Delhi District Court
State vs . Rajiv @ Raju on 27 March, 2012
State Vs. Rajiv @ Raju
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 03/2012
State Vs. : Rajiv @ Raju
S/o Late Radhey Shyam,
R/o H. No. B44, Gali No. 3,
Jyoti Nagar West, Shahdara,
Delhi
FIR No. 86/2004
P.S. Kotla Mubarak Pur
U/s 302/307/34 IPC
Date of Institution : 21/05/2004
Date when arguments
were heard : 12/03/2012
Date of Judgment : 27/03/2012
JUDGMENT
BRIEF FACTS Adumbrated in brief the prosecution case is as follows: SC No. 03/2012 1/35
State Vs. Rajiv @ Raju Rashid Khan (herein after called the deceased) with his family resided in tenanted premises at first floor of 737, Bhagwan Gali, Bhola Nagar, Kotla Mubarak Pur, New Delhi. The deceased developed illicit relations with Manju (accused), wife of Yad Ram (accused), residing in the tenanted premises at second floor of aforesaid house. One and half/two months prior to 25/02/2004 wife of deceased called Yad Ram (accused and husband of said Manju) and four brothers of said Manju namely Babloo, Rajiv @ Raju, Sanjeev @ Sonu and Birender @ Boya asking them to make said Manju understand. Manju and her relatives nursed enmity with the family of deceased. Time and again Manju and her relatives abused and threatened deceased and his family.
2. On 25/02/2004, at about 11.15 pm Yad Ram (accused and husband of said Manju) stood at ground floor in the Varandah of house having iron rod in his hand and hurled abuses of mother and sister. Upon that deceased and his family members consisting of Rizwan @ Kussu (PW1), Ijaj (PW4), Kiran (PW12), Kamro Nisha (PW14) and Imran (PW15) came downstairs. Said Manju also came SC No. 03/2012 2/35 State Vs. Rajiv @ Raju there, favoured her husband and started telling bad things about the daughter of deceased. The deceased and his family members tried to make Yad Ram (accused) and Manju (accused) understand. Manju (accused) called her four brothers who resided on first floor of the house opposite house of deceased and asked them, " Aaj mauka hai, inhey khatam kar dete hai". Holding hairs of Kiran (PW12), Manju (accused) started beating her. Yad Ram (accused) started beating deceased with leg and fist blows and iron rod. In the meanwhile four brothers of said Manju (accused) namely Babloo, Rajiv @ Raju, Sanjeev @ Sonu, Virender @ Boya having in their hands knives, came to the Varandah downstairs, waiving the knives and all of them with common intention said, "aaj hum tumhey jinda nahi chodenge" and they launched life consuming assault on family members of deceased. Yad Ram (accused) apprehended deceased. Babloo (accused) gave knife blow on the neck of deceased. Sonu (accused) assaulted Rizwan Khan (PW1) from front. Rajiv @ Raju (accused) and Virender @ Boya (accused) assaulted Ijaj (PW4) with their knives. Manju (accused) threw Kiran (PW12) on the ground, holding her with her hairs. Blood started coming out from the neck SC No. 03/2012 3/35 State Vs. Rajiv @ Raju injuries of deceased. The deceased fell down on the ground. On seeing neighboring persons collected there, all assailants/accused ran away. The deceased was taken to AIIMS by his family members and admitted there. Ijaj (PW4), Rizwan @ Kussu (PW1) were also given medical treatment at AIIMS.
3. Call of quarrel at the place of occurrence, aforesaid, was received at police station Kotla Mubarak Pur and recorded in DD No. 21A at 11.39 pm on 25/02/2004. SI Fateh Singh (PW16) with Ct Virender (PW9) and Ct Satya Narain (PW3) reached the aforesaid place of occurrence, found blood in the Varandah, handle and mud guard of cycle, came to know that injured were removed to AIIMS. SI Fateh Singh (PW16) left Ct Virender (PW9) for safety of scene of crime and reached AIIMS with Ct Satya Narain (PW3). SI Fateh Singh (PW16) procured MLC of deceased wherein doctor had declared him brought dead to Casualty at 23.42 hours with alleged history of stab injury. Also SI Fateh Singh (PW16) procured the MLC of injured Ijaj (PW4) and Kussu @ Rizwan (PW1) whereby they were declared fit for statement. Statement Ex PW1/A of SC No. 03/2012 4/35 State Vs. Rajiv @ Raju Rizwan @ Kussu (PW1) was recorded by SI Fateh Singh (PW16). SI Fateh Singh (PW16) scribed tehrir Ex PW16/A, gave it to Ct Satya Narain (PW3) who took it to police station, gave it to HC Rajbir (PW2). HC Rajbir (PW2) recorded FIR no. 86/04, police station Kotla Mubarak Pur, under Section 302/307/34 IPC and 27 Arms Act.
4. Crime team inspected the spot, took photographs. Site plan was prepared. Exhibits were lifted from the spot and sent for forensic expert opinion. Postmortem on the body of the deceased Mohd Rashid was got conducted. The Autopsy Surgeon opined the cause of death of Mohd Rashid as haemorhagic shock due to injury no. 1 i.e a stab wound of size 3.5 cm X 3 cm, horizontally placed in the middle third of the lateral neck in the left side, caused by sharp edged weapon which was sufficient to cause death in the ordinary course of nature and all injuries were antemortem in nature.
5. Accused Yad Ram was arrested on 26/02/2004 at about 4 am from the street in front of his house by SI Fateh Singh (PW16). Four days police custody remand of accused Yad Ram was obtained SC No. 03/2012 5/35 State Vs. Rajiv @ Raju but the other co accused could not be arrested. Blood stained iron rod Ex PW9/P12 was seized from the floor of first floor, opposite room of accused Babloo, Rajiv @ Raju, Sanjeev and Virender at house no. 738, Bhagwan Gali, Bhola Nagar, Kotla Mubarak Pur, New Delhi. On completion of investigation initially charge sheet was filed against accused Yad Ram. Subsequently on arrest of the other accused Babloo, Rajiv @ Raju, Sanjeev @ Sonu, Virender @ Boya and Manju supplementary charge sheet was filed against them.
6. After the completion of the requirements under Section 207 Cr.P.C., case was committed to the court of Sessions. CHARGE
7. Charge for offences under Sections 302/34 IPC and 307/34 IPC was framed against the accused persons by my Ld. Predecessor to which the accused persons pleaded not guilty and claimed trial.
SC No. 03/2012 6/35
State Vs. Rajiv @ Raju WITNESSES
8. To connect the accused with the offences charged, prosecution has examined in all 18 witnesses namely Rizwan Khan @ Kussu (PW1); HC Rajbir (PW2); Ct Satya Narain (PW3); Ijaj Mohd Khan (PW4); SI Mahesh Kumar (PW5); Dr Tarun Jain(PW6); Ct Rishi Pal Singh (again examined as PW6 before my Ld. Predecessor, to be read as PW6A); Dr. Parveez (PW7); Ct Balwan Singh (PW8); Ct Virender (PW9); Ct Ashok Kumar (PW10); Dr Manish (PW11); Kiran (PW12); Kamro Nisha (PW14); Imran (PW15); SI Fateh Singh (PW16); Gaurav Gupta (PW17) and Inspector Dev Raj (PW18). No witness as PW13 was examined before my Ld. Predecessor.
9. Thereafter, at the stage of statement of accused persons under Section 313 Cr.P.C, accused Rajiv @ Raju absented. Initially his NBWs and later proclamation processes were issued. Vide order dated 22/12/2008 of my Ld. Predecessor, accused Rajiv @ Raju was declared proclaimed offender.
10. After recording statement of the other coaccused, the SC No. 03/2012 7/35 State Vs. Rajiv @ Raju defence evidence and after hearing arguments,vide separate judgment, dated 28/05/2010 accused Manju was acquitted, accused Yad Ram and Babloo were held guilty and convicted for offence under Section 302/34 IPC and accused Sanjeev @ Sonu, Virender were held guilty and convicted for offence under Section 307/34 IPC, for which offences they were sentenced by my Ld. Predecessor on 31/05/2010.
11. The case file was received on 02/03/2012 with orders dated 28/02/2012 of Hon'ble Ms. Justice Gita Mittal and Hon'ble Mr. Justice V.K Shali in Criminal Appeal No. 897/2010 with the directions for ensuring the trial and adjudication in respect accused Rajiv @ Raju to be completed within period of six weeks from the date of receipt of records. Also in terms of the said orders, on 02/03/2012, accused Rajiv @ Raju (previously P.O accused) had been produced in person from Judicial Custody. Matter was kept for 03/03/2012. Perusal of file revealed that in the earlier framed charge against accused Rajiv @ Raju on 20/12/2004, in the second head there was no mention of the injuries caused to the first informant/complainant Rizwan @ Kussu (PW1). Amended charge SC No. 03/2012 8/35 State Vs. Rajiv @ Raju against accused Rajiv @ Raju for offences under Section 302/34 IPC and 307/34 IPC was framed on 03/03/2012 to which accused Rajiv @ Raju pleaded not guilty and claimed trial. Accused Rajiv @ Raju and Ms. Kamna Vohra, Ld. Counsel for accused submitted that earlier prosecution witnesses had been examined in the presence of the accused and they did not want to recall previously examined prosecution witnesses after the amendment in the charge. To that effect statement of the accused and his Ld. Defence Counsel were recorded separately. Accordingly, post amendment of charge, accused was not prejudiced by not recalling of the prosecution witnesses. STATEMENT OF ACCUSED
12. Accused Rajiv @ Raju was examined under Section 313 Cr.P.C on 07/03/2012 wherein he pleaded innocence and false implication but denied to lead defence evidence. Accused also stated that Yad Ram (accused) is his brotherinlaw (Jija) who was hit with an iron rod by Rizwan Khan on his head with the result that he started bleeding profusely and other brothers of Rizwan (PW1) also assaulted him; Yad Ram ran to the police station to lodge a report against the SC No. 03/2012 9/35 State Vs. Rajiv @ Raju deceased and his sons; Yad Ram was taken to hospital for medical examination by the police and his medical papers are on record and thereafter he was falsely implicated and arrested in this case. Accused Rajiv @ Raju also stated that he was not present at the place of occurrence at the stated time of occurrence and there was marriage of daughter of his Mausi at Bareli and on 22/02/2004 he with his brother had gone to Bareli in said marriage and came back on 27/02/04. Accused Rajiv @ Raju denied to lead defence evidence. ARGUMENTS
13. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
14. Sh A.T Ansari, Ld. Addl. PP for the State argued that from the testimonies of material witnesses it is proved on record that the accused Rajiv @ Raju shared common intention and caused death of deceased Rashid Khan and injuries on the person of Ijaj (PW4) and Rizwan @ Kussu (PW1) with such intention or knowledge under such SC No. 03/2012 10/35 State Vs. Rajiv @ Raju circumstances that if the death of Ijaj (PW4) and Rizwan (PW1) was caused, he would be guilty of murder. Also was argued that for four months after the occurrence accused Rajiv @ Raju did not surrender but absconded. Also was argued that minor discrepancies in the evidence of the witnesses do not shake the basic version and core of prosecution case. Ld. Addl. PP for the State prayed for conviction of the accused.
15. Ms. Kamna Vohra, Ld. Counsel for accused argued that examined prosecution witnesses tell different tales in respect of the role of accused Rajiv @ Raju and their testimonies are mutually destructive and embedded with material contradictions, lacking credence and cannot be made basis for conviction of the accused. It has been argued that the witnesses of seizure of the iron rod, Ex PW9/P12 testified of place of recovery of said rod in contradiction with each other and the seizure memo Ex PW9/B; even after examination of Rizwan @ Kussu (PW1) the role of iron rod gradually disappeared. Also was argued that the material witnesses examined deposed in contradiction regarding exhortation, injuries sustained by SC No. 03/2012 11/35 State Vs. Rajiv @ Raju accused Yad Ram has not been explained by prosecution; no weapon of offence has been recovered from or at instance of accused Rajiv @ Raju. Also was argued that the alleged occurrence, as per case of prosecution erupted from the sudden quarrel and accused Rajiv @ Raju did not nurse any common intention either to murder the deceased or to attempt to murder Rizwan and Ijaj. It was also argued that though not admitted even if for the sake of arguments, the case of prosecution is presumed to be gospel truth then by no stretch of imagination, the case of accused Rajiv @ Raju stands proved for offence under Section 307/34 IPC and at best would be for causing of simple hurt by sharp edged knife. Ld. Counsel for accused prayed for acquittal of the accused and in the alternative has relied upon Rajpal vs State, 2010 Crl.L.J 3683.
APPRECIATION OF EVIDENCE:
OFFICIAL WITNESSES:
16. HC Rajbir (PW2) was the duty officer and had recorded FIR No. 86/04, under Section 302/307/34 IPC and 27 Arms Act, copy SC No. 03/2012 12/35 State Vs. Rajiv @ Raju Ex PW2/A.
17. SI Fateh Singh (PW16) with Ct Satya Narain (PW3) and Ct Virender (PW9) after receiving DD No. 21A, copy Ex PW16/A, reached the place of occurrence. Upon receiving information of injured having been shifted to hospital, SI Fateh Singh (PW16) left Ct Virender (PW9) at spot and went to AIIMS with Ct Satya Narain (PW3). At AIIMS in the MLC of Rashid Khan (deceased) the doctor had declared him brought dead to casualty. SI Fateh Singh (PW16) found Rizwan @ Kussu (PW1) and Ijaj (PW4) present in hospital in injured condition and their MLCs were collected. The doctor declared PW1 and PW4 fit for statement. SI Fateh Singh (PW16) recorded statement Ex PW1/A of Rizwan @ Kussu (PW1). Also SI Fateh Singh (PW16) scribed tehrir Ex PW16/B, gave it to Ct Satya Narain (PW3) who took it to police station for getting FIR registered. SI Fateh Singh (PW16) returned to spot, found crime team there as well as the SHO with staff. From the spot SI Fateh Singh (PW16) lifted blood from different places, cycles standing nearby, blood stained earth, prepared parcels, sealed them and seized vide memo Ex SC No. 03/2012 13/35 State Vs. Rajiv @ Raju PW9/A. Blood stained piece of curtain Ex PW9/P1 was seized vide memo Ex PW9/C. Blood stained iron rod Ex PW9/P12 was seized vide memo Ex PW9/B. Blood stained pant and shirt of Rizwan (PW1) Ex PW9/P2 and P3 were seized vide memo Ex PW9/D. Blood stained T shirt of Javed Ex PW9/P4 was seized vide memo Ex PW9/E. Blood stained pant, T shirt and underwear of Ijaj Ex PW9/P5 to Ex PW9/P7 were seized vide memo Ex PW9/F. The clothes of Kamro Nisha (PW14) and Kehkasha Ex PW9/P9 to P11 were seized vide memo Ex PW9/G.
18. SI Mahesh Kumar (PW15) is the draughtsman who on the request of Inspector Dev Raj (PW18) visited the scene of crime on 05/03/2004 and on pointing out of Imran (PW15) took rough notes and measurements, on the basis of which later he prepared scaled site plan Ex PW5/A.
19. Ct Rishipal Singh (PW6A) was DD writer in police station Kotla Mubarak Pur and at 1.25 am on 25/02/2004 had received message from duty constable Pawan Sahai from AIIMS, SC No. 03/2012 14/35 State Vs. Rajiv @ Raju recorded it in DD No. 60B, copy Ex PW6/A.
20. Ct Balwant Singh (PW8) was photographer in the Crime Team who accompanied Incharge Crime Team to the scene of crime on the night of occurrence and took photographs at spot whose positives are Exts PW8/B14 to PW8/B26 and negatives are Exts PW8/A1 to PW8/A13.
21. Ct Ashok Kumar (PW10) took parcels vide Road Certificate No. 10/21 on 20/04/2004 and deposited them in FSL Rohini.
22. Inspector Dev Raj (PW18) is the investigating officer who inter alia collected the result on MLC, postmortem report, arrested accused Babloo and Sanjeev on 20/06/2004; accused Manju , Rajiv @ Raju and Birender on 24/06/2004; got sent case property to FSL. Inspector Dev Raj (PW18) has tendered FSL report as Ex PX in the course of investigation. In terms thereof blood of group 'B' was detected on blood samples lifted from spot, various clothes of injured SC No. 03/2012 15/35 State Vs. Rajiv @ Raju persons, deceased and wife and daughter of deceased. MEDICAL EVIDENCE:
23. Dr. Tarun Jain (PW6) had examined X ray plates of Kussu @ Rizwan (PW1) and proved his report Ex PW6/A, opining of having found no fracture.
24. Dr Parvez (PW7), Senior Resident, AIIMS had examined Kussu @ Rizwan (PW1) on 26/02/2004 vide MLC Ex PW7/A with the observation of history of assault; injury on right hand, lacerated wound in right ring finger (2 cm long) and index finger, gave advice inter alia for stitching and SR Ortho to review. Said injuries were opined as simple in nature caused with blunt object. Also Dr Parvez (PW7) had examined Ijaj (Aizaj) (PW4) vide MLC Ex PW7/B wherein alleged history was of assault by knife; injuries observed were (1) punctured, sharp wound on right thigh of back 2.5X1.5X0.5 cm; (2) one long wound on back. Dr Parvez (PW7) referred patient Ijaj (Aizaj) (PW4) to Surgery CMO with advice for stitching. Said injuries of PW4 were opined as simple in nature, caused with sharp SC No. 03/2012 16/35 State Vs. Rajiv @ Raju weapon.
25. Dr. Manish (PW11) proved the MLC of deceased prepared by Dr Abhishek Kumar as Ex PW11/A. Dr Manish (PW11) deposed that Dr Abhishek Kumar had left the services of the hospital and his present whereabouts were not known. In said MLC it was mentioned of the alleged history of stab injury and Mohd Rashid having been brought dead to hospital as 23.42 hours on 25/02/2004.
26. In the course of trial on 22/02/2008 the postmortem report of deceased Mohd Rashid was admitted by the accused through Defence Counsel as Ex PX2. The said postmortem report Ex PX2 finds mention of the injuries as (1) a stab wound of size 3.5 X 3 cm; horizontally placed in the middle third of the lateral neck in the left side; it is 160 cm away from left ...., 7 cm away from left mastoid prominence, 4 cm from the midline and 23 cm from the top of the head; a track is established of length of 10 cm in downward and lateral direction piercing left sternocledo mastoid muscle and left jugular vein and puncturing left pleural cavity (upper part); the left SC No. 03/2012 17/35 State Vs. Rajiv @ Raju pleural cavity is filled with blood and the left 1 mg is collapsed; the upper and medial margino of the above mentioned stab wound is contused; (2) an abrasion of size 2 cm X 1 cm in lateral side of left knee 30 cm from heel (left side); (3) an abrasion of size 3 cm X 1 cm in the outer aeopect of middle third of the abdomen; it is 24 cm from left; illiac crest, 27 cm from shoulder top and 10 cm from the midline. The Autopsy Surgeon opined the cause of death of Mohd Rashid (deceased) as haemorhagic shock due to injury no. 1 caused by sharp edged weapon which was sufficient to cause death in the ordinary course of nature and all injuries were antemortem in nature. RECOVERY OF IRON ROD
27. Seizure memo Ex PW9/B finds mention of recovery of iron rod Ex PW9/P12 from first floor of house number 738, Bhagwan Gali, Bhola Nagar, Kotla Mubarak Pur opposite room of accused Babloo, Rajiv @ Raju, Sanjeev and Virender. Ijaj (PW4), witness of Ex PW9/B testified that police had seized said iron rod from courtyard. Ct Virender (PW9), also witness of Ex PW9/B, deposed that iron rod Ex PW9/P12 was seized from near spot. In his cross SC No. 03/2012 18/35 State Vs. Rajiv @ Raju examination, PW9 stated that iron rod was lying inside one room occupied by accused Yad Ram; IO himself lifted said rod from the room; he (PW9) had accompanied IO to room from where iron rod was lifted; there was no specific mark of identification but there were only grooves on said rod; no finger prints were lifted from said rod. Scribe of Ex PW9/B, i.e, SI Fateh Singh (PW16) testified that he seized said rod from roof top of the house. It is proved on record that no weapon alleged to have been used for commission of offence was recovered from exclusive possession of accused Rajiv @ Raju or at his instance.
MATERIAL WITNESSES
28. The case of the prosecution primarily hinges on the testimonies of Rizwan@ Kussu (PW1); Ijaj (PW4); Imran (PW15), the three sons of deceased; Kiran (PW12), daughter of deceased; Kamro Nisha (PW14), wife of deceased and Gaurav Gupta (PW17), neighbor/auto driver who were cited and examined eye witnesses of the occurrence.
SC No. 03/2012 19/35
29. Of course, the version of Rizwan @ Kussu (PW1) and Ijaj (PW4), Kiran (PW12), Kamro Nisha (PW14) and Imran (PW15) vary in their deposition as to who called accused Babloo, Rajiv @ Raju, Sanjeev @ Sonu and Virender @ Boya at the place of occurrence. As PW1, Rizwan @ Kussu testified that after accused Yad Ram hit iron rod on the head of his father (deceased), it was Yad Ram (accused) who called his four brothersinlaw namely accused Babloo, Rajiv @ Raju, Sanjeev @ Sonu and Virender @ Boya. In Ex PW1/A, the version of Rizwan @ Kussu (PW1) on this count is that Manju (accused) called her four brothers who resided on first floor of the house opposite house of deceased and asked them, " Aaj mauka hai, inhey khatam kar dete hai". In Court PW1 testified that it was accused Yad Ram who exhorted accused Babloo, Rajiv @ Raju, Sanjeev @ Sonu and Virender @ Boya saying, "aaj mauka achcha hai, aaj saale ko khatam karo" and then aforesaid four accused came down from their house at first floor having knives in their hands. Ijaj (PW4), Kiran (PW12), Kamro Nisha (PW14) testified that it was accused Manju who had called her four brothers namely accused Babloo, Rajiv @ Raju, Sanjeev @ Sonu and Virender @ Boya and SC No. 03/2012 20/35 State Vs. Rajiv @ Raju none of these witnesses i.e PW4, PW12 and PW14 whispered of any accused persons having exhorted any other accused. Imran (PW15) testified that accused Manju called her aforesaid four brothers from their house and she (Manju) exhorted them to kill us. Gaurav Gupta (PW17), the neighbor, TSR driver in his entire testimony did not say a word of any of the accused Manju or Yad Ram having called the other four accused namely Babloo, Rajiv @ Raju, Sanjeev @ Sonu and Virender @ Boya or having exhorted them. Gaurav Gupta (PW17) simply stated that the brothersinlaw of accused Yad Ram also reached at the spot armed with knives.
30. Accordingly on record regarding exhorting accused Rajiv @ Raju by either of co accused Yad Ram or Manju, there are material contradictions making the factum of exhortation by either accused Yad Ram or accused Manju devoid of credence.
31. Fact remains that all these aforesaid material witnesses namely PW1, PW4, PW14, PW15 and PW17 stated that accused Yad Ram held the deceased from behind while all these witnesses as well SC No. 03/2012 21/35 State Vs. Rajiv @ Raju as Kiran (PW12) testified that accused Babloo assaulted deceased on his neck with knife.
32. Ijaj (PW4) and Kiran (PW12) testified that accused Sonu hit Rizwan with knife. Rizwan @ Kussu (PW1) himself stated that accused Sonu assaulted with knife blow on his hand. Kamro Nisha (PW14) stated that accused Sonu assaulted his son and attempted to murder him. Kamro Nisha (PW14) did not specify which of her sons was assaulted by accused Sonu. Imran (PW15) testified that accused Rajiv @ Raju assaulted Rizwan @ Kussu. Gaurav Gupta (PW17) gave a general version narrating three brothersinlaw of accused Yad Ram assaulted children of Mr. Khan and also stabbed them.
33. Rizwan @ Kussu (PW1), Kiran (PW12), Kamro Nisha (PW14) testified of accused Rajiv @ Raju and Virender @ Boya assaulted Ijaj (PW4) with knife. Ijaj (PW4) also stated that he was hit with knife on his back and thigh by accused Rajiv @ Raju and Virender @ Boya. Kiran (PW12) stated that accused Rajiv @ Raju SC No. 03/2012 22/35 State Vs. Rajiv @ Raju and Virender @ Boya attempted to murder his younger brother Ijaj (PW4) with knife and Ijaj (PW4) also sustained injuries at their hands with knife. Imran (PW15) testified that accused Sonu and Virender @ Boya assaulted Ijaj (PW4).
34. Rizwan @ Kussu (PW1) and Ijaj (PW4) stated that accused Manju hit their sister after holding her with her hairs. Rizwan @ Kussu (PW1) stated that Manju threw his sister on ground. Kiran (PW12) stated that accused Manju snatched her hairs and had given beatings to her.
35. In their depositions Ijaj (PW4), Kiran (PW12), Kamro Nisha (PW14) did not state that while calling her four brothers, accused Manju in any way exhorted them or upon calling them downstairs anything was said by accused Manju or accused Yad Ram to accused Babloo, Virender @ Boya, Rajiv @ Raju or Sanjeev @ Sonu or even any gesture was so made which could be inferred in any manner as they having been exhorted to commit any offence. Per contra, Imran (PW15) stated that accused Manju called her four SC No. 03/2012 23/35 State Vs. Rajiv @ Raju brothers and exhorted them to kill them (Imran and others) and all accused persons assaulted his father (deceased). Such version of Imran (PW15) is not only per contra to the version of the presented case of prosecution but also to the version testified by other material witnesses namely PW1, PW4, PW12, PW14 and PW17 since it is not borne out there from that all the accused persons together had assaulted the deceased or accused Manju had exhorted her four brothers to kill Imran (PW15) and others.
36. Lacerated wound 2 cm long in right ring finger and the lacerated wound in index finger of Rizwan @ Kussu (PW1), opined by Dr Parvez(PW7)as simple in nature caused by blunt object depicted in MLC Ex PW7/A does not corroborate the version of Imran (PW15) of accused Rajiv @ Raju having assaulted Rizwan @ Kussu (PW1) with sharp edged knife. Other material witnesses namely Rizwan @ Kussu (PW1), Kiran (PW12), Kamro Nisha (PW14) were vivid and clear in their deposition that accused Rajiv @ Raju and Virender @ Boya had hit Ijaj (PW4) with knife. Ijaj (PW4) himself testified that he was hit with knife on his back and thigh by accused Virender @ SC No. 03/2012 24/35 State Vs. Rajiv @ Raju Boya and Rajiv @ Raju. Such version of Rizwan @ Kussu (PW1), Ijaj (PW4), Kiran (PW12), Kamro Nisha (PW14) stands corroborated by the afore elicited medical evidence on record as MLC Ex PW7/B scribed by Dr Parvez (PW7) finds mention of (1) punctured, sharp wound on right thigh of back 2.5X1.5X0.5 cm; (2) one long wound on back; which injuries of Ijaj (PW4) were opined as simple in nature, caused with sharp weapon.
37. There is no cogent evidence on record that any of the accused had exhorted accused Rajiv @ Raju to launch any murderous assault on the person of deceased.
38. In the case of Dharam Pal vs State of Haryana, AIR 1978 SC 1492, it was held that "A criminal court fastening vicarious liability must satisfy itself to the prior meeting of minds of the principal culprit and his companions who are sought to be constructively made liable in respect of all acts committed by the former. But there is no law which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case." SC No. 03/2012 25/35
State Vs. Rajiv @ Raju Also was held that it may be that when some persons start with a prearranged plan to commit a minor offence, they may in the course come to an understanding to commit a major offence as well. If such understanding appears from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence, all the persons will be liable under this section. But in absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender.
39. In the case of Hiralal Mallick vs State of Bihar, AIR 1977 SC 2236, it was held that "Common intention to commit an offence graver than the one originally designed may develop during the execution of the original plan, e.g. during the progress of an attack on the person who is intended to be beaten but the evidence in that behalf should be clear and cogent, for suspicion, however strong, cannot take place of proof which is essential to bring home the offence to the accused."
Hon'ble Mr. Justice Krishna Iyer also held that "When a crime is committed by the concerted action of a plurality of persons constructive liability implicates each participant, but the degree of criminality may vary depending not only on the injurious sequel but also on the part played and the circumstances present, making a personalised approach with reference to each. Merely because of the fatal outcome, even those whose intention, otherwise made out to be far less than homicidal, cannot by SC No. 03/2012 26/35 State Vs. Rajiv @ Raju hindsight reading, be meant to have had a murderous or kindred mens rea."
40. 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.
41. In 2008 CRI. L. J. 3061 , "Dalbir Singh v. State of Haryana, Hon'ble SUPREME COURT held that " Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other coaccused persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar.
42. All material witnesses of occurrence namely PW1, PW4, SC No. 03/2012 27/35 State Vs. Rajiv @ Raju PW12, PW14, PW15 and PW17 in corroboration with version of each other testified of accused Babloo having assaulted deceased on his neck with knife. None amongst these witnesses testified of accused Rajiv @ Raju to have given any knife blow on the person of deceased. Lacerated wounds on fingers of Rizwan @ Kussu (PW1), opined to have been caused by blunt object, accordingly also could not be caused by knife blow. Corroborating with the versions of prosecution witnesses Rizwan @ Kussu (PW1), Kiran (PW12), Kamro Nisha (PW14) and Ijaj (PW4) himself testified that Virender @ Boya and Rajiv @ Raju had assaulted Ijaj (PW4) with knife. So far as the role play of accused Rajiv @ Raju in the occurrence is concerned, the aforesaid material witnesses examined are reliable and the testimony coming from their mouth is unimpeachable and they have proved the fact that accused Rajiv @ Raju came with knife in his hand on the place of occurrence and with said knife he had assaulted on the person of Ijaj (PW4). Ijaj (PW4) was assaulted with knife by accused Virender @ Boya and Rajiv @ Raju. Injuries suffered by Ijaj (PW4) were (1) punctured, sharp wound on right thigh of back 2.5X1.5X0.5 cm; (2) one long wound on back. Accused Rajiv @ Raju SC No. 03/2012 28/35 State Vs. Rajiv @ Raju and Ijaj (Aizaj) (PW4) and his family were neighbors. No utterances or gestures of accused Rajiv @ Raju have been proved by any cogent evidence to infer his sharing common intention to commit murder of the deceased nor is there any cogent evidence on record for he having done any overt or covert act in either apprehending or in any manner assaulting the deceased. After evaluating the role played by accused Rajiv @ Raju, there is no fact proved on record that accused Rajiv @ Raju entertained common intention to murder the deceased, as per law laid and elicited herein before. Cogent evidence from words spoken or gestures/act done by accused persons to infer common intention of accused Rajiv @ Raju to commit culpable homicide, much less to murder deceased, are missing. Even there is no cogent evidence on record of accused Rajiv @ Raju to have been exhorted by any of his coaccused to assist/aid in any manner in launch of assault on the person of deceased or Rizwan (PW1). Also it does not appear from deposition of Ijaj (Aizaj) (PW4) that he had made any statement to the effect that accused Rajiv @ Raju had attacked him either on his back or on his thigh with an intention to kill him. SC No. 03/2012 29/35
43. Had accused Rajiv @ Raju nursed common intention to cause death of Ijaj (Aizaj) (PW4) by assaulting him with knife then while having knife in his hand, there was no estoppel in his way to give knife blow(s) on any vital part of Ijaj (PW4) intentionally or with the knowledge of causing such bodily injury which was likely to cause death. Even it is not proved on record that any other co accused had exhorted accused Rajiv @ Raju to kill Ijaj (PW4). Infact, the afore elicited simple injuries opined to be caused with sharp weapon on the person of Ijaj (PW4) coupled with circumstances appearing from the proved facts of the case bring into fore the common intention of accused Rajiv @ Raju to voluntarily cause hurt upon the person of Ijaj (Aizaj) (PW4) by sharp edged knife and it is proved that he had caused such hurt to Ijaj (Aizaj) (PW4). The plea of alibi of accused Rajiv @ Raju that he had gone to attend marriage of his cousin sister fixed out station for 22/02/04 had surfaced for the first time in form of suggestion in crossexamination of Kamro Nisha (PW14) on 01/09/2007 and not before in evidence of any other witness or any grievance addressed to junior or senior SC No. 03/2012 30/35 State Vs. Rajiv @ Raju officers of investigating agency. No defence evidence was led to prove said alibi. Nonproving of said plea of alibi, fact becoming relevant under Section 11 of Evidence Act, has made such defence falling flat on the ground.
44. In view of the afore going discussions, I am of the considered opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused Rajiv @ Raju for offences under Sections 302/34 IPC and 307/34 IPC but has been able to prove beyond reasonable doubt the case against the accused Rajiv @ Raju for offence under Section 324 IPC read with Section 34 IPC. Accused Rajiv @ Raju is held not guilty and acquitted for offences under Section 302/34 IPC and 307/34 IPC. Accused Rajiv @ Raju is held guilty and convicted for the offence under Section 324 read with Section 34 IPC. Let he be heard on the point of sentence.
Announced in the open court (GURVINDER PAL SINGH)
on date 27/03/2012 ASJ (FTC)/SD/ NEW DELHI.
SC No. 03/2012 31/35
State Vs. Rajiv @ Raju
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 03/2012
State Vs. : Rajiv @ Raju
S/o Late Radhey Shyam,
R/o H. No. B44, Gali No. 3,
Jyoti Nagar West, Shahdara,
Delhi
FIR No. 86/2004
P.S. Kotla Mubarak Pur
U/s 324/34 IPC
ORDER ON SENTENCE:
Having convicted accused Rajiv @ Raju for the offence under Section 324 IPC read with Section 34 IPC, I have heard Sh A.T Ansari, Ld. Addl. PP for the State; Sh J.R Priyani, Ld. Counsel for the convict; the convict and have perused the record.
2. Convict was arrested on 24/06/2004, sent to jail that day. On 24/05/2005 the convict, then accused was released on bail. On SC No. 03/2012 32/35 State Vs. Rajiv @ Raju 22/12/08 the convict had been declared Proclaimed Offender. Of late, the convict was arrested on 25/02/2012 and he is in jail till date since that day.
3. Ld. Counsel for the convict has prayed for lenient view for the convict submitting that the convict is of age presently 30 years having old mother, wife and one and half year old daughter to support being their sole bread earner from work of Halwai. Also is submitted that the convict is not a previous convict and has suffered detention of more than a year.
4. Ld. Addl. PP for the State prayed for awarding of the maximum permissible sentence to the convict saying convict/accused Rajiv @ Raju had even absconded at the stage of statement under Section 313 Cr.P.C to evade the course of justice, showing his criminal bent of mind. Also, it was argued by him that conduct of the accused/convict by carrying knife and causing injuries on the person of Ijaj (Aijaj) (PW4) showed his perverse mind and the convict did not deserve any leniency.
SC No. 03/2012 33/35
5. The convict shared common intention with his co accused to cause hurt by knife on the person of Ijaj (PW4) and in furtherance thereof convict Rajiv @ Raju and Virender @ Boya had hit Ijaj (Aijaj) (PW4) with knife on his back and thigh. Fortunately for Ijaj (Aizaz) (PW4) he sustained simple injuries viz. (1) punctured, sharp wound on right thigh of back 2.5X1.5X0.5 cm; (2) one long wound on back and did not suffer any grievous/dangerous or fatal injuries.
6. The convict at the time of occurrence was in his twenties, grown up person, engaged in profession of Halwai, though educated till class 7th , but could be said to be understanding nuances of life and law, being fully grown up and mature enough to differentiate between lawful and unlawful acts.
7. The acts of the convict in the gamut of the present facts and circumstances make it ample clear that case of enlarging of convict on probation is passe part not made out. SC No. 03/2012 34/35
8. Having regard to the age, character and antecedents of the convict, in present set of facts and circumstances in which the offence was committed, I accordingly sentence the convict as under:
Convict is sentenced for offence under Sections 324 IPC read with Section 34 IPC to Rigorous Imprisonment of two years and fine of Rs 1,000/ and in default of payment of fine, to undergo simple imprisonment of one month.
9. In the event of non deposit of fine, the sentence of simple imprisonment shall run consecutively to the sentence of rigorous imprisonment. Benefit of section 428 Cr.P.C. be given. Period of detention undergone by convict shall be reduced from the period of sentence for which Superintendent Jail be directed accordingly. Copy of the judgment and the order on sentence be given to the convict free of cost and immediately. Reader to prepare conviction warrants accordingly. File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH) on date 29/03/2012 ASJ (FTC)/SD/ NEW DELHI. SC No. 03/2012 35/35 State Vs. Rajiv @ Raju SC No. 03/2012 36/35