lifted her son Sonu. She deposed that her son Sonu was SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 21 of 44 detained in the Police Station for about three days and then implicated falsely in this case.
SUBMISSIONS OF THE PARTIES
66. Sh. D. K. Singh, learned Addl. PP submitted that there is direct evidence in the form of testimony of PW-4. He argued that testimony of PW-4 is reliable. He submitted that from evidence of PW-4 and other witnesses, the prosecution has proved the charges. He pointed out that there was no reason for PW-4 to falsely implicate any of the accused.
67. On the other hand, Sh. Abdul Sattar, learned amicus curiae submitted that there were various contradictions and discrepancies in the testimony of PW-4 and other witnesses and, therefore, benefit of doubt must be given to the accused persons. He particularly referred to the DD No.24-A wherein it was mentioned that stab injury had been caused to the brother of the caller whereas deceased was nephew (Bhatija) of PW-4. He submitted that this contradiction makes evidence of PW-4 unreliable. Thereafter, he referred to the MLC which says injury to PW-4 was simple and blunt. He argued that PW-4 alleges that he was attacked with knife and, therefore, injury to him could not have been blunt. Then he pointed out that PW-6 Brijesh Tiwari and PW-8 Suraj Pal have turned hostile. He also argued that PW-4 had stated that he had not gone to the spot but draftsman PW-19 says to the contrary which adversely affects the case of the prosecution. He also highlighted that there was overwriting on the date mentioned in the statement Ex. PW4/A. He pointed out SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 22 of 44 that date of 17.03.2009 was converted to 16.03.2009 by overwriting. He submitted that there was overwriting further in the statement u/s 161 CrPC. Learned amicus curiae also submitted that recovery of the chopper has not been proved at all. He highlighted that no public witness was joined at the time of the alleged recovery, and for this reason, recovery is doubtful. He relied upon 1988(1) CRIMES 172 titled Pawan Kumar vs. Delhi Administration in support of this argument. He argued that prosecution has failed to prove that it were the accused persons who committed the offence against PW-4 and the deceased.
68. I have considered the submissions.
FINDINGS
69. The evidence of an injured witness commands greater respect and weightage under the law. In several decisions, such as Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayed v. State of Madhya Pradesh, (2010) 10 SCC 259, Hon'ble Supreme Court has time and again reiterated the value of an injured witness and has observed:
"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 23 of 44 want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein".
70. Regarding contradictions and discrepancies, the Hon'ble Apex Court has laid down, in catena of judgments, that only major contradictions and discrepancies need be considered. Minor discrepancies are to be ignored. Reference may be made to (2011) 6 SCC 279 A. Shankar v. State of Karnataka wherein it was observed as follows:
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety."
71. Now let us examine whether PW-4 Mool Chand is a truthful witness or not ?
72. As per MLC, PW-4 received the following injuries:
"Lacerated wound measuring 0.5 cm x 0.5 cm + swelling in Lt. Thigh middle 1/3rd."
Injury was opined as "simple and blunt".
SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 24 of 44
73. Examination-in-chief of PW-4 has already been noted above. In the cross-examination, PW-4 stated that he had never gone to Murga Mandi prior to 16.03.2009. He stated that his statement was recorded twice on 16.03.2009 and, thereafter, on 26.03.2009. He stated that he had signed the statement Ex.PW4/A in the PS but had also explained that IO had made inquiries from him in the hospital itself. He admitted that there was overwriting but denied the suggestion that his statement was recorded on 17.03.2009. He denied the suggestion that he was not present at the spot or that he had not witnessed the incident. He further stated that his second statement was recorded on 16.03.2009 after about one hour of recording Ex.PW4/A. He explained that due to fear and nervousness, he could not properly tell number of the offenders in his statement Ex.PW4/A. He told that the incident lasted for about 4-5 minutes. He further said that he had made the call after about half an hour of the incident. Nothing more could be elicited in the remaining cross- examination.
74. Learned Defence Counsel vehemently submitted that there are major contradictions in the testimony of PW-4. He argued that the narration of incident in testimony is quite different from that given in statement Ex.PW4/A. He argued that different versions must lead to the conclusion that PW-4 is not a truthful witness.
75. It is true that sequence of events as narrated in Ex. PW4/A is different from that in statement given in the witness box. In Ex. PW4/A, PW-4 had stated that four boys, later on five boys as explained further from supplementary statement, had suddenly come out from behind the wall of the nallah, that two of them were having SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 25 of 44 knives, that two of them who were not having the knives caught hold of them (PW-4 and deceased), that one of them having knife caused injury with said knife in chest of deceased, and that the other - also having knife - attempted to kill him (PW-4), and that last one took out money from pocket of deceased. Whereas in the witness box, PW-4 stated the firstly two boys came out who were having knives, that one of them caught hold of deceased and the other gave knife blow in the chest of the deceased, that thereafter three more boys came there, that one of them caught hold of him (PW-
4) and the other attempted to kill him with knife, and that the last one took out money from pocket of deceased. Whether these are to be taken as major contradictions?
76. In my view, given the facts and circumstances of the case, these cannot be considered as major contradictions so as to discard the testimony of PW-4. PW-4 has specified the roles of each of the accused. He has specifically deposed that it was accused Neeraj who inflicted the fatal knife (chopper) blow upon deceased Jitender, that it was accused Sonu who had caught hold of deceased while Neeraj inflicted the fatal blow, that it was accused X-2 who tried to kill him (PW-4) while accused X-1 was holding him, and that it was accused Vikas who had taken money out of pocket of deceased.
77. The mental condition of PW-4 can also not be lost sight of. He was under immense shock and fear when his statement was recorded by the police. As it has already come on record, he had given supplementary statement explaining regarding number of offenders. This shows under how much shock he was at that time. Thus some discrepancy or contradiction cannot be made basis to discard his SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 26 of 44 testimony. He has, in unequivocal terms, deposed about seeing accused persons surrounding them (PW-4 and deceased Jitender), demanding their belongings, murderous assaults upon them on their refusal and protest, and Jitender being killed and PW-4 being injured in the said attack and their belongings being looted. The defence also did not seek any explanation from PW-4 on these aspects at the time of recording cross-examination. When no opportunity has been granted to explain these discrepancies, the same cannot be used to throw away his testimony.
78. PW-4 had lifted and taken Jitender to the main road side and reached near Shamshan Ghat Store. He called 100 number using phone of the storekeeper. Though the storekeeper/PW-6 is somewhat hostile as to how many persons had come to his shop, but it stands proved that call was made to 100 number from his mobile phone. Testimony of PCR official/PW-10 shows that there were two persons in injured condition at the said store when they reached there and both of them were taken to the hospital. Thus it stands established that PW-4 and deceased were victims of the offence.
79. PW-4 was examined at the hospital contemporaneously as the deceased. MLC's show that deceased was examined at 3:00 pm whereas PW-4 was examined at 3:30/3:10 pm (as there is some overwriting on the time, but considered any way, there is proximity of time). Thus, presence of PW-4 at the scene of crime cannot be doubted.
80. As far as discrepancies about number of offenders is concerned, SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 27 of 44 prosecution has also explained the same. PW-4 has categorically explained that due to fear and nervousness, he could not properly tell the number of offenders. His second statement was recorded soon after the first statement and recording statement u/s 161 CrPC of PW-8 Suraj Pal. In my view, there was no manipulation. If investigating agency had any intention to manipulate the story, it could easily have withhold the previous statement but this is not the case. This shows that whatever was recorded was not concealed by them. It is not uncommon that a human being who has witnessed murderous assault upon himself and his relative, and the relative died also, would be under immense shock and fear after the incident.
81. As far as overwriting about date is concerned, it is there but that does not make story of PW-4 as a false story. The IO had written the said statement. It was for the IO to explain the overwriting. Due to fault of IO, testimony of PW-4 cannot be discarded. Strangely, no question was asked by the defence from the IO/PW-31 about these overwritings.
82. Learned defence counsel also contended that PW-4 is a planted witness. He also pointed out that though PW-4 claimed that he was attacked with knife but as per his MLC (Ex. PW1/B), his injury was opined as simple and blunt. According to learned counsel the injury could not have been blunt if it was received by using knife.
83. There is no force in this contention as well. PW-1 i.e. the concerned doctor has explained that she had mentioned injury as simple and blunt on the basis SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 28 of 44 of the type of the wound which was 'lacerated wound'. A lacerated wound may result if the blunt side of the knife hits the victim. This possibility cannot be ruled out. Even otherwise, it is settled position in law that testimony of an eyewitness is to be preferred to that of a medical witness. Reference may be made to State of U.P. v. Hari Chand, (2009) 13 SCC 542, wherein the Hon'ble Apex Court told the position of law thus:
"In any event, unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."
84. In the present case, it cannot be said that medical evidence is totally irreconcilable with oral evidence. As already noted, possibility of blunt side of the knife hitting the victim i.e. PW-4 cannot be ruled out and, for this reason, there is reconciliation between the two.
85. The discrepancies appearing in the DD No. 24-A i.e. the caller mentioned that his brother had been killed rather than nephew, is not to be given too much importance. The word 'brother' instead of word 'nephew' does not lead to conclusion that no incident had happened or that there was no assault upon PW-4 or deceased Jitender. Keeping in mind the mental condition of PW-4, this contradiction can be explained away as insignificant and minor one.
86. Moreover, there is no reason for PW-4 to falsely implicate any of the accused persons. There was no enmity with any of the accused. There was no reason for PW-4 to spare the actual culprits and implicate the accused persons. FSL SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 29 of 44 result Ex. PW31/N shows that blood had been detected on most of the exhibits. As per Serological report Ex. PW31/O, the blood on most of those exhibits was human blood.
87. Having gone through the testimony of PW-4, I am of the firm view that testimony of PW-4 is truthful and reliable. The discrepancies and contradictions pointed out by learned defence counsel are not of any significance. The narration of events stated in the witness box is different from that mentioned in statement to the police Ex.PW4/A, but it has been shown by the prosecution that five boys had surrounded PW-4 and deceased Jitender, looted them, and killed Jitender and caused injuries to PW-4. There is no doubt in the mind of this court about these facts.
88. Further PW-8 has corroborated PW-4 that there was a looting incident at the relevant time and place. True it is that PW-8 was declared hostile but it is settled law that testimony of even hostile witness can be acted upon if it is found credible. Reference may be made to (2013) 14 SCC 434 titled Rohtash Kumar v. State of Haryana, wherein it was observed as under:
"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.
89. It is also to be noted that PW-8, in cross-examination by learned Addl. SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 30 of 44 PP, had identified accused Vikas, Sonu and Neeraj on one date; but on the next date, in cross-examination by learned counsel for the accused, he stated that he could not identify them. Thus, it can be seen that he was won over by the accused persons. This court intends to take legal action against this witness for perjury regarding which appropriate order will be passed later on. However, it appears from his testimony that five persons had surrounded two persons at the relevant time and place. This corroborates PW-4.
90. The deceased Jitender, as per the post mortem report Ex. PW7/A, had received the following injuries:
"Incised stab wound fresh of size measuring 6.6 cm x 0.4 cm x cavity deep over right side of chest"
91. The injury has been described, by PW-7 in the witness box, as sufficient in the ordinary course of nature to cause death. The subsequent opinion Ex.PW7/C clearly says that injury on the chest of the deceased could be possible by the chopper recovered at the instance of accused Neeraj @ Karan. As per post mortem report Ex. PW7/A, death was due to "haemorrhagic shock due to ante mortem injury to right lung and its vessels produced by single edged sharp cutting/stabbing weapon".
92. Prosecution has heavily relied upon fact of recovery of chopper at instance of accused Neeraj. Learned Addl. PP contended that the recovery lends credence to the case of the prosecution. On the other hand, learned defence counsel argued that recovery is to be doubted. His contentions have already been noted.
93. It has been held in the case of Babuddin v. State reported as 2009 [3] SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 31 of 44 JCC 2428 that recovery effected from an open space accessible to all is not to be believed unless there is evidence to show that accused had concealed the article at a particular place and no one else could know such place. Further, in the case of State of Maharashtra v. Damu (2000) 6 SCC 269, it has been observed that: -
"35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum."
94. PW-31 Insp. Mahender Kumar, PW-13 Ct. Yogender Kumar, PW-25 Ct. Amrik Singh and PW-29 HC Rajesh have deposed about recovery of chopper at the instance of accused Neeraj @ Karan pursuant to disclosure statement Ex.PW12/D. The recovery has been effected on 05.04.2009 from a place at some distance from the scene of crime and near the wall of a Veterinary Hospital. The chopper was dug out of the ground. The witnesses were cross-examined on this aspect.
95. In cross-examination of PW-13, it has come that they had reached the Shamshan Ghat, Gazipur on 05.04.2009 at about 3:00/3:35 pm; that they had gone in government gypsy which was stopped 200 meter away from the spot; that no person from residential area which was half a km away was called to join the proceedings; that knife was not rusted; that the weapons were not visible on the ground; that he (PW-13) could not notice blood on the knife and chopper as there was mud over it; SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 32 of 44 and that no finger prints from the knife were taken.
96. In cross-examination of PW-25, it has come that IO had requested some public persons to join the proceedings but none agreed; that IO had dug out the sand himself with his hands; that chopper and knife were lying horizontally under the sand about 2-3 inches deep; that the surface above was smooth; that there was sand on those weapons when they were taken out; that those were rusted also; that blood was seen on the front side; and that sketches were prepared at about 1:00 pm.
97. In cross-examination of PW-29, it has come that vehicle was stopped 300 meter from the spot; that firstly chopper was recovered; that there was sand and garbage upon the chopper; that there were some spots on it which appeared to be blood spots; that rust was there; that it was not wrapped with any cloth; and that he had prepared the sketches of the chopper and knife at the directions of the IO.
98. In cross-examination of PW-31, it has come there were rust marks and blood marks; that some sand were also on the blade; and that he had taken out the knives from under the ground at the instance of the accused persons.
99. However nothing substantial could be elicited in those cross- examinations which would help accused Neeraj @ Karan. Some contradictions regarding time of reaching the Shamshan Ghat and about rusting and blood spots do not make recovery doubtful. It was only PW-13 who had stated somewhat different time of arrival at Shamshan Ghat and that there was no rust and blood spots on the knives. The other witnesses of recovery, however, have more or less deposed SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 33 of 44 consistently. It is apparent that the chopper and the knife were taken out after digging the soil. The said knives were not visible on the ground. It were accused Neeraj and X-2 only who knew the place where they had concealed those weapons.
100. Non-joining of public witnesses is of no consequence. It is a known fact that public persons seldom agree to become witnesses. It is now settled law that non-joining of public witnesses is not fatal to the case of the prosecution. The judgment cited by learned defence counsel is of no help. Observations of Hon'ble Supreme Court, in the case of Ram Swaroop vs. State (NCT of Delhi), reported as (2013) 14 SCC 235, may be noted, as follows:
"7. ...... We may note here with profit that there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp SCC 686 wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses.
8. At this juncture a passage from State, Govt. of NCT of Delhi v. Sunil and another, (2001) 1 SCC 652 is apt to quote : -
"21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police 1 2 records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 34 of 44 strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross- examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
9. In Ramjee Rai and others v. State of Bihar, (2006) 13 SCC 229, it has been opined as follows: -
"26. It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward.""
101. The recovery of the chopper from the alleged place has been satisfactorily proved. Thus applying the law regarding use of fact discovered pursuant to the disclosure statement, it transpires that accused Neeraj had the knowledge that the chopper had been concealed near the Veterinary Hospital. The chopper has been recovered also. The same has been connected, as per subsequent opinion Ex. PW7/C, with the injury caused to the deceased on his chest.
102. Learned amicus curiae emphasised that the chopper was not sent to FSL and for this reason, it cannot be connected with the crime in question. I do not SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 35 of 44 find any merit in this contention either. Subsequent opinion of the doctor who conducted the post mortem is sufficient to connect the weapon with the crime. Moreover, it was recovered from under the ground and that too after so many days. In all likelihood, it was not of any use to send it to FSL.
103. Identity of accused Neeraj has been fully established. PW-4 has identified him specifically in the court. Accused Neeraj has refused to join the TIP proceedings on 04.04.2009. He had taken the plea that he had been shown to the witness by the police, however, he has failed to prove any such fact. Learned counsel referred to testimony of PW-4 wherein he stated that on 04.04.2009, he had come to Karkardooma Court and had seen accused Neeraj, Sonu and Vikas. Learned counsel thus submitted that refusal by accused Neeraj was justified. There is no force in these contentions. Refusal to join TIP though was also made on 04.04.2009, but it cannot be said that PW-4 had seen these accused before recording of refusal. No such suggestion was given to PW-12 who had applied for TIP of these accused. The presumption is that it was only after recording of such refusal that PW-4 happened to see these three accused persons. Moreover, it were the accused persons who did not follow the instructions to keep themselves muffled, as is appearing from the evidence of the concerned witnesses. Thus refusal to join the TIP was not justified. As such, accused Neeraj cannot complaint that he has been identified by PW-4 in the trial for the first time. Reference may be made to the case of Munna v. State (NCT of Delhi), 106 (2003) DLT 592 (SC), it was held that where an accused himself refuses to participate in TIP, it is not open to him to contend that SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 36 of 44 identification by the witness for the first time in the court cannot be relied upon.
104. From the material on record, it has been proved beyond reasonable doubt that it was accused Neeraj @ Karan who gave the fatal stab wound to the deceased.
105. From the evidence of PW-4 and other witnesses, it has been proved that accused Sonu @ Matka was very much present at the spot and he had caught hold of deceased Jitender while accused Neeraj @ Karan caused injuries to him. Identity of accused Sonu @ Matka has been fully established. Not only he was identified by PW-4 in the court, but also in the judicial TIP proceedings conducted earlier. The said TIP proceedings (Ex. PW4/E) corroborate testimony of PW-4 on this issue.
106. The identity of accused Vikas has also been established. PW-4 duly identified him in the court. Accused Vikas had also unjustifiably refused to join the TIP on 04.04.2009. His identification, by PW-4 in the court, cannot be discarded.
107. It is also worth noting that the incident had taken place in broad daylight. The incident had lasted for about 4-5 minutes. Therefore, there was ample time and opportunity for PW-4 to see the culprits. Testimony of PW-4 regarding identity of accused persons cannot be faulted with.
108. The testimonies of defence witnesses are of no help to the accused persons. Their testimonies do not inspire any confidence. DW-1 is father-in-law of SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 37 of 44 accused Vikas. His assertion that due to Holi festival on 11.03.2009, accused Vikas remained in Aligarh till 20.03.2009 is nothing but an afterthought. He just wants to create false plea of accused Vikas not being present at the scene of crime.
109. Similarly, testimony of DW-2, who appeared on behalf of accused Neeraj, is to be discarded. It is too vague and generalised statement. His cross- examination exposes the loopholes in his testimony.
110. Testimony of DW-3 is also to be discarded. She too, being mother of accused Sonu @ Matka, has tried to create plea of alibi but she could not succeed.
111. Prosecution has proved that accused Neeraj @ Karan, Sonu @ Matka and Vikas were together alongwith X-1 and X-2; that accused Sonu @ Matka caught hold of Jitender and accused Neeraj @ Karan gave chopper blow on chest of Jitender; that X-1 caught hold of Mool Chand (PW-4) and X-2 tried to kill him with knife but PW-4 survived and received injury on his thigh; that accused Vikas had taken out money from pocket of Jitender; that all the five offenders had asked PW-4 and Jitender to handover them their valuables; that Jitender had died due to injury caused by accused Neeraj @ Karan.
112. Now, from the established and proved facts, what offence(s) are made out, is the question.
113. It is now to be decided as to whether the accused persons are to be convicted for murder or culpable homicide not amounting to murder with respect to SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 38 of 44 deceased Jitender?
114. In the case of Chenda @ Chanda Ram vs. State of Chhatisgarh, reported as (2013) 12 SCC 110, Hon'ble Supreme Court considered the difference between 'murder' and 'culpable homicide not amounting to murder' and has once again thrown light on this issue. It observed as under:
"2. 'Homicide', as derived from Latin, literally means the act of killing a human being. Under Section 299 of the Indian Penal Code (hereinafter referred to as 'the Code'), homicide becomes culpable when a human being terminates the life of another in a blameworthy manner. Culpability depends on the knowledge, motive and the manner of the act of the accused. The offence is punishable under either Section 302, or Section 304 which consists of two parts........"
115. In the same judgment, the Hon'ble Apex Court further referred to famous case of Virsa Singh vs. State of Punjab, (1958) 1 SCR 1495. It observed:
"11. The landmark judgment in Virsa Singh vs. State of Punjab draws a distinction between "Thirdly" of Section 300 and Exception 4 thereunder. The following are the four steps of inquiry involved:
i. first, whether bodily injury is present;
ii. second, what is the nature of the injury;
iii. third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and iv. fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature."
116. Thereafter, it also took note of another landmark judgment in the case of State of Andhra Pradesh vs. Rayavarapu Punnayya and Another , (1976) 4 SCC SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 39 of 44 382, and observed:
"12. In State of Andhra Pradesh vs. Rayavarapu Punnayya and Another, it was held that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder, falling under Section 304 of the Code. It was further held that there are three degrees of culpable homicide. The first is murder under Section 300; second, culpable homicide not amounting to murder falling under the first part of Section 304; and third is culpable homicide not amounting to murder falling under the second part of Section 304. To quote: -
"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304."
117. It stands proved that deceased Jitender died homicidal death. It has been established that it was accused Neeraj who caused fatal injury to the deceased. The weapon used was a chopper. Its measurement, as per sketch Ex. PW7/B, is as follows - the total length of the chopper is 41.4 cm, length of its blade is 28.6 cm, and width of its blade is 6.3 cm.
118. The area on which injury was caused is the chest. The injury suffered SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 40 of 44 by the deceased has been opined to be sufficient in the ordinary course of nature to cause death. Accused Neeraj alongwith accused Sonu @ Matka and others had surrounded deceased and PW-4. They had intention to rob them. During effecting robbery, accused Neeraj inflicted the fatal wound upon deceased Jitender as he resisted the acts of the accused persons. Accused Neeraj had inflicted the chopper blow with such great force that it injured the right lung and the vessels. As such, Sec. 300 Thirdly IPC will apply. No exception as mentioned in Sec. 300 IPC applies to the present case. Thus it is a clear case of murder.
119. Accused Neeraj @ Karan is guilty of murdering Jitender.
120. As far as other accused persons are concerned, the prosecution has tried to rope them in with aid of Section 34 IPC.
121. In a case reported as Jai Bhagwan & Ors. v. State of Haryana, (1999) 3 SCC 102, regarding application of section 34 IPC, the Hon'ble Apex Court held as under:
"10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."
122. Accused Sonu @ Matka provided active assistance to accused Neeraj SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 41 of 44 @ Karan in the commission of offence against Jitender. He had caught hold of deceased when accused Neeraj inflicted the fatal chopper blow. It cannot be said that accused Sonu @ Matka had no knowledge that any person would be killed while committing robbery. It has been proved that accused Neeraj @ Karan was carrying a chopper and it was in the knowledge of the other offenders. Thus it was very much within knowledge of accused Sonu @ Matka that a person could be killed also during the loot. Thus accused Sonu @ Matka shared common intention with accused Neeraj @ Karan. His active participation is also a pointer to the said fact.
123. Presence of accused Vikas at the scene of crime has also been established. He was also hiding alongwith his associates and all of them were waiting for their prey. Like accused Sonu, accused Vikas too must be imputed the necessary knowledge that their prey could be killed if he resisted the act of loot. The fact that he had taken money out of pocket of the deceased Jitender shows his participation and common intention.
124. Learned defence counsel argued that even as per testimony of PW-4, accused Neeraj, with help of accused, Sonu had already stabbed Jitender and thereafter only accused Vikas and the two juveniles came to scene of crime. And, therefore, accused Vikas cannot be held liable for murder of Jitender.
125. I am not impressed with this argument either. It has established that all the five offenders were waiting behind the wall of the nallah. Merely because three of the offenders came out few seconds later than the other two, it does not absolve SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 42 of 44 them from the crime of murder of Jitender. The whole incident was a single transaction.
126. Thus, both accused Sonu @ Matka and Vikas are liable to be convicted for murder of Jitender with aid of Section 34 IPC.
127. In respect of PW-4, the charge against the accused persons is under Sec. 307 IPC. From testimony of PW-4, it has been clearly proved that there was murderous assault upon him. It was good fortune of PW-4 that he survived the said attack. There is no doubt in the mind of the court that it was an attempt to murder PW-4. The attempt was made by accused X-2 while accused X-1 was holding PW-4. Both of them were found to be juveniles and tried separately. The present three accused, however, cannot avoid vicarious liability for the said attempt either. It has been proved beyond any doubt that these three accused also had the common intention qua PW-4. These three accused being present at the scene of the crime at the relevant time shared the common intention to commit offence punishable u/s 307 IPC against PW-4. They are, thus, liable to be convicted therefor with aid of Sec. 34 IPC.
128. Further, from the material on record, offence punishable under Section 396 IPC has also been established. Though not charged u/s 396 IPC, I see no impediment in convicting the accused persons for the said offence. It must be noted that all the accused persons were chargesheeted for the said offence as well. It is not understood as to why no charge u/s 396 IPC was framed though charge u/s SC No. 285/2016 State Vs. Neeraj @ Karan etc. Page 43 of 44 412/34 IPC was framed which is regarding receiving stolen property obtained out of dacoity. Since offence punishable u/s 302 IPC has been established, the offence u/s 396 IPC cannot be termed a major offence than that charged with and, therefore, there is no legal impediment in convicting the accused persons for the said offence.
129. Prosecution has proved that five persons had robbed the victims (two were tried separately being juveniles) and thus dacoity was committed; and in the commission of the same, one of the victim has been killed also. Thus offence u/s 396 IPC is clearly made out against these three accused.
130. Since accused persons are being convicted u/s 396 IPC, there is no need to convict them for offence punishable u/s 412/34 IPC.
131. Accused Neeraj was armed with a chopper. The said chopper is a deadly weapon. Accused Neeraj used the said chopper in committing the crime as well. Thus accused Neeraj is also liable to convicted with aid of Sec. 397 IPC.
132. In view of the above, accused Neeraj @ Karan, Sonu @ Matka and Vikas are held guilty and hereby convicted for the offences punishable u/s. 302/34 IPC, 307/34 IPC and 396 IPC. Accused Neeraj is additionally convicted with aid of Sec. 397 IPC.
133. Let they be heard on the point of sentence.
Announced in open court on 16th day of July, 2016 (Sanjay Bansal) ASJ-03 (East):
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