Delhi District Court
State vs . Randhir Singh Etc. on 11 March, 2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
IN THE COURT OF MS. MAMTA TAYAL
ADDL. SESSIONS JUDGE : DWARKA COURTS
NEW DELHI
SC No. 54/09
FIR No. 09/03
Police Station J. P. Kalan
U/Section 307/302/201/148/341/506/326
/324 IPC
Received on transfer 18/05/2009
Reserved for orders on 03/02/11
Judgment announced on 26/02/2011
State V/s 1.Randhir Singh
S/o Shri Subey Singh
R/o Village and Post office Ghumanheda
New Delhi.
2. Kehar Singh ( Since dead and.
S/o Shri Chottu Ram Proceedings abated
R/o Village and Post office vide order Dated
Ghumanheda, New Delhi. 27.01.2011)
3. Chattar Singh
S/o Shri Sube Singh
R/o Village and Post Office Ghumanheda,
New Delhi.
SC No: 54/09 1 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
4.Krishan Kumar
S/o Nafey Singh
R/o Village & Post office Ghumanheda
New Delhi.
5. Ranbir Singh
S/o Shri Subey Singh
R/o Village & Post office Ghumanheda
New Delhi.
6.Ajay @ Leelu
S/o Shri Satbir Singh
R/o Village & Post office Ghumanheda
New Delhi.
7.Netarpal
S/o Shri Dharambir Singh
R/o Village & Post office Ghumanheda
New Delhi.
Also: Village Nanaud, Distt Rohtak
Haryana.
8.Jagjit @ Jaggar
S/o Dharambir Singh
R/o Village Nanaud, Distt Rohtak
Haryana.
J U D G M E N T
SC No: 54/09 2 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
1. The facts in brief as set out by prosecution are that one Gheesa Ram S/o Shri Ramji Lal purchased a plot measuring 118 X 7.8 feet from Azad Singh, a relative of accused persons, for using it as a passage for his plot which was behind the plot of Azad Singh. Family of accused persons was unhappy over the deal. On 1.2.2003 i.e. just about one week of said purchase, at about 12.30 pm, complainant Prem Kumar @ Parveen was sitting in his vacant plot near the plot in question. At that time his brother Anil (since deceased) who was coming towards him from their house was stopped on the way by accused persons Chattar Singh, Ranbir and Krishan. They were armed with pharsa and Jailies respectively. They told Anil that they won't allow his family members to take the plot of Azad Singh as it was the joint property of brothers of Azad Singh. When Anil (since deceased) objected stating that the said plot was purchased by them after paying due consideration, accused Krishan got angry and exhorted others that Anil should be killed. Accused Ranbir stated that there was no need to delay the matter and all of them should catch hold of Anil. On this accused persons Krishan and Ranbir caught hold of Anil while accused SC No: 54/09 3 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. Chattar Singh gave a pharsa blow on his head due to which Anil fell down. Other accused persons who were standing near by laughed at Anil. Seeing this, complainant Prem Kumar raised an alarm. On hearing the same, his brother Naveen and uncles Sant Ram and Hari Chand rushed towards the spot but before Naveen could reach the spot, he was caught by accused persons Randhir and Kehar Singh stating that his hands should be cut as he considers himself to be very strong on which accused Ajay @ Lillu gave a pharsa blow on his left hand chopping his two fingers. When Naveen tried to save himself by running away, accused Ajay gave a pharsa blow on his head and accused Kehar singh gave a lathi blow on his head. When Prem Kumar tried to save Naveen, accused Kehar Singh caught hold of him while accused Ajay @ Lillu tried to hit him with a pharsa but he dodged the same and hid behind accused Kehar Singh due to which pharsa landed on his head. Thereafter accused Jagjit @ Jaggar gave a lathi blow on the head of Prem Kumar while accused Netar Pal and accused Jagjit @ Jaggar gave a lathi and jaily blow respectively to Sant Ram. Sant Ram however evaded the attack by moving away and lathi hit accused Randhir singh on his foot. Accused Chattar Singh then hit Sant Ram with a pharsa on his SC No: 54/09 4 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. hand while accused Ajay @ Lillu assaulted Hari Chand with a pharsa on his head. On hearing the noise raised during the incident and the cries of the complainant party, many public persons gathered there. But accused persons had already fled from the spot carrying their respective weapons. Prem Kumar rushed both the injured Anil (since deceased) and Sant Ram to Ortho Plus Hospital in his car where the doctors advised him to move Anil to some big hospital on which all of them went to Maharaja Agarsain Hospital, Punjabi Bagh where they were treated. Injured Hari Chand and Naveen also went to Orthoplus Hospital where they were medically examined. Police arrived at Agarsain hospital and on the statement of Prem Kumar, an FIR was registered and police after investigation chargesheeted all the accused persons as above stated.
2. Consequent to supply of copies to accused persons as per law, the case was committed to Sessions Court where after due deliberation charge u/s 148/302/307/326/324/323/506/149 IPC was framed and served upon accused persons to which they pleaded not guilty and claimed trial.
3. Prosecution was called upon to lead evidence to establish the charges as per law. In support of its case, 23 witnesses SC No: 54/09 5 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. were tendered by the prosecution. On conclusion of prosecution evidence, Statement of accused persons was recorded under Section 313 Cr.P.C. wherein they claimed to be innocent having been falsely implicated in the case. In their defence they examined two witnesses. Thereafter final arguments were heard.
4. I have carefully scrutinized the entire records and given my thoughtful consideration to the arguments advanced by both the sides.
5. PW1 Prem Kumar testified that on 01.02.2003 at about 12.30 pm, when he was sitting in his plot, accused Chattar Singh, accused Ranbir and accused Kishan having a pharsa, lathi and jaili in their hands intercepted Anil ( since deceased) who was on his way to Prem Kumar and started a quarrel about the plot purchased by Gheesa Ram, grand father of PW1 from Azad Singh, a relative of accused persons. When Anil objected, he was assaulted by all the said three persons. Accused Kishan and Ranbir caught hold of his hands while accused Chattar Singh gave pharsa blow on his head. The other accused persons standing near by, made fun of Anil when he fell down. PW1 Prem Kumar immediately raised an alarm on which his brother Naveen and uncles Sant Ram and Hari Chand SC No: 54/09 6 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. reached there. However, Naveen was also caught by accused Randhir Singh and Kehar Singh, family members of other three accused persons. Accused Ajay gave a pharsa blow on his left hand resulting in amputation of his two fingers of his left hand. When Naveen tried to save himself from their clutches, accused Ajay @ Leelu attacked him with pharsa on his head while Kehar Singh attacked him with lathi. PW1 Prem Kumar intervened but he was caught by accused Kehar Singh. When accused Ajay tried to hit Prem Kumar with a pharsa, he ducked and the pharsa landed on head of Kehar Singh. In the meantime accused Jaggar assaulted Prem Kumar with lathi. Accused Netra Pal and Jaggar also assaulted Sant Ram with lathi and jaili. When Sant Ram evaded the lathi blow by hiding behind accused Randhir, lathi stuck against foot of accused Randhir causing injury to him. When Sant Ram tried to run away from the spot, Chattar Singh attacked him with pharsa on his right hand. Accused Ajay assaulted Hari Chand with a pharsa. On the alarm raised by the complainant party, the accused persons ran away from the spot carrying away their weapons. PW1 rushed his brother Anil and uncle to Orthoplus hospital where on advise of Doctor, Anil was taken to Maharaja Agarsen Hospital alongwith SC No: 54/09 7 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. Sant Ram. They were admitted there for treatment and police had recorded the statement of complainant on the same evening in the hospital itself.
6. In cross examination PW1 replied that the dispute had occurred on account of a plot measuring 108 Sq. yards which was sold by Azad Singh S/o Chhotu Ram to Gheesa Ram, grand father of PW1. He further stated that the plot in question was bounded by plot of Chitru and Hira Lal on its left and right side. He clarified that house of accused Chattar Singh is situated at a distance of just about 1520 yards opposite the disputed plot while house of accused Kishan is adjacent to house of Chattar Singh. Adjoining the said house is the house of Kehar Singh and all the accused persons reside in the said house except accused Ajay @ Leelu who lived in a house away from their house. On request of Ld. Defence Counsel, PW1 drew a rough site plan showing location of plot in question and the houses in the vicinity. He stated that he and Sant Ram had vacant plots near the plot in question. They used to be on their plots during day time and at night used to go to their homes situated in the interior of village. He clarified that on the fateful day, he, Hari Chand and Sant Ram were present on their plots with Naveen while SC No: 54/09 8 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. Anil was coming from the village at the time when incident occurred. He could not say about time of arrival of police at the spot for the reason that he had already left for hospital by that time and had met police only in the hospital. He admitted that though he had a telephone at his residence in the village but he did not make any call to the police and further that some villagers had also collected at the spot on seeing the commotion caused by incident. He was suggested that the plot adjoining the disputed land belonged to brother of Azad Singh and not Chitru which he denied. He also controverted the suggestion that on the day of occurrence they were constructing a wall over the plot in question thereby increasing the width of land by approximate 10 ft., grabbing the land of brothers of Azad Singh. He described the place of incident as a lane near the plot in question. He rebutted the suggestion that accused Netra Pal was not present at the spot on the day of occurrence or that it is the complainant side which has started the quarrel when Kehar Singh had objected to their land grabbing tactic. He accepted that some of the members of both the complainant as well as accused side are farmers by profession having their lands in the vicinity of the plot in question.
SC No: 54/09 9 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
7. PW2 is Sant Ram S/o Shri Gheesa Ram. He deposed that they had purchased a plot from Azad S/o Chhotu Ram because of which family members of Sube Singh were not happy. On 01.02.2003 at about 12.30 pm when PW2 was at his home, he heard the call of " Bachao Bachao" on which he came out and saw Anil lying on the ground having been attacked by accused persons Chattar Singh, Ranbir and Kishan. At that time he had also seen Naveen being held by accused Randhir and accused Kehar Singh having jaili and lathi respectively in their hands when accused Ajay @ Leelu had given a pharsa blow on the head of Naveen. At the same time Prem Singh was being held by Kehar Singh. When Leelu attacked Prem with Pharsa, Prem hid behind Kehar Singh. Consequently the pharsa blow landed on the head of Kehar Singh. In the meantime accused Jaggar attacked Prem. When PW2 Sant Ram rushed to the spot, Jaggar and Netra Pal attacked him also with lathi and jaili. Chattar Singh also assaulted him with pharsa on his right hand cutting his thumb. Accused Jaggar again attacked him with lathi and he saved himself by hiding behind accused Randhir and lathi hit Randhir on his foot. Accused Ajay @ Leelu gave a pharsa blow on head of Hari Chand. On hearing their SC No: 54/09 10 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. cries for help, accused party ran away from the spot. Thereafter some villagers also arrived at the scene. The complainant party removed the injured persons to Orthoplus hospital from where Anil was shifted to Maharaja Agarsen Hospital on advise of Doctor. Police arrived in the hospital and recorded statement of complainant and other witnesses. His cross examination is also more or less on similar lines as that of PW1. He was confronted for some minor improvements over his statement recorded by police, but he stuck to his stand in the court. Ld. Defence Counsel could not extract anything major to discredit his version or doubt his veracity.
8. PW3 is Naveen Kumar, another injured. He testified attributing the similar role to all the accused persons with some negligible variations as compared to the deposition of PW1 and PW2. In cross examination also, Ld. Defence Counsel could not dent his credibility nor could he create a doubt as to his presence at the time of incident. Infact on behalf of accused Kishan, he was suggested that in his presence accused Kishan had not actually participated in the occurrence but had tried to pacify both the parties meaning thereby the presence of witness as well as accused Krishan and the incident itself were not disputed by the opposite SC No: 54/09 11 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. side. It further implies that accused persons admit that they were also assailing the complainant side and were duly armed, which is contrary to stand taken by them in their subsequent complaint.
9. PW4 Attar Singh is an independent witness, a resident of same village to which both the complainant and accused party belong. He affirmed that in his presence, Azad Singh had sold his plot to Gheesa Ram vide GPA EX.PW4/A, Agreement to Sell Ex. PW4/B, receipt Ex.PW4/C, Will Ex.PW4/D, letter of possession Ex.PW4/E all bearing thumb impression of Attar Singh as a witness. In cross examination the actual execution of the documents was not challenged nor it was suggested that Azad Singh had not sold the plot in dispute to Gheesa Ram.
10. PW5 is Padam Singh S/o Shri Gheesa Ram. He had identified the dead body of Anil vide his statement Ex.PW5/A. PW6 is Naresh, another witness of identification of dead body of Anil. PW7 is Samay Singh, a photographer who had taken the photographs Ex.PW7/1 to Ex.PW7/4 of the spot in the afternoon sometime after 12 O'clock but he did not remember the exact time. Next witness is Mukhtiar Singh, another witness of sale of plot by Azad Singh to Gheesa Ram. His cross examination is totally inconsequential.
SC No: 54/09 12 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
11. PW9 is Hari Chand, an injured. He stated that he had gone to the spot on hearing the call of "Bachao Bachao" and had seen Anil fallen on the ground having been attacked by Chattar Singh, Kishan and Randhir Singh. PW9 proceeded to describe the entire incident on the lines similar to deposition of PW1 and PW2. He maintained his stand in cross examination and again nothing could be elicited by defence to demolish his credibility. All the witnesses stated that whole incident lasted for about 56 minutes. PW9 claimed that he did not try to initially intervene in the fight as he had got frightened. He stated that the villagers had arrived at the scene only after the occurrence. He was suggested that on the day of incident actually they were raising a wall covering the land of opposite party and when accused Kehar Singh objected, Anil (since deceased) caught hold of him while Prem Kumar and Sant Ram attacked him with pharsa. The blow however landed on the head of Anil when Kehar Singh moved his head to one side. It was further suggested that it was complainant party that had actually assaulted the accused persons and had thereafter run away from the spot. Needles to say both the suggestions were rebutted by the witness.
SC No: 54/09 13 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
12. PW10 is Doctor Anil Jindal, CMO, Maharaja Agarsen Hospital. He had examined the injured persons Sant Ram, Parveen @ Prem Kumar and also Anil (since deceased) vide MLC Ex.PW10/A. In cross examination, he accepted that injuries of Sant Ram and Parveen could also be caused by a fall. He admitted that Sant Ram and Parveen did not disclose the name of assailants to him nor did they tell that before coming to Maharaja Agarsen Hospital, they had visited another hospital for treatment. Witness was however not asked whether he had made these enquiries from the injured persons and whether despite enquiry they did not reveal these facts to him. In absence of this having been clarified from PW10, no adverse inference for non disclosure of names can be drawn as for a patient the main concern of doctor is his medical condition and corresponding treatment. PW10 clarified that injured persons had reached at Maharaja Agarsen Hospital at about 2.45 pm where Sant Ram and Parveen were discharged after giving fist aid to them. He gave the duration of injuries about 11 ½ hours and maximum as two hours from the time of examination.
13. PW11 HC Dharamvir was on duty in Rao Tula Ram hospital where Randhir Singh and Kehar Singh were admitted. He SC No: 54/09 14 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. had also taken the rukka and got FIR registered. In cross examination he replied that IO had even recorded statement of accused Randhir Singh and Kehar Singh on the same day and PW11 had taken the said statements also with him to the Police Station alongwith rukka of this case.
14. PW12 is ASI Som Pal Singh, the Incharge of PCR van who had reached at the spot after receiving a call about quarrel at the spot. He deposed that on 01.02.2003 he had received a call at about 12.45 pm about a quarrel at village Gumenheda whereafter he alongwith his staff reached there. One Sube Singh met him there and told him that the quarrel had taken place on account of plot. In the meantime he heard someone calling that a person related to Sube Singh had been caught on which all the persons connected with Sube Singh ran towards the person who gave the call. He also followed them and saw both the parties fighting with each other with lathi, bhala, barcha etc. Though he tried to stop the quarrel but could not succeed and thereafter he took injured persons namely Randhir Singh and Kehar Singh to Rao Tula Ram Hospital. In cross examination he replied that he had gone to the spot with driver of PCR van. The van was parked about 100150 yards away SC No: 54/09 15 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. from the spot of occurrence. He further stated that at the time when he removed injured to hospital, SHO alongwith his staff and IO Bhoop Singh had already reached there. He gave the time of his own arrival at the spot as 1.10 pm and stated that at the time when he reached there no fight was going on but there was tension between the parties. He further replied that he had heard at about 1.30 pm, someone calling about a person of Sube Singh party having been caught by Gheesa Ram party and occurrence had taken place only thereafter. He claimed that he had given messages to Control Room through out the fight but he could not tell the time when he gave the last massage. He then stated that during the fight villagers had collected and were watching it from a distance and that the incident had occurred inside the plot. He could not tell the names of nor could he identify members of both the parties separately but still maintained that he was sure that it were the accused persons who were beating the complainant party. The witness however shifted his stand thereafter by testifying that opposite party had also caused injuries to the accused persons. He could not say if anyone except accused Randhir Singh and Kehar Singh from the side of accused persons were also injured. When SC No: 54/09 16 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. asked specifically, he could not reply whether injuries sustained by Randhir Singh and Kehar Singh were caused by complainant side or accused persons. He however, reiterated that injuries sustained by complainant party were caused by the accused persons. His further cross examination was deferred on 02.11.04 and was completeled on 24.07.2010 when again he admitted that he did not know the names of persons present at the spot nor the side to which they belonged. He, however, volunteered that he came to know about the aggressors subsequently and can identify them. He admitted that no judicial TIP was got conducted from him . He further replied that he had taken Kehar Singh and Randhir Singh directly to the hospital and they did not have any weapon with them at that time. He did not know if he had seen or not any weapon lying at the spot after the incident. Lastly, he replied that at the time when Sube Singh was talking to him, he was duly armed.
15. PW13 is ASI Kailash, Duty Officer who had recorded the FIR Ex.PW13/A, the information received from RTRM hospital about admission of Kehar Singh and Randhir Singh in RTRM hospital as Ex.PW13/B and information about admission of Anil received from Maharaja Agarsen Hospital as Ex.PW13/C. He SC No: 54/09 17 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. also proved information recorded at PS J.P. Kalan on 07.02.2003 about death of Anil as Ex.PW13/D. He further proved the DD recorded by him in respect of registration of case as Ex.PW13/E. In cross examination he was suggested that after DD no. 16A, Ex.PW13/B, SHO had directed him to stop entries in DD register and that subsequent entries were manipulated later on at the instance of IO which he denied. Except a bald suggestion, nothing was brought on record to substantiate it. It was not put to any of the witnesses that they had any special influence over police or SHO or IO were related to them. On being confronted, PW13 admitted that though FIR is exact replication of rukka but in rukka at one point the name of Randhir has been corrected to appear as Ranbir Singh, which was not so in FIR. The question was irrelevant qua PW13 as he had scribed only the FIR and not rukka and was not responsible for any subsequent correction in the same.
16. PW14 is HC Devender Singh. He had gone to Base Hospital, Delhi Cantt on 10.02.2003 on direction of SHO to trace out the missing patient Chattar Singh. He proved the information given by BASE hospital as Ex.PW14/A which he had brought and given to SHO. Thereafter he had also taken application Ex.PW14/B SC No: 54/09 18 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. from SHO to Admn. Commandant, Station Head Quarter, Delhi Cantt. with request to hand over accused Chattar Singh working in Army at that time to police. In cross examination, he was suggested that accused Chattar Singh had remained in hospital from 01.02.2003 to 10.02.2003 to which he pleaded ignorance. No evidence was adduced by accused Chattar Singh in his defence to prove this claim nor it was explained as to why Chattar Singh remained absconding for more than one month after the incident if he was actually a victim and not the aggressor.
17. PW15 ASI Shiv Kumar had accompanied IO during investigation for execution of NBW against accused Chattar Singh and in his presence accused Chattar Singh was arrested. He had also joined further investigation with IO on 24.04.2003 when accused persons Netar Pal, Jaggar, Leelu and Ranbir were arrested after they had surrendered in the court. He testified that in his presence, accused persons had given their disclosure statements and pointed out the spot. In pursuance to their disclosure, accused Jaggar and accused Ranbir had got recovered a lathi while accused Netarpal had got recovered a jaili. In cross examination he admitted that no public person was joined at the time of the said SC No: 54/09 19 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. recoveries. He clarified that it was so as no public person was available in the fields at that time. He accepted that the room from where the jaily and lathi were recovered, was open and number of jailies and lathies were lying there at that time. In such circumstances apparently not much value can be attached to alleged recoveries.
18. PW16 is Doctor Rajeev Kumar, Medical Officer, RTRM hospital. He had examined Randhir Singh and Kehar Singh on 01.02.2003 at about 1.50 pm and 2.30 pm respectively. PW17 is HC Satyapal who remained with IO during investigation. PW18 is SI Madan Pal, the draftsman. He had prepared scaled site plan of the spot. He admitted that in the site plan he had not shown the spot where the dead body of Anil Kumar was lying. The suggestion is again superfluous as Anil was alive when he was moved to hospital and there was no question of his dead body being at the spot. PW19 is ASI Manju, the Duty Officer who had recorded DD no. 14A Ex.PW19/A on the basis of information received from Maharaja Agarsen Hospital about death of Anil in the hospital. PW20 is HC Ishwar Singh. He had joined the investigation of this case with the IO on 1.2.2003 and 8.2.2003. PW21 is Azad Singh SC No: 54/09 20 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. who had sold the plot in dispute to Gheesa Ram vide documents Ex. PW 4/A, Ex. PW 4/B, Ex. PW 4/C, Ex. PW 4/D, Ex. PW 4/E and affidavit Ex. PW 21/A. PW22 SI Bhoop Singh is the initial IO of the case. PW23 is Inspector Ranbir Singh, the subsequent part IO. PW24 is Col. V.S. Gurunadh who had examined accused Chattar Singh vide MLC Ex.PW 24/A. PW25 is Dr. Sudip Saha, Medical Officer, Ortho Plus Hospital. He had examined injured Hari Chand and Naveen vide MLCs Ex.PW25/A and Ex.PW25/B. PW26 is ACP Bishan Mohan who had completed the investigation and filed the charge sheet. PW27 is Dr. B.N. Mishra, who appeared on behalf of Dr. Manoj Nagpal, the autopsy surgeon who had conducted the postmortem of deceased Anil Kumar vide PM report Ex.PW27/A. Doctor Manoj Nagpal had left DDU hospital and his present whereabouts could not be ascertained. As per PM report, the expert had noted four injuries, all on the head of the deceased.
19. So far as incident dated 01.02.2003 is concerned, the occurrence of the same is not disputed by either side as at the instance of accused persons, a cross case in respect of the same incident was registered under court orders against the present complainants and the injured persons. In cross examination of any of SC No: 54/09 21 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. the prosecution witnesses their affirmation about the incident having taken place on 01.02.2003 has not been disputed or challenged. Infact in cross examination of PW1, it was suggested to the witness that Vinod, grand son of Sube Singh had informed PCR at 12.38 pm that a quarrel was taking place at that time.
20. It is also an undisputed fact that Anil, nephew of PW2 Sant Ram and brother of PW1 Prem Kumar was seriously injured in the said incident and later on he succumbed to his injuries in the hospital on 07.02.2003. In cross examination of prosecution witnesses, it was suggested that Anil had sustained injury on his head when Kehar Singh moved his head and successfully avoided the pharsa blow given by Prem Kumar and Sant Ram to accused Kehar Singh during the scuffle. The suggestion is apparently a brazen attempt on part of accused persons to escape the nemesis of law. Firstly, it does not account for the other injuries found on body of Anil which were equally grave. Secondly, if the accused persons were actually the victims, why did they not take any remedial steps for more than two months, if police failed to register their case. Most importantly it is not at all clarified by them as to how other members of complainant side sustained injuries, if SC No: 54/09 22 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. accused persons did not assault them at all.
21. It has been deposed by PW27 Dr. B.N. Mishra, the autopsy surgeon who proved the postmortem report of the deceased Anil, that as per report Anil had died on account of "COMA". In reply to court question, the witness stated that injuries number 1 to 3 as noted in postmortem report Ex.PW27/A individually as well as taken together were sufficient to cause death in ordinary course of nature. In cross examination though he was suggested that the patient died on account of medical negligence during his treatment in hospital but again the suggestion was neither elaborated nor supported by any document. The expert opined that the death had occurred in ordinary course of nature on account of severe injuries i.e. Fracture of skull bone and oozing out of brain matter through the cerebral wounds. It is also recorded in the MLC of Anil, Ex PW10/A that besides two incised wounds on his head, his skull was found fractured and brain matter with active bleeding was seen. He was unconscious at that time and was referred to ICUI. As per his death summery he remained unconscious and very critical till his death. He was on ventilator and did not respond to even deep pain stimuli.
SC No: 54/09 23 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
22. PW25 Dr. Sudhip Saha had examined injured persons Hari Chand and Naveen in Orthoplus Hospital on 01.09.2003 vide MLC Ex.PW25/A and Ex.PW25/B respectively. As per MLC of Hari Chand, he was found having a wound measuring 6 cm x 3 cm x 2 cm over his mid occipital area in a vertical fashion and had also transient loss of consciousness. The other injured Naveen was reported to be having two clean lacerated wounds measuring 3 cm x 2 cm x1cm on his left and right parieto occipital region and two fingers of his left hand were also chopped. PW10 Doctor Anil Jindal proved the MLC of Sant Ram and Parveen, the other two injured persons as Ex.PW10/A reflecting their injuries. In cross examination, the witness replied that he had examined the said injured persons alongwith Anil (since deceased) at 2.45 pm and opined that their injuries were about 1 ½ 2 hours old i.e. the injuries might have been caused between 12.45 to 1.15 pm.
23. Except presence of accused persons Randhir, Ranbir, Jagjit and Netrapal, the presence of remaining accused persons at the spot is not denied. It is also a fact uncontroverted and actually proved by the documents brought on record by Azad Singh, a family member of the accused persons, themselves that he had sold his plot i.e. SC No: 54/09 24 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. land in dispute to PW21 to Gheesa Ram vide documents Ex.PW4/A to Ex.PW4/E and Ex.PW21/A. Even its possession was handed over to Gheesa Ram. In cross examination conducted on behalf of accused persons, he admitted that the area of plot sold by him was 117ft x7.8 ft. He clarified that he came to know about the quarrel only at 5 pm after he returned to the village. As per the prosecution case, the said plot of land was the root cause of dispute between both the parties. It is affirmed by prosecution witnesses that accused persons were not happy with transaction as the said piece of land was to be used by Gheesa Ram as passage for his plot which otherwise did not have any approach and was earlier up for grabs. The defence of the accused persons in contrast is that on 01.02.2003 the complainant side was constructing a wall increasing the width of plot from 7.8 ft to about 18 ft thereby encroaching upon the adjoining plot of accused persons and scuffle ensued on objection raised by the accused persons. A perusal of the documents executed by Azad Singh, however, falsifies the defence raised by the accused persons and nullifies the alleged motive attributed by them to complainant side to start the fight. As per the sale documents, the said plot was bounded by plot of Hira Lal and Chhitru on two sides, SC No: 54/09 25 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. with plot of Gheesa Ram on third side and public way on fourth side. The documents executed by Azad Singh himself thus nowhere recite that the said plot shared a common boundary with plot of accused persons on any side. In such scenario, even if the complainant side increased the width of plot, they would have trespassed into plot of either Chhitru or Hira Lal and not of accused persons. In addition to PW21, another witness PW4 has also proved the sale documents of said plot executed by Azad Singh in favour of Gheesa Ram and in cross examination of either PW4 or PW21, it was not at all suggested that the property was not correctly described in the documents or that it was not bounded as stated in those documents. The suggestion put to prosecution witnesses in cross examination on behalf of accused persons that the complainants were the aggressors, guilty of initiating the fight on objection raised by the accused persons to erection of wall covering an area of 117 ft. x 17ft instead of 117 ft x 7.8 ft is obviously false and baseless. Besides this, except the bald suggestion put to the witnesses, there is not even an iota of evidence brought on record to show that the complainant side had actually constructed any such wall or that the said wall had exceeded the width of passage i.e. SC No: 54/09 26 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. 117ftx7.8ft., as bought by Gheesa Ram. Infact PW3 Naveen in his cross examination categorically affirmed that the plot which had been purchased by Gheesa Ram had a wall on its south side. No suggestion to the contrary was given. The wall as visible in the photographs was apparently the same wall.
24. The testimony of injured persons is not only consistent with each other but is also corroborated by the other ocular and medical evidence on record. Their evidence does not suffer from any material contradiction or inherent lacuna and has a ring of truth in it. Despite being subjected to searching cross examinations their testimonial assertions could not be shaken. They have given vivid account of entire occurrence. The minor variations as sought to be highlighted in cross examination are natural and totally inconsequential. All the injured persons have described in detail the role played by all of the accused persons in inflicting injuries to the complainant side. They have also explained injuries appearing on person of some of accused persons as having been caused unintentionally during scuffle. On the other hand the accused persons are totally silent as to how so many members of the complainant side except Anil were injured. Even for Anil ( since SC No: 54/09 27 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. deceased) they have come up with explanation for only one injury on his head whereas MLC as well as postmortem report shows that he had three grievous and vital injuries on his body due to which he ultimately lost his life on 07.02.2003.
25. Ld. Defence Counsel has made an earnest endeavour to blow up some minor variations in testimony of prosecution witnesses and at the same time tried to play down the significance of their testimony on the plea that they are all interested witnesses. The argument is however wholly fallacious. Small discrepancies in the statement of prosecution witnesses, are not at all significant enough to discard the prosecution version. On the other hand, a little variation in the statements of the witnesses, who depose after a considerable long time, is natural and bound to occur.
26. Further there is no law which says that the evidence of interested witnesses should be thrown out or should not be relied upon for convicting the accused. What law requires is that where the witnesses are interested, the Court should approach their evidence with care and caution to exclude the possibility of false implication by them. It is as good as any other evidence and no fault can be found with the Court if it accepts such evidence without there being SC No: 54/09 28 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. corroboration by independent witnesses.
27. All prosecution witnesses were subjected to an extensive crossexamination but nothing could be extracted there from which could shake their credibility. It should be borne in mind that PW1,PW2, PW3 and PW9 are all injured witnesses of the incident and their injuries lend a seal of assurance to their claim of having seen the incident. Although they were thoroughly cross examined but their version of the incident corroborated by the injuries they had received, could not be discredited in cross examination.
28. The only aberration in prosecution case is PW12 ASI Sompal. His testimony is totally self contradictory and he comes across as wholly unreliable witness, unworthy of any trust. In his examination in chief he testified that on 01.02.2003 he had received a call about a quarrel at 12.45 pm and when he reached at the spot, Sube Singh told him that the quarrel took place on account of plot. His statement clearly reflects that by the time he reached at the spot, the quarrel had already taken place. In later part of his statement, he, however, claimed that he had heard a call given afterwards stating that someone had caught hold of a person related SC No: 54/09 29 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. to Sube Singh on which all the members of Sube Singh party ran towards the said caller and he also followed them. On reaching there, he found both the parties quarreling with each other with lathi, bhala and barcha. He tried to stop the quarrel but could not succeed whereafter he took injured persons Randhir and Kehar Singh to Rao Tula Ram Hospital. In cross examination he stated that by the time he left the spot, SHO with staff and IO Bhoop Singh had already arrived there and quarrel had started after 1.30 pm and had lasted only for 57 minutes. The fight as per PW12 had taken inside the plot and was watched by the villagers. Both the parties were armed but he did not know if the persons of the other party were injured or not. The falsehood of the witness is apparent from the fact that the place of incident itself as described by him is contradicted by charge sheet filed in court by police. As per the site plan and the photographs showing the blood lying on the spot, the fight occurred on a public way and not inside the plot.
29. Likewise the time of incident as stated by PW12 is incorrect. The information was conveyed by a family member of the accused themselves to PCR that quarrel was taking place at that time. This implies that the incident had already started at 12.38pm. Similarly SC No: 54/09 30 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. PW2 Sant Ram in his examination in chief had affirmed that he had heard about the distress call given by Anil on being attacked by the accused persons at about 12.30 pm. This part of testimony of PW2 was not repelled or rebutted in cross examination on behalf of any of the accused persons.
30. As per DD no.12A, the information received at PS J.P. Kalan at 12.55 pm was that a quarrel had taken place at village Ghumanheda. It obviously implies that fight had already occurred at that time. Further as per medical records of the complainant side, duly proved during evidence, they had arrived at Orthoplus hospital at 2.20 pm and from there had reached Maharaja Agarsen hospital at Punjabi Bagh at 2.45 pm whereas the MLCs of accused persons recite that they reached hospital with PCR officials at 3 pm. This clearly establishes that PCR came at the spot after the complainant party had already left for the hospital with seriously injured Anil. Further had PW12 been present at the time when both the parties as claimed by him were attacking each other with deadly weapons and had he tried to intervene, he would also have sustained atleast some injuries which is not the case here. Moreover if the quarrel had not already started but still was so imminent that PCR was called by SC No: 54/09 31 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. Sube Singh party, it is unexplained by PW12 as to why immediately after reaching at the spot, he did not take any steps to defuse the situation and why he did not immediately call for more police force and why he kept on talking to Sube Singh for about an hour, an inordinately long time, waiting for the actual fight to take place. It is also wholly improbable and totally unacceptable that PW12, a self proclaimed eye witness of incident did not come to know that about five persons of the complainant party were injured in the incident, one of them was so seriously that his brain matter was coming out. If the entire fight occurred before his eyes as is his plea, it is he who should have rushed the members of the complainant side also including Anil (since deceased) and not only the members of the accused side, to hospital. The fact that the complainant side along with Anil had gone to hospital of its own without PW12 even becoming aware of it, strengthens the finding that they had left the spot before even PCR arrived at the scene and the incident was already over by the time, PW12 reached there.
31. Here it is pertinent to note that the FIR in the instant case was lodged on the same day, just after about 45 hours of the incident, at a time when the injured persons were still in the SC No: 54/09 32 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. hospital. All the facts as stated by the injured persons subsequently in their testimony in the court were duly narrated by the complainant in the FIR itself. This effectively rules out any possibility of manipulation of facts subsequently by the complainant side or any deliberation on their part to falsely implicate any of the accused persons. Admittedly by that time, when they being injured were still in hospital, with one of them so seriously that he had to be taken from Orthoplus hospital, Najafgarh to bigger hospital i.e. Maharaja Agarsen hospital at Punjabi Bagh on advise of doctor, the complainant obviously would not have got time to conspire with his family members to make detailed false allegations against the accused persons, describing the role of each accused succinctly but specifically.
32. It is significant to point out that in this prompt FIR of the incident the material facts pertaining to the prosecution case, including
(a) the motive for the incident;
(b) the time of the incident;
(c) the place of the incident;
(d)the names of the injured persons;
SC No: 54/09 33 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
(e) the names of the assailants;
(f) the weapons in the hands of the assailants; and
(g) the manner of assault were all mentioned. Criminal Courts attach great importance to the prompt lodging of the FIR because the same substantially eliminates the probability of embellishments and concoctions creeping in the prosecution story. In my view, the circumstance that the FIR of the incident, wherein all the accused persons are named, was lodged very promptly goes volumes to show that the participation of all the accused persons has been established beyond the pale of doubt.
33. It is plea of accused persons that on 01.02.03, accused Jagjit and Netarpal were not even in the village where incident occurred. In their defence, the accused persons examined two witnesses who testified that on 01.02.2003 Jagjit and Netrapal were at village Pakasma where accused Jagjit had participated in a wrestling competition for prize money of Rs. 1100/. They however, could not produce even a single document to show that on 01.02.2003 actually any such fair was organized in village Pakasma or that any wrestling competition was held in the said fair. It was stated by DW1 in cross examination that after the competition, the SC No: 54/09 34 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. winners produced the coupons before the Committee Members who paid them the prize money. It is the claim of the accused persons themselves that Netrapal and Jagjit were aware of the incident in question on 01.02.2003 itself. Hence it was imperative for accused Jagjit to have retained his coupon and also to have got the records preserved so as to tender them during evidence in his defence , in order to prove his innocence. But surprisingly no coupon or other records were ever produced or proved in the court. Cross examination of DW1 and DW2 reveals that both of them did not know the name of wrestler who competed against accused Jagjit. As per DW2 he was from village Pakasma. DW1 is also from village Pakasma whereas accused Jagjit belongs to village Narnol. It is highly surprising that DW1 Sukhbir Singh remembered the name of a person from another village and not of wrestler of his own village. DW1 and DW2 could not give the names of other persons also who participated in wrestling competition for prize money of Rs. 5100/. Similarly DW1 could not name the wrestlers who had won the other wrestling competitions held for prize money of Rs. 1100/ i.e. same as that of accused Jagjit. The moot question here is as to why both these DWs remembered oly accused Jagjit out SC No: 54/09 35 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. of total 120140 wrestlers. As per both DW1 and DW2, on that day about 6070 wrestling competitions were held. In such a large number of competitions being held on a single day before a huge crowd of 25003000, it is utterly impossible for anyone except for some extraneous consideration, to have remembered the name of accused Jagjit only as one of the winners of numerous wrestling competitions held on that day. Their deposition clearly smacks of tutoring. Here it is interesting to note that both DW1 and DW2 were able to give names of only two participants for that day and both the names as given by them are same though both belong to different villages. This reaffirms that DW1 and DW2 deposed in the court not on basis of their memory but according to a prefabricated statement. Further as per both DW1 and DW2, the fair was held on the day of Amavasya . Admittedly there are number of Amavasyas every year. It is not specified either by DW1 or DW2 as to what was the special significance of the Amavasya falling on 01.02.2003 due to which fair was held only on that Amavasya. Besides this, DW2 in his examination in chief affirmed that he alongwith Jagjit and Netrapal had reached village Pakasma at about 10 am and had remained there till 34 pm but in cross examination he shifted his SC No: 54/09 36 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. stand stating that Netrapal had returned from village Pakasma after 2 pm on receiving a phone call while he alongwith Jagjit had returned at about 44.30 pm. As per the defence version, by the said phone call, Netrapal and Jagjit were informed about the incident of the present case. Admittedly as per both the DWs, the wrestling competition of accused Jagjit was already over by the time call was attended by Netrapal. In such scenario, there was no justification for accused Jagjit to have stayed back more particularly when Netrapal had rushed back in view of gravity of the matter. Another aspect to be noted here that it was deposed by DW1 that each competition lasted for 10 minutes and there were 6070 competitions held on that day which means the total duration of the competitions taken together would be around 600700 minutes i.e. About 10 to 12 hours. But both DW1 and DW2 claimed that the competitions had started at about 10 am and were over by 5 pm. This again creates a doubt about the sanctity of their deposition, as, such large number of competitions could not have been held within total duration of 67 hours only.
34. Another leg of arguments advanced by Ld. Defence Counsel is that there is overwriting and manipulation in rukka SC No: 54/09 37 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. whereby name of one of accused Ranbir Singh was added in place of accused Randhir Singh. To buttress his contention, Ld. Counsel drew attention of court to the FIR where the name of accused appears as Randhir Singh only. He urged that this interpolation of such a vital document creates a grave doubt about the prosecution version. A perusal of rukka Ex.PW1/A reveals that in the 7th line from top, the name of one of the assailants was first written as Randhir Singh which appears to have been later on changed to Ranbir Singh. No doubt it is an unwarranted correction made afterwards, may be by the investigating agency, but no fault can be found with the complainant side for it. Even otherwise the said correction is outrightly inconsequential as in subsequent part of rukka again the name of same assailant is mentioned as Ranbir at multiple places. The name of other assailant as Randhir also appears in the later part. Correction though unauthorised was obviously on account of clerical error and not much significance can be attached to it as both the accused persons namely Ranbir Singh and Randhir Singh have been separately and clearly named and have been assigned individual role with specific part played by them in the incident, in the rukka itself.
SC No: 54/09 38 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
35. The question now arises is whether homicidal death of Anil was murder or only culpable homicide not amounting to murder. It depends upon the nature and extent of mens rea in the form of intention, knowledge or reasonable belief. When death is caused by an act done with the intention of causing death, it is murder under the first part of Section 299 and the first part of Section 300. If death is caused by an act done only with the intention of causing such bodily injury, as is likely to cause death coming under the second part of Section 299, it will normally be only culpable homicide not amounting to murder, unless it comes under the second part of Section 300, in which, on account of the peculiar condition of the victim, the offender knew that it is likely to cause death. Except in cases coming under the second part of Section 300, it will be murder only if the injury inflicted was an intentional one and was sufficient to cause death in ordinary course of nature attracting the third part of Section 300. It is the clause "Thirdly" of Section 300 IPC which is significant in the present case.
36. In Virsa Singh vs. State of Punjab, AIR 1958 SC 465 there was only one injury on the body of the deceased and the trial SC No: 54/09 39 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. Court and the High Court recorded the finding that the appellant caused that injury. That injury was caused as a result of spearthrust. The doctor who conducted autopsy on the dead body of the deceased opined that the injury was sufficient to cause death in the ordinary course of nature. Hon'ble Supreme Court laid down the following principle: "The prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of injury must be proved. These are purely objective investigations;
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended;
Once these three elements are proved to be present, the enquiry proceeds further; and Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is SC No: 54/09 40 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and of course, the burden is on the prosecution throughout), the offence is murder under Section 300 'thirdly'. It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature.............. or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the enquiry is sufficient in the ordinary course of nature to cause death."
On the facts of that case, Hon'ble Apex Court observed that where no evidence or explanation was given about why the accused thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts SC No: 54/09 41 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. in three places, it would be perverse to conclude that he did not intend to inflict the injury that he did. It has also been observed that if the totality of the circumstances justify an inference that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course, the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be a serious as it turned out to be, but because he did not intend to inflict the injury in question at all.
37. In the instant case also the head injuries of Anil were so serious that his skull was fractured and brain matter had oozed out. The injuries were caused on a vital body part i.e. Head with a farsa blow, given with full force. They were not accidental injuries. Hence it can be safely deduced that injuries resulting in death of Anil were deliberate and were the same as intended by the assailant. Doctor has opined that they were individually as well collectively sufficient to cause death in ordinary course of nature.
38. The accused persons are charged for offences punishable under Sections 148/302/307/326/324/323/506/149 IPC. Section 141, IPC defines an unlawful assembly to be an assembly of SC No: 54/09 42 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. five or more persons, where the common object of the persons comprising that assembly is to commit any of the acts enumerated in the five clauses of that section. Section 149 provides that every member of an unlawful assembly who, at the time of the committing of an offences, is a member of the same assembly, is guilty of offence committed by one of its members in prosecution of common object or such as the members of that assembly knew to be likely to be committed in prosecution of that object. In the instant case, the accused persons were more than five and they had gathered at the spot, armed with weapons and had then illegally intercepted Anil. They had thus formed an unlawful assembly. Two of them had caught Anil while he was attacked on his head with Farsa by third member of assembly. He had fallen and ultimately died.
39. As regards common object of assembly, it may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It was enough if each has the same object in view and their number is five SC No: 54/09 43 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident.
40. As noted earlier, accused persons were together and were armed when Anil was felled by three of them and others had made fun of him. When kith and kin of Anil came to his aid, they were assaulted by all the accused persons in unison. This unequivocally reflects that they shared a common object i.e. to make the complainant party leave the plot in question by show and use of their muscle power.
41. Death of Anil was caused in prosecution of the said common object of unlawful assembly. It is hence not necessary to record a definite and specific finding as to which particular accused SC No: 54/09 44 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. caused the fatal injury. All are equally guilty.
42. Once the case of a person falls within the ingredients of the section, the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of that object. The basis of the constructive guilty under section 149 is mere membership of the unlawful assembly with the requisite common object or knowledge. Thus, once it is held that certain accused persons formed an unlawful assembly and an offence is committed in prosecution of that offence everyone who was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act nor can court require the prosecution to prove which of the members did which of the offensive acts. Besides murder of Anil, accused persons had also caused injuries to PW1,PW2, PW3 and PW9 as proved by their respective medical records. Fingers of one of injured persons were chopped, another one sustained serious injury on his head while injuries of other two were described as simple in nature.
43. For all these reasons, I am satisfied that prosecution has SC No: 54/09 45 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. succeeded to prove its case beyond reasonable doubt, as per law. Consequently all the accused persons are hereby convicted for the offences punishable under Sections 148,323,308,326,302 r/w 149 IPC.
44. Put up on 11.03.2011 for consideration on the point of sentence.
Announced in the open
court on 26.02.2011 (MAMTA TAYAL)
ADDL.SESSIONS JUDGE
DWARKA:NEW DELHI
SC No: 54/09 46 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
IN THE COURT OF MS. MAMTA TAYAL
ADDL. SESSIONS JUDGE : DWARKA COURTS
NEW DELHI
SC No. 54/09
FIR No. 09/03
Police Station J. P. Kalan
U/Section 148,323,308,326,302 r/w 149
IPC
Received on transfer 18/05/2009
Judgment announced on 26/02/2011
Order on sentence 11/03/11
State V/s 1.Randhir Singh
S/o Shri Subey Singh
R/o Village and Post office Ghumanheda
New Delhi.
2. Kehar Singh (Since dead and
S/o Shri Chottu Ram Proceedings abated
R/o Village and Post office vide order dated
Ghumanheda, New Delhi. 27.01.2011)
3. Chattar Singh
S/o Shri Sube Singh
R/o Village and Post Office Ghumanheda
New Delhi.
SC No: 54/09 47 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
4.Krishan Kumar
S/o Nafey Singh
R/o Village & Post office Ghumanheda
New Delhi.
5. Ranbir Singh
S/o Shri Subey Singh
R/o Village & Post office Ghumanheda
New Delhi.
6.Ajay @ Leelu
S/o Shri Satbir Singh
R/o Village & Post office Ghumanheda
New Delhi.
7.Netarpal
S/o Shri Dharambir Singh
R/o Village & Post office Ghumanheda
New Delhi.
Also: Village Nanaud, Distt Rohtak
Haryana.
8.Jagjit @ Jaggar
S/o Dharambir Singh
R/o Village Nanaud, Distt Rohtak
Haryana.
ORDER ON THE QUANTUM OF SENTENCE
SC No: 54/09 48 D.O.O. 26.02.2011
SC No: 54/09
FIR No: 09/03
PS : J.P. Kalan
State Vs. Randhir Singh etc.
1. I have heard all the convicts in person, Ld. Defence Counsel Shri Lalit Verma as well as Ld. Addl. P.P. at length as to quantum of sentence to be awarded to the convicts in the present case. It is urged by Ld. Defence Counsel that convict Randhir Singh is 48 years old having liability of two sons and one daughter, all unmarried, convict Krishan Kumar is 38 years old having liability of two sons and one daughter, all minors, convict Chattar Singh is a military person having liability of two sons and one daughter, all unmarried, convict Ranbir Singh is 50 years old having liability of two unmarried sons, convict Netarpal is a young man of 30 years age having liability of one daughter aged 8 months and one son aged 2 years while convict Jagjit is 27 years old having liability of a 1 ½ years old son. Ld. Defence urged that all the convicts have no criminal antecedents. He prayed that a lenient view may be taken as case does not fall in the category of rarest of rare cases.
2. Per contra Ld. Addl. PP for the State has prayed for awarding capital punishment to the convicts stating that they acted in unusually cruel manner by committing murder SC No: 54/09 49 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. of a college student who was alone an unarmed while all the convicts were carrying weapons with them.
3. While awarding sentence, a delicate balancing of various factors such as those which give an insight into the state of mind, motivation, attitude and propensities of the accused persons, have to be done while at the same time, keeping in view the larger societal interests. The principle that in case of murder, life imprisonment is the normal rule and the death sentence should be handed down in rarest of rare cases is ofcourse uppermost in the mind of a Judge.
4. The nature of the crime, the circumstances of the criminal and the impact of the crime on the community are broadly the considerations that ought to be kept in view by a Court called upon to choose between the death sentence and the life imprisonment.
5. In Machhi Singh v. State of Punjab,1983(3) SCC 470 : 1984(2) RCR(Crl.) 412 (SC) Hon'ble Apex Court Laid down the following working test to reach the conclusion whether a particular case warrants death sentence :
"(a) Is there something uncommon about the crime which SC No: 54/09 50 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. renders sentence of imprisonment for life inadequate and calls for a death sentence ?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?"
6. Analysing facts of instant case in this light, apparently this is not a case where it can be said with certitude that the murder was committed in a diabolical and utter cruel fashion. Nor can it be said that "the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society".
7. The present case, therefore, does not fall in the category of rarest of rare cases and does not warrant awarding death sentence.
8. I accordingly hereby sentence the convicts to undergo imprisonment for life each and to pay fine of Rs. 10,000/each and in default of payment of fine, to further undergo S.I. for six months each for the offence punishable U/s 302/149 IPC. The convicts shall further undergo RI for SC No: 54/09 51 D.O.O. 26.02.2011 SC No: 54/09 FIR No: 09/03 PS : J.P. Kalan State Vs. Randhir Singh etc. five years each and pay fine of Rs. 5000/ each ID to undergo SI for three months each for offence punishable under Section 308/149IPC. The convicts shall further undergo RI for five years each and pay fine of Rs. 5000/ each ID to undergo SI for three months each for offence punishable under Section 326/149IPC. The convicts shall further undergo RI for one year each for offence punishable under Section 323/149 IPC. The convicts shall further undergo RI for one year each for offence punishable under Section 148 IPC. All the sentences shall run concurrently. The convicts shall be entitled to benefit of Section 428 Cr. P. C. as per law. Copy of the judgment and order on sentence is given to the convicts, free of cost. File be consigned to record room.
Announced in the open (MAMTA TAYAL)
court on 11.03.2011 ADDL. SESSIONS JUDGE
DWARKA COURTS: NEW DELH
SC No: 54/09 52 D.O.O. 26.02.2011