Delhi District Court
Sc No. 80/07 State vs . Ajay Malhotra & Another Page on 25 October, 2010
IN THE COURT OF SHRI R.K. GAUBA ADDITIONAL
SESSIONS JUDGE01 (CENTRAL) DELHI
Sessions Case No. 80/07
ID No.: 02401R0663102007
State FIR No.: 182/07
PS:Patel Nagar
U/S.: 302/147/148 IPC
&
25/54/59 Arms Act.
Versus
1. Ajay Malhotra @ Vicky
s/o late Sh. Ram Lal Malhotra,
R/o WZ180, Chaupalwali Gali,
Shadikham Pur, Delhi.
2.Rahul Kohli s/o
Joginder Kohli,
R/o 297, DDA Flats,
New Ranjit Nagar, Delhi.
Date of institution : 16.06.2007
Judgment Reserved on : 12.10.2010
Date of Decision : 20.10.2010
J U D G M E N T
SC No. 80/07 State Vs. Ajay Malhotra & another Page 1 of 44
1. Seven persons were arrested in this case by the police, out of whom two have jointly faced this sessions trial in this court on the basis of charge sheet presented on 16.06.2007 in the court of Metropolitan Magistrate who committed the vide order dated 06.07.2007, the remaining having been declared to be juveniles.
2. Accused Ajay Malhotra @ Vikcy (hereinafter, "A1") is a resident of Shadikham Pur, Delhi. Accused no.2 Rahul Kohli (hereinafter, "A2") is resident of New Ranjit Nagar. The five persons described in the charge sheet as juveniles included three from New Ranjit Nagar and remaining two from Shadikham Pur. They are all described as persons acquainted and associated with each other.
3. The group which was allegedly at the receiving end of the incident alleged herein, included Rajnish son of Ramraj Singh ( hereinafter, "the first informant"), Sanju -PW5 (described as an eye witness), Sanjit Kumar Rai (PW20) and Mukesh son of Bhandari (the deceased). According to the prosecution case, Sanju (PW5), Sanjit Kumar Rai (PW20) and the deceased were resident of Baljit Nagar, while the first informant Rajnish was a resident of nearby SC No. 80/07 State Vs. Ajay Malhotra & another Page 2 of 44 locality Prem Nagar in the area of police station Patel Nagar. This group (hereinafter also referred to collectively as "the group of four") is also stated to be acquainted and working with each other.
4. The charge on the basis of which the accused persons have faced trial before this court is that they along with the juveniles had formed an unlawful assembly on 18.03.2007 at about 9.30 PM in gali behind Shadipur metro station within the jurisdiction of police station Patel Nagar in which capacity, they were armed with deadly weapon, object being to commit the murder of Mukesh and in furtherance of the said common object, they committed murder of Mukesh.
5. It would be apposite to take brief over view of the facts alleged in the case.
6. It is alleged by the prosecution that the first informant (PW
4) with his associates PW5 Sanju, PW20 Sanjit and the deceased Mukesh along with certain others had done some work, at the instance and on arrangement of A1, in connection with marathon race organized by "Hangama TV" in Nehru Stadium, New Delhi about one month prior to SC No. 80/07 State Vs. Ajay Malhotra & another Page 3 of 44 the date of incident. For this, the group was owed Rs. 2200/ as wages etc. It is alleged that in spite of payment being demanded, A1 had not complied with the requests. Two days before the occurrence, the group of four including PW4, PW5 and PW20 and the deceased had again insisted upon payment on which A1 is alleged to have become abusive and adopted a threatening posture which was protested against. According to the prosecution case, at about 6 PM on 18.03.2007, PW4 met A1 and demanded payment of money on which A1 asked him to come with everyone else for payment around 8.30/9.00 PM to a park near Satyam (Cinema Hall). According to the prosecution case, when PW4 and PW5 and PW20 went to the place in question, A1 came there with other persons which are alleged to have included A2 and five others (Juveniles) persons mentioned earlier.
7. It is stated that A1 kept this group of four busy in some talks for about 10 minutes and then stated that he had informed their other friends and that they had arrived in the street behind Shadipur metro station and so they should also go there to be followed by him and that he would SC No. 80/07 State Vs. Ajay Malhotra & another Page 4 of 44 settle the account at that place. It is alleged that when the group of four reached the place in question, A1 with his said six associates also followed and immediately after entering the gali, encircled the foursome and attacked them suddenly. It is alleged that at this stage juvenile Sagar @ Chusu was openly carrying a knife in his hand while juvenile Rajesh @ Ramka have having an iron panja (a weapon with space for fingers worn in the hand). It is alleged that A1 immediately exhorted his associates that these four persons should not be allowed to go alive and they should be finished immediately, and that thereafter, the said seven persons started beating the group of four in the course of which the juvenile Rajesh @ Ramka is alleged to have hit PW2 Rajnish and PW5 Sanju with iron panja while A2, juvenile Karan, juvenile Ravi are alleged to have beaten, by turns, PW4, PW5 and PW20. It is further alleged that A2, in the course of this incident, snatched away the mobile phone instrument (Tata Indicom No. 9213189021) from the pocket of PW4. It is also alleged that the deceased (Mukesh) was caught hold by A1 and A2 from two sides while juvenile Sagar SC No. 80/07 State Vs. Ajay Malhotra & another Page 5 of 44 stabbed him with knife in his stomach. According to the prosecution story as a result of stab injury, Mukesh fell down, while three others (PW4, PW5 and PW20) fled away for safety.
8. At 10.50 PM, on 18.03.2007, an information was received from an anonymous caller in police station (hereinafter, "the police station") that a person was lying dead in the gali behind Shadipur metro station. This information was logged vide DD no.37A and made over to SI Jitender Tiwari, (PW18) who proceeded to the spot with Ct. Anil Kumar, (PW16). He arrived almost around the time when the vehicle from Police Control Room (hereinafter, "PCR") had also reached the place. The police found the injured person, described at that stage as male aged 22 years, lying unconscious. The victim was shifted to Din Dayal Uppadyay Hospital (hereinafter, " the hospital") in PCR vehicle.
9. On arrival in the hospital, at 11.55 PM, on 18.03.2007, Mukesh Kumar was declared brought dead. Information in this regard was conveyed through duty constable to police station where it was recorded at 11.59 PM, on 18.0.3.2007 SC No. 80/07 State Vs. Ajay Malhotra & another Page 6 of 44 vide DD no.64B, copy of which was also made over to SI Jitender Tiwari (the Investigating Officer) who having left Ct. Anil Kumar (PW16) at the place of incident, had gone to hospital where he collected copy of MLC and inspected the dead body. He found a stab wound on the upper left portion of stomach.
10.In the hospital, the investigating officer (I.O.) was met by PW4 Rajnish. He recorded the statement of Rajnish in which narration the background and the incident was set out on the lines indicated earlier. The I.O., thereafter, got the case registered on the basis of endorsement (Ex. PW 18/A). Rukka is stated to have been dispatched from the hospital at 01.10 hours on 19.03.2007 and resulted in FIR (Ex. PW 3/C), being registered in police station at 01.20 hours of 19.03.2007 for the offence under Section 302/34 IPC.
11.In the investigation that followed, the crime team of the district, inspected the place and prepared report. Photographs of the scene were also taken by the crime team. The IO prepared the site plan (Ex. PW 18/), which would be followed later by a plan drawn to scale (Ex. PW SC No. 80/07 State Vs. Ajay Malhotra & another Page 7 of 44 12/A). MLCs of PW4 Rajnish and Sanju were also got prepared.
12.From the spot, IO collected blood stained floor of the street, and earth control in the presence of PW16 Ct. Anil Kumar. It is stated that A1 and A2 were arrested at 3.00PM by 19.03.2007 from park near Satyam Cinema by Inspt. Kapil Parashar (PW22), Addl. SHO of the police station. It is stated that five others, who were sent to Juvenile Justice Board vide separate charge sheet. were also arrested from the same place on the same date and time.
13. According to the prosecution case, A1 and A2, during their respective interrogation, made disclosure statements allegedly confirming their respective involvement with five others. It is also claimed that they also led the police and pointed out the place of occurrence. It is further alleged that A2 got recovered the mobile phone of PW4 found concealed kept beneath a pillow on a bed in his house No. 297, DDA flat New Ranjit Nagar, Delhi. It is further alleged that on the basis of disclosure made during investigation, juvenile Ravi got recovered button actuated knife kept SC No. 80/07 State Vs. Ajay Malhotra & another Page 8 of 44 concealed near a mound of earth around 20 steps away from Shadipur metro station close to boundary wall which was found having blood stains and seized on 19.03.2007, as the weapon of offence. It is further stated that other juvenile Karan similarly got recovered iron Panja which was found carried by him in the pocket of his trousers at the time of his arrest. The knife and the iron panja at the time of seizure were subjected to sketches being prepared before they were sealed in separate parcels.
14.The IO had prepared death report on 19.03.2008 and got the dead body identified by the father and uncle of the deceased.
15.The postmortem examination of the dead body was conducted on 19.03.2007 at 2 PM in the mortuary of DDU hospital by Dr. B.N. Mishra (PW10). In the course of autopsy, Dr. Mishra found the following external injuries on the dead body:
i) One spindle shaped stab wound (2 cm x 1cm x cavity deep) present at lower part of chest at mid clavicular line located 13 from left nipple 17.5 cm from left illiac crest with sharp edged oozing of SC No. 80/07 State Vs. Ajay Malhotra & another Page 9 of 44 blood present, directed obliquely upwards backwards.
ii) One stab wound ( 1.2 cm x 07 cm x 05 cm) present on lateral aspect of back at the line of posterior axillary fold with sharp margins.
iii) One stab wound (01 cm x 0.7 x 0.5 cm) present on the lateral 1/3 part of left thigh with sharp margins.
16. On internal examination, one deep tract of wound (injury No.1) having muscle laceration and collection of blood clot within the course of injury was found present - directed obliquely upwards and back ward and reach upto lower part of lower lobe of left lung - making a tear (rapture) of 1 cm x 0.5 cm and left pleunal cavity was found filled by about 150 ml of blood and Pancreas having lacerated (1.5 x 1.2 cm) with collection of massive blood clot within injurical area -peritoneal cavity was filled by blood about 1500 ml.
17.As per the opinion recorded by autopsy doctor, death had occurred due to hemorrhagic shock, consequent upon laceration of pancreas and left lobe of lung followed by SC No. 80/07 State Vs. Ajay Malhotra & another Page 10 of 44 stab wound vide injury no.1. He confirmed the death to have occurred 1618 hours prior to the postmortem examination. In his opinion, injury no.1 was sufficient to cause death. During autopsy, the doctor preserved blood sample of the deceased and also the clothes taken off the dead body. These exhibits were handed over to the IO in due course.
18.Various exhibits initially deposited in the malkhana were sent to Forensic Science Laboratory (FSL), which issued reports Ex. PX and PY. It may be mentioned here that the knife alleged to have been recovered at the instance of juvenile Ravi was not found with any traces of blood. The clothes of the deceased, particularly the shirt and vest did have blood of human origin of "AB" group, which is the blood group found in the blood stained stone pieces (of the street) and also of the deceased, as confirmed by the analysis of the blood sample taken from the dead body.
19.As mentioned earlier, through the charge sheet presented on 16.06.2007, police sought trial of A1 and A2 indicating the other five to have been sent to Juvenile Justice Board. The case was committed to Sessions vide order dated SC No. 80/07 State Vs. Ajay Malhotra & another Page 11 of 44 06.07.2007 after compliance with the provisions of Section 207 Cr.P.C.
20.My ld. predecessor considered the question of charge. He found charge made out for offences under Sections 147, 148, 149 read with Section 302 IPC. Charge was, accordingly, framed on 26.09.2007 to which both accused pleaded not guilty.
21.Thereafter, the prosecution led evidence by examining the following 23 witnesses:
i) Sri Prasad Bhandari, (PW1),
ii) Mithelesh Bhandari, (PW2),
iii) HC Amir Singh, (PW3),
iv) Rajnish, (PW4),
v) Sanju, (PW5),
vi) Ct. Rakesh, (PW6),
vii) Ct. Vinod, (PW7),
viii) SI Raj Kumar, (PW8),
ix) Ct. Sanjeev, (PW9),
x) Dr.B.N.Mishra, (PW10),
xi) Ct. Major Singh, (PW11),
xii) SI Maesh Kuamr, (PW12), SC No. 80/07 State Vs. Ajay Malhotra & another Page 12 of 44
xiii) SI Lalit Kumar, (PW13),
xiv) Ct. Sanjay Kumar, (PW14),
xv) HC Yogesh Kumar, (PW15), xvi) Ct. Anil Kumar, (PW16), xvii) ASI Bahadur Singh, (PW17), xviii) SI Jitender Tiwari, (PW18), xix) Ct. Ravinder , (PW19), xx) Sanjit Kumar Rai, (PW20), xxi) Ct. Kuldeep Singh, (PW21), xxii) Inspt. Kapil Parasher, (PW22), and xxiii) Dr. Shaifali (PW23)
22. After prosecution had closed its case, statements of both accused were recorded under Section 313 Cr.P.C. in which they denied the entire incriminating evidence as incorrect. They pleaded ignorance as to some part of the police proceedings. They claimed to be innocent and falsely implicated after being arrested. Both of them declined to avail opportunity to adduce evidence in defence.
23.I have heard Sh. R.K.Tanwar, Ld. Addl. PP for the State and Sh. R.S.Gupta, advocate for both the accused SC No. 80/07 State Vs. Ajay Malhotra & another Page 13 of 44 persons at length. I have gone through the record.
24.The fact that Mukesh Kumar died as a result of stab injuries suffered some time around 9.30 PM on 18.03.2007 in gali behind Shadipur metro station within the jurisdiction of police station Patel Nagar has been proved by the prosecution through overwhelming evidence which may be taken note of at the out set.
25. PW8 has proved copy of DD no.37A recorded at 10.50 PM on 18.03.2007 which was based on an information from an anonymous caller on telephone stating that a person was lying dead in the gali behind Shadipur metro station. This DD entry was made over by the police station to PW18 who, accompanied by PW16, went to the spot. On the other hand, the information had also been received by PCR. The control room had activated PW17, who was incharge of PCR vehicle available in the vicinity. The evidence of PW17 on one hand and that of PW18 and PW16 on the other collectively show, without any contest from the defence, that they arrived at the scene around the same time. At the scene, they found the victiminjured in unconscious condition. The evidence of PW17 and PW SC No. 80/07 State Vs. Ajay Malhotra & another Page 14 of 44 20 is corroborated by the version of PW4 in his statement Ex. PW 4/A (forming basis of FIR) further shows, again with no contest whatsoever from the defence, that at least PW20 was also present at the scene when the police arrived and he travelled in PCR van which shifted the victim to hospital.
26. The victim was examined in the hospital by Dr. Ramit Dhalla, who prepared MLC indicating the deceased had already died before arrival in the hospital at 11.55 PM on 18.03.2008. The MLC to such effect has been proved as document Ex. PW 23/A by Dr. Shaifali, Chief Medical Officer of the hospital who is acquainted with the handwriting and signatures of Dr. Dhalla, who has since left the hospital. There is no contest to the evidence of PW23. There is no impropriety in the MLC being proved through another doctor acquainted with handwriting of the author thereof. This is a permissible course in as much as Dr. Dhalla having left the services of the hospital, securing his presence after ascertaining his present whereabouts would have only added to the delay. [Prithi Chand Vs. State 1989 Crl. L.J. 841(SC) and Abdul Hamid Vs. State SC No. 80/07 State Vs. Ajay Malhotra & another Page 15 of 44 92(2001) Delhi Law Times 876].
27. The information that Mukesh had been brought dead was conveyed from the hospital by duty constable deputed there. This was recorded vide DD no.64B at 11.59 PM on 18.03.2007. The copy has been proved as Ex. PW 7/A which was carried to the IO by PW21, who affirmed the facts to that effect.
28.The IO in his evidence has deposed that after the victim had been shifted to hospital, he had left PW16 behind at the spot and had followed the injured to hospital and that after collecting the MLC, he had returned to the spot. On returning to the spot, he called the mobile crime team.
29.PW13 was the incharge of mobile crime team and had inspected the scene from where the victim had been shifted and prepared report Ex. PW 13/A. This report corresponds to the site plan Ex. PW 18/B prepared by the IO around the same time. PW6 was the photographer, member of the crime team who took six photographs as per negatives Ex. PW 6/B1 to B6. He has also proved positive photographs Ex. PW 6/A1 to A6 developed thereupon.
SC No. 80/07 State Vs. Ajay Malhotra & another Page 16 of 44
30.The crime team report indicates blood stains were found at the place in question. The blood stained floor of the street along with earth control were broken, collected and seized vide Ex. PW 16/A, a step testified about by the IO and corroborated by PW16. Though efforts were made during the statement of PW6 to bring in a contest as to the place of occurrence by suggesting to the effect that photographs proved by him did not pertain to the place in question. There is no substance in the said efforts in as much as the evidence of PW13, PW16, PW17 and PW18 as to the place from where the victim was picked up in injured condition, was not contested in any manner.
31.After the registration of FIR in the course of investigation, the IO prepared death report Ex. PW 18/C based on the examination of the dead body in the mortuary of the hospital. The dead body was identified by PW1 and PW2 in the mortuary vide Ex. PW 1/A and Ex. PW 2/A, respectively, the said persons being father and real uncle of the deceased. There is no doubt to the identity of the deceased person.
32. The autopsy report has been proved by PW10 Dr. SC No. 80/07 State Vs. Ajay Malhotra & another Page 17 of 44 B.N.Mishra. Again, the defence does not seek to question the report or the findings of the autopsy doctor. The gist of the autopsy report has already been taken note of. The Doctor had found three antemortem injuries on the dead body, all stab wounds. As mentioned earlier, injury no.1 was found to be sufficient in ordinary course to cause death.
33.The autopsy doctor had preserved the wearing apparel of the deceased which included shirt, vest, underwear and trousers along with blood sample and sample seal of the hospital. These were seized by the IO vide Ex. PW 18/D. It has been confirmed by evidence of PW15 on the basis of corresponding entries in the malkhana register of the police station vide Ex. PW 15/A that these exhibits were deposited in sealed condition immediately after seizure.
34.These exhibits would be sent in due course to FSL, reports Ex. PX and PY whereof leave no room for doubt that they were received with seals intact. As mentioned earlier, the blood stained pieces of the street floor picked up from the abovementioned place, the blood stained clothes of the deceased and the blood sample of the SC No. 80/07 State Vs. Ajay Malhotra & another Page 18 of 44 deceased preserved during autopsy, were examined and each gave the same result indicating blood to be of human origin of "AB" group.
35.In the face of above mentioned abundant material there is no room for doubt that Mukesh Kumar had suffered stab injuries in the gali behind Shadipur metro station, Patel Nagar sometime around 9.30 PM on 18.03.207. The scaled site plan Ex. PW 12/A prepared later during investigation only confirms these conclusions.
36.In above facts and circumstances, I have no hesitation in concluding that Mukesh Kumar having suffered stab injuries when shifted from the place by PCR van sometime after 10.50 PM was brought dead to the hospital at 11.55 PM on 18.03.2007. Having regard to the nature of injuries found on his person, there can be no manner of doubt that the injuries were inflicted with the intention of causing death or with the intention of causing such injuries as were likely to cause death or at least with knowledge that such injuries were likely to cause death. In these circumstances, Mukesh Kumar suffered homicidal death, within the mischief of Section 299 IPC.
SC No. 80/07 State Vs. Ajay Malhotra & another Page 19 of 44
37.According to the IO, he having reached hospital and collected MLC was met by PW4 there itself, when he recorded his statement Ex. PW 4/A. PW4 has stated that after having fled away from the scene of incident with PW 5 and PW20, he had returned to the spot where the victim was lying and when the police came, the victim was taken to hospital in PCR van while he had followed in an auto rikshaw. He stated that his MLC was recorded in the hospital where he met the IO and gave statement Ex. PW 4/A.
38.According to IO, he having recorded statement Ex. PW 4/A had made endorsement Ex. PW 18/A which he had sent to the police station through PW16 for registration of the case. This fact is confirmed by PW16. The FIR on the basis of this rukka was registered by PW3 who was the duty officer in police station at the relevant time. PW3 proved copy of FIR as Ex. PW 3/C and also copies of DD no.3A regarding receipt of rukka and copy of DD no.4A regarding registration of FIR vide Ex. PW 3/A and Ex. PW 3/B respectively. The copies of FIR were dispatched through special messenger at 2.30 AM on 19.03.2007. SC No. 80/07 State Vs. Ajay Malhotra & another Page 20 of 44 Copy of FIR was sent to IO through PW19 who has confirmed the said role performed by him.
39.During the statement of PW3, a half hearted attempt was made to claim that FIR had been ante timed. But then, there is nothing on the record to show any such possibility. The FIR having been reduced into writing at 0120 to 0235 hours as confirmed by the abovementioned DD entries and dispatch of copy through special messenger having been proved by PW11, without contest, there is no merit in the defence argument that FIR has been ante timed.
40. PW4 is the first informant. His statement Ex. PW 4/A, formed the basis of FIR has already been taken note of. In the witness box, he explained that he along with PW5, PW20 and the deceased were engaged in the task of distribution of pamphlets by R.J. Credits, an establishment functioning from Patel Nagar. According to him, a person named Jona was a common friend to him and the deceased and that through him these four persons had been engaged, with the help of A1, in a task relating to arrangement of marathon race organized by "Hangama TV" on 17.02.2007, the wages being Rs.150/ per day, per SC No. 80/07 State Vs. Ajay Malhotra & another Page 21 of 44 head. PW4 stated that 12 persons had been so engaged and had carried out their duties but A1 did not make the payment of wages. It came out during his cross examination that the work involved duty from 12 O'clock mid night to 12 O'clock noon time next day, in Jawahar Lal Nehru Stadium, and that in that task a large number of other similar workers had also been engaged, though the knowledge of PW4 being restricted to the group of 12 in which he with PW5, PW20 and the deceased were included. The word of PW4 in this regard is corroborated by PW20 who stated that the money owed as wages for the 12 persons by A1 was Rs.2200/, which is the amount referred to, as owed by A1, even in the FIR.
41.PW5, however, would not support the evidence of PW4 and PW20 in this regard. In fact, he is a witness hostile to the prosecution story.
42.Be that as it may, in the crossexamination of PW4 and PW20, no effort was made to contradict the background, facts testified by them about the role of A1 in the engagement of these persons in connection with aforementioned event of private TV channel, in which SC No. 80/07 State Vs. Ajay Malhotra & another Page 22 of 44 arrangement A1 was to pay wages to these persons.
43.PW4 deposed that A1, in a meeting on 17.03.2007, near Lal Mandir West Patel Nagar, had promised to clear the wages on 18.03.2007 and, accordingly, he along with PW 5 , PW20 and the deceased had collected in a park opposite Satyam Cinema at about 9.20 PM on 18.03.2007. He deposed that the deceased had asked him to go to the said place where A1 was found present with his 10/12 associates. According to PW4, A1 had asked him and his friends as to where the remaining persons were (apparently a reference to other eight persons who were also claiming payment of wages). PW4 deposed that he had told A1 that the said others would also come at which stage, A1 told him and his friends that others had already come near metro station Patel Nagar and that they should also reach there where the payment would be made. He deposed further that on this he with his friends had gone to the gali behind metro station Patel Nagar where he saw four persons already present while A 1 with 3/4 persons came behind. He is categorical in stating that the group formed by A1 comprised of 7 SC No. 80/07 State Vs. Ajay Malhotra & another Page 23 of 44 persons, all of whom had then started beating him and his friends.
44. PW4 further deposed that a person named Rajesh @ Rumka (Juvenile) had given beating to him with iron punch while another person named Sagar (Juvenile) had taken out a knife and stabbed Mukesh on his stomach. He deposed further that he with others had than run away from the scene in fear. According to him, PW20 had come to his house and told him that Mukesh had not returned. It is on this information that he with PW20 had returned to metro station Patel Nagar where they found Mukesh lying injured, to be later removed to hospital by PCR van. PW4 clarified that nothing except fight had happened and that his mobile which was with PW5 had also been snatched in the course of fight. He would not name the person who had snatched mobile phone. He was unable to say as to who had given the exhortation that no one should be allowed to go away alive, though he confirms that such exhortation was given.
45. PW20 generally corroborated the version of PW4. He testified that A1 had met him and others near Lal Mandir SC No. 80/07 State Vs. Ajay Malhotra & another Page 24 of 44 on 16.03.2008, 2 days before the incident and had promised to pay wages at 8.30 PM on 18.03.2007 in the park in front of Satyam Cinema. He deposed that, accordingly, he with PW4, PW5 and the deceased had reached the said place where A1 met them with 10/12 associates around 9 PM. According to him, after engaging them in talks for about 10 minutes, A1 had questioned about the other eight boys who were also to receive wages. He then told them that the said 8 boys would be waiting in a gali behind metro station and then had proceeded on foot to the said place but the said 8 boys were not present. PW20 deposed that A1 with his associates which included A2, Rajesh (Juvenile), Karan (Juvenile), Ravi (Juvenile) had surrounded him, PW4, PW5 and the deceased and started beating them. PW20 deposed that A1 had exhorted that no one from this group should be spared. According to him, Rajesh (Juvenile) and A2 had started beating him and PW5, while the second Rahul (Juvenile) had beaten PW4 and PW5 with iron panch (Punja). PW20 in his examination in chief testified that A1 and the other Rajul (Juvenile) had SC No. 80/07 State Vs. Ajay Malhotra & another Page 25 of 44 caught hold of Mukesh from two sides while Rajesh (Juvenile) had stabbed him on the abdomen and other parts of his body with knife as a result of which Mukesh had fallen down on the ground while he with others had run away. He was crossexamined by the Addl. PP at which stage, he corrected himself stating that stab wound on the person of Mukesh was inflicted by Sagar (Juvenile) who was also present with A1. He also stated that Rajesh (Juvenile) had used iron panja for inflicting injuries.
46. PW5 turned hostile and would not support PW4 and PW 20 as to the manner in which the incident had occurred. He would confirm that on 18.03.2007 at about 8/9 PM, he was with PW4, PW20 and the deceased in the gali near police station Patel Nagar. He stated that other three persons had gone into the gali telling him that they would return after about 10 minutes. He claimed to be ignorant about the purpose for which they had gone into the gali. He stated that he had followed into a gali as his friends had not returned. He found the gali to be dark and some fight going on, where after he and others had run away from the place. He confirmed that he and PW20 had been SC No. 80/07 State Vs. Ajay Malhotra & another Page 26 of 44 injured, though he would not know who were the persons fighting or as to who had inflicted injuries on him indicating he was hit from behind.
47.PW5 was declared hostile and crossexamined and confronted with statement Ex. PW 5/A attributed to him by the police. He denied that he had gone to the place on 18.03.2007 in connection with the payment expected to be made by A1. He denied the sequence narrated by PW4 or PW20 as to the manner in which Mukesh had suffered knife injuries.
48.The defence counsel has argued that the fact that PW20 initially attributed the stab injury to Rahul Kumar (Juvenile), rather than Sagar (Juvenile) as stated by PW4 shows that the prosecution evidence does not deserve to be believed. It is true that PW20, initially made a statement attributing the said role to a person other than the one mentioned by PW4. But then, the fact remains that under crossexamination by the Addl. PP, the witness corrected himself so as to affirm the version of PW4 to be correct explaining that under some confusion, he had forgotten the name of Sagar (Juvenile). In this view of his SC No. 80/07 State Vs. Ajay Malhotra & another Page 27 of 44 explanation, I do not find it fair to discard the prosecution story in toto on account of a stray error made by one witness.
49.The defence counsel then argued that both PW4 and PW20 have referred to the presence of 10/12 associates of A1 in the park opposite Satyam Cinema, whereas only 7 persons were ultimately accused of having participated in the assault. It is also pointed out that in the FIR based on statement Ex. PW 4/A it was indicated that A1 had met the group of four with six of his friends. Undoubtedly, the version in the court on the number of persons who met in the park is at small variance from the original version in the FIR. But then that is not of much import. The incident did not take place in the park. Rather, the group of four including the first informant and the deceased are shown to have been asked by A1 to meet him in the street behind metro station Shadipur. The stabbing took place in the said street behind metro station. The evidence of the prosecution, particularly the part which has been brought out through PW4 and PW20 is consistent as to the role of seven persons including the two on trial before this court SC No. 80/07 State Vs. Ajay Malhotra & another Page 28 of 44 in this case leading to fatal stabbing of Mukesh.
50. It is next argued by the defence counsel that in the FIR based on Ex. PW 4/A a reference was made to the gali behind Shadipur metro station whereas in his statement PW4 referred to metro station Patel Nagar. Judicial notice can be taken of the fact that metro station Shadipur falls within the area of Patel Nagar. Therefore, on this account PW4 does not deserve to be disbelieved.
51. It is further argued by the defence counsel that PW4 has contradicted his own original version in Ex. PW 4/A to the effect that his mobile phone was snatched by A2 from his pocket. PW4 while deposing in the court has claimed that his mobile phone was with PW5 from whom it was snatched in the course of fight. Undoubtedly, PW4 cannot be believed in this regard since he had not referred to the mobile phone being with PW5 and further because PW5 does not corroborate him in such regard. This would, however, only mean that the story about the mobile phone having been snatched is on shaky ground. The case of the prosecution about the recovery of mobile phone from the possession of A2 vide Ex. PW 14/A is of suspect SC No. 80/07 State Vs. Ajay Malhotra & another Page 29 of 44 origin. It may be added here that, even otherwise, there is no evidence collected by the police to confirm that mobile phone with SIM card of phone no. 9213189021 actually belonged to or had been in use of PW4. In case of such grave nature, evidence about the ownership of mobile phone only on oral word of a witness will not be safe. In these circumstances, undoubtedly, the evidence with regard to snatching of mobile phone of PW4 during the assault or its alleged recovery from the possession of A2 will have to be kept out of consideration.
52.It is then pointed out by the defence counsel that PW4 does not confirm the evidence of PW20 about A1 having exhorted (his associates) to the effect that no one from this group of four should be spared. It does appear that PW4 even himself was unable to make clear statement in this regard. But then, it cannot be ignored that in his initial version vide Ex. PW 4/A, this was what he had to state concerning A1. The fact remains that PW4 does confirm that open instigation was given that no one should be allowed to go alive. In these circumstances, his inability to pin point A1 as the speaker of the said exhortation by SC No. 80/07 State Vs. Ajay Malhotra & another Page 30 of 44 itself, to my mind, should not lead to PW20 being disbelieved.
53.The prosecution has also led evidence about the arrest of A1 and A2 on 19.03.2007 at about 3 PM from park near Satyam Cinema along with five others (described as Juvenile) vide arrest memos Ex. PW 9/A and PW 9/B after personal search memo Ex. PW 9/D and Ex. PW 9/C respectively. There is no serious contest to this part of evidence. The prosecution also placed reliance on the documents Ex. PW 9/F and Ex. PW 9/E referred to in evidence of PW 22, PW18, PW16 and PW9. These documents purport to be disclosures made by A1 and A2 respectively concerning their role in the incident. Reference is also made to document Ex. PW 9/G which purports to be a memorandum of the fact that A1 and A2, and 5 others, had led the IO and pointed out the place of occurrence. Since place of occurrence was already known to police, this evidence is inadmissible, it being in the nature of statements made to the police by person(s) in its custody.
54. PW22 proved document Ex. PW 22/A, and testified that SC No. 80/07 State Vs. Ajay Malhotra & another Page 31 of 44 Karan @ Vicky (Juvenile) also arrested in the case on 19.03.2007 had got recovered the iron panja, which he was found carrying in the pocket of his trousers at the time of being apprehended. He referred to sketch Ex. PW 22/B of the said instrument. In all fairness, no comment either way ought to be made respecting said recovery from a person who has not faced trial before this court. The credibility of evidence respecting the said seizure ought to be left to be appreciated at appropriate stage in the trial against Karan. It may be mentioned here that these three persons did not suffer any grave injury. Though prosecution case was that they had suffered injuries and had been medically examined, the MLCs in their respect have not been proved.
55.PW22, in the course of his statement, testified about Ravi (Juvenile) having got recovered knife used by Sagar (Juvenile) in the stabbing. He referred to the copy of seizure memo mark "X" and the sketch of the knife as mark "Y". Prosecution made no efforts to prove the recovery of knife through any formal admissible evidence. Mere reference on the basis of photo copies of the seizure SC No. 80/07 State Vs. Ajay Malhotra & another Page 32 of 44 memo or sketch which may have been prepared at the time of recovery can not suffice.
56. But then the knife so allegedly recovered on the pointing out of one of the juveniles was shown to autopsy doctor, PW10, who has proved his report in this regard vide Ex. PW 10/B confirming that three stab injuries found on the dead body could have been caused by this weapon. The knife in question was also sent to FSL. Though in the document mark "X", it seems to have been indicated that the knife had blood stains at the time of recovery, the FSL report did not find any such blood stains on this cutting instrument as clearly shown in the reports Ex. PX read with Ex. PY.
57.In above facts and circumstances, it cannot be said with certainty that knife recovered at the instance of the said juvenile as alleged could have been the actual weapon of offence. It must be added that the opinion of autopsy doctor only indicates possibility but is not conclusive about its use in the crime.
58.But then, the above circumstances only indicate that the prosecution has not been able to prove by clinching SC No. 80/07 State Vs. Ajay Malhotra & another Page 33 of 44 evidence the recovery of weapon of offence. In a case based on oral and direct evidence, this need not prove to be a handicap for the prosecution. It is well settled that nonrecovery of weapon of offence does not mean that prosecution in a case of this nature is bound to fail.
59. The defence counsel argued that in the face of evidence of PW5, the evidence of PW4 and PW20 should not be believed. I do not think that this would be an appropriate view. If one eye witness has not supported the prosecution to the hilt, this by itself does not render the credibility of others doubtful. It cannot be ignored that even PW5 does not deny that there was a fight in the gali behind metro station. He confirms his presence with PW4, PW20 and also of the deceased Mukesh at that place. He confirms that he himself was also hit while he was running away. This only means that he may possibly have actually not seen the crucial part of the incident wherein Mukesh was fatally wounded or a possibility that he may now be trying to avoid to make clear statement out of some fear. In this fact situation, his refusal to confirm prosecution story respecting the material part of incident is SC No. 80/07 State Vs. Ajay Malhotra & another Page 34 of 44 of no consequence.
60. It is well settled that the evidence of a hostile witness need not invariably and always wholly junked. It can still be relied upon to the extent corroborative of the other prosecution evidence or to the extent the court finds it credit worthy. [ Satya Pal Vs. Delhi Administration, AIR 1960 SC 275; Gulshan Kumar Vs. State, 1993(1) Delhi Lawyer 207 and Khujji Vs. State, 1991 Crl. L.J. 2653 (SC) ].
61. On careful perusal of the evidence on record, I do not find any reason why it should be disbelieved. Small contradictions by themselves are no reason to throw the case out. It has been held time and again that discrepancies do not necessarily demolish the testimony. Proof of guilt can be sustained despite little infirmities [Narotam Singh Vs. State 1978 Cr.L.J. 1612(SC)]. No undue importance can be attached to such discrepancies if they do not go to the root of the matter and do not shake the basic version of witnesses [Lallan Vs. State 1990 Cr,.L.J. 463]. It was ruled in Ramni Vs. State, [Judgment Today 1999(6) SC 247)] that all discrepancies are not capable of affecting the credibility of witnesses. Similarly, SC No. 80/07 State Vs. Ajay Malhotra & another Page 35 of 44 all inconsistent statements are not sufficient to impair the credit of a witness.
62. Observations of Hon'ble Supreme Court in 1985 Crl. L.J. 1173 can also be fruitfully referred to in this context. The evidence of an eye witness cannot be treated as one of the three legs of a tripod so as to conclude that it must collapse if one or the other leg collapses.
63. In the case of Sukhdev Yadav & ors. Vs. State of Bihar (2001) 89 (SCC) 86) it was held by Hon'ble Supreme Court that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram Vs. State of Haryana (1999) 9 SCC 525, it was observed that there are bound to be some discrepancies between the narration of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Corroboration of evidence with mathematical niceties SC No. 80/07 State Vs. Ajay Malhotra & another Page 36 of 44 cannot be expected in criminal cases. Minor embellishments or variations should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. Relying upon an earlier decision in Ramani Vs. State of M.P. ( supra), it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was observed that it is a common practice in trial courts to make out contradictions from the previous statement of SC No. 80/07 State Vs. Ajay Malhotra & another Page 37 of 44 a witness used for confronting him during cross examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment of the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
64. I do not find any material contradiction appearing in the evidence of prosecution in general and the statements of PW4, PW20 in particular. In these circumstances, I find no good reasons to disbelieve their testimony as to the sequence of events leading to the fatal stabbing of the deceased.
65. In above facts and circumstances, I have no hesitation in concluding that the stab injuries were inflicted on the person of Mukesh by another associate of A1 while he with A2 had assisted him by holding on the deceased.
66. The defence counsel submitted that it is not believable that for the sake of warding off the demand of wages to SC No. 80/07 State Vs. Ajay Malhotra & another Page 38 of 44 the extent of Rs. 2200/, any person would go to the extent of committing the offence of murder. In a case of direct evidence, the question of sufficiency of motive pales into insignificance. It is for the accused to explain as to why he committed the acts shown indulged by him if there was a reason other than the one projected in the prosecution case.
67.The facts proved thus, sufficiently show beyond all manner of doubts that A1 and A2 had joined with five others in assaulting the group of four including the deceased and PW4, PW5 and PW20. Having regard to the manner in which the assault took place and Mukesh was fatally stabbed with knife, it is clear that A1 and A2 with the said other constituted an unlawful assembly. The evidence clearly shows that A1 had exhorted his associates to attack this group of four and further that they should not be spared alive. The violence that ensued in the wake of this exhortation, renders it a case of rioting within the meaning of penal clause under Section 148 IPC. Since stabbing took place in the course of prosecution of common object of the unlawful assembly indulging in rioting and since A1 SC No. 80/07 State Vs. Ajay Malhotra & another Page 39 of 44 and A2 openly and actively assisted the author of the stab injuries inflicted on the person of deceased, penal consequences for the result achieved there from will have to be shared by A1 and A2, by virtue of Section 149 IPC coming into play.
68. As proved by the prosecution, Mukesh received three stab wounds which were intentionally inflicted. Going by the fact that before the wounds were inflicted, there was an exhortation by A1 that no one should be spared and further having regard to the parts of body where they were inflicted, it is clear that assault with knife on the person of Mukesh was carried out with the intention of causing his death.
69.In above facts and circumstances, it is proved that the death of Mukesh as a result of stab wounds suffered by him was a case of murder. In the result, the guilt of A1 and A2 for offences under Section 148 and Section 302 read with Section 149 IPC has been brought home. They are held guilty and convicted accordingly. PRONOUNCED & DICTATED SC No. 80/07 State Vs. Ajay Malhotra & another Page 40 of 44 IN THE OPEN COURT th On 20 day of October, 2010 [R.K. GAUBA] ADDl. SESSIONS JUDGE01 CENTRAL/DELHI SC No. 80/07 State Vs. Ajay Malhotra & another Page 41 of 44 IN THE COURT OF SHRI R.K. GUABA ADDITIONAL SESSIONS JUDGE01 (CENTRAL) DELHI Sessions Case No. 80/07 ID No.: 02401R0663102007 FIR No. : 182/07 PS: Patel Nagar U/S.: 302/147/148 IPC & 25/54/59 Arms Act.
State Versus
1. Ajay Malhotra @ Vicky S/o late Sh. Ram Lal Malhotra, R/o WZ180, Chaupalwali Gali, Shadikham Pur, Delhi.
70.Rahul Kohli S/o Joginder Kohli, R/o 297, DDA Flats, New Ranjit Nagar, Delhi.
ORDER ON SENTENCE SC No. 80/07 State Vs. Ajay Malhotra & another Page 42 of 44
iv) Vide judgment passed and pronounced on 20.10.2010, Ajay Malhotra @ Vicky and Rahul Kohli who were held guilty and convicted for offence under section 148 and 302 read with section 149 IPC.
v) I have heard Sh. R.K. Tanwar, Ld. Addl. Public Prosecutor for the State and Sh. R.S. Gupta, Advocate for the two convicts on the question of sentence.
vi) While Ld. Addl. Public Prosecutor submitted that the court may award appropriate punishment, the defence counsel has prayed for lenient view on the grounds that the convicts do not have any past criminal records and are quite young in age.
vii) I have given my considered thoughts to the contentions urged before me. For a dispute arising out of the demand of payment of paltry sum of Rs. 2,200/ as wages, the two convicts, with their associates, apparently precalculated the attack and called the victim and other persons connected to him at a place of their choice, where they formed an unlawful assembly, which was armed with deadly weapons. The manner in which the entire incident occurred shows prior concert and planning.
viii) Be that as it may, the case does not deserve the penalty of death sentence as it does not fall in the category of rarest of rare.
ix) I, therefore, sentence the two convicts to imprisonment for life with fine of Rs. 5,000/ (Five Thousand only) for SC No. 80/07 State Vs. Ajay Malhotra & another Page 43 of 44 the offence under section 302 read with section 149 IPC. In case of default in the payment of fine they shall further undergo RI for six months. For the offence under section 148 IPC, they are sentenced to rigorous imprisonment for three years.
x) Copy of this judgment and order of sentence be supplied to the convicts free of costs.
xi) They be sent to jail under appropriate warrants.
xii) File be consigned to record room.
Announced in open court on
This 25th day of October, 2010 (R.K. GAUBA)
ASJ01/ CENTRAL
DELHI
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