Delhi District Court
The State vs 1. Jitender S/O Hari Chand on 26 November, 2014
FIR No.257/10
D.O.D 26.11.2014 P.S Aman Vihar
u/s 452/302/325/323/34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 20/2014
UID NO . : 02404R0315532010
FIR No : 257/2010
P. S : Aman Vihar
u/s : 452/302/325/323/34 IPC.
The State versus 1. Jitender S/O Hari Chand
2. Vinod Kumar S/O Hari Chand
3. Manoj S/O Hari Chand
4. Hari Chand S/O Vishwanath
Accused no.1 to 4 R/O 23/22,
Prem Nagar -IIIrd , Delhi.
5. Kuldeep Singh Rathor @
Pintu S/O Kishore Singh R/O
Z-147, Narain Vihar Prem
Nagar-II , Delhi.
Date of committal to session court : 06.12.2010
Date of argument : 21-11-2014
Date of order : 26-11-2014
SC No. 20/14 State vs Jitender & Ors (Page 1 of 66 )
FIR No.257/10
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JUDGMENT
1 The matrix of the facts, unfolded during the course of trial, which needs a necessary mention for the purpose of deciding the case and emanating from the record, as claimed by the prosecution, is that on 20.8.2010, Mohar Singh (deceased) along with his wife Raj Shree(PW1),his sons Satender , Jitender(PW2) , Pratap (PW13) were present at their house situated at A23/29, 36 Prem Nagar-III, Delhi. All of a sudden, accused Hari Chand along with his sons Manoj, Vinod and Jitender entered their house and started abusing. Accused Hari Chand instigated his sons by saying "
ye sale jyada bante hein inko chhorna nahi".
Accused Hari Chand and Manoj were carrying iron "saria" in their hands . Accused Jitender caught hold Mohar Singh (deceased) and accused Vinod caught hold Pratap (injured) and started beating them with fists and kicks. Accused Hari Chand and Manoj were beating Mohar Singh and Pratap with "sarias". Accused persons also gave beatings to Raj Shree(PW1) and Jitender(PW2), wife and son of SC No. 20/14 State vs Jitender & Ors (Page 2 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Mohar Singh( deceased) with kicks and fists.
2 It is the further case of the prosecution that accused Kuldeep Singh Rathor @ Pintu and Kamal Kashyap(already expired) , friends of accused Manoj, also came there and started beating the complainant Raj Shree(PW1) and her aforesaid family members with fists and kicks alone with other accused persons. Jitender sustained injuries on his nose and Mohar Singh and Pratap Singh sustained injuries on their head. Thereafter, accused persons fled away from the spot. Someone from the public informed the PCR and DD no.27 A was recorded at P.S Aman Vihar in this regard. PCR van reached there and removed the injured persons to SGM hospital. Said DD was marked to ASI Sajjan(PW21) Singh for investigation.
3 ASI Sajjan Singh reached at SGM hospital where he found the patients unfit for statement. In the meanwhile, injured persons were shifted to Jaipur Golden Hospital. On 22.8.2010, injured SC No. 20/14 State vs Jitender & Ors (Page 3 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Pratap Singh was declared fit for statement by the doctors and his statement was recorded by ASI Sajjan Singh. ASI Sajjan Singh prepared the rukka and got registered the FIR. The blood stained clothes of Mohar Singh were received by Raj Shree from the doctors on 23.8.2010 and she handed over the same to the IO, who sealed and seized the same. Raj Shree also handed over the blood stained vest and pant of Pratap( injured) to ASI Sajjan Singh which were also sealed and seized. MLC's of the injured persons were collected by the IO.
4 It is alleged that on 27.8.2010 injured Mohar Singh expired in the hospital . Accused persons were arrested . Weapons of offence i.e iron pipe and iron rod (sariya) are shown to have been recovered at the instance of accused Hari Chand and Manoj . Postmortem on the body of Mohar Singh(deceased) was got conducted and PM report along with subsequent opinion was collected wherein it was mentioned that the injuries mentioned in the postmortem report were SC No. 20/14 State vs Jitender & Ors (Page 4 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC possible by said weapons of offence.
5 On 28.8.2010, investigation of the present case was entrusted to Inspector Gajender(PW24) who visited the spot and called the crime team at the spot and got the spot inspected and photographed by the crime team. Some blood on the wall and under the stair case was noticed. IO Inspector Gajender Singh scratched some wall from the places were blood was lying with the help of knife and kept the same in a plastic container and converted into a parcel and sealed with the seal of GK and seized .
6 According to the prosecution on 20.8.2010, at about 10:00 pm, Satender s/o deceased Mohar Singh was playing outside his house in gali . Grandson of Harichand was also playing with Satender . A quarrel took place between Satender and grandson of accused Harichand . Mohar Singh (deceased) separated them and scolded both of them . Grandson of accused Hari chand went away from there and he SC No. 20/14 State vs Jitender & Ors (Page 5 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC was crying . Prosecution has come with this as motive for committing the offences.
7 Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that on 20-08-2010, all the accused persons with their common intention after having made preparation for causing hurt trespassed into the house no. A-23/29 , 36 Prem Nagar -III, Delhi and voluntarily caused grievous hurt on the person of Pratap , simple injury on the person of Jitender and also committed murder of Mohar Singh by giving beatings to them with the help of Iron rods. In the background of these allegations and in the wake of statement of the complainant/witnesses , the present criminal case was registered against the accused persons, on accusation of having committed the offences punishable under sections 452/323/325/302/34 IPC at the Police Station Aman Vihar , in the manner depicted here-in-above.
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8 After completion of the investigation, the
final police report (challan) was submitted by the police against the accused persons to face trial for the offences in question.
9 Vide order dated 22.11.2010, Ld MM took the cognizance of the offences and subsequently, since the offence u/s 302 IPC was exclusively triable by the court of sessions, therefore vide order dated 6.12.2010, case was committed to the court of sessions.
10 Vide order dated 03.02.2011, ld predecessor of this court decided the charges and accordingly, accused persons were charged for the offences u/s 452/302/325/323/34 IPC to which they pleaded not guilty and claimed to be tried.
11 In order to prove its case, prosecution has examined as many as Twenty four witnesses. Although, the detailed testimonies of the relevant SC No. 20/14 State vs Jitender & Ors (Page 7 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC witnesses shall be discussed herein after in the subsequent para's, however, it would be appropriate to mention in brief the role of those prosecution witnesses to have an overview of the nature and kind of evidence which has come on the record.
12 Public witnesses examined by the prosecution are being detailed as under:
i) PW1 Raj Shree :- She is the wife of Mohar Singh(deceased) and according to the prosecution, she is the eye witness to the incident when accused persons trespassed to her house and gave beatings. She has deposed on the lines of the case of prosecution.
She deposed that on 20.8.2010 , at about 10:00 pm she was present at her house along with her daughter, son Satender & Jitender, Devar Pratap and her husband Mohar Singh . Accused Hari Chand and his sons Manoj, Vinod and Jitender, all of sudden, entered their house and started abusing them .Accused Hari Chand said to his sons that " ye saale jyada bante hein inko chhorana nahi". At that time accused Manoj and Hari Chand were carrying iron saria in their hand. She knew accused Hari Chand, Manoj, Vinod and Jitender as they used to reside in her neighborhood in front of their "gali". On hearing such words of his father Hari chand, accused Jitender had caught hold of her husband from his waist . Accused Manoj had caught hold of her SC No. 20/14 State vs Jitender & Ors (Page 8 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC devar Pratap. All of them had started beating her husband and her devar. Accused Manoj and Hari Chand were hitting with saria to her devar Pratap and husband and other accused had also started beating her husband and her devar with fists and kicks. She further deposed that when she and her son Jitender tried to rescue her husband and devar , accused persons gave beatings to her and her son Jitender also. After that accused Pintoo and Kamal Kashyap also came there and she knew them as they used to live in the same locality and she had seen them visiting house of accused Manoj on many occasion. Accused Pintoo @ Kuldeep and Kamal Kashyap had also started beating them. They shouted for help. Neighborers had collected there and someone made a call to the police. Accused persons fled away from the spot. PW1 further deposed that her son Jitender(PW2), her devar Pratap (PW13) and her husband Mohar Singh (deceased ) were taken to the SGM hospital by the PCR Van. Her husband Mohar Singh and Pratap were serious therefore, they had taken them to Jaipur Golden Hospital and were got admitted there. On that day doctor had given her the blood stained clothes of her husband and devar. On 23.8.2010, she handed over that blood stained clothes to the police which was seized by the police vide seizure memo ExPW1/A( seizure memo of clothes of deceased Mohar Singh) and ExPW1/B( seizure memo of clothes of injured Pratap). She further deposed that on 28 or 29.8.2010, accused Vinod was apprehended and arrested and police brought him to their house. She identified him and accused Vinod pointed out towards her house as a place of occurrence. Police had taken the photographs of the wall below the staircase and also lifted blood stains after SC No. 20/14 State vs Jitender & Ors (Page 9 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC scratching it from the wall and kept the same in small plastic "dibbi" and also put some seal. Seizure memo is ExPW1/C and pointing out memo of accused Viond is ExPW1/D and arrest memo of accused Vinod is ExPW1/E and his personal search is ExPW1/F. PW1 Raj Shree further deposed that on 27.8.2010, her husband had died due to the injuries inflicted by all the accused persons. In September 2010, police had come with accused Hari chand and Manoj to her house and she had identified them. Both the accused persons pointed out towards her house as the place of occurrence. She further deposed that in the month of November 2010, accused Pintoo @ Kuldeep was arrested from his house at her instance. She had signed the arrest documents i.e arrest memo of accused Kuldeep ExPW1/G , his personal search memo is ExPW1/H and pointing out memo of accused Kuldeep ExPW1/I and his disclosure statement ExPW1/J. PW1 was cross examined at length by the ld counsel for the accused persons.
ii) PW2 Jitender:- He is the son of deceased Mohar Singh and one of the injured . He is also the eye witness to the incident. He has deposed on the lines of PW1.
iii) PW3 Suresh : He is the witness who identified the dead body of Mohar Singh vide identification memo ExPW3/A.
iv) PW4 Sushil Saini : He is another witness who identified the dead body of deceased Mohar Singh and in his presence dead body was handed over to Jitender(PW2) , son of Mohar Singh vide memo ExPW4/A. SC No. 20/14 State vs Jitender & Ors (Page 10 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC
v) PW8 Brij Lal Rana : He is also one more witness to dead body identification.
vi) PW13 Pratap Singh: He is another injured and eye witness . He is the maker of FIR. He deposed that on 20.8.2010 at about 10:00 pm, he along with his elder brother Mohar Singh (deceased) were sitting outside their house in "gali". At about 10:00pm accused Hari chand, his son accused Manoj, Vinod and Jitender all of sudden entered his house and they were hurling abuses to them. Accused Hari Chand and Manoj were carrying iron sariyas(rods) in their hands. Accused Hari Chand hurled filthy abuse and said " Saley bahut bante hain, inko theek kar do". On this accused Vinod caught hold him and accused Jitender caught hold his brother Mohar Singh and started beating them with legs and punches. He further deposed that accused Hari Chand and his son had beaten him and Mohar Singh( deceased) with "sariya". When Jitender and other son of Mohar Singh came to rescue them, all accused persons started beating them with legs and punches. In the meanwhile, Kamal Kashyap and pintoo, friends of Manoj also entered their hosue and with Hari Chand, Manoj, Vinod and Jitender, they also started beating them with legs and punches. He further deposed that they all started screaming and thereafter accused persons run away from there. Some neighbor had called PCR. They all were removed to the SGM Hospital by the PCR. Police met him in the hospital and his statement ExPW13/A was recorded by the police. He was also cross examined by the accused persons.
13 Following police officials were examined
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as prosecution witnesses:-
i) PW5 Inspector Sanjay Gade : On 29 .8.2010 , he was
posted as Incharge Mobile Crime Team(Outer District) and reached at the spot along with photographer and fingerprint proficient . He inspected the spot and noticed blood stains on the area under the staircase. He prepared his report ExPW5/A.
ii) PW6 Ct. Sandeep Kumar : He was posted as photographer with crime team outer district. On 29.8.2010 , he along with crime team headed by Insp. Sanjay Gade(PW5) reached at the spot. He took the photographs of the scene of crime and proved the same as ExPW6/A1 to A5 and negatives as ExPW6/A6.
iii) PW9 S.I Manohar Lal : He is the Draftsman and on the pointing out of complainant Pratap Singh(PW13) took rough notes and measurements and on the basis of same prepared scaled site plan ExPW9/A.
iv) PW11 Constable Ravinder Kumar : On 30.9.2010, he deposited six exhibits vide RC No.132/21/10 to FSL and handed over the receipt of acknowledgment and copy of RC to MHC(M).
v) PW12 Constable Om Prakash : He is the witness, who on 22/23.8.2010 , recorded FIR no.257/2010 on computer.
PW14 Ct. Virender : He was with ASI Sajjan Singh (IO) during investigation and in his presence accused Jitender was arrested vide arrest memo ExPW 2/A and his personal search was carried SC No. 20/14 State vs Jitender & Ors (Page 12 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC out vide memo ExPW2/B. Disclosure statement of accused Jitender ExPW14/A was also recorded in his presence and pointing out memo ExPW2/C was prepared .
Vii) PW15 Ct. Sheetal : He was posted at CPCR and had filled up PCR form ExPW15/A .
viii) PW16 HC Rajesh Kumar: He was the duty officer who proved the FIR ExPW12/A and his endorsement ExPW16/A on the same. He also proved the certificate u/s 65 B of Indian Evidence Act ExPW16/B.
ix) PW18 HC Ajit Singh : He is the witness who was posted as MHC(M) at P.S Aman Vihar and with whom case properties were deposited.
x) PW19 Ct. Manjeet Singh : He was with Ist IO ASI Sajjan Singh during investigation .
xi)PW20 Inspector Neeraj Kumar : He was entrusted investigation on 22.9.2010 and he carried out the further investigation and arrested accused Kuldeep @ Pintoo and after completion of investigation filed the chargesheet.
xii)PW21 ASI Sajjan Singh : He is the Ist IO of the present case who carried out the investigation till section 302 IPC was added and thereafter he was with the IO Inspect Gajender Singh during further investigation.
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xiii) PW24 Inspector Gajendra : He is witness to whom
investigation of the present case was entrusted when section 302 IPC was added in the FIR after the death of Mohar Singh(deceased). He deposed that on 29.8.2010, he along with ASI Sajjan Singh and Constable Ravinder went to the place of occurrence and he inspected the place of occurrence . They met wife of deceased Mohar Singh namely Raj Shree . He called crime team . The crime team inspected the site and gave report ExPW5/A . Photographer took the photographs ExPW6/A1 to ExPW6/A5. Some blood was found on the wall and Raj Shree also pointed out some blood under the stair case . He scratched some wall from the places with the help of knife and kept the same in plastic container. The said plastic container was converted into the parcel with the help of white cloth and was sealed with the seal of GK and seized vide memo ExPW1/C . PW24 further deposed that in the meanwhile a secret information was received that accused Vinod , wanted in this case was standing on Prem Nagar Road , Shani Bazar and if raided he could be apprehended . On this information , he along with ASI Sajjan Singh , Constable Ravinder and Raj Shree reached Shani Bazaar Prem Nagar road , Delhi and on the pointing out of Raj Shree, accused Vinod was apprehended and arrested vide memo ExPW1/E and his personal search was conducted vide memo ExPW1/F. Accused Vinod made a disclosure statement ExPW 21/E and pointed out place of occurrence which is ExPW1/D .
PW24 further deposed that on On 4.9.2010 , accused Manoj ,
surrendered in the court of ld MM . He interrogated accused
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Manoj and thereafter with the permission of court ,he arrested him vide memo ExPW 21/F and his personal search was carried out vide memo ExPW21/G. He also made a disclosure statement ExPW21/K. He obtained one day police custody remand of the accused. In the meanwhile he received a secret information regarding presence of accused Harichand father of accused Manoj at Sultan Puri Bus stand. He along with ASI Sajjan and accused Manoj reached Sultanpuri Bus stand and there at the instance of secret informer accused Hari Chand, was arrested vide arrest memo already ExPW21/H and his personal search was conducted vide memo already ExPW21/J . Accused Hari Chand also made a disclosure statement vide memo already ExPW21/L. Accused persons namely Hari Chand and Manoj disclosed that they could get weapon of offence i.e iron rod recovered. Both these accused persons led the police party to a vacant plot near their house and from amongst the bushes, accused Hari Chand got recovered from the corner of the vacant plot one rusted iron pipe. Similarly , accused Manoj also got recovered an iron rod from the same place. Both the iron pipe and iron rod (saria) were separately converted into parcels and sealed with the seal of GK and seized vide seizure memo already EXPW21/M and ExPW21/N respectively . Accused Manoj and accused Hari Chand also pointed out towards the place of occurrence and a memo in that regard was also prepared which is ExPW1/J .
PW24 further deposed that during further course of investigation , he Collected PCR form ExPW15/A and ExPW24/A, ExPW24/B and ExPW24/C . He also collected PM Report ExPW 7/C. SC No. 20/14 State vs Jitender & Ors (Page 15 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Medical Evidence :
i) PW 7 Dr. Manoj Dhingra : He opined the nature of injuries on MLC of injured Jitender ExPW7/A as simple and of injured Pratap ExPW7/B as grievous . He also conducted the postmortem on the body of deceased Mohar Singh along with Dr J V Kiran and prepared PM report ExPW7/C and gave subsequent opinion ExPW7/D . He deposed that IO had produced the weapon on offence in the sealed pullanda i.e. iron rod . He examined the same and opined that the injuries mentioned in PM report were possible by the said weapon of offence and his opinion is ExPW7/E. He also gave subsequent opinion regarding iron pipe as Ex PW7/F. Another subsequent opinion Ex PW7/G given by him and Dr J V Kiran stated that the cerebral damage was sufficient to cause death in the ordinary course of nature.
ii) PW10 Dr. Rajesh : He is the witness who on 20.8.2010 was posted at SGM hospital where injured persons were removed by the PCR Van immediately after the incident. He proved the MLC ExPW10/A of SGM Hospital of injured Mohar Singh and MLC ExPW7/B of Pratap .
iii) PW17 Dr. J.V Kiran : He has conducted the postmortem on the body of deceased Mohar Singh along with Dr Manoj Dhingra(PW7).
iv) PW22 Dr. S.C Khetarpal : He was working as Radiologist at SC No. 20/14 State vs Jitender & Ors (Page 16 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Jaipur Golden Hospital on 21.8.2010. He proved the X ray report of Pratap(PW13) as ExPW22/C.
v) PW23 Dr. Amit Motihar : He was posted as Jaipur Golden Hospital as Sr. Resident Doctor . On 21.8.2010 , he made endorsement on the MLCs of Mohar Singh and Pratap that they are unfit for statement.
14 Here it is pertinent to mention that during the trial discharge summary of injured Pratap was admitted by the accused. In this regard separate statement dated 23.06.2014 was recorded. The said discharge summary was given Exhibit marks as Ex ADV1 .
15 Thereafter prosecution evidence was closed and statement of accused persons u/s 313 Cr. PC were recorded . During the statement u/s 313 CrPC, accused persons denied all the allegations made against them. They opted to lead evidence in their defence and has examined one Rajesh Kumar , UDC SGM Hospital as DW1, one Chander Shekhar , Nodel Officer Bharti Airtel as SC No. 20/14 State vs Jitender & Ors (Page 17 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC DW2 and Sh Rajeev Ranjan , Nodel officer from TATA Tele services as DW3.
16 DW1 Rajesh Kumar, UDC SGM Hospital , deposed that as per record, patient Kamal Kashyap was brought to SGM Hospital on 20.8.2010 at about 11:10 pm by the PCR with the alleged history of physical assault as told by the patient. Patient was examined by Dr. Rajesh Dalal. He proved the MLC of patient namely Kamal Kashyap as ExDW1/A. 17 DW2 Sh Chander Shekhar , Nodal Officer , Bharti Airtel brought the certified copy of customer application form ExDW2/A of Mobile no 9958818253 which was in the name of Manoj Kumar s/o Hari Thakur r/o RZ B, 133 Nursing Garden, New Delhi .
18 DW3 Rajeev Ranjan , Nodel Officer, Tata Tele Services Ltd brought the certified copy of customer application form of Mobile NO.
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9211890851 ExDW3/A which is in the name of Chinta Devi w/o Hari Chander r/o 823/22 , Prem Nagar-III, Block A, Bawana, Delhi.
19 Ld counsel for the accused persons have raised following points for consideration:-
● Onus of proving the charges beyond reasonable doubt was upon the prosecution which they have failed to discharge the same.
● There was inordinate and unexplained delay in recording of FIR.
● According to the prosecution no one was available to give the statement but the fact is that Jitender(PW2) , who had received minor injuries, was available but his statement was not recorded with promptness. ● There is no independent public witness to the incident despite the fact that place of incident is a residential colony.
● There was a quarrel between the accused persons and accused Kamal Kashyap ( since expired) and the accused persons have been falsely implicated. Prosecution has suppressed the most important fact that co-accused Kamal Kashyap has also sustained injury.
● The MLC of injured Pratap (PW13) indicates that he sustained the injury due to assault by unknown people.
According to the prosecution both the parties reside
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opposite to each other. That being so, there was no
occasion for PW13 Pratap not to mention the name of the assailants in the MLC.
● It has come on the record that call to the PCR was made by the accused Manoj himself which is evident from the PCR form and CDR of the mobile number 9958818253.
● There are material contradictions in the testimonies of prosecution witnesses regarding the mode and manner in which incident took place and beatings were given to the injured and deceased Mohar Singh , which makes the witnesses untrustworthy and unrelieable.
20 Ld Counsel for the accused persons has placed reliance upon following authorities :
● Rex Vs Blondy : 18 State trials 1117 (1180). ● Tanviben Pankaj Kumar Divetia vs State of Gujrat :
1997 CrlJ 2535.
● Ashish Batham vs State of MP , 2002 SCC (CRI) 1718 .
● Kailash Gaur and others vs State of Assam :
AIR2012 SC 786.
● Bhagirath vs State of Madhya Pradesh : AIR 1976 , SC 975.
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21 Per Contra , ld Addll PP for the state
submitted that in the present case prosecution
has able to prove its case beyond reasonable doubt . While taking me through the testimonies of prosecution witnesses, particularly public witnesses , he submitted that all the prosecution witnesses have explained the case of the prosecution very well and their testimonies are sufficient to bring home the guilt of the accused persons. Ld Adll PP for the state contended that why the prosecution witnesses i.e PW1 , PW2 and PW13 would implicate falsely in a case of murder . He further submitted that even the accused person have not denied that incident took place . In reply to the claim of accused persons that call was made to PCR by one of the accused namely Manoj , he stated that there is no such evidence which could show that it was accused Manoj who had made call to the police.
22 Ld Addll PP for the state further argued that immediately after the incident injured Pratap SC No. 20/14 State vs Jitender & Ors (Page 21 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC (PW13) and deceased Mohar Singh were unconscious and their conditions were so serious that they were shifted to Jaipur Golden Hospital from Sanjay Gandhi Hospital therefore, their statements could not be recorded . He pointed out that prosecution has also been able to explain the delay in recording the FIR. Ld Adll PP submitted that it was a deliberate act on the part of the accused persons and they trespassed into the house of injured party and committed the murder of Mohar Singh and caused grievous and simple injuries on two -three persons.
23 I have heard the Ld Addll PP for the state and the ld counsel for the accused persons.
I have also perused the record very carefully including the written synopsis filed on behalf of the accused persons.
CASE AS AGAINST THE ACCUSED PERSONS NAMELY JITENDER, VINOD KUMAR, MANOJ AND HARI CHAND-THEY ALL FAMILY MEMBERS SC No. 20/14 State vs Jitender & Ors (Page 22 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC 24 Above mentioned accused persons are facing trial for the offences u/s 452/302/325/323/34 IPC . Testimony of PW1 Raj Shree , PW2 Jitender and PW13 Pratap Singh is material as they are the eye witnesses and victims of the present case. PW1 Raj Shree is the wife of deceased Mohar Singh and mother of PW2 Jitender. PW3 Pratap is the brother-in-law (devar ) of PW1. All these three witnesses are members of one family and the prosecution story revolves around their testimonies.
25 PW1 Raj Shree deposed that on 20.8.2010 , at about 10:00 pm she was present at her house along with her daughter, son Satender & Jitender, Devar Pratap and her husband Mohar Singh . Accused Hari Chand and his sons Manoj, Vinod and Jitender, all of sudden, entered their house and started abusing them .Accused Hari Chand said to his sons that " ye saale jyada bante hein inko chhorana nahi". At that time accused Manoj and Hari Chand were carrying iron saria in their hand. She knew accused Hari Chand, Manoj, SC No. 20/14 State vs Jitender & Ors (Page 23 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Vinod and Jitender as they used to reside in her neighborhood in front of their "gali". On hearing such words of his father Hari chand, accused Jitender had caught hold of her husband from his waist . Accused Manoj had caught hold of her devar Pratap. All of them had started beating her husband and her devar. Accused Manoj and Hari Chand were hitting with saria to her devar Pratap and husband and other accused had also started beating her hsuband and her devar with fists and kicks. She further deposed that when she and her son Jitender tried to rescue her husband and devar , accused persons gave beatings to her and her son Jitender also. After that accused Pintoo and Kamal Kashyap also came there and she knew them as they used to live in the same locality and she had seen them visiting house of accused Manoj on many occasion. Accused Pintoo @ Kuldeep and Kamal Kashyap had also started beating them. They shouted for help. Neighborers had collected there and someone made a call to the police. Accused persons fled away from the SC No. 20/14 State vs Jitender & Ors (Page 24 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC spot. PW1 further deposed that her son Jitender(PW2), her devar Pratap (PW13) and her husband Mohar Singh (deceased ) were taken to the SGM hospital by the PCR Van. Her husband Mohar Singh and Pratap were serious therefore, they had taken them to Jaipur Golden Hospital and were got admitted there. On that day doctor had given her the blood stained clothes of her husband and devar. On 23.8.2010, she handed over that blood stained clothes to the police which was seized by the police vide seizure memo ExPW1/A( seizure memo of clothes of deceased Mohar Singh) and ExPW1/B( seizure memo of clothes of injured Pratap). She further deposed that on 28 or 29.8.2010, accused Vinod was apprehended and arrested and police brought him to their house. She identified him and accused Vinod pointed out towards her house as a place of occurrence. Police had taken the photographs of the wall below the staircase and also lifted blood stains after scratching it from the wall and kept the same in small plastic "dibbi" and also put some SC No. 20/14 State vs Jitender & Ors (Page 25 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC seal. Seizure memo is ExpW1/C and pointing out memo of accused Viond is ExPW1/D and arrest memo of accused Vinod is ExPW1/E and his personal search is ExPW1/F. 26 PW1 Raj Shree further deposed that on 27.8.2010, her husband had died due to the injuries inflicted by all the accused persons. In September 2010, police had come with accused Hari chand and Manoj to her house and she had identified them. Both the accused persons pointed out towards her house as the place of occurrence. She further deposed that in the month of November 2010, accused Pintoo @ Kuldeep was arrested from his house at her instance. She had signed the arrest documents i.e arrest memo of accused Kuldeep ExPW1/G , his personal search ExPW1/H and pointing out memo of accused Kuldeep ExPW1/I and his disclosure statement ExPW1/J 27 PW1 was cross examined at length by SC No. 20/14 State vs Jitender & Ors (Page 26 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC the ld counsel for the accused persons . During her cross examination, she replied that her sons namely Satender and Prince s/o of accused Manoj were playing outside her house. Prince slapped her son and then her son slapped him. Prince left from there crying. After few minutes , chacha of Prince namely Satender ( brother of accused Manoj) came to their house with Prince and slapped his son. There was some quarrel between two family members . PW1 replied that she intervened and tried to stop Satender. She further replied that all the accused persons had come to her house. She admitted that there was two tenants in the house and at the time of incident none of the tenant was there. She further replied that she had not made a call to the PCR and there was no quarrel between two families prior to the incident. Police remained there for 15-20 minutes and her statement was recorded by the police on 23.8.2010. She admitted that co-accused Kamal Kashyap also sustained injuries but replied that he received injuries as she saved herself behind the SC No. 20/14 State vs Jitender & Ors (Page 27 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC door from the blows of accused persons and such blow had hit Kamal Kashyap. Further cross examination of PW1 is basically in respect of arrest of the accused persons.
28 A close scrutiny of the cross examination of PW1 would show that the testimony of PW1 on material points has gone unchanged . It is evident that there is no cross examination of PW1 on the points that " .......on 20.8.2010 at about 10:00 pm she was present at her house along with her daughter, son Satender & Jitender, Devar Pratap and her husband Mohar Singh ; that accused Hari Chand and his sons Manoj, Vinod and Jitender, all of sudden, entered their house and started abusing them ; that accused Hari Chand told to his sons that " ye saale jyada bante hein inko chhorana nahi"; that at that time accused Manoj and Hari Chand were carrying iron saria in their hand; that she knew accused Hari Chand, Manoj, Vinod and Jitender as they used to reside in her neighborhood in front of their gali ; that on hearing such words of his father Hari chand, accused Jitender had caught hold of SC No. 20/14 State vs Jitender & Ors (Page 28 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC her husband from his waist ; that accused Manoj had caught hold of her devar Pratap( during her further examination she clarified that it was accused Manoj who had caught hold of Pratap) ; that all of them had started beating her husband and her devar; that accused Manoj and Hari Chand were hitting her devar Pratap and husband with saria and other accused had also started beating her husband and her devar with fists and kicks..."
29 The testimony of PW1 finds corroboration and support from the testimony of PW2 Jitender who is the son of deceased Mohar Singh and PW1. According to the prosecution , he is one of the victim and he was present at his house at the time when the incident took place. He has deposed exactly on the lines of PW1 while deposing that on 20.8.2010, accused persons entered their house. Accused Hari Chand instigated his sons by saying" sale jyada bante hein inko thik karo". Accused Jitender caught hold of his father Mohar Singh( deceased) and accused Vinod caught hold his chacha SC No. 20/14 State vs Jitender & Ors (Page 29 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Pratap(PW13) . Accused Hari chand and Manoj were beating his father and chacha with "sarias" which they were having. He also deposed that PCR Van removed his father namely Mohar Singh, His Chacha Pratap(PW13) and him to SGM hospital. PW2 further deposed that on the same day they shifted his father(deceased Mohar Singh) and chacha Pratap(PW13) to Jaipur Golden Hospital as they were serious. He further deposed that on 25.8.2010, police had come to his house and he had joined the investigation. Police had also brought accused Jitender and he had identified him. Accused Jitender was arrested vide ExPW2/A and his personal search was carried out vide memo ExPW2/B. Accused Jitender also confessed his involvement in the present case. Accused Jitender had also pointed out at his house as place of occurrence and pointing out memo is ExPW2/C. PW2 further deposed that on 27.8.2010, his father had expired due to the injuries given by accused persons.
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30 During his cross examination, PW2
replied that police had come there . They had
not made any enquiries from the neighboring houses. PCR Van had stayed there for 5-10 minutes. He, his father and his chacha Pratap had gone in PCR Van. Police had come on 23.8.2010 when his mother had given them clothes of his father and chacha. PW2 admitted that accused Kamal Kashyal (since expired) had also received injuries during that quarrel. He replied that he does not know as to how Kamal Kashyap received injuries during that quarrel.
31 The testimony of PW2 has also gone unchanged on material points as it went during cross of PW1 Raj Shree indicated above and he has also deposed on the lines of the case of the prosecution. The aforesaid deposition of PW1 and PW2 has gone unrebutted and unchallenged. Further, despite their searching and lengthy cross examination nothing could be elicited from their mouth to dislodge their version or to reject their SC No. 20/14 State vs Jitender & Ors (Page 31 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC testimonies.
32 Not only that Pratap who is shown to have received grievous injuries due to the incident appeared in the witness box and was examined as PW13. He also corroborated the version given by PW1 Raj Shree and PW2 Jitender and deposed that on 20.8.2010 at about 10:00 pm, he along with his elder brother Mohar Singh (deceased) were sitting outside their house in "gali". At about 10:00pm accused Hari chand, his son accused Manoj, Vinod and Jitender all of sudden entered his house and they were hurling abuses to them. Accused Hari Chand and Manoj were carrying iron sariyas(rods) in their hands. Accused Hari Chand hurled filthy abuse and said " Saley bahut bante hain, inko theek kar do". On this accused Vinod caught hold him and accused Jitender caught hold his brother Mohar Singh and started beating them with legs and punches. He further deposed that accused Hari Chand and his son had beaten him and Mohar Singh( deceased) with "sariya". When Jitender and SC No. 20/14 State vs Jitender & Ors (Page 32 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC other son of Mohar Singh came to rescue them , all accused persons started beating them with legs and punches. In the meanwhile, Kamal Kashyap and pintoo, friends of Manoj also entered their hosue and with Hari Chand, Manoj, Vinod and Jitender, they also started beating them with legs and punches. He further deposed that they all started screaming and thereafter accused persons run away from there. Some neighbors had called PCR. They all were removed to the SGM Hospital by the PCR. Police met him in the hospital and his statement ExPW13/A was recorded by the police.
33 During his cross examination, PW13 admitted that there are houses around the place of incident and one tenant was living in their house. He replied that he felt unconscious after receiving injury and there was no quarrel between the two families prior to the incident. He further replied that his statement was recorded at Jaipur Golden Hospital by the police but stated that SC No. 20/14 State vs Jitender & Ors (Page 33 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Kamal Kashyap (expired) did not receive any injury in the incident. He denied the suggestion that his brother Mohar Singh (deceased) was of short tempered nature and he used to quarrel with neighbourers in drunken condition and on the day of incident Mohar Singh(deceased) had quarreled with some neighbor in the "gali" and he has received injury from that quarrel from some other person. He has also denied that accused persons had not inflicted any injuries on the persons of deceased Mohar Singh and on him (PW13 Pratap) .
34 The testimony of PW1 , PW2 and PW13 is consistent and have explained the mode and manner in which the offence in question was committed. The role of each of the above mentioned accused persons have been explained as it has been attributed to the accused Hari Chand that he exhorted the words" Saley bahut bante hain, inko theek kar do". All the three witnesses have stated that accused Manoj and Hari SC No. 20/14 State vs Jitender & Ors (Page 34 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Chand was having "sarias". Accused Jitender caught hold Mohar Singh( deceased) and accused Vinod caught hold Pratap(PW13) . All the three witnesses are talking about giving blows with iron saria's by the accused persons.
35 The testimonies of PW1, PW2 and PW3 inspire confidence of this court and have ring of truthfulness around it. They are the natural and probable witnesses and their presence at the spot cannot be doubted. Incident in question is shown to have taken place at the house of victim/deceased. Therefore, their presence at their house at 10:00 pm, when the incident in question took place, cannot be doubted. It has also come on record from the medical record that they sustained injuries . It is not the case of the accused persons that no such incident took place rather their case is that other persons from public had caused injury on the persons of PW13 Pratap Singh ,PW2 Jitender and Mohar Singh(deceased), which is not supported by any evidence except SC No. 20/14 State vs Jitender & Ors (Page 35 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC the bald suggestions made to the aforesaid material witnesses.
36 It is settled legal position that just because a witness is an interested witness, it cannot be a ground to reject his testimony. In the matter of Harijana Narayana vs state of Andhra Pradesh, Reported in in 2003 V AD(SC) 589_ AIR 2003 SC 2851, it was held by the Hon'ble Apex Court as under:-
" the evidence in each case has to be considered from the point of trustworthiness and from the angle as to whether is inspires confidence in the mind of the Court to accept and the question of credibility and reliability of a witness is to be decided with reference to the way he fared in cross- examination and the nature of impression created in the mind of the court. There is no universal rule as to warrant rejection of the evidence of a witness merely because the witness was related to or interested in the parties of either side. In such cases, if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumspect of the case to be true, it can provide a good and sound basis for conviction. But where it is shown that there is enmity and the witnesses are near relatives too, the Court has a duty to scrutinize their evidence with great SC No. 20/14 State vs Jitender & Ors (Page 36 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC care, caution and circumspection and very very careful too in weighing such evidence".
37 In State of Uttar Pradesh Vs Jagdeo & Ors, 2002 X AD (SC) 401, it has been held by the Hon'ble Supreme Court that where the evidence of any eye-witness is consistent and tallies with each other, there is no reason to discard such evidence on the ground that they were related to the deceased as such were interested witnesses.
38 Further, I may also observe that testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would establish his presence at the spot and confirm that he had seen the occurrence by himself ( Mohar vs State of UP, 2002 AIR (SC) 3279).
39 Evidence of the injured eye witnesses cannot be discarded on the ground of even criminal disposition towards accused. More so, on perusal of the evidence tested in light of SC No. 20/14 State vs Jitender & Ors (Page 37 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC broad probabilities it can be concluded that eye- witness are natural witnesses and they could not have concocted a baseless case against accused persons. Further in the case of State of Madhya Pradesh vs Mansing & Ors reported in 2003(10) SCC 414, Hon'ble Supreme Court of India held that evidence of injured witness has greater evidential value, unless compelling reasons exist to disbelieve the same.
40 I see no reason to disbelieve PW1, PW2 and PW13. They having been the victim of violence, there could be no reason for them to exonerate the real culprits and implicate innocent persons for the injury caused to them and deceased Mohar Singh. In Mer Dhana Sida vs. State of Gujarat AIR 1985 SC 386, three injured witnesses had supported the prosecution. It was held by Hon'ble Supreme Court that as there were three injured witnesses, and we would require very convincing submissions to discard the evidence of the injured witnesses whose injuries would at least permit a reasonable inference that they were SC No. 20/14 State vs Jitender & Ors (Page 38 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC present at the time of occurrence. Undoubtedly, this is subject to the requirement that there must be evidence to show that these witnesses received injuries in the same occurrence. Very cogent and convincing ground would be required to discard the evidence of the injured.
41 In Machhi Singh vs. State of Punjab 1983 Crl.L.J.1457, one witness Hakam Singh himself had sustained injuries in the course of incident in question, it was observed by Hon'ble Supreme Court that it was difficult to believe that he would implicate the persons other than the real culprits and that the evidence of that witness alone, was sufficient to bring home the guilt the appellants even if one were to exclude from consideration, the evidence of other PWs. Identical view was taken by the Hon'ble Supreme Court in a number of other cases including "Makan Jivan &Others Vs. The State of Gujarat", AIR 1971 SC 1797, "Hori Lal & Another Vs. The State of U.P.", AIR 1970 SC 1969, and "Jamuna Chaudhary & Others Vs. State of Bihar", AIR 1974 SC 1822.
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42 Moreover , in the present case the
motive of committing crime also stands
established. PW1, PW2 and PW13 have
categorically stated that on the day of incident,
Satender s/o Mohar Singh(deceased) and Prince grandson of accused Hari Chand were playing outside their house A-23/26, Prem Nagar -III, Delhi in the "gali" with children. During their play , Satender and grandson of accused Harichand had quarreled with each other. Prince grandson of accused Harichand left from there and he was crying. After some time, accused Hari Chand along with his sons Manoj, Vinod and Jitender , all of sudden, entered the house of Mohar Singh(deceased) and started abusing and beatings them.
43 During the cross examination of PW2 following question was put by ld defence counsel:
Q: What was the cause of quarrel?
Ans : My brother Satender (aged 7-8
years) and Prince (aged 4-5 years) who is son of the accused Manoj had quarreled on 20.8.2010 while playing.
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That time, Satender, eldest son of Hari Chand had slapped my brother Satender and then quarrelled started.
44 PW 13 Pratap also deposed that on 20.8.2010, at about 10:00 pm, he along with his elder brother Mohar Singh(deceased) were sitting outside their house in "gali". Satender , son of his brother Mohar Singh (deceased) was playing in "gali" with grandson of accused Hari Chand and other children. During their play ,Satender and grandson of Hari Chand had quarreled. The accused persons have not disputed the aforesaid facts which is sufficient to hold that accused persons had entered the house of complainant with an intention to commit the offence indicated.
45 The testimonies of PW1 , PW2 and PW13 cannot be doubted for another reason as it find corroboration from other evidence adduced by the prosecution . PW1, PW2 and PW13 testified that injured persons were removed to SGM Hospital by the PCR .
SC No. 20/14 State vs Jitender & Ors (Page 41 of 66 )
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46 ASI Sajjan Singh (PW21) who is Ist IO ,
and Constable Manjeet Singh (PW19) deposed that on 20.8.2010 , on receipt of DD no.27 A ExPW21/A reached at the spot and came to know that injured persons have already been removed to SGM Hospital. ASI Sajjan Singh deposed that he collected the MLCs of injured Mohar Singh(deceased), Pratap Singh(PW13) and Jitender (PW2) and found that they have already left the hospital.
47 Constable Sheetal (PW15), was posted with PCR during relevant time and she deposed that on 20.8.2010, she received information from Mobile No. 9958818253, regarding the quarrel which was filled in PCR form ExPW15/A. PCR form ExPW15/A indicates that there was a call about quarrel and the PCR Van reported the matter in following terms :
"2 PADOSIO KA JHAGRA 4 INJURED HAI 2 KO LEKAR HOSP JA RAHE HAI DIRECT PCR 20.8.2010=L.36=1 INJURED KO LEKAR HOSP. JA RAHE HAI 20.8.2010 22:50:02=47=3 INJURED KO SG HOP. ME D/CT KE HAWALE KIYA HIA JINME MOHAR SINGH AGE 45 YS R/O A 23/29 PREM NAGAR AND PRATAP AGE 36 YRS R/O SAME KO BEHOSHI HALAT ME AND JITENDER AGE 30 YRS R/O SC No. 20/14 State vs Jitender & Ors (Page 42 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC SAME KO HOSH ME KIYA HAI====L=36==2 INJURED KO SG HOSP ME D/CT KE HAWALE HOSH ME KIYA HAI"
48 The said PCR form has not been disputed by the accused persons which establishes that the incident took place between two neighbours at about 10:00 pm on 20.8.2010 at H. no 23/29, Near Mansa Devi Mandir, Shani Bazar Road, A Block, Prem Nagar III. PCR form ExPW15/A support the case of prosecution that there was quarrel between two neighbours. This is not the case of accused persons that they are not the neighbours. It has abundantly come on record that both the parties were residing in the same locality and they were the neighbours. Further, it also establishes that due to said incident four persons namely Mohar Singh, Pratap, Jitender and Kamal Kashyap(expired) were removed by the PCR to the SGM hospital which is supported by the MLC's of the injured persons.
49 Mohar Singh(deceased) was examined initially by Dr Ramesh Kumar Pandey and Dr. SC No. 20/14 State vs Jitender & Ors (Page 43 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Rajesh vide MLC ExPW10/A and Jitender(PW2) was examined by Dr. Ranjit vide MLC ExPW7/A and Pratap (Pw13) was examined by Dr. Rajesh and Dr Chirag vide MLC ExPW7/B at SGM Hospital on 20.8.2010 . All the aforesaid three MLC's would show that they were brought to the hospital by ASI Rattan Pal, PCR with the alleged history of physical assault. The MLC's have been prepared at SGM Hospital which supports the version of PW1, PW2 and PW13 as they were removed to the hospital by the PCR Van.
50 Now, let me advert to further medical evidence adduced by the prosecution . PW 7 Dr. Manoj Dhingra deposed that on 20.8.2010 injured Jitender was examined by Dr. Ranjit vide MLC ExPW7/A and he opined the nature of injury as simple . He further deposed that on same day injured Pratap was examined by Dr. Rajesh vide MLC ExPW7/B and he opined the nature of injury as Grievous after going through the MLC.
51 PW10 Dr. Rajesh deposed that on
SC No. 20/14 State vs Jitender & Ors (Page 44 of 66 )
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20.8.2010 at about 10:20 pm Mohar Singh was produced in casualty by ASI Rattan Pal with alleged history of physical assault and as per local examination , CLW over parietal temporal region (4X.5 X.5), CLW over right parietal region (4X 1X .5 cm ) and abrasions and swelling over right shoulder were noticed. MLC of injured Mohar Singh is ExPW10/A. He further deposed that injured Pratap was also brought in casualty by ASI Rattan Pal and he was also examined by Jr. Dr. Chirag. On Local examination CLW, abrasions, bruises were found on the person of Pratap and he was examined vide MLC ExPW7/B. 52 According to the case of prosecution, since injured partap(PW13) and deceased Mohar Singh were serious, as deposed by PW1 and PW2, they were removed to Jaipur Golden Hospital.
53 PW23 Dr. Amit Motihar was posted at Jaipur Golden Hospital as Sr. Resident Doctor . On 21.8.2010 , he made endorsement on the MLCs SC No. 20/14 State vs Jitender & Ors (Page 45 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC of Mohar Singh and Pratap that they are unfit for statement. PW22 Dr. S.C Khetarpal, consultant Radiology, Jaipur Golden Hospital deposed that on 21.8.2010, he had taken the X- rays of patient Pratap(PW13) and prepared the report Ex PW22/A and Ex PW22/B. He further deposed on 24-08-2010 , patient Pratap was again brought to his department for his chest PA and gave the report ExPW22/C. As per Discharge Summary Sheet Ex ADV 1( not disputed by accused persons as admitted vide statement dated 23-06-2014) pertaining to Pratap, it was diagnosed that " Head injury with left fronto temporal parietal acute - subdural hematoma and multiple soft tissue fracture"
54 PW7 Dr Manoj Dhingra and PW17 Dr. J.V Kiran had conducted postmortem on the body of deceased Mohar Singh on 27.8.2010. They deposed that on 27.8.2010, postmortem on the body of deceased Mohar Singh was conducted by them, who was brought by ASI Sajjan Singh, P.S Aman Vihar with alleged history of physical assault SC No. 20/14 State vs Jitender & Ors (Page 46 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC by iron rod on 20.8.2010 at about 10 pm and brought to Sanjay Gandhi Hospital and then shifted to Jaipur Golden Hospital where craniotomy was done but he expired on 27.8.2010 at about 11:00 am. They proved their post mortem report as Ex PW7/C. As per the PM report following external injuries were noticed:-
1 Stitched wound 6 cm long irregular shaped with adjacent scabbing present in midline on fronto parietal region of scalp , 13 cm above glabella. 2 Stitched craniotomy wound curved 21cm curvilinear length present on left fronto parieto temporal region of scalp.
3 Scabbed abrasion 3cmX 2cm on middle third of outer corpect of left arm.
4 Scabbed abrasion 1cmX 1cm present on midline back of abdomen in the middle third.
55 On internal examination, they observed effusion whole left side of scalp and right parietal occipital region. Bony operative defect involving left frontal parietal and temporal bone of size 10 cm X 9 cm through which brain matter is protruding out. On opening the vault hematoma seen in subdural space as blood clots and sub arachnoid hemorrhage present all over the brain.
SC No. 20/14 State vs Jitender & Ors (Page 47 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC Parts of brain are necrosed specially left frontal parietal and temporal lobes and a focus of necrosis on outer aspect of right temporal lobe. They further opined that the cause of death was due to cerebral damage consequent to blunt force trauma to the head. All injuries were found ante mortem about 5-7 days old in duration and caused by blunt object. Time since death was about 6 hours. According to opinion of the doctors Ex PW7/H said cerebral damage was sufficint to cause to cause death in ordinary course of nature.
56 Dr J V Kiran(PW17) also gave subsequent opinions regarding use of weapons of offence i.e. one solid iron rod and hollow iron rod and opined that the injuries mentioned in PM report were possible by the said weapons of offence. The said opinions are Ex PW7/E and ExPW7/F. 57 Dr. Manoj Dhingra (PW7) and Dr. J V Kiran (PW17) have not been cross examined by the accused persons despite opportunities except that one question was put to PW7 to the effect that SC No. 20/14 State vs Jitender & Ors (Page 48 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC injuries as mentioned in PM report were possible with any other wooden Danda or Iron rod of similar type. Accused persons have not disputed the medical evidence.
58 From the aforesaid medical evidence, it is clear that Mohar Singh suffered a homicidal death, Pratap (PW13) sustained grievous injury and Jitender suffered hurt.
59 In the landmark judgment of Virsa Singh Vs State of Punjab reported in (1958)SCR 1495, the Hon'ble Supreme Court held that the following are the four steps of inquiry involved in the offence of Murder under section 300 IPC, clause thirdly:-
"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 un- intentional 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.
SC No. 20/14 State vs Jitender & Ors (Page 49 of 66 )
FIR No.257/10
D.O.D 26.11.2014 P.S Aman Vihar
u/s 452/302/325/323/34 IPC
60 In the present case all the above
elements are fulfilled, there are injuries on the body of the deceased Mohar Singh ; these are the fatal injuries ; the injuries were the one which the accused persons intended to inflict and also the injuries have been proved to be sufficient to cause death in the ordinary course of nature. Thus it has sufficiently been proved that the accused persons have committed murder of the deceased Mohar Singh under section 300 IPC.
61 During the argument ld counsel for the accused persons submitted that there is no public witness to the recovery of iron "sariyas" at the instance of accused Manoj and Hari Chand. In this regard , I may mention that as far as non- joining of public witnesses to the recovery of articles at the instance of accused persons is concerned, it is generally seen that it is difficult and virtually impossible sometime to get and make public witnesses to participate and be part of a SC No. 20/14 State vs Jitender & Ors (Page 50 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC police team in such type of cases. This practical reality cannot be ignored and forgotten. A realistic and pragmatic approach has to be taken . The case of the prosecution cannot be rejected only on the ground that independent witnesses have not been examined (Dharampal Singh Vs State of Punjab , (2010) 9 SCC 608 & Ajmer Singh vs State of Haryana , (2010) 3 SCC 764).
62 Further, in this regard I may take the help of decision of Hon'ble Supreme Court in a case State vs Sunil & Anrs , (2001) 1 SCC 652 wherein it was held " In this context , we may point out that there is no requirement either u/s 27 of the Evidence Act or u/s 161 of Code of Criminal procedure to obtain signatures of independent witness on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitant of the locality to attend and witness the excercise made by the police is cast on the police officer when searches are made under chapter VII of the Code. Section 100 (5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses.
SC No. 20/14 State vs Jitender & Ors (Page 51 of 66 )
FIR No.257/10
D.O.D 26.11.2014 P.S Aman Vihar
u/s 452/302/325/323/34 IPC
But recovery of an object pursuant to the
information supplied by an accused in custody is different from the searching endevour envisaged in chapter VII of the Code . Hence, it is fallacious impression that when recovery is effected pursuant to any statement made by the accused the documents prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads recovery of any article it is opened to the IO to take the signature of any person present at that time, on the document prepared by such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable . The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth."
63 The next ground of attack is that there is delay in lodging FIR and in the absence of explanation, the case of prosecution should be thrown overboard. Delay in the lodging of the FIR is not by itself fatal to the case of the prosecution nor can delay itself create any suspicion about the truthfulness of the version given by the informant just as a prompt lodging of the report may be no SC No. 20/14 State vs Jitender & Ors (Page 52 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC guarantee about its being wholly truthful. So long as there is cogent and acceptable explanation offered for the delay it loses its significance. Whether or not the explanation is acceptable will depend upon the facts of each case. There is no cut and dried formula for determining whether the explanation is or is not acceptable.
64 In this context, I may refer with profit to the authority in State of H.P.v.Gian Chand,(2001) 6 SCC 71 wherein a three-Judge Bench of Hon,ble Supreme Court has opined that the delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay. If the explanation offered is satisfactory and there is no possibility of embellishment, the delay should not be treated as fatal to the case of the prosecution.
65 In the present case, it is true that incident took place on 20.8.2010 and initially FIR SC No. 20/14 State vs Jitender & Ors (Page 53 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC u/s 452/325/323/34 IPC was registered on 23.8.2010. In my opinion , prosecution has duly explained the delay in lodging FIR, as discussed herein after . PW21 ASI Sajjan Singh deposed that on 20.8.2010, on receipt of DD no.27 A he visited the spot but the house was found locked and on inquiry no eye witness was found. On inquiry it was revealed that injured have been removed to SGM Hospital. He went to SGM hospital and collected the MLCs of the injured persons. No eye witness was found in hospital. He further deposed that on 21.8.2010, he again visited the house of injured persons and it was revealed that injured were taking treatment at Jaipur Golden Hospital. He went to Jaipur Golden Hospital and Doctor concerned stated that Pratap and Mohar Singh are unfit for giving statement. DD no.27 A was kept pending. He further deposed that on 22.8.2010, he along with constable Manjeet(PW19) visited Jaipur Golden Hospital and doctor declared Pratap Singh fit for statement and he recorded the statement of Pratap Singh ExPW13/A on the SC No. 20/14 State vs Jitender & Ors (Page 54 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC basis of which endorsement was made and FIR was registered.
66 PW23 . Dr. Amit Motihar deposed that on 21.8.2010, he was posted at Jaipur Golden Hospital as Sr. Resident Doctor. On that day patient Pratap was brought in the hospital from SGM Hospital and at that time, patient Pratap was unfit for statement and he gave his endorsement on the MLC of Pratap to this effect and that endorsement is ExPW23/A at point A. He further deposed that on 21.8.2010, one another patient Mohar Singh was also brought in the hospital from SGM Hospital and he was also unfit for statement and in this regard his endorsement is ExPW23/B. Aforesaid testimony of PW23 Dr. Amit Motihar has not been disputed or challenged by the accused persons.
67 According to the MLC ExPW7/B, there is endorsement at point 'y' which indicates that Pratap Singh was fit for giving statement at about 10:40 pm on 22.8.2010. It is evident that SC No. 20/14 State vs Jitender & Ors (Page 55 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC statement of Pratap Singh ExPW13/A was recorded on 22.8.2010. Meaning thereby, there was no delay in recording the statement of Pratap. The moment he was fit to give statement, his statement was recorded.
68 PW12 Constable Om Prakash was posted as DO at P.S Aman Vihar during relevant time. He deposed that in the intervening night of 22/23.8.2010 at about 12:20 am( midnight) on the basis of rukka produced to him , he recorded FIR no.257/2010, which is not in dispute. According to the endorsement of the Doctor on MLC ExPW7/B belonging to the injured Pratap , who is the maker of the FIR, he was fit to make statement at about 10:40 pm on 22.8.2010. Rukka was received at P.S Aman Vihar at around 12:20 am on the basis of which FIR was registered.
69 In my opinion the delay in registration of FIR has been duly explained and no prejudice has been caused by the said act of investigating SC No. 20/14 State vs Jitender & Ors (Page 56 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC agency. It is true that one of the injured namely Jitender PW2 had not received serious injuries and he was not admitted in the hospital but in the background of the fact that two of his family members , namely Pratap (PW13) and Mohar Singh (deceased) were serious and were admitted in the hospital, it is not expected from him to pursue his case instead of taking care of aforesaid injured persons. There is nothing on record which could suggest that police ever met him during that period or he refused to give his statement. Accordingly, it would not help the accused persons.
70 Scrutinized on the anvil of the aforesaid enunciation of law, I am disposed to think that the case at hand does not reveal that the absence of spontaneity in the lodgement of the FIR has created a coloured version.
71 It was also argued on behalf of the accused persons that accused Manoj had made a SC No. 20/14 State vs Jitender & Ors (Page 57 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC call to the police which shows that he was not involved in the commission of crime. In this regard, I may mention that there is nothing on record which could show that accused Manoj had made a call to the police. PW15 Constable Sheetal, deposed that on 20.8.2010, she was posted as CPCR . At about 09:00 pm, she received a call from mobile phone number 9958818253 about the incident. According to the testimony of DW2 , Chander Shekhar, Nodal officer, Bharti Airtel , aforesaid mobile is in the name of Manoj Kumar s/o Hari Thakur r/o R-ZB , 133, Nursing Garden New Delhi. Neither the name of parent nor the aforesaid address match with the particulars of accused Manoj . Moreover even if, for the sake of argument it is presumed that accused Manoj had made a call to the police still, I fail to understand , how it would benefit the accused persons. Nothing stopped the accused persons to make a call to the police after committing the offence. It may be a modus operandi of the accused persons to screen themselves from the clutches of the law.
SC No. 20/14 State vs Jitender & Ors (Page 58 of 66 )
FIR No.257/10
D.O.D 26.11.2014 P.S Aman Vihar
u/s 452/302/325/323/34 IPC
72 Here it is pertinent to mention that by
examining DW1 Rajesh Kumar UDC , Sanjay
Gandhi Hospital , defence brought on record that accused Kamal Kashyap(since expired) had sustained injuries. It has come on record proceedings against accused Kamal Kashyap already stands abated. Even the injured persons have not denied that said Kamal Kahsyap sustained injuries . During her cross examination, PW1 Rajshree admitted that Kamal Kashyap had also received injuries but she stated that he received injuries as PW1 could manage to save herself by hiding behind the door from the blows of the accused persons and such blow had hit Kamal Kashyap. PW2 Jitender has also admitted that accused Kamal Kashyap had also sustained injuries. This all support the story of prosecution that incident in question took place . Injuries suffered by accused Kamal Kashyap(already expired) have been explained as stated herein above . Accordingly, this also would not help the SC No. 20/14 State vs Jitender & Ors (Page 59 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC accused persons much.
CASE AS AGAINST THE ACCUSED KULDEEP SINGH RATHOR @ PINTU 73 Now, let me advert to the case as against accused Kuldeep Singh Rathor @ Pintu . The role attributed to the accused Kuldeep Singh Rathor @ Pintu is of giving beatings . Even as per the case of the prosecution , accused Kuldeep Singh Rathor @ Pintu is shown to have reached at the spot later on . Accused Kuldeep Singh Rathor @ Pintu was not having any weapon of offence . No specific or particular role has been attributed to accused Kuldeep Singh Rathor @ Pintu. PW1 Raj Shree deposed that accused Kuldeep Singh Rathor @ Pintu also gave beatings. PW2 Jitender also deposed that accused Kuldeep Singh Rathor @ Pintu gave beatings. PW13 Pratap have testified on the lines of aforesaid witness as far as accused Kuldeep Singh Rathor @ Pintu is concerned. He appears to have been directed to face the trial for SC No. 20/14 State vs Jitender & Ors (Page 60 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC the offence of murder with the aid of section 34IPC.
74 Section 34 IPC escalates that "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
75 A plain reading of this provision would reveal that in order to attract section 34 IPC, there should be a positive evidence of indispensable of essential ingredients that the criminal act should have been done, not by one person, but more than one and doing of every such individual act cumulatively resulting in the commission of criminal offences and that too, should have been in furtherance of the common intention of all such persons and not otherwise.
76 Moreover, there should be cogent evidence that the accused had prior meeting of mind, pre-arranged plan or shared a common intention to commit the same very offence, which SC No. 20/14 State vs Jitender & Ors (Page 61 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC was committed by the main accused. Mere participation in the crime with others, ipso facto, is not a ground, much less cogent, sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention, therefore, should be proved by objective test. It is only in that eventuality that one accused can be made vicariously liable for the acts and deeds of the other co-accused and not otherwise. This section does not by itself create any offence. It only lays down the principle of joint criminal liability. The common intention and pre- arranged plan must be anterior in point of time to commission of crime. When there is neither pre- concert nor meeting of minds, then, section 34 IPC is not attracted. The existence of a common intention amongst the participants in a crime is the essential element and a condition precedent for application of this Section. This matter is no more res Integra and is now well settled.
77 An identical question came to be decided
SC No. 20/14 State vs Jitender & Ors (Page 62 of 66 )
FIR No.257/10
D.O.D 26.11.2014 P.S Aman Vihar
u/s 452/302/325/323/34 IPC
by Hon'ble Apex Court in a celebrated judgment in case Anil Sharma & Ors. v. State of Jharkhand 2004(3) RCR (Criminal) 774. Having considered the scope of section 34 IPC, it was ruled as under (para
17) :-
"Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre- arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common SC No. 20/14 State vs Jitender & Ors (Page 63 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision."
78 Not only that, the same view was again reiterated by Hon'ble Supreme Court in case Jagannath v. State of M.P. 2007(4) RCR (Criminal) 274. It was also so held in case Suresh and another v. State of UP AIR 2001 Supreme Court 1344.
79 Therefore, the epitome of evidence on record would suggest that the only allegation against the accused Kuldeep Singh Rathor @ Pintu is of giving beating. No other specific role or any injury is attributed to him. There is not an iota of evidence on record, much less cogent, even to suggest remotely that he had prior intention or pre-planning to inflict injuries to the deceased Mohar Singh. In that eventuality, sharing of common intention by him to cause injuries to the deceased Mohar Singh with accused persons SC No. 20/14 State vs Jitender & Ors (Page 64 of 66 ) FIR No.257/10 D.O.D 26.11.2014 P.S Aman Vihar u/s 452/302/325/323/34 IPC (main accused) did not arise at all under the present set of circumstances. Proceeding on these premises, to my mind, it cannot possibly be said that the accused had pre-planned to cause injuries to them. That means, all the indicated essential ingredients of section 34 IPC qua accused Kuldeep Singh Rathor @ Pintu are missing in this case, which entails the benefit of doubt and his acquittal for the offence under section 302IPC .
80 In this manner, if all the facts & circumstances, oozing out from the evidence on record, as discussed here-in-above are put together, then, to me, the conclusion is inescapable and irresistible that it stands proved on record that accused Kuldeep has caused simple/grievous pointed injuries on the person of Jitender(PW2) and Pratap(PW13). He is liable to be convicted for the commission of an offence punishable u/s 325/323 IPC only.
81 In the light of aforesaid discussion,
SC No. 20/14 State vs Jitender & Ors (Page 65 of 66 )
FIR No.257/10
D.O.D 26.11.2014 P.S Aman Vihar
u/s 452/302/325/323/34 IPC
Court is of the view that prosecution has been
successful in establishing the guilt of the accused persons namely Jitender, Hari Chand, Manoj and Vinod Kumar in respect of offences u/s 452/302/325/323/34 IPC and of accused Kuldeep Singh Rathor @ Pintu in respect of offence u/s 325/323 IPC. Accordingly , accused Jitender, Hari Chand, Manoj and Vinod Kumar stands convicted for the offences u/s 452/302/325/323/34 IPC and accused Kuldeep Singh Rathor @ Pintu stands convicted for the offences u/s 325/323 IPC.
Announced in the open (Rajesh Kumar Goel) Court today i.e 26-11-2014 ASJ-5, North Rohini Court SC No. 20/14 State vs Jitender & Ors (Page 66 of 66 )